R v Willersdorf [2001] QCA 183

SUPREME COURT OF QUEENSLAND

CITATION: R v Willersdorf [2001] QCA 183

PARTIES: R / v / WILLERSDORF, Shane Edwin / (applicant/appellant)

FILE NO/S: CA No 333 of 2000 / DC No 1579 of 2000

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction and Sentence

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 15 May 2001

DELIVERED AT: Brisbane

HEARING DATE: 3 May 2001

JUDGES: McPherson and Thomas JJA, Chesterman J / Separate reasons for judgment of each member of the Court; each concurring as to the orders made

ORDER: Appeal against conviction dismissed;Application for leave to appeal against sentence refused.

CATCHWORDS: CRIMINAL LAW – PARTICULAR OFFENCES –OFFENCES – PROPERTY OFFENCES – ROBBERY – GENERALLY - AGGRAVATION – appellant convicted of numerous charges including robbery with personal violence / CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – ALTERNATIVE VERDICTS – GENERALLY- DIRECTION TO JURY – OTHER MATTERS – where trial judge directed jury in terms of s 411 of the Criminal Code and failed to direct jury as to an alternative charge of robbery simpliciter under s 409 – nature of judge’s duty to inform juries of available alternative verdicts – Rehavi discussed and distinguished – whether finding of threat without actual violence reasonably open – test is whether alternative verdict fairly arises for consideration on the whole of the evidence / CRIMINAL LAW – EVIDENCE – EVIDENCE OF SEXUAL EXPERIENCE, REPUTATION – proposed cross examination of complainant went to credit only and not to a fact in issue – application of s 4 Criminal Law (Sexual Offences) Act 1978 / Criminal Code s 409, s 411, s 575 / Criminal Law (Sexual Offences) Act 1978 (Qld) / Gilbert v The Queen [2000] 74 ALJR 676, considered / Rehavi [1999] 2 Qd R 640, considered / The Queen v De Simoni (1981) 147 CLR 383, considered

COUNSEL: P Callaghan for appellant / C Heaton for respondent

SOLICITORS: Legal Aid Queensland for appellant / Director of Public Prosecutions (Queensland) for respondent

McPHERSON JA: The appellant's story that he and the complainant agreed to fake a robbery by his tying her up, damaging property in her home, and removing money and other items of value from her home, displays much more imagination than common sense. According to his account of it, the plan was agreed upon in order to placate her supposed boyfriend whose imminent return she was expecting.

In the time taken to do all those things, the appellant could have left the place and been well away from it before any boyfriend arrived home. The jury were rightly incredulous about the story he told, and the trial judge was plainly correct in refusing to exercise his discretion to permit cross-examination of the complainant about her prior sexual activity with the alleged boyfriend.

I agree that, for the reasons given by Thomas JA, this appeal should be dismissed and that the application for leave to appeal against sentence should be refused.

THOMAS JA: The appellant was tried in the District Court before a jury on eight counts. Verdicts were returned as follows:

Count Charge Verdict

1 Deprivation of Liberty Guilty

2 Robbery with personal violence Guilty

3 Aggravated indecent assault Unable to agree

4 Rape Unable to agree

5 Indecent assault Unable to agree

6 Wilful damage Guilty

7 Wilful damage Guilty

8 Stealing Guilty

He appeals against the convictions and seeks leave to appeal against the sentences that were imposed.

The appeal is principally directed against the conviction on count 2, upon which the major sentence was imposed. There are two grounds of appeal: firstly, that the learned trial judge failed to leave to the jury an alternative verdict of robbery simpliciter, and secondly, that his Honour refused to permit cross-examination of the complainant concerning a forensic finding of seminal fluid (not the appellant's) in a swab taken from the complainant.

In order to properly consider these matters it is necessary to present a short summary of the evidence of both prosecution and defence.

Evidence

Both cases coincide in relation to events leading up to the complainant and appellant entering the complainant's house and for some time thereafter. On 6 November 1999 the complainant went to the Sherwood Services Club where she met some friends and consumed some alcohol. She struck up a conversation with the appellant and invited him to a barbecue. He accepted. The complainant took a bottle of scotch that she had won earlier that day and the appellant purchased a bottle of port. They drank some more alcohol at the barbecue. The complainant invited him to stay the night at her place and he again accepted. They went together in a taxi to her house. They went into the complainant's bedroom where she changed into a nightdress and consensual foreplay took place for about 20 minutes. At this point the stories diverge.

According to the complainant she started to feel uncomfortable and told the appellant that she did not think it was a good idea to continue, and asked him a number of times to leave. They discussed where the nearest train station was and the appellant asked her if she had $10. As she was getting her wallet the appellant suddenly approached her from behind, grabbed her by the throat and held a knife to it. He proceeded to tie her hands behind her back using the cord of a hairdryer, ordered her to the bedroom where he tied and gagged her on the bed, using electrical cords and straps from a handbag which he broke. He told her that he did not want to hurt her and that if she did what he said she would not get hurt. At some stage he took $35 from her wallet. When she was tied up and on the bed he asked her if she had any money in the house. She told him where her father kept some "syndicate" money which he then obtained and returned to the bedroom. He asked if she had any more money in the house and she said she did not. It was at this point, on the complainant's evidence, that the non-consensual sexual activity the subject of counts 3, 4 and 5 occurred. He climbed on top of her, inserted his finger into her vagina and attempted intercourse but with only a small amount of penetration. He then started to masturbate and ejaculated onto to the back of her thigh. He said something like "I have to go soon", called a taxi and left the house. The complainant was still tied up at this point and recalled that she could smell petrol at one stage. Some time later she managed to loosen or remove the gag and proceeded to shout for help. At 6.15 am a woman on her morning walk heard her cries, went into the house and found her still tied up on the bed.

The appellant's version was that the admitted foreplay was followed by consensual intercourse. As they did not use a condom, and he did not know whether or not the complainant was on the pill, he ejaculated outside of her. They then had a post-coital cigarette before returning to bed and going to sleep. When the complainant awoke she showed signs of distress, started to "go on" about her boyfriend and urged him to leave. She removed $40 from her wallet and put it on the table. The appellant asked her what she was going to say when he left. She replied, "Probably tell them I was robbed". They then agreed to make it appear that a robbery had taken place and proceeded to pick up "a heap of cords" including the hairdryer cord. With her acquiescence he then tied her up on the bed. She told him about the extra "syndicate money" which he retrieved from a drawer in another room. He called a taxi. Before leaving, he also took two watches from another room, some beer from the fridge and packed these items into his bags. He suddenly thought about his fingerprints throughout the house and decided to wipe them off with some petrol. Whilst doing this he tripped over the can and spilt some petrol on the carpet. He then returned to the bedroom and gagged the complainant, again with her consent. He then left, also taking the bottle of scotch, and departed in a taxi.

There is nothing particularly surprising in the jury's inability to agree on the sexual charges, given the preceding events of the evening, the degree of consensual activity and the doubt about penetration. Equally there is nothing surprising in their conviction upon the remaining charges given the confirmatory evidence of her being bound, the ransacking of her house, the removal of her property, the absence of any good reason why she would endow the appellant with such benefits, and the gratuitous damage done to the house and some goods in the course of the incident. Why she would choose to agree to such a plan such as that alleged by the appellant is difficult to see. There is nothing in the least surprising about the combination of findings of guilt on five counts and disagreement on the three sexual charges.

Submissions

Mr Callaghan submitted that the learned trial judge erred in failing to direct the jury that an alternative count of robbery simpliciter was available on count 2.

Robbery is dealt with in s 409 as follows:

"Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen, is said to be guilty of robbery."

Count 2 was, however, charged in terms of s 411 of the Code which provides for a higher penalty for various aggravated forms of robbery. Section 411 provides:

"(1)Any person who commits the crime of robbery is liable to imprisonment for 14 years.

(2)If the offender is or pretends to be armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, of if, at or immediately before or immediately after the time of the robbery, the offender wounds or uses any other personal violence to any person, the offender is liable to imprisonment for life."

The aggravating circumstance bringing the matter under s 411 in the present matter, namely "uses any other personal violence to any person", is in substance indistinguishable from the element in s 409 "use actual violence to any person". The absence of any real distinction between the "actual violence" of s 409 and the "personal violence" of s 411 is recognised in The Queen v De Simoni.¹ Nonetheless, in strict theory whenever a matter is charged under s 411 an alternative verdict is open under s 409 if the jury is not satisfied in relation to the specified circumstance of aggravation. However, it does not follow that in every case of a charge under s 411 the court is obliged to direct the jury that an alternative verdict is open under s 409.

The only arguable basis upon which an alternative verdict could conceivably go to a jury in the present matter is that the jury might see it as a "threat only" case as distinct from one of actual violence. However, I do not think that on the evidence this was a realistic scenario. It is true that the evidence includes some verbal threats, but it does not seem rationally possible that a jury could in this case have taken the view that the acts antecedent to obtaining the property consisted of threats only, unaccompanied by any actual or personal violence. The real contest between the Crown version and the defence version was not as to the physical acts of tying and gagging, but as to the state of mind of the relevant parties when it happened. On that issue the jury, not surprisingly, rejected the appellant's claim that the tying up had occurred with the complainant's consent. The jury's conviction of the appellant on count 1 shows the jury's satisfaction that she was unwillingly tied up which is inescapably an act of personal violence by the appellant. Quite apart from this, there was no proper basis for differentiating between that part of the complainant's evidence that related to the making of threats from the acts of personal violence described by her as preceding the taking of her property.

The rules concerning presentation to the jury of alternative verdicts are not prescriptive. They are governed by the trial judge's duty to ensure a fair trial according to law. The relevant sections of the Code dealing with alternative verdicts, and in particular s 575, provide that a person "may be convicted" of an offence established by evidence which is an element of the offence charged. In R v Rehavi² this court held that a jury should be permitted to return any verdict available on the evidence that was consistent with justice to the accused. In that case the court held that a failure to direct to the jury as to the availability of an alternative verdict of grievous bodily harm on a charge of doing grievous bodily harm with intent constituted a miscarriage of justice. The present case, however, is well removed from the position in Rehavi.

The duty to inform the jury of available alternative verdicts is an aspect of the duty of a trial judge to see that the trial is conducted according to law and that the jury is properly instructed in relation to available defences. The proper discharge of that duty does not require the presentation of every conceivable defence. To do so might tend to obfuscate the true defence. A familiar example of this arises in homicide cases in which there may arise the theoretical possibility of multiple alternative forms of the defence of self-defence. Defence counsel commonly ask that not too many alternatives be placed before the jury for this very reason. The selection of the live issues depends on the evidence in the particular case.³

A stricter approach may, however, be seen in cases where manslaughter has not been left to the jury as an alternative to murder.⁴ The duty to allow manslaughter to go to the jury in cases of murder if there is any basis on the evidence for such a verdict, is well recognised.⁵ For historical reasons, a person or trial for murder has sometimes been given an opportunity to receive a merciful verdict of manslaughter even when strict logic might suggest that such a verdict is not really open.⁶ I do not think that the same attitude should necessarily be taken in relation to the entire criminal calendar of offences. In my view murder-manslaughter cases are somewhat special in this regard although the difference may perhaps be more a matter of practice than of principle. The issue in Gilbert was whether a miscarriage of justice occurred by reason of the jury being told that a verdict of manslaughter was not available. The decision of the majority turned upon their satisfaction that on the evidence a verdict of guilty was not inevitable and that the failure to consider the alternative of manslaughter may have deprived the appellant of a more favourable result.

The ultimate conclusion in Rehavi is that a jury should be permitted to return any verdict available on the evidence if this is consistent with justice to the accused. The reservation "consistent with justice to the accused" of course recognises inter alia that there are situations such as a true "all or nothing" case, where the offering of conviction on a lesser charge might jeopardise the accused's chance of complete acquittal. Consistently with the authorities including Rehavi,⁷ I conclude that whenever an alternative verdict fairly arises for consideration on the whole of the evidence then failure to leave it to the jury prima facie deprives the accused of a chance of acquittal of the principal offence. A tactical request from defence counsel is a matter that must be taken into account in the overall assessment of miscarriage of justice, but it is not conclusive. The ultimate duty to ensure fairness rests with the trial judge, and this is not always achieved by acquiescing in the request of defence counsel.

Mr Callaghan submitted that the evidence in this case was "multi-faceted" and that the jury might have accepted parts of the complainant's evidence, such as the making of threats, and rejected other parts. He submitted that the significance of the verdict on count 1 was dubious because it cannot be assumed that the complainant's evidence as to the binding was accepted by the jury. I think that it can and was. Furthermore, for reasons stated in para [13] above, I do not think that the scenario of threats without acts of personal violence antecedent to the stealing reasonably arises on the evidence.

In the present case the only true alternatives were robbery with personal violence or stealing simpliciter. These were the alternatives which his Honour left to the jury. Not only was the present point not raised below, the alternatives of robbery with personal violence or stealing were those for which defence counsel specifically applied. No complaint was made in relation to the summing-up and there was no request for any redirection. I do not consider that any legal error was committed by the learned trial judge in presenting the alternative verdicts which he did, or that the failure to present a further alternative of robbery simpliciter could possibly have deprived the appellant of a chance of acquittal.

Cross-examination on prior sexual activity of complainant

The learned judge ruled against an application by defence counsel to cross-examine the complainant as to the evidence of seminal fluid found in a high vulval swab taken from the complainant. The evidence would have suggested that this could be up to a week old but no older. Mr Callaghan advanced his argument on the footing that the complainant had disputed in earlier cross-examination the fact that she did in fact have a boyfriend at the time. She had readily admitted, however, that she had told the appellant that she had a boyfriend when she was trying to persuade the appellant to leave.

The relevant legislation is s 4 of the Criminal Law (Sexual Offences) Act 1978. Rule 2 prohibits cross-examination of the complainant as to her sexual activities, or the receipt of evidence of her sexual activities, without leave of the court. Rules 3, 4 and 5 of the prescribed law state:

"3.The court shall not grant leave under rule 2 unless it is satisfied that the evidence sought to be elicited or led has substantial relevance to the facts in issue or is proper matter for cross-examination as to credit.

4.Evidence relating to or tending to establish the fact that the complainant has engaged in sexual activity with a person or persons must not be regarded as having substantial relevance to the facts in issue only because of any inference it may raise about general disposition.

5.Evidence relating to or tending to establish the fact that the complainant has engaged in sexual activity with a person or persons is not proper matter for cross-examination as to credit unless, because of special circumstances, the court considers the evidence would be likely to materially impair confidence in the reliability of the complainant's evidence.

The purpose of this rule is to ensure that a complainant is not regarded as less worthy of belief as a witness only because the complainant has engaged in sexual activity."

In my view the proposed cross-examination went to credit only. The suggestion by Mr Callaghan that the existence of a boyfriend might make her agreement to submit to being tied up more credible is at best so marginal a matter that it could not call into question the propriety of the learned trial judge's exercise of discretion to exclude the questioning. Furthermore, proof of the fact that she had had sexual intercourse with someone about a week previously would not prove more than a casual sexual encounter on her part. The existence or non-existence of a boyfriend at the time was not in my view a matter of "substantial relevance to the facts in issue" or of the kind that would materially impair confidence in the reliability of the complainant's evidence under rules 3 and 5 above.

Although the credibility of a complainant in a sexual case is always an important matter, I do not think that the present was a proper case for the grant of leave to ask questions in respect of which leave was sought.

Sentence

The application for leave to appeal against sentence is confined to the allegation that the sentence on count 2 (four years' imprisonment) was manifestly excessive.

The sentence must be seen as the operative sentence in respect of multiple counts arising out of his criminal activity on the night in question. It is also relevant to note that he was dealt with at the same time on a number of other property offences to which he pleaded guilty at the conclusion of the trial. All sentences were ordered to be served concurrently. The existence of this fairly substantial further criminal activity (nine additional counts) is not immaterial when assessing whether the operative four year sentence imposed in respect of the major count was manifestly excessive.

This is not a case upon which either counsel was able to produce any helpful precedent. In the court below defence counsel contended for an end result of between three and three and a half years' imprisonment, which is not far removed from that which the learned sentencing judge imposed.

Mr Callaghan drew attention to the facts that the appellant was in the residence consensually, that he was not a total stranger, that no weapon was used and that no serious injury was caused. On the other hand the robbery occurred at the complainant's house after the appellant had been asked to leave. The circumstances reveal particularly nasty conduct in the form of abuse of physical power by a man who had initially been offered sexual favours. He assumed the right to take what he wanted, overpowered the female owner, ransacked the house, caused gratuitous damage to its furnishings, bound and gagged the complainant and left her in that condition, taking her money and property with him. A schedule of sentences which were supplied to the court suggests that quite often lower sentences are appropriate for street or park robberies where not a great deal of violence is shown, but the breadth of misconduct revealed in the present matters is in my view sufficient to distinguish this case and support the sentence. It may be added that the appellant has some previous criminal history including offences of dishonesty and breaches of domestic violence orders (although it was not suggested that these were in respect of actual violence). He went to trial and told a story which affronts commonsense. It may be safely concluded that remorse is but a distant prospect in this particular instance. I would refuse the application.

Orders

1. The appeal against conviction is dismissed.

The application for leave to appeal against sentence is refused.

CHESTERMAN J: I agree with the orders proposed by Thomas JA and with his Honour's reasons.

Footnotes

1. (1981) 147 CLR 383. ↩

2. [1999] 2 Qd R 640. ↩

3. See R v Bojovic [2000] Qd R 189; R v Craig [1998] QCA 277; CA No 139 of 1998, 15 September 1998. ↩

4. Gilbert v The Queen [2000] 74 ALJR 676 per Gleeson CJ, Gummon and Callinan JJ; McHugh and Hayne JJ dissenting. ↩

5. Mancini v DPP [1942] AC 1; Pemble (1971) 124 CLR 107; Markby (1978) 140 CLR 108, 113. ↩

6. Note discussion in Gilbert (above) at paras [14] to [17]. ↩

7. R v Rehavi [1999] 2 Qd R 640; Benbolt [1993] 67 A Crim R 11, 14-17, 27-29; R v Pureau [1990] 19 NSWLR 372, 377. ↩