R v Marshall [1994] QCA 235

Court of Appeal (Qld)|1994-06-28|Before: Pincus J, Byrne J

At his trial in the Brisbane District Court the 22 year old appellant was convicted of unlawful assault occasioning bodily harm and indecent assault. The grounds of appeal, though lengthy, amount to contentions that the verdicts are unsafe.

The complainant is a fifty-six year old woman. The offences were said to have occurred on the night of 9 March 1993. At the trial, it was not in dispute that the complainant had been attacked and injured at the appellant's flat on that night. The main issue was whether the appellant had committed the crimes. He testified that two men burst into his flat, pushed him violently against the back door, and then attacked the complainant.

During the evening, the appellant, who was also affected by alcohol, stripped to his underpants and paraded around in front of the women. The complainant accepted an invitation to dance with him but was so intoxicated that she had to sit down. According to the complainant's daughter, the appellant made sexual suggestions to her and also tried to kiss her mother. These overtures were unwelcome and Miss Heiner decided to leave. She tried to get her mother to go with her. The complainant, however, was so drunk that she could not put her shoes on, and she was too heavy to carry. Before she left, the complainant's daughter warned the appellant not to touch her mother, adding "I will have the police here". The complainant was assaulted during Miss Heiner's absence.

Miss Heiner took a taxi home to get help. No one was there. Panicking, she picked up a motor cycle helmet and returned to the flat. As she reached the flat, she testified, she waited to catch her breath beneath a window. There she heard the appellant saying "suck it, bitch. Suck me off, bitch...". She ran up the steps and met the appellant. He was naked. She called out to her mother and thought she received a reply like "help me". The appellant told Miss Heiner to get out and pushed her down the stairs. She waited a moment or two outside trying to decide what to do. Then she heard the shower running. She went upstairs again and got into the flat. Her mother was "lying there naked". Enraged, she walked into the bathroom and struck the appellant more than once on the back of his head with the helmet. He slipped and fell, hitting his head on the side of the bath, she testified. Miss Heiner went to the hotel to contact the police. As she left, she noticed blood on her mother "from her stomach down". Miss Heiner did not see the appellant again.

The complainant's testimony was an incomplete account. She remembered being so drunk that, when she wanted to leave with her daughter, she could not manage to put her shoes on. She had, as she acknowledged in cross-examination, a poor memory of events, at least, as she put it, "until I got punched". She told the jury that, after her daughter left, the appellant punched her in the head twice. She was adamant that he was her assailant. She next remembered waking up in hospital.

The complainant was no longer naked when the ambulance officers arrived at the flat. On the Crown case, the appellant had put her dress and brassiere on, leaving her panties nearby. Traces of human excreta, which must have come from the complainant, were found over her body, at the top of her dress, and on the bra strap. The Crown case was that the appellant left those traces behind as he replaced some of the complainant's clothing after attacking her. The complainant told the jury that she would not have removed her panties herself.

About four hours after the complainant was attacked, the appellant was seen walking along the street not far from the flat. He was holding a towel and wearing ill-fitting women's clothes. A detective took him to the flat and questioned him. The appellant said things which the Crown relied upon as lies evidencing consciousness of guilt. The detective asked the appellant whether he knew of the assault on the complainant. He answered "no". He was shown blood on the floor and walls of the lounge room and asked whether he knew how it got there. He said he did not. The detective noticed two cuts to the back of the appellant's head where there was still some blood. The appellant said that a stranger had hit him with "a lump of 3 x 2". He denied knowing the complainant or her daughter. No mention was made to the police of any intruders.

The appellant told the jury a very different story. He gave evidence that after Miss Heiner left his flat, and while the complainant was sitting in the lounge, he was about to have a shower when there was a knock at the door. He opened it and was, he said, thrown against the door jamb and knocked out temporarily. When he regained consciousness, he became aware that two intruders were attacking the complainant. He was unable to describe them beyond saying that they were white males aged about twenty-five. They left and then, he said, he ran out to see where they had gone. After that, he came back to the lounge room and saw the complainant with blood on her face. Next he went to the shower to wash off his blood. He said he was showering when the complainant's daughter returned and hit him with the motor cycle helmet. He slipped and fell, recovered moments later and told Miss Heiner that he was "on my way to ring the police". After that, on his version, he wrapped a towel around himself and ran down the back stairs, chased by Miss Heiner. He obtained, he said, female clothes from a clothes line.

The appellant's account of his conversations with the police differed from Detective Wilson's evidence, although he did admit that he had not mentioned intruders and that he had told the police he did not know anything about an attack on the complainant. He explained the lies by saying that he did not expect that the police would believe whatever he told them. His evidence had other curiosities. The appellant accepted that the injuries to his head were just where Miss Heiner said she had hit him with the helmet. And, on his story, in the approximately four hours which elapsed between his leaving the flat and when the detective discovered him, he had not called an ambulance or contacted the police or returned to the flat to help the complainant.

The appellant's evidence seems most unlikely to have advanced his prospects of acquittal and on the whole case it is not surprising that the jury was convinced that he had assaulted the complainant.

The main point advanced for the appellant is that the jury ought to have entertained a doubt about guilt because of a blood smear near the back door of the flat. How this blood came to be there was not specifically mentioned in evidence adduced for the Crown, and it is consistent with intruders having broken in and assaulted the appellant. However, the location of this blood smear near where the appellant said he was assaulted by the intruders is scarcely a basis for doubting his guilt. Blood was smeared around the flat: on the rear wall of the kitchen, on the floor and walls of the lounge room, and on things such as pillow cases and the stereo system. The blood near the back door could have been left there by the appellant after Miss Heiner left. As was properly conceded, this blood smear is not at all inconsistent with the Crown case. Neither its presence nor any other matter argued for the appellant shows that the jury should have doubted that the appellant was the assailant.

A separate question is whether the evidence sufficed to sustain the conviction for indecent assault. This charge related to injuries to the complainant's genital area first discovered about twelve hours after the assault when Dr Carroll observed redness and swelling of the labia majora and posterior fourchette and swelling at the entrance to the vagina. The appellant contends that the Crown failed to prove to the requisite standard that the appellant was responsible for these injuries. Alternatively, mention was made of the possibility that what he had done was not indecent.

The complainant, who remembered nothing of the events at the flat after the second punch, did not say that the appellant had interfered with her genital region. The case in respect of the indecent assault charge was therefore circumstantial. If, as the jury decided, the appellant had bashed her, it was a satisfactory case of indecent assault nonetheless. Several matters point to the appellant's having interfered with her for sexual gratification. Three may be mentioned again. The appellant had indulged in behaviour of a sexual nature towards the complainant and her daughter. Miss Heiner said that both the complainant and the appellant were naked when she returned to the flat. The complainant's underpants were found on the sofa: one of the facts suggesting that the appellant had undressed her. More importantly, the complainant testified that she had not sustained any trauma to her genitalia in the week before she arrived at the flat.

Dr Carroll, who examined the complainant for forensic purposes, was sure that the injuries area were caused by external force. He did not think that they were consistent with any medical procedure, a possibility addressed because the complainant was treated in hospital about an hour after the attack. She was cleaned by hospital staff and a catheter was inserted. Asked whether a clumsy nurse might have caused the injuries when inserting the catheter, Dr Carroll said that "it would have to be repeated clumsy attempts" to produce the swelling he observed. Dr Franklin, who saw the complainant at the hospital within an hour or two of the assault, had, he said, a "cursory" look at her vaginal area but did not notice the injuries. He gave evidence that a "clumsy" insertion of the catheter could "perhaps" have caused some swelling of the vaginal entrance. Dr Franklin, however, expressed no opinion as to whether such extensive redness and swelling as Dr Carroll observed could have been attributable to faulty insertion of the catheter. There was, therefore, ample evidence to sustain the conclusion that the complainant's genital area was injured while she was in the appellant's flat.

Dr Carroll said that a kick might have caused the injury if the complainant's legs were apart and her genitalia were exposed. However, there was no bruising or swelling to the region of the inner thigh, which must have made it seem improbable that a kick inflicted the injuries. In any event, in the circumstances of this case where sexual gratification appears to have been the motive and the injury occurred after the appellant had undressed the complainant, it was open to the jury to convict of indecent assault whether the appellant caused the injuries by hand or by foot.

The appeal against the convictions should be dismissed.

The sentences are said to be manifestly excessive. For the indecent assault, the appellant was sentenced to three years imprisonment. On the charge of assault occasioning bodily harm, he was sentenced to two years imprisonment.

The complainant was badly beaten. There were lacerations to the left half of the face and forehead; two black eyes; an indentation in the left temple; bruising on the right side of the forehead and right cheek; bruising on the outside of the right arm, right breast and hip; some blood in both ears. There were also the injuries to the genital area. At hospital she was intubated to avoid suffocation. The facial lacerations were sutured. She spent about a week in hospital. There was also psychiatric evidence that a pre-existing depressive illness was aggravated and that the effects are in part irreversible.

The appellant was on probation at the time and he had a history which includes house breaking, assault occasioning bodily harm, and resisting arrest. His personal circumstances, however, were deserving of some sympathy. He had a serious problem with alcohol which was largely responsible for his previous offences, and alcohol must have played a part in the assaults. The appellant had a satisfactory work history and was employed by the time of his trial. The Judge thought that there were prospects of rehabilitation. Even so, the offences involved brutal and degrading attacks on a defenceless woman which affected her both physically and mentally. They deserved censure and discouragement.

The Judge seems to have imposed a sentence in respect of the indecent assault which reflects the overall criminality involved in both offences. It looks as though he then fixed a lesser sentence for the other assault, a course which, if not conventional, at least has not disadvantaged the appellant. For sentencing purposes the two offences can be regarded as having been committed in the course of one sufficiently continuous episode. The judge would have been justified in imposing the same sentence on each without distinguishing between them and had he adopted three years in each case, that term could not be regarded as excessive. In these circumstances, the fact that he imposed a lesser two year term for the quite savage assault causing bodily harm, may, taken by itself, be somewhat surprising but it does not make the three years for the indecent assault excessive. The matter would be different if that last mentioned period exceeded what was justified by the overall criminality. The judge appears to have followed the principle of fixing, for one offence, a sentence which takes into account that another associated offence has also been committed, while fixing a separate concurrent penalty for the latter. We are of the view that, in appropriate cases, that course is permissible.

The sentences are not manifestly excessive. The application for leave to appeal against them should therefore be refused.

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