Court of Appeal (Qld)|2004-04-23|Before: McMurdo P, Williams JA and Mullins JSeparate, reasons for judgment of each member of the Court, each concurring as to the, orders made
McMurdo P, Williams JA and Mullins 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 – WHERE APPEAL DISMISSED – where
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 – whereappellant/applicant convicted of one count ofrape (penetration of anus by acane) and one count of torture, but found not guilty of another count of rape(penetration of vaginaby a cane) – where appellant/ applicant's case wasthat he had inserted cane into complainant's vagina either with her consentorhe honestly and reasonably believed she was consenting, but that he had notinserted cane into her anus – where fresh complaintof insertion of caneinto anus – whether there was a reasonable basis upon which jury couldfind appellant/applicant guiltyof one count of rape and not guilty of the otherwhen they were part of same series of eventsCRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – PARTICULAR GROUNDS –
CONDUCT OF LEGAL
PRACTITIONERS – where appellant/applicant alleged lawyers failed to
present evidence as instructed –
where appellant/applicant alleged lawyers
failed to follow instructions that he wished to give evidence – where
appellant/applicant
alleged lawyers failed to advise him to enable him to make
an informed decision about whether or not to give evidence – whether
constituted miscarriage of justice
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – PARTICULAR GROUNDS –
FRESH EVIDENCE
– AVAILABILITY AT TRIAL
MATERIALITY AND COGENCY – GENERALLY –
where evidence of anal spasm suffered
by complainant important to prosecution
case at trial – where uncontradicted by defence evidence – where
application
to adduce fresh evidence on appeal as to other possible causes of
anal spasm – where evidence available at time of trial –
whether
appellant/applicant deprived of chance of acquittal fairly open to him –
whether application should be allowed
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED
PERSONS –
APPLICATIONS TO REDUCE SENTENCE – PARTICULAR OFFENCES – OFFENCES
AGAINST THE PERSON – SEXUAL OFFENCES
– where appellant/applicant
sentenced to eight years imprisonment with a declaration that he was convicted
of a serious violent
offence for rape – where sentenced to five years
imprisonment with similar declaration for offence of torture ––
whether declarations under s 161B(3) of the Penalties and Sentences Act
1992 (Qld) should have been made in respect of each offence – whether
sentence considered as a whole was in all the circumstances
manifestly
excessive
Evidence Act 1977 (Qld), s 21APenalties and Sentences Act
1992 (Qld), s 161B(3)
Mackenzie v The Queen (1996) 190 CLR 348, consideredR v
Bojovic [1999] QCA 206
[2000] 2 Qd R 183, followedR v N [2003] QCA 505
CA No 77
of 2003, 14 November 2003, consideredR v N [2003] QCA 574
CA No 311
of 2003, 19 December 2003, followedTKWJ v R [2002] HCA 46
(2002) 76
ALJR 1579, followed
Judgment (133 paragraphs)
[1]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED - where appellant/applicant convicted of one count of rape (penetration of anus by a cane) and one count of torture, but found not guilty of another count of rape (penetration of vagina by a cane) - where appellant/ applicant's case was that he had inserted cane into complainant's vagina either with her consent or he honestly and reasonably believed she was consenting, but that he had not inserted cane into her anus - where fresh complaint of insertion of cane into anus - whether there was a reasonable basis upon which jury could find appellant/applicant guilty of one count of rape and not guilty of the other when they were part of same series of events
[2]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - CONDUCT OF LEGAL PRACTITIONERS - where appellant/applicant alleged lawyers failed to present evidence as instructed - where appellant/applicant alleged lawyers failed to follow instructions that he wished to give evidence - where appellant/applicant alleged lawyers failed to advise him to enable him to make an informed decision about whether or not to give evidence - whether constituted miscarriage of justice
[3]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - FRESH EVIDENCE - AVAILABILITY AT TRIAL; MATERIALITY AND COGENCY - GENERALLY - where evidence of anal spasm suffered by complainant important to prosecution case at trial - where uncontradicted by defence evidence - where application to adduce fresh evidence on appeal as to other possible causes of anal spasm - where evidence available at time of trial - whether appellant/applicant deprived of chance of acquittal fairly open to him - whether application should be allowed
[4]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - where appellant/applicant sentenced to eight years imprisonment with a declaration that he was convicted of a serious violent offence for rape - where sentenced to five years imprisonment with similar declaration for offence of torture -- whether declarations under s 161B(3) of the Penalties and Sentences Act1992 (Qld) should have been made in respect of each offence - whether sentence considered as a whole was in all the circumstances manifestly excessive
Director of Public Prosecutions (Queensland) for the respondent
[13]
**[1] McMURDO P: The appellant was convicted on 5 March 2003 in the District Court at Southport of one count of rape (penetration of the anus by a cane) and one count of torture. He was found not guilty of one count of rape (penetration of the vagina by a cane). All the charged offences were said to have occurred on or about 24 September 2001. On 4 April 2003, the appellant was sentenced to an effective term of imprisonment of eight years with a declaration that he was convicted of a serious violent offence under s 161B(3)Penalties and Sentences Act 1992 (Qld) ("the Act"). Declarations were also made as to the time spent in custody under s 161 of the Act. The appellant contends that the verdict was unreasonable; that inadmissible evidence was placed before the jury; that the appellant's legal representatives did not present evidence as he instructed; that fresh evidence which should have been called at the trial should now be received by this Court and that the sentence was manifestly excessive.
[14]
[2] The trial had an unusual history. It commenced before the learned primary judge on 3 December 2002 when the appellant was arraigned and pleaded not guilty to all counts. The appellant contended that his record of interview with police was inadmissible as evidence because he was affected by alcohol at the time he gave it. Police witnesses and the appellant gave evidence on that issue in the absence of the jury ("the voir dire"). The judge held that the interview was admissible. The jury was empanelled the next day, but the complainant became too distressed to continue giving evidence; she received medical attention and indicated that she became extremely anxious giving evidence of the offences in the presence of jurors. On 5 December 2002, the jury was discharged and the trial judge ordered under s 21A Evidence Act 1977 (Qld)[1] that the complainant's full evidence be video-taped from 10am Tuesday, 10 December 2002 and that the video-taped evidence be viewed and heard in the trial instead of the complainant's direct testimony. That order was effected by the complainant giving video-recorded evidence, (in chief, cross-examination and re-examination), in a court room with judge and counsel robed but without a jury. The trial was adjourned until Monday, 24 February 2003 when it re-commenced with a freshly empanelled jury. The complainant's video-recorded evidence was played in court as her evidence in the trial. The fact that the complainant's evidence was given by way of video-tape under s 21AEvidence Act 1977 (Qld) neither increases nor decreases its probative value or weight: s 21A(8)Evidence Act 1977 (Qld).
[15]
[3] The judges have perused portions of her videoed evidence as well as the transcript of it; the complainant appeared generally composed when giving her evidence, although she seemed to be noticeably shaking or shivering. No objection is taken as to her giving evidence at trial in this manner.
[16]
[4] The appellant's grounds of appeal require this Court to review the relevant evidence.
[17]
[5] On 4 December 2002, after the first jury was empanelled and in their absence, the appellant gave the following evidence on the voir dire. He had an alcohol problem and on the day of the alleged offences he consumed four litres of wine by 4pm, another four or five schooners of VB beer by 6pm and two middies of VB beer and probably another ten glasses of wine at the Lansdowne Tavern. When he left the Tavern he bought a bottle of rum (he was unsure whether this was a 700ml or a 1 litre bottle) at the ANA Hotel at about 8pm. Between 8pm and 3.45am he and the complainant shared the rum, glass for glass. When the complainant left his apartment at 3.45am he went to sleep until 7am when he opened a fresh four litre cask of wine; he drank two or three glasses to put himself back to sleep. He woke again at about 1pm and consumed the rest of the wine cask. He was on bail on another charge which required him to sign a bail book at the Surfers Paradise police station at 4pm daily. He attended the station for that purpose on 25 September. He was very affected by alcohol. A police officer told him that somebody wanted to see him upstairs. He said his solicitors had instructed him not to talk to police and that he wished to sign in as it was 3.50pm and he had been previously warned that failure to sign the bail book by 4pm would breach his bail. The police officer at the desk refused to allow him to sign until he spoke to the people upstairs. He was very drunk and felt sick because the rum he consumed the previous night had disagreed with him and he had not eaten for 48 hours. He was taken by four or five police officers in an elevator. The police refused his request to use the toilet. He took part in the record of interview because he thought that was the only way he would be allowed to sign the bail book. He could remember very little about the interview but had since viewed it; he noticed he laughed inappropriately, something he would not normally do when being interviewed by police about such a serious matter. At no stage during the lengthy tape recorded conversations with police did he mention his concern about signing the bail book. He signed the bail book some time after the interview concluded.
[18]
[6] The learned primary judge was not impressed by the appellant's evidence on the voir dire. His Honour did not call on the prosecutor to address him in respect of it and stated that the record of interview was admissible; he would give his reasons later.
[19]
[7] On 3 March 2003, his Honour gave those reasons, noting that the experienced police officers did not observe any of the indicia of intoxication about the appellant prior to or during the interview. Having listened to the tape, his Honour accepted the evidence of the police officers and concluded that the appellant was clearly sober when he spoke to police; he did not slur his words and was lucid in his answers, which were responsive to the questions asked; his Honour did not find the appellant a convincing witness and his claim of blackmail in respect of the bail book was transparently false.
[20]
[8] The complainant, who was 36 years old, and her friend, S, went to the Lansdowne Tavern at about 2.30pm on 24 September 2001. She said she drank two beers and about three or four glasses of wine. At about 6.00pm she met the appellant who bought her a couple of glasses of wine. She was accustomed to drinking alcohol and this quantity would not normally have affected her. She did not recall leaving the Tavern.
[21]
[9] S noticed some blood on the complainant's shirt in the shoulder area whilst they were at the Tavern. She asked the complainant about it; she said she had bitten the appellant. Scientific testing revealed the blood on the collar of the complainant's blouse matched blood taken from the appellant; when the appellant was arrested late on 25 September, he had an injury to his mouth. The bar manager at the Tavern saw the appellant and the complainant kissing or "having a bit of a snog".
[22]
[10] The next thing the complainant remembered was that she was naked on the lounge room floor of a unit and the appellant was sitting fully dressed on a couch, holding and tapping a cane. He said that if she was to be his girlfriend she would have to learn to take it harder and he pulled her hair so that her face was looking at him. She complied with his direction to lean over the arm of the couch; he said that if she moved she was going to get it worse, although he had not then caned her. When she did move, he whipped her with the cane on her buttocks, just under her buttocks, once on her back, and down the back of her legs. She did not know how many times he whipped her. She felt him insert the cane into her anus, putting it in and out and then in. Her next recollection was that she reached for a drink of water; he said it was the wrong drink and he bit her on the right breast. She tried to push him away and fell backwards. He came up to her, told her to spread her legs, grabbed one leg and whipped her with the cane on her pubic mound; he used great force, commencing the stroke from behind his head; she felt a burning, excruciating pain. She rolled over. He grabbed her left leg and pushed the cane into her vagina, pulling it in and out. Eventually he stopped. She remembered grabbing the cane and breaking it over her knee. He became angry. He left the room and her next recollection was that he injected one needle and then another into her arm, saying, "I'm putting a needle into your arm." She lapsed in and out of consciousness and her memory was fragmented. Her next recollection was walking along a road; a car stopped and a man drove her home. She was in pain from the caning and both orifices were sore. She did not consent to his conduct.
[23]
[11] In cross-examination she gave the answer, "I don't know" to many questions. She said she was not a drug user although she had a flatmate who smoked cannabis and was a passive smoker in the sense that she inhaled smoke from the cannabis consumed by her flatmate. She denied ever knowingly taking "ecstasy". She could not remember the appellant buying her water on the way to his unit. She denied going to the appellant's home to engage in consensual discipline sex. She had no explanation as to how amphetamines could have been in her system. She did not remember removing her clothing and having a bath, drinking rum and coke or smoking cigarettes with the appellant. She has a great fear of hypodermic needles. She denied having lengthy oral sex with the appellant by sucking on his penis. She admitted noticing the appellant's expensive diamond rings on his fingers on the night of the offences. She did not recall a police officer phoning her at 6.20pm on 25 September at the hospital and telling her that the appellant had confessed to inserting something into her anus; she was heavily sedated whilst she was in hospital. Since these events, she has had flashbacks of memory. She was told that she could claim $75,000 compensation from the government for these offences. She had no recollection of leaving the appellant's unit at about 8.30pm and then later returning after having a problem with the security. She had no recollection of a conversation with the appellant to the effect that he usually preferred size 6 girls. She could not recall any conversation with him about bondage and discipline or the Hellfire Club, a club of which she had never heard. She could not remember biting the appellant on the lip at the Lansdowne Tavern.
[24]
[12] In re-examination she said that whilst she was in the appellant's unit she did not feel in control; her head and her body were on two different levels and it was for this reason that she did not fight off the appellant or leave the unit. She was not conscious of the whereabouts of her clothes or the door; she had the sensation she was in deep trouble. Somebody told her she could get compensation from the appellant but she had since heard this was false but if he was found guilty the government would decide how much money she could get.
[25]
[13] Mr Henderson ran a deli on the ground floor of Crown Towers. At about 8pm he saw a woman matching the complainant's description near the lifts. She was speaking loudly and irately into the security intercom system which allows access to the building and lifts. Another guest assisted her to use the system.
[26]
[14] A security officer at Crown Towers where the appellant lived saw the complainant leave that complex's lifts at about 4.15am. Her white blouse and her top trouser buttons were undone. She was clutching at her chest and had a horrified look on her face. He asked her what happened but she moved away from him. He called over Ms Fisher, a female cleaner. Ms Fisher described the complainant as "very distraught, very upset [and] ... pretty hysterical". She said, "This shouldn't have happened to me. ... I'm big and fat. He shouldn't have raped me." She declined their offer to call the police, and instead they called a taxi to take her home. In the taxi, she said something like, "Oh, he shouldn't have given it to me up the arse" or "He gave it to me up the arse" and told the driver something to the effect that he would not know what it was like to be raped. Although he was not sure of the precise words, she did use the word "rape". Both the taxi driver and the Crown Towers employees reported the matter to police.
[27]
[15] Police officers Martin and Walker first saw the complainant in the car park of her unit block. She appeared distressed and walked away from them as if she did not wish to speak. She was holding her back, appeared dishevelled and was carrying her shoes. The buttons were ripped off her white shirt. She took her underpants and bra from her handbag and seemed to be asking why they were in her handbag. She said, "These aren't sexy. I didn't plan on having sex last night. Why would they be in my handbag?" When they entered the courtyard, the complainant pulled down the back of her pants to reveal extensive bruising from the bottom of her back across her buttocks and welts across her backside. She did not make a complaint; she said she did not know what had happened to her.
[28]
[16] Police officers McGrath and Percival attended the complainant's home believing they were investigating a complaint of physical and sexual assault. They noticed she was agitated and distressed but she made no complaint to them; she indicated that her pain was in the anal area. She was crying, extremely upset, shaking, almost hyperventilating and could barely sit down. She showed them her buttocks area which was severely bruised. She told police officer Percival that she believed she had been raped and indicated pain in her anal area. She went with them to the police station but she was adamant that she wanted to shower, despite their discouragement from that course before a medical examination. They were initially told there would be a two hour delay before she could see a government medical officer. On the complainant's insistence that she did not want to pursue a complaint, police officers drove her home to allow her to shower. About 30 to 45 minutes later, she phoned police and returned with them to the police station and then to Southport Hospital where she was examined by Dr Culliford, a government medical officer.
[29]
[17] Dr Culliford's notes record the complainant reporting the following. "Can remember very little. Had a couple of drinks last night. Remembers nothing until waking up this morning with ? needle in her arm ... confused, vomiting, no memory of the events." The complainant was distressed and at times incoherent; it was difficult to obtain a history from her. Her memory faded in and out. She appeared to be in quite significant pain. She had extensive linear (tram track) bruising across her buttocks and upper thighs and a bruise across her back. Tram track bruises are white in the middle with a coloured bruise either side of the white; they are caused by a linear object being forced against the skin. More than ten impacts were needed to have caused this bruising. She had a 2cm lump on the back of her head and what appeared to be two needle marks or injection sites at the left bend of the elbow. In cross-examination, Dr Culliford conceded it was possible that these marks were mosquito bites, although that was not the opinion she formed at the time. She had a bruise on her right breast, three 1cm bruises on her right elbow and a bruise on her thigh. Dr Culliford could not say how the bruise on her right breast was caused. The complainant was reluctant to allow a genital examination. An external examination did not reveal any injury to the external genitals. A digital vaginal examination revealed no internal injuries or irregularities, but the complainant then resisted an internal speculum examination of the vagina. Dr Culliford's notes stated that the complainant experienced "no vaginal pain", although in cross-examination she said that other factors, such as the complainant's difficulty in passing urine and the problems experienced in examining her pointed to the possibility that this statement was incorrect. The absence of visible injury to the vagina did not, however, preclude penetration of it with a cane.
[30]
[18] The doctor examined the complainant's anus externally and noticed that she had extreme anal spasm, that is, the sphincter of the anus was absolutely rigidly closed in painful spasm making it impossible to do a proctoscopic examination. There were no external tears or injury. Anal spasms can last for 72 hours or even longer and often occur after some external stimulus, usually trauma, to the area, whether by surgical intervention, penetration of an instrument or a natural anal fissure. The doctor took blood and urine samples. She arranged for the complainant to stay in the hospital observation ward overnight.
[31]
[19] The next day Dr Culliford again examined the complainant and this time was able to perform an anal examination after giving her an injection of pethidine. She still had marked anal spasm. She could not discover any injury to the anus in the lower five or six centimetres. The absence of such injuries did not exclude penetration of the anus with a cane.
[32]
[20] Hospital records indicate that at 6.20pm on 25 September 2001 the complainant received a telephone call. They record "Patient reports was told by police that the man who had been taken into custody has admitted to assaulting patient. Patient reports that she has been told that perpetrator has been charged with rape and torture. Reports perpetrator has admitted using cane stick to beat her and insert stick into her anal passage."
[33]
[21] The complainant gave a police statement on 5 October 2001. Until 19 March 2002, when the complainant gave a further statement to the prosecuting authorities prior to committal, she had made no unequivocal formal complaint that the appellant had actually penetrated either her vagina or anus.
[34]
[22] Police interviewed the appellant in a video-taped interview commencing at 4.30pm on 25 September. He told police a girl picked him up at the bar and wanted to take him home but he insisted they go to his place. They did not have any kind of sex but she said she had never tried "B and D"[2] and would like to try it. They bought a bottle of rum, went to his place, tried "B and D" and at 4.00am she said, "Oh, yeah, I'm happy to go home now." He tried to dissuade her from leaving because she was drunk and had fallen over in the bathroom.
[35]
[23] He expanded on the incident. At the hotel she kissed him and bit his lip making it bleed onto her shirt. By the time they left the hotel the complainant appeared to be very drunk and staggering; she said she had bad balance or vertigo. He had also been drinking to the point that he would not drive a car. She offered him some sort of drug from her handbag but he declined. She asked him to buy her a bottle of water which he did. When they arrived at his unit at Crown Towers, she went into the bathroom and ran a bath. She asked him to bathe with her but he refused. He poured a drink, sat on the sofa and she started to take his clothes off. When asked what sex, if any, occurred, he stated, "none at all" but when asked specifically about oral sex said that the complainant performed oral sex on him from about 8pm till about 4am. He did not ejaculate.
[36]
[24] He was referred to the considerable bruising on her buttocks and said this was from the "B and D". He hit her with a cane which he kept in a cupboard, initially a couple of times lightly. She said, "Oh, I like that" and "Look, I'm all wet." He put his hand "underneath" and said, "Honey, you're not wet, I don't think you like it." She explained she had had cervical cancer; she liked the caning and wanted him to do it again; to please her he continued to cane her on the back and buttocks. She was capable of asking him to stop. He hit her about ten times increasingly harder. He explained that in "B and D" a light hit was a wrist action, a medium hit was an elbow action and "something you don't do for sexual gratification would be, like, the headmaster at school. ... It's an arm action." He could see she had a fair bit of bruising.
[37]
[25] He initially denied penetrating her anus or vagina but then conceded that he thought he did penetrate her vagina with the cane, just "tickling her around the front". At 4am she wanted to go home; they had consumed a full bottle of rum and he told her she should not go home in that state. At one time when she was sucking on his penis, she lost her balance, rolled backwards and hit her head on the stereo cabinet. He did not see her inject herself and he had no syringes.
[38]
[26] Forensic tests revealed the following. A drinking glass in the appellant's kitchen sink provided a mixed DNA profile consistent with both the complainant and the appellant. A Franklin water bottle gave a DNA profile consistent with the complainant. Forty-five cigarette butts in an ashtray in the appellant's unit were tested, eleven gave the appellant's DNA profile, three gave the complainant's DNA and 17 gave a mixed profile of both. A broken stick or twig found on the bathroom floor gave a DNA profile consistent with the complainant. Her DNA was also found on one end of a cane located at the appellant's home. The detected cells were consistent with epithelial[3] cells although it was not possible to say whether they were vaginal or buccal[4] cells. The two canes located at the appellant's home were not tested for faeces but there was no obvious faecal staining. No rum bottle, needles or drugs were located.
[39]
[27] The sample of blood taken from the complainant showed an alcohol reading of .133; it can be expected that her blood alcohol level was considerably higher before she left the appellant's unit at 4am. No other detectable drugs were found in the blood sample but amphetamine and methylamphetamine were found in a concentration of 60 micrograms per litre in the urine sample. Such a reading is insignificant and suggests the use of amphetamines a number of days before the sample was taken.
[40]
[28] On 25 September 2000, the appellant was charged with the offences of rape (vaginal) and torture; after the complainant gave her additional statement on 19 March 2002, he was charged with an additional count of rape (anal).
[41]
[29] The appellant did not give or call evidence.
[42]
[30] The appellant's case at trial was that he did not insert the cane into the complainant's anus. He inserted the cane into the complainant's vagina either with her consent, or he honestly and reasonably believed she was consenting. He did not intentionally inflict severe pain on her when he caned her but believed he was giving her pleasure. The appellant contends there was no reasonable basis upon which the jury could find him not guilty of inserting the cane into the vagina, yet guilty of inserting it into the anus because the two episodes, were, on the complainant's account, part of the one occasion of non-consensual violence inflicted on her by the appellant; for the same reasons, the conviction on torture cannot stand.
[43]
[31] The appellant also emphasises that the complainant originally made no complaint to police about penetration of the vagina or anus with the cane. She told Dr Culliford she had no memory of the events the subject of the present charges. The hospital records indicate that someone told her the appellant had admitted using a cane to beat her and that he had inserted it in her anus. When she gave a further statement to police on 19 March 2002, the complainant alleged for the first time that the appellant had inserted the cane into her vagina and anus. The appellant contends that her evidence is so uncertain as to penetration on both counts of rape that a jury could not rely on it.
[44]
[32] If, giving proper weight to the jury's function and verdict, there is no logical and reasonable explanation justifying the inconsistent verdicts then the verdicts cannot stand: Mackenzie v The Queen.[5] The complainant was obviously distressed and dishevelled when she fled the appellant's apartment at about 4am on 25 September. She made a complaint to Ms Fisher of rape and to the taxi driver of penetration of her anus and rape. There was no such clear recent complaint as to the penetration of her vagina. Whilst the word "rape" is most commonly used to describe forced penetration of the vagina with the penis, it is also commonly used to refer to non-consensual sodomy and, less commonly, non-consensual penetration of either the vagina or anus with an object, reflecting the wider current definition of "rape" in s 349 Criminal Code. The complainant did not give evidence of nor recall any recent complaint. This was explicable by her intoxication and the shock which could be expected to result from her significant painful injuries. The evidence of recent complaint from the Crown Towers employees and the taxi driver was, nevertheless, capable of being construed as evidence of consistent conduct on her part. The jury were directed that this evidence of fresh complaint and the absence of a clear complaint of vaginal rape could be considered to determine whether her behaviour was consistent with her present allegations. The appellant admitted vaginal penetration with the cane but said she consented. Because she made no particularised complaint of vaginal penetration by the cane until about six months later, the jury were entitled to regard her failure to complain early about vaginal rape as showing inconsistency as to that claim, especially when the prosecution had to negative beyond reasonable doubt both consent and honest and reasonable mistake as to consent. Further doubt may have been cast by Dr Culliford's note that the complainant had "no vaginal pain" and the absence of any finding of injury to the vagina. On the other hand, the complainant was consistently distressed, made an early complaint of anal penetration, was in pain in the anal area, could barely sit down and the medical examination revealed evidence of anal spasm. This was all consistent with her evidence of anal penetration. The appellant's case was that there was no anal penetration, not that she consented or that he honestly and reasonably believed she was consenting. On the evidence, there was a rational explanation for the jury's acquittal of the appellant on the charge of vaginal rape and his conviction of anal rape.
[45]
[33] As to the jury's conviction on the offence of torture, the complainant's evidence was supported by her obvious discomfort and distress shortly after leaving the appellant's unit, the photographic evidence of the extremely severe bruising to her back and buttocks, and Dr Culliford's evidence of the significant force necessary to cause the bruising and that in excess of 10 blows must have been administered.
[46]
[34] A review of the whole of the evidence does not support the appellant's contention that the jury verdicts were unreasonably inconsistent; there was a logical and reasonable explanation justifying them consistent with the evidence. The weaknesses in the complainant's evidence were in issue at the trial and were matters for the jury to consider in determining whether the prosecution had proved its case beyond reasonable doubt. They did not compel the jury to reject her evidence as to anal rape and torture; her evidence on these charges was, as I have outlined, supported by other evidence. This ground of appeal fails.
[47]
[35] The appellant's counsel at trial adduced, through Dr Culliford, the contents of hospital notes referred to earlier.[6] This was clearly done on the appellant's unequivocal instructions to support the defence contention that this false information influenced the complainant to later make an unreliable complaint of penetration of the anus with the cane. The appellant did not admit inserting the cane into the complainant's anus; the appellant contends that the appellant's counsel at trial did not ensure the jury understood the information in the hospital records was untrue; the jury may have thought the appellant did admit these things.
[48]
[36] Re-examination of Det McGrath included the following:**
[49]
"As at 1820 or 6.20pm on the 25th of September,[7] were you aware of any admission made by the accused man as to inserting a stick into [the complainant's] anal passage? - - No."
[50]
**The appellant contends that, nevertheless, that questioning did not sufficiently demonstrate that the hospital records were inaccurate, but left open the real possibility that Det McGrath was simply unaware of such an admission made by the appellant to some other unknown person.
[51]
[37] The transcript of the legal argument on 3 March 2003 records that defence counsel did not refer to the hospital notes in the course of his jury address and that the prosecutor referred to them only as indicating that they recorded the complainant talking nonsense when she was heavily sedated. The trial was not conducted on the basis that the hospital notes were an accurate record of admissions made by the appellant. To avoid highlighting something of no consequence in the trial and with the concurrence of the appellant's counsel at trial, his Honour made no reference to the hospital notes in his summing-up to the jury.
[52]
[38] It is fanciful to conclude the jury may have used the hospital records in the way the appellant contends. On the evidence, the only reasonable inference open was that the complainant's statement recorded in the hospital records was unreliable. It was a matter for the jury to consider whether her unreliability on this occasion when under sedation in hospital also tainted her subsequent account of the offences. The appellant has not established that the admission of the hospital records on his insistent instructions and the subsequent omission of his counsel to ensure the jury were specifically informed that the appellant made no such admission to anyone at all has caused any miscarriage of justice.
[53]
Did the appellant's lawyers fail to present evidence as instructed and to properly advise the appellant to enable him to make an informed decision whether or not to give evidence?
[54]
[39] The appellant contends that, until his barrister responded on his behalf at the close of the prosecution case that he would not give or call evidence, he understood that he would give evidence at his trial and he instructed his lawyers in those terms. He also contends that the failure of his legal advisers to inform him, first, that if he did not give evidence the jury would be left with a paucity of evidence as to his state of intoxication at the relevant time and, second, that the complainant's sworn evidence would be left to the jury uncontradicted constitutes a miscarriage of justice: R v N.[8]
[55]
[40] The appellant, his trial barrister, Mr Murray, and his trial solicitor, Mr Bennett, have all given evidence in this appeal on that issue.
[56]
[41] The appellant gave evidence during most of the morning hearing of the appeal. At the close of the cross-examination of the appellant at about 12.30pm a fire alarm sounded in the court building in the course of an evacuation drill. The transcript records a discussion as to whether it was necessary to evacuate the courtroom and clearly records that the court adjourned at 12.33pm to resume at 2.00pm. It is of the utmost concern that the responsible officer in the State Reporting Bureau misunderstood what is plainly recorded on the court tapes and wrongly assumed court had finished for the day. From the time the court resumed at 2.00pm to hear the brief re-examination of the appellant until the court adjourned at about 4.50pm after hearing the evidence of Mr Murray and Mr Bennett and the submissions of the parties, no recording was made. Because the recording procedure in the Court of Appeal is by video tapes monitored elsewhere, the court was unaware that the proceedings were not being recorded. I have spoken to the responsible supervising officers in the State Reporting Bureau and I am investigating a review of procedures to ensure additional checks to minimise the possibility of a reoccurrence of such an episode. Fortunately, the members of the court made notes and have a clear recollection of what transpired.
[57]
[42] The appellant gave evidence that he retained Mr Alan Bennett of Lake Lawyers to be his solicitor at trial, instructing Mr David Murray of counsel. His lawyers did not obtain a statement of facts or proof of evidence from him but he gave Mr Bennett a signed hand-written statement with 63 numbered paragraphs (ex 2) which were the answers he intended to give in evidence; he requested that when he gave evidence Mr Murray ask questions to allow him to give those answers in the order recorded in ex 2.
[58]
[43] That statement of numbered answers included the following. He set out the large quantity of alcohol he had consumed prior to the commission of the alleged offences. He made many references to the complainant's large size; how unattractive he found her; that she offered him an "E" from her handbag as they walked from the hotel to his apartment; that she virtually dragged him to his apartment; that upon reaching his apartment she almost immediately took off her blouse and began sucking his "shrivelled penis". He said that he would not have sex with her because all his girlfriends had been size 6; she then stood up, grabbed her shirt and bag and stormed out of the unit without putting her shirt on; at about 8.30pm she rang the lobby buzzer demanding to come back up and because her loud behaviour was attracting attention and to avoid what he perceived was "a junkie type scene in the lobby" he allowed her to return. She went to the toilet and he heard the sound of running water. She walked out of the bathroom naked and said, "We're having a bath." She pulled down his shorts and again sucked on his "now very shrivelled penis". He laughed at "the rolls and rolls and rolls of fat on such a large woman". He rejected her offer of joining her in the bath, saying, "I think I'll stay here and have a non-stop drink." She continued to call him; suddenly her voice sounded panicky and so he returned to the bathroom. She had taken out the plug and was sitting over the plughole; because of her size, an airtight water lock formed as the water emptied behind her whilst the water in front was still up to her breasts; the resulting suction meant she was stuck in the bath. He was suffering from chronic fatigue syndrome and was unsuccessful in his attempts to assist her out of the bath. He finally released her by breaking the suction effect but it was very difficult to pull her out of the bath because of her size. He left her sitting on the side of the bath and returned exhausted to the sofa in the lounge room. He heard a bang and crying. He returned to the bathroom to find the complainant on the tiled bathroom floor, crying; she asked to be left alone. She seemed very depressed. He left her but suddenly she emerged and suggested that they try some of the practices involving bondage and discipline about which they talked at the hotel. She said, "Come on, whip me." The only equipment he had was a cane. She said, "Well, try that. I want to try." He told her to lie across the arm of the sofa and gave her a couple of light strokes from the wrist with the cane. He felt between her legs and observed that she was "as dry as a bone"; this meant that she was not aroused by the caning. She said that he did not understand; she had undergone surgery for cancer and did not get wet; she said, "Do it again, it doesn't hurt." He gave her a couple more strokes, a bit harder this time from the elbow and then sat down. She sat next to him and he explained that the purpose of the caning was to sexually arouse and that this occurred with multiple orgasms just before the caning becomes too painful; because she did not get wet when aroused he could not tell when this point was reached. At 10pm she asked him to try again insisting that she knew what she liked. He said, "Later." They continued smoking, drinking rum and coke and watching music videos. At about 10.30 or 11.00pm he decided that he would not go out to meet a male friend because it was too late and he might as well stay and drink the rum and coke. The complainant was cracking one-line jokes. At about 11.00 or 11.30pm she begged him to give her another two or three strokes and he complied "just to shut her up". They then sat down again and smoked and drank. At about 2.00am, she fell asleep on the sofa and woke up at about 3.30am to use the toilet. When she returned she was staggering and had to hold on to the door frame and the back of the sofa. She fell straight back hitting her head on the bottom of the stereo cabinet. He assumed she had taken some kind of drugs and said, "I don't want junkies in my home. Now get out!!" She said, "Fine, I'll go like this"; she took her bag, put all her clothes in it and walked out the door. He checked his watch and saw it was 3.45am. She then returned and suggested they have dinner the next night. He said, "I've told you I don't like junkies." She left and he went to bed.
[59]
[44] On 29 November 2002, shortly before the trial commenced, he had a conference with Mr Bennett, who took notes. He gave instructions to his lawyers to cross-examine Det McGrath "extra hard and in detail" as to his call to the hospital on 25 September 2001 when he spoke to the complainant; that she had fallen twice on the bathroom floor and that this may have caused the bruising; that he was being treated for alcoholism and had consumed a huge amount of alcohol that day so that he was incapable of forming an intention to inflict pain; rather, his intention was to sexually arouse the complainant; his intoxication had unwittingly resulted in harder cane strokes than he had realised. Bennett made notes of that conference a copy of which was tendered in this appeal (ex 1).
[60]
[45] Mr Bennett told him that in his opinion the appellant's record of interview with police would be excluded by the trial judge on a voir dire because the appellant was intoxicated when he gave it. Mr Murray's advice was that the voir dire was unlikely to succeed but they decided to proceed with it in any case. After the voir dire, Mr Murray told him that his performance as a witness had been poor; he demonstrated arrogance that would not impress a jury and clearly did not impress the judge.
[61]
[46] Mr Bennett frequently advised him that he would have to give evidence at his trial. Before the trial resumed on 24 February 2003, he had a short conference with Mr Bennett and Mr Murray during which there was no discussion as to his giving evidence and nor did he discuss this issue with them during the trial; he assumed that he would give evidence. When he was asked whether he was to give or call evidence shortly after 2.30pm on Thursday, 27 February 2003, he looked at his counsel because the judge said "Your counsel may answer on your behalf." The transcript records that Mr Murray answered, "My client will neither call nor give evidence" and the appellant did not dissent. He did not know he could dissent and accepted his counsel's decision even though he had not given those instructions and nor had it been explained to him that if he did not give evidence the version of the complainant would be before the jury uncontradicted by sworn evidence from him. He regarded his signed instructions indicating his intention to give evidence as absolute and not open to debate.
[62]
[47] At the end of the day's hearing when the court adjourned until Monday, 3 March 2003, he beckoned to Mr Bennett and asked to speak to him but Mr Bennett said that he and Mr Murray had to rush back to the office to prepare the final address. He attempted to phone Mr Bennett the next day, but was unsuccessful; he left a message with Mr Bennett's secretary, Terri, that he wanted a full conference with Mr Murray before his final address to ensure Mr Murray emphasised his alcohol consumption, Det McGrath's interference with the complainant's evidence as revealed by the hospital records and some other minor points. He did not have any conference with Mr Murray prior to his address to the jury. On Monday, 3 March counsel completed their addresses and the judge's summing-up was almost completed. Mr Murray informed the judge that as he was in another matter on 4 March he would not be appearing but that Mr Bennett would appear instead. On the morning of 4 March, the appellant had a conference with Mr Bennett; he was very angry and gave Mr Bennett his notes prepared the previous night (ex 3). The notes indicated that he wanted his taped interview replayed so that the jury could correct the transcript because Mr Murray had indicated in his address that there were 26 errors in it; he wanted the jury to have the corrected transcript and the hospital notes in the jury room; he was angry that he had not had the conference with Mr Murray before his final address.
[63]
[48] In cross-examination, he agreed that he had given evidence against New South Wales police officers which had resulted in the exposure of police corruption and he had made a written complaint to the New South Wales Police Commissioner, Peter Ryan, about the behaviour of those police officers. He had previously been involved in multi-million dollar contract negotiations with international hotel chains and corporations.
[64]
[49] His lengthy instructions made no mention of tickling the complainant's vagina with the cane because he did not penetrate her vagina and he forgot that he said he had in his record of interview.
[65]
[50] He did not discuss with his legal representatives any inconsistencies between his instructions contained in ex 2 and his record of interview. He was in shock when his barrister said he would not be giving or calling evidence but he did not approach the judge in court to correct the matter either that day or when the case resumed the following Monday.
[66]
[51] On 10 March 2003, some days after his conviction and sentence, he sent letters to the Crime and Misconduct Commission, the Griffith University Innocence Program, the Ombudsman's office, the Queensland Law Society, Channel 9 Queensland, Mr Bennett, Mr Anton Maher of counsel, Mr Tim Carmody SC and the Bar Association (ex 4) complaining about Mr Murray's conduct of his case. In those letters, he made no complaint that his barrister denied him the opportunity to give evidence in his trial.
[67]
[52] Many of the matters raised in the 63 paragraphs of his written instructions were investigated by Mr Murray at trial. Some of the appellant's instructions in that document were inconsistent with or were not contained in the record of interview he gave police.
[68]
[53] Mr Bennett was first admitted as a legal practitioner in 1993 as a barrister and became a solicitor in 1996. He was the appellant's solicitor in his District Court trial. He did not have a clear and specific recollection of having seen exs 1 and 2, but was content to accept that the appellant gave the instructions recorded in them. At no stage did he prepare and have signed by the appellant a typed statement of instructions as to the facts surrounding the offence. He took notes of the appellant's instructions and recorded them and the sequence of events at a number of conferences with him. These were not produced. He also examined the crime scene. Early in the preparation of the case he told the appellant that, in his opinion, if a voir dire was held the record of interview would be ruled inadmissible by the trial judge and that the appellant should also give evidence at his trial. The judge did not believe the appellant on the voir dire and ruled that the record of interview was admissible. Mr Murray and he spoke to the appellant on a number of occasions about whether he should give evidence at his trial. Mr Bennett frequently advised the appellant before the commencement of and early in the trial that he should give evidence and should prepare himself for this.
[69]
[54] He was unable to say when the appellant decided not to give evidence; he had no file note to this effect; he did not take part in any conference in the cells in which the appellant gave instructions not to give evidence; he could not recall any conference with the appellant at the end of the Crown case on this issue; Mr Murray told him that the appellant had decided not to give evidence; he was unsure whether such a conference took place with the appellant in the dock. The appellant was, however, involved and consulted at every step of the trial and he understood the appellant accepted Mr Murray's advice not to give evidence; Mr Murray had stated that the appellant was not an impressive witness when giving evidence before the judge on the voir dire.
[70]
[55] Ordinarily he would have obtained signed instructions from the appellant that he did not wish to give or call evidence but he did not. He had no recollection of the appellant ever being advised in his presence that if he did not give evidence, the complainant's evidence would be unchallenged. Mr Bennett did not seek a medical opinion as to the possible causes of the complainant's anal spasm. He appreciated that evidence about the appellant's alcohol consumption prior to the incident was important to the torture charge.
[71]
[56] Mr Bennett recalled that the appellant phoned his secretary, Terri, on Friday, 28 February 2003; he wanted a conference with his lawyers the following Monday morning, 3 March 2003. Mr Murray was engaged in another matter on 4 March 2003 and was unable to appear in this case. Mr Bennett had a conference with the appellant prior to the commencement of court proceedings on 4 March 2003. The appellant was concerned that his counsel had not made enough of the hospital notes and their subsequent effect on the complainant's later statement implicating the appellant. He made no complaint then, after verdict or later in ex 4 about not giving evidence. When court resumed on 4 March in the absence of the jury, Mr Bennett unsuccessfully submitted, consistent with the appellant's latest instructions, that the hospital notes should be tendered and placed before the jury. The jury returned at 9.45am for the brief completion of the summing-up, retiring to consider their verdict at 10.10am. The jury were unable to reach a verdict that day. On 5 March 2003 at 10.30am they returned their verdicts.
[72]
[57] Mr Bennett then conferred with the appellant, who withdrew his instructions from Mr Murray and instructed Mr Bennett to brief another counsel. The appellant was angry because he did not think Mr Murray had sufficiently emphasised the hospital records, that the complainant could have easily left the appellant's unit at any time and that the anal spasm could have resulted from some matter other than penetration with the cane.
[73]
[58] On 6 March 2003, Mr Bennett wrote to the appellant in the following terms:**
[74]
"1. You provided extensive written instructions and you arranged for signed written receipt of the same when providing copies to instructing solicitor and counsel.
[75]
2. The medical notes detailing phone calls from police to the complainant were not tended [sic] into evidence. Such notes were read into the trial by Dr Culliford.
[76]
3. Whilst the transcript is yet to be scrutinized we do not recollect the following being raised in trial or address:-
[77]
Capacity for complainant to walk out the door on one of her numerous trips to the toilet.
The prospect for the anal spasm occurring as a result of a cause other than penetration with the cane."
[78]
[59] Mr Murray has had a lengthy and varied involvement in the criminal justice system, commencing as a police officer, then as a Crown Prosecutor, next as a barrister in private practice and currently as a solicitor practising in Gladstone. He was first admitted as a barrister in September 1988.
[79]
[60] He told the appellant that the voir dire was unlikely to succeed because it recorded him giving a coherent version of events, correcting the interviewing police officers when they made errors and clarifying his own answers in the record of interview. He had lengthy conferences with the appellant about his pending trial and ensured that he fully understood the charges and obtained instructions from him as to the prosecution case. He conducted the trial on the appellant's instructions.
[80]
[61] Mr Murray told the appellant at the outset that in his view the case against him was strong: the photographs of the severe bruising to the complainant did not suggest that anybody would be likely to consent to such conduct. He had not before seen Mr Bennett's handwritten notes (ex 1) and was uncertain if he had seen the appellant's instructions (ex 2); the appellant gave copious written and oral instructions before and during the trial.
[81]
[62] The appellant's instructions consistently emphasised three things. First, that some time ago he had been visited by Rose Bay detectives over noise during a party he was holding in Sydney and ultimately he was able to expose the corruption of a number of detectives in a New South Wales inquiry akin to the Woods Commission; Det McGrath, the investigating officer in this trial, was in conspiracy with these corrupt New South Wales detectives and involved the complainant in that conspiracy when she wandered disoriented into the lobby of the Crown Towers Resort at about 8.30 or 9.00pm on the evening of the alleged offences. Mr Murray told the appellant that he would not put the appellant's conspiracy theory to the prosecution witnesses because in his view it would not be believed and would do his case more harm than good.
[82]
[63] Second, the appellant instructed him that the complainant's severe bruising was caused by the complainant's vertigo and her twice falling on the bathroom floor. He showed the photographs to the appellant, pointing out that the hatched pattern of bruises was consistent with the application of force with an object and that the jury would find the appellant's explanation for the bruising absurd; it would be unwise to make such a claim. The appellant accepted that advice.
[83]
[64] Third, the appellant instructed Mr Murray to emphasise that the hospital records showed that the complainant claimed that a police officer had contacted her and told her that the appellant had made the admissions there recorded; in fact, he had not made those admissions; the false police statement made to the complainant encouraged her to later make a more detailed, inaccurate complaint. Mr Murray did, on instructions, raise this issue in cross-examination although he did not suggest it was linked to the police conspiracy theory because he thought this would be unhelpful to the appellant's case. The hospital notes were read into the record and he advised the appellant that it was better not to tender the records and instead to keep the right to the final address which would have been lost had he tendered the hospital notes.
[84]
[65] The appellant gave prolific written and oral instructions throughout the trial, most of which were not particularly relevant or helpful. The appellant was a very demanding, difficult client with whom he held conferences during most of the breaks in the trial, generally with Mr Bennett. He told the appellant that he had served as a New South Wales police officer for a time at the Kings Cross police station. The appellant questioned whether Mr Murray was involved in the New South Wales police conspiracy against him and queried whether he could be trusted. Mr Murray offered to withdraw from the case but the appellant indicated that he did not consider Mr Murray to be part of the conspiracy.
[85]
[66] He made it plain that it was the appellant's decision whether to give evidence at his trial. He advised that if the appellant were to give evidence he would need to be certain that this did not conflict with his answers in the record of interview, which was before the jury and which was generally helpful to him; giving evidence would mean that he would lose the right of last address to the jury; Mr Murray advised that the jury would not appreciate the appellant's denigrating attitude towards the complainant, obvious from his instructions; his performance as a witness in the voir dire before the judge was poor and his demonstrated arrogance did not impress the judge and would not impress the jury. He explained that failure to give evidence meant that there was no evidence from the defence; the only evidence was from the prosecution witnesses; nevertheless, the defence could rely on the appellant's version given in the record of interview. In giving this advice, he did not use the precise words "the complainant's evidence would be uncontradicted by sworn testimony". He strongly advised the appellant that it would be an error for him to give evidence. The decision to give evidence was left to the appellant; after listening to Mr Murray's advice he decided not to give evidence.
[86]
[67] At no time did the appellant instruct him that he had mistakenly struck the complainant harder than he had intended because of his consumption of alcohol; his instructions were always that he was well aware and in control of the caning of the complainant; the excessive bruising was caused only from the complainant's falls, not from the caning.
[87]
[68] In preparing the matter, he decided that Dr Culliford's evidence as to the complainant's anal spasm was very strong and although he had not cross-examined her before he was aware of her reputation as a witness and thought that little would be achieved by calling defence evidence about anal spasm because it would be likely only to entrench Dr Culliford in her view and lose for the defence the right of last address for very little result.
[88]
[69] Allegations of the type made by the appellant against his legal representatives have never been uncommon and are becoming increasingly popular. For that reason, it is most surprising that Mr Bennett, as the instructing solicitor, did not prepare a signed statement of instructions for use in the trial, keep detailed file notes recording the dates and times of all significant conferences with the appellant and ensure a note signed by the appellant was made of any significant changes to those instructions. The crucial instructions as to the appellant's decision to give or call evidence should prudently have been taken by trial counsel in the presence of an instructing solicitor or clerk, signed by the appellant and preferably witnessed by the instructing solicitor or clerk. Such written, signed instructions would have avoided much of the time consuming exercise resulting from the appellant's allegations here.
[89]
[70] Despite the absence of such signed instructions, I accept the evidence of Mr Murray in preference to the evidence of the appellant. The appellant impressed as a self-serving witness with a selective and unreliable memory. I accept that the appellant took his barrister's advice not to give or call evidence because he had not performed convincingly as a witness on the voir dire, a version reasonably favourable to him was before the jury in the record of interview and, if he were to give or call evidence, he would lose the right of last address which he and his lawyers regarded as a significant advantage. It is strange that Mr Bennett has no recollection of being present for the conference when these instructions were given; ideally he or another solicitor or law clerk should have been present and should have made a note of the instructions signed by the appellant. I am uncertain whether he has forgotten the conference or he was not there. But other objective facts support Mr Murray's account. The appellant was undoubtedly a demanding client who was very actively involved in the conduct of his case; he had made earlier complaints to the New South Wales Police Commissioner about other matters and subsequent complaints to many in authority about his lawyers' conduct of this case on other issues. It is implausible that he would have meekly accepted his counsel's statement in open court that he would not give or call evidence if that was inconsistent with his instructions. He made no complaint to the judge then nor when court resumed three days later. His many concerns raised with Mr Bennett on the morning of Tuesday, 4 March 2003 related to other issues; he was not concerned that his counsel had surprisingly prevented him from giving or calling evidence. He made no such complaint to Mr Bennett either after the guilty verdicts were returned or in his detailed letter of complaint of 10 March 2003.
[90]
[71] Mr Murray's evidence, which I accept, amply demonstrates an objectively reasonable explanation for his advice to the appellant not to give or call evidence. I am confident the appellant accepted that advice in the exercise of a free and informed choice. Mr Murray's decision not to put the appellant's implausible instructions to the prosecution witnesses and to concentrate on what he saw as the best points was also an objectively reasonable way to conduct the appellant's defence. The appellant has not demonstrated that he has been deprived of the chance of an acquittal that was fairly open to him and that as a result there has been a miscarriage of justice: TKWJ v R[9] and R v N.[10]
[91]
Should the appellant's lawyer have called a specialist medical practitioner to cast doubt on Dr Culliford's evidence as to the significance of the complainant's anal spasm?
[92]
[73] Fresh or new evidence will only be received by an appellate court if, had the evidence been available at trial, there is a significant possibility or it is likely that a reasonable jury would have acquitted the appellant.[11]
[93]
[74] The appellant applies to adduce evidence from Dr John Lumley, a colorectal surgeon, to the following effect:**
[94]
"Anal spasm can be voluntary or involuntary. Voluntary spasm is related to voluntary clenching of the external anal sphincter and occurs when people wish to avoid defaecation or wish to avoid insertion of objects into the rectum either due to fear, embarrassment or worry about pain. Involuntary spasm is related to the internal anal sphincter which is an involuntary muscle that sets the resting tone of the anal canal. This spasm can occur like cramps elsewhere in the body. It is often associated with trauma to the anal canal usually an anal fissure or tear. If a tear had occurred with penetration, this should have been clearly apparent at the time of the second examination under sedation.
[95]
Anal spasm can occur in the absence of trauma and hence is not a clear indication that the spasm was due to insertion of a cane into the anal canal. I agree with the Government Medical Officer that the insertion of the cane could be the cause for spasm.
[96]
As per our discussion, my conclusions hence would be:
[97]
1. Anal spasm can occur and do occur quite commonly when patients apprehend that they are going to be examined internally in the anal canal and rectum; and
[98]
2. Anal spasm can occur from other causes such as injury to the anal canal and rectum but in those cases you would expect to find evidence of an injury such as an anal fissure or tear."
[99]
**[75] The matter, the appellant contends, is of particular significance in this trial because the anal spasm was placed before the jury as evidence capable of corroboration of the complainant's account of the rape particularised as penetration of the anus with the cane.
[100]
[76] Dr Lumley's evidence is not fresh in the true sense in that it was plainly available at the time of trial. There is no suggestion that the appellant or his lawyers were in possession of Dr Lumley's evidence; indeed, it is their failure to obtain such evidence and to either call the evidence or at least to use it in cross-examining Dr Culliford that the appellant says has caused a miscarriage of justice. Dr Lumley's evidence is not inconsistent with Dr Culliford's evidence that anal spasm can be due to some external stimulus causing that muscle to go into spasm.[12] Dr Culliford's evidence strongly suggests that the spasm that she saw was involuntary spasm; there was no anal fissure or tear or external trauma to the anus and nor was there any injury to the anus internally in the lower five or six centimetres; the absence of such injuries did not, however, exclude penetration of the anus with a cane. Dr Lumley agreed with Dr Culliford that the insertion of the cane could be the cause of the anal spasm; that evidence was sufficient to be capable of corroborating the complainant's evidence as to penetration.
[101]
[77] I am not persuaded that had Dr Lumley's evidence been available at trial, either to further cross-examine Dr Culliford or as evidence in the defence case from Dr Lumley, there is a significant possibility or it is likely that the jury would have acquitted the appellant.
[102]
[78] Mr Murray's assessment that little would be achieved by cross-examining Dr Culliford on this issue and that the right to address last would be lost by calling defence evidence on this aspect was objectively reasonable, as was his decision not to further cross-examine Dr Culliford for this may have put at risk the helpful answers already obtained. The appellant has not demonstrated that his lawyers' conduct of his case in this respect has deprived him of the chance of acquittal fairly open to him: TKWJ v R and R v N.
[103]
[79] I would refuse the application for leave to call fresh evidence and this ground of appeal also fails.
[104]
[80] The appellant contends that the sentence imposed for anal rape of eight years imprisonment with a declaration that he was convicted of a serious violent offence and the sentence imposed for torture of five years imprisonment with a similar declaration were manifestly excessive; the judge took into account the same aggravating factors to justify the high head sentences to then also justify the declarations; the overall effect of the sentence is outside the established sentencing range; a sentence should be substituted of six to seven years imprisonment on rape and three and a half years imprisonment for the offence of torture, with no declarations under Part 9A of the Act.
[105]
[81] The learned sentencing judge described the offences as shameful, degrading, cruel and providing perverted self-gratification with no regard to the effect on the complainant and noted that these offences were committed whilst the appellant was on bail in respect of another matter. His Honour stated that he imposed the declaration under Part 9A of the Act because of the disturbing degree of violence in both offences; the time period over which the offences occurred, during which the complainant was subjected to the appellant's domination and infliction of pain; the degradation to which the complainant was subjected, including the anal violation by a stick and a flogging to exert domination over her and the infliction of the offences on a helpless and defenceless female who, through the effects of alcohol was in no position to resist or escape.
[106]
[82] To succeed, the appellant must demonstrate that the sentence, which includes the discretionary declaration under Part 9A of the Act requiring the appellant to serve 80 per cent of the sentence before becoming eligible for post prison community based release, was, in all the circumstances, manifestly excessive. R v Bojovic[13] requires a single integrated approach to the sentencing process when considering the exercise of discretion under Part 9A of the Act, rather than first determining the quantum of the imprisonment to be imposed and then considering the further question whether a declaration under Part 9A of the Act should be made.
[107]
[83] The evidence of objective witnesses at the Lansdowne Tavern suggests that the complainant voluntarily left with the appellant for his home prepared to explore to at least some limited extent sexual arousal involving the infliction of pain. This conclusion is supported by her biting the appellant at the Lansdowne Tavern sufficiently hard to cause him to bleed onto her blouse, by the injury to the appellant's lip and, to a lesser extent, by the manager's evidence of the appellant and the complainant "having a bit of a snog". The complainant's amnesia makes more specific findings impossible.
[108]
[84] It is also very plain on the evidence and put beyond doubt by the jury's entirely reasonable verdict that the complainant did not consent to the appellant penetrating her anus with the cane and his cruel and violent flogging of her. She suffered great physical pain for a time and continues to suffer devastating psychological trauma as a result of these offences. Her victim impact statement indicates that she visits a psychiatrist and a counsellor and takes anti-depressants and sleeping tablets; she is unable to work; lives in fear; cannot trust men; suffers from panic attacks; has been hospitalised after taking an overdose of medication in an effort to kill herself; and has suffered severe financial hardship as a result of these offences.
[109]
[85] The appellant was a mature man 46 years old at the time of the offences and 48 years old at sentence. He had no relevant prior criminal history. He was receiving treatment for alcoholism at the time he committed these offences. Serious as these offences are, it can at least be said that, because they did not involve penile penetration, the violation of the complainant did not also include the additional risk of unwanted pregnancy and sexually transmitted disease.
[110]
[86] The maximum penalty for rape is life imprisonment and for torture 14 years imprisonment. The appellant does not have the benefit of cooperation with the administration of justice and has shown no remorse; as a mature man he does not have the mitigating factor of extreme youth.
[111]
[87] The appellant relies on R v Broissand[14] and R v Sorby,[15] to support the rape sentence, and R v Roelandts[16] and R v Burns[17] to support the torture sentence. Unsurprisingly, none of these cases reflects or is comparable to the bizarre and unique circumstances of this case. Broissand and Sorby in any case pre-dated the introduction of Part 9A into the Act. The comparable sentences relied on by the appellant do not support the effective sentence of eight years imprisonment with the additional declaration under Part 9A of the Act. The serious aspects of the offending do, however, support the head sentences imposed, despite the appellant's lack of prior convictions. I would grant the application for leave to appeal against sentence and allow the appeal to the limited extent of omitting the declaration made in respect of each count that the offences are serious violent offences.
[112]
2. Application for leave to appeal against sentence granted; appeal allowed to the extent of omitting the declaration that each offence is a serious violent offence under s 161B(3) Penalties and Sentences Act 1992 (Qld).
[113]
[88] WILLIAMS JA: All the facts relevant to the appeal against conviction and application for leave to appeal against sentence are fully set out in the reasons for judgment of the President which I have had the advantage of reading. I agree with all that has been said by the President and with the orders proposed, but in the circumstances it is desirable that I add some brief observations.
[114]
[89] This court had the opportunity of hearing the appellant give evidence and observing him under cross-examination. Ultimately I formed the view that the appellant was an intelligent but cunning man, who was prepared, when necessary, to shift his position in order to meet any proposition adverse to his interests. The account which he wished to advance of events on the night in question was so implausible that no rational person could accept it; for example, his account of the complainant being stuck in the bathtub was pure fantasy.
[115]
[90] Both on the voir dire before the trial judge, and when giving evidence before this court, he expanded on answers to questions in such a way as to seriously undermine his credibility. The learned trial judge was clearly entitled to reject the appellant's evidence on the voir dire, and that was a clear indication to defence counsel that a reasonable jury was unlikely to accept his evidence. Any reasonable counsel would have concluded, as counsel did here, that if the appellant gave evidence belittling the complainant (as he obviously intended to do) such evidence would only enhance the prospects of a conviction.
[116]
[91] Given the appellant's lack of credibility displayed upon giving evidence in this court I have no hesitation in accepting the evidence of his barrister and solicitor at trial where there was any conflict.
[117]
[92] It may well be that counsel at trial persuaded the appellant against his own preferred wishes not to give evidence, but that was clearly appropriate advice in the circumstances. I am satisfied that at the time, albeit reluctantly, that advice was accepted, and that the appellant has now attempted to denigrate his counsel in an endeavour to establish a ground of appeal in circumstances where the evidence is overwhelmingly against him.
[118]
[93] I agree with the orders proposed by the President.
[119]
[94] MULLINS J: I agree with the reasons for judgment of the President and the orders proposed by the President.**