Stone v R

LOWER COURT District Court JURISDICTION : LOWER COURT 01/61/0138 FILE NUMBER(S) : LOWER COURT Finnane DCJ JUDICIAL OFFICER :

REGINA v RICHARD FREDERICK BRIAN SHILLINGSWORTH JUDGMENT

SMART AJ: Mr Shillingsworth appeals against his conviction of breaking and entering the dwelling house at 145 Meadows Road Bourke, knowing that there were persons therein, and having sexual intercourse with AO without her consent, knowing that she was not consenting. He complains of errors in the summing-up. He also seeks leave to appeal against the asserted severity of his sentence comprising a minimum term of 4 years imprisonment with an additional term of 3 years.

The essence of the Crown case was that about 6am on Saturday 3 March 2001 the appellant broke and entered the home of AO, her husband and their children, by opening one of its doors and entering the home, proceeding to the bedroom of AO and her husband and raping her whilst she was in bed with her husband.

There were inconsistencies of varying kinds in some of the background details, the details of the events alleged and details of the complaint made. In broad outline the evidence revealed the following. On the afternoon and early evening of 2 March 2001 AO was at home caring for her three children and watching television. She had not been drinking. Her husband who had been drinking with his brother, came home probably about 8.30pm, carrying 12 large bottles of beer. AO and her husband sat down, played music and talked. Her husband drank some of the beer. Late in the evening, and probably about 11.30pm a number of people arrived at the family home. They included her husband's brother Shane and his wife Lizzie, an uncle, Mark and Cherie, Wayne (another of her husband's brothers) and Dorothy. There was a considerable amount of talking and drinking.

Last to arrive, and by a considerable margin, was the appellant who was known by the nickname of "Buddy". He had been staying next door with his cousin. On his own account he had been drinking from a flagon of port and was well intoxicated when he arrived at his cousin's home late at night. She was not at home and he could not gain access to the house. He knocked on the door of the house of AO and her husband. They knew him well and let him come inside. He was so drunk that within a short time of sitting on the lounge he fell asleep and remained there until some time after 3.30am. By this time most of the guests had left. The husband caused Dorothy to leave and he, perhaps with Wayne's assistance, escorted or shifted the appellant out of the house onto the lawn.

The wooden front door of the home had a screen door in front of it. After the appellant was put out of the house he knocked on the front door and requested a cigarette. The husband gave him one, shut the screen door and locked the front door. (There was a question whether that lock worked, but at the very least the door was shut). The back door was shut but, because of a damaged bolt, could not be locked. It too had a screen door in front of it on the outside. That was closed. AO and her husband went to bed. There was some disagreement as to who went to bed first but this does not matter. Both slept beside one another on a bed in the main bedroom. The hall light was left on. There was no light shining in the bedroom itself.

Wayne, the husband's brother, slept on a couch in the lounge room.

The appellant woke up some hours later, opened at least one door, entered the home and proceeded to the main bedroom where he saw AO and her husband lying. There was a divergence in the evidence as to AO's dress. She said that she had her shorts and underpants on when she went to bed and that these had been pulled down around her knees. There was evidence from her husband that in bed she was naked from the waist down. The Crown alleged that the appellant approached the bed, pulled down his trousers and underpants and put himself on top of her, inserting his penis into her vagina. She had been asleep and when this occurred, thinking it was her husband, reached up to touch him on the head. As soon as she touched the hair she realised it was not her husband's hair she was touching. She screamed, calling out the names of her husband and the appellant. Her husband woke quickly and punched the appellant. He left the bedroom immediately. AO and her husband pulled on some clothes. She continued to scream.

Meanwhile the appellant had walked down the hallway and had met Wayne. The appellant told Wayne that he had been in the home looking for a cigarette. He was escorted out through the front door. AO was hysterical. She told her husband she had been raped, telephoned triple O and told the operator she had been raped. She told her husband's brother she had been raped. She told both an ambulance officer and a police officer as each arrived that she had been raped. Throughout the entire time she was hysterical, screaming and very difficult to understand. Her husband in the meantime had gone next door and hit the appellant heavily, alleging that he had raped AO. The appellant said, "I didn't do nothing."

AO, having said in chief that she went to bed after her husband, was cross-examined about the inconsistency contained in her statement to the police, in which she said that she went to sleep before her husband. She asserted that her evidence in chief was correct.

She was cross-examined about inconsistencies in a record of interview conducted by Snr Cons Allen on 3 March 2001 in which she stated that the appellant had sex with her from behind. In reply she gave evidence that the appellant was not behind her but on top of her and that her statement was "all wrong" (in that respect) (T21 of 1/10/02).

She denied telling Snr Cons Meszaros that the appellant had intercourse from behind (T23 of 1/10.02). The evidence of Cons Meszaros was that AO repeated this version about five times.

Her husband gave evidence that when he woke up he saw the appellant on top of her. The ambulance officer gave evidence that AO stated "I was in bed and when I woke there was a guy on top of me", and that her husband was lying beside her.

The appellant said that he did not remember leaving AO's house and how he came to be outside, but recalled waking up before daybreak out on the lawn. He said that he woke up looking for a smoke and that when no one answered at his cousin's house he went back to AO's house and "tried to cause doors to open up;" (sic) and went in down the hall because there was a light on, and opened the bedroom door. He stated that he saw AO and her husband naked on the bed, and "when I seen them well I just shut the door and that's when the woman seen me at the door when I thing (sic), when I was shutting the door". He said, in effect, that "'blackfellas' wander into each other's houses looking for cigarettes." He said that he entered through the front door which was open, but the screen door was shut. He said that he did not see Wayne on the lounge and did not turn a light on.

The appellant stated that he saw Wayne in the hall and heard AO swearing. Wayne grabbed him by the arm and led him out the back door. He denied entering the bedroom and he denied sexually assaulting AO.

The appellant said that after being escorted from AO's house he went over to his cousin's house. AO's husband arrived, accused him of raping his wife and assaulted him. The appellant said that he told AO's husband, " I didn't do anything to your wife and I just went there to look for a smoke" .

The appellant stated in cross examination that he had never been to AO's house previously. He stated that he was charged up and agreed that he could not have been thinking clearly, that there was no noise in the house, no one was walking around and that everyone must have been asleep.

Appeal Ground 1 reads: " … in respect of count one His Honour's directions on the elements of break and enter were attendant with error." The judge at SU 3 explained to the jury: "What the Crown has to satisfy you… is that each of these matters have been established…Mr Shillingsworth knew that there were persons that were there, that he broke and entered the dwelling house at 145 Meadows Road, that he had sexual intercourse with [AO], that it was without her consent and he knew that she was not consenting".

The judge further stated that each of these matters had to be proved beyond reasonable doubt.

At SU 15 to 17 the judge said: "…to break and enter a dwelling does not mean that you have actually got to use force to get your way into the dwelling. All you have got to do is open the door if it is shut. Now the evidence here from [AO's husband] is that he shut the front door and locked it and the lock worked. [AO] was of the view the lock did not really work, but the door was shut and the screen door was shut. The back door was shut, it could not be bolted shut because the bolt was broken. But both doors were shut and both screen doors were shut.

That being so, the mere opening of a screen door in law would be regarded as a break in into a house, just the breaking-the opening of the door, turning the lock and opening it, that is sufficient for a break in. Once he goes into the house that is an entering. I think you could understand members of the jury that that is a sensible thing. We are all entitled to particularly in times of heat to leave our windows open and many of us leave our doors open and just have screen doors on. Some people latch them and some people do not. The fact that you do not treat your place as a fortress does not give some sort of tacit permission to other people to come charging into your house at night. So he has said in his evidence, the accused that is, that he in fact opened the door, the screen door, that the next door was open, not shut. Well even if that were so, once he sets foot inside the dwelling he has both broken into the house and he has entered the house".

In the written directions which the judge handed down to the jury he said: "In our law, a person breaks into a dwelling if he merely opens a shut door or window. The door or window does not need to be locked or bolted, but merely shut. The evidence in this case from [AO's husband] is that he shut and locked the front door and shut the front screen door behind the accused after putting him out of the house. The back door and screen door were shut, but the bolt on the door was broken and was not in use on the night. In law, entering a house is merely doing that very thing. If you find that the Crown has proved beyond reasonable doubt that the accused was out of the house and the front and back doors were shut and later he was in the house, you are entitled to conclude that he broke and entered the house. If you are not satisfied beyond a reasonable doubt that the Crown has proved the doors or either of them, or the screen doors or either of them were shut, and that he might have entered an open door, then you would find him not guilty of this count and you would then go on to consider the alternative count. If you were in doubt as to whether he left the house before the complainant and [her husband] went to bed, he could not be guilty of breaking and entering". 20. The appellant complained that there was no direction to the jury on the mens rea of breaking and entering and that the judge did not explain what the Crown had to prove to establish the requisite intent. The appellant submitted that the judge should have directed the jury that they must be satisfied that the appellant was a trespasser, or had no authority to enter the premises. The appellant further complained that in the context of directing the jury on the elements of break and enter, the judge did not refer to this evidence which was given in the cross examination of the appellant: "Q. Did you think you were welcome to go back into that house and wander round early in the morning to find someone to ask for a cigarette? A. Yes. Q. What was it that made you think you were welcome to do that? A. Well everyone else do it". The appellant said that all "blackfella" did it when they got drunk and were walking around looking for a smoke and gave this further evidence in cross examination: "Q. Walk into anybody's house at any time of the day or night and ask for cigarettes? A. Yes, you know the people go and ask them".

As the appellant had been put out of the house of AO and her husband by the latter it was not easy to accept that the appellant believed he had a licence or permission to enter that house at any time. Not surprisingly counsel for the appellant at this trial did not push that point.

Counsel for the appellant relied on Williams (1986) 21 A Crim R 460, a decision of the Full Court of Queensland. The appellant was convicted of breaking and entering the dwelling house of another with intent to commit an indictable offence therein. Section 22 of the Criminal Code 1899 (Qld) provides that " a person is not criminally responsible…for an act done…by him with respect to any property in the exercise of an honest claim of right and without intention to defraud". Williams alleged that he was acquainted with the occupants of the flat and had entered pursuant to a previous general invitation to visit at any time. He wanted to buy some marihuana, claiming that he had previously smoked marihuana on the premises with the occupants. It was not disputed that he had opened the unlocked door and entered the premises without the immediate knowledge of the occupants. The judge refused to direct the jury in terms of s.22 of the Code on the basis that any claim of right of Williams could not have been honest as he had entered for the illicit purpose of acquiring marihuana. The Court held that the judge erred in not leaving the defence of honest claim of right to the jury.

At 472-3 Carter J said: "…the question of permission or authority was always relevant to the common law offence of burglary…"

and at 473: "Of course the entry must be accompanied by mens rea…[Williams] alleged that he had been given a general invitation or permission to go to the flat to obtain marihuana. The relevant occupants asserted that the appellant was not the beneficiary of any such invitation or permission. That was an issue…which ought to have been left to the jury".

Carter J at 475 continued: " …it was incumbent upon the Crown to establish beyond reasonable doubt the absence of permission or authority to enter for the specified purpose or for any other purpose. If…the accused…relies upon an invitation to enter, whether in general or specific terms, the question of permission or authority is immediately thereby put in issue and the accused is entitled to have that question go to the jury".

That was a different case from the present one. Here the appellant appears to be relying upon some general custom among Aboriginal people which allowed one to enter the home of another (presumably being on friendly terms) at any time to seek a cigarette. That was an incredible claim. The appellant did not suggest that either AO or her husband had granted him general permission to enter their home.

In his address, counsel for the appellant told the jury that the appellant accepted that he had opened a closed door and that they might have no difficulty with the element that the appellant knew that there were persons inside the house. Counsel for the appellant said that the real issue was whether the appellant had sexual intercourse with AO without her consent and, if he did, whether he knew that she was not consenting. Apart from some general remarks, almost the whole of counsel's address dealt with what he described as the " real issue". That was realistic. No evidence of permission or authority to enter was given by the appellant in his evidence in chief.

Counsel for the appellant sought no further direction at any time during the hearing. The appellant having determined to resist the Crown case on the rape issue, and understandably and sensibly so, should not now be permitted to re-litigate his case on a different basis. Further, there has been no miscarriage of justice in the circumstances of this case; the point now taken is not sound. Leave to raise and argue ground 1 should be refused. Appeal Ground 1 fails.

Appeal Ground 2 reads: " …his Honour erred by not drawing the jury's attention to the important inconsistencies in the evidence of complaint in circumstances where his Honour invited an impermissible use of the evidence of distress".

The judge, after recounting that AO had told a fair number of people in a short time that she had been raped, told the jury that if they accepted the evidence of the witnesses that AO had complained to them of rape they could use that evidence to support her credibility because it showed that she had acted consistently.

The judge continued: " So the Crown says this is conduct that could be expected of a truthful person who has just been sexually assaulted. It goes to her credit as it may increase her credibility. It is a matter for you to judge, but that is important in this case because criticism has been directed at her evidence. Mr Wilson has put to you that her evidence lacks credibility, that you could not believe what she said because she has given different versions of things. Well this evidence of complaint goes to support that credibility. So if you have got doubts about her credibility you can look at complaint as something that might increase her credibility. It is a matter for you to judge whether it does or not". 29. The appellant contended that this was a circular direction and that the judge, when dealing with the complaint evidence failed to highlight for the jury that one of the most important inconsistencies was inconsistent complaint. This tended to undermine her credibility. The appellant contended that the judge should have taken the jury to the inconsistent complaint when summarising her evidence.

The judge summarised AO's evidence in some detail and included the complaints she said she made to her husband and the 000 operator. The judge referred to some of the inconsistencies in her evidence. He referred (SU 23-24) to part of her evidence in cross examination about the inconsistent complaint: "She said…"I'm certain about that, he wasn't behind me he was on top of me. He was in front of me", and the answers she had given in the record of interview to say that he was behind her were wrong. She remembered speaking to the police officer, Christine, who must be Senior Constable Meszaros, she did not tell her anything about him coming from behind. Now, it seems quite clear that she did. Now the Crown says you should look at her as a witness, she is not sophisticated, she is doing her best and the Crown says in effect look, she said she was raped, she might be a bit confused about the fact that it did happen and complained to all these people and she was very distressed, what could have caused it, except that rape?

Mr Wilson says on the other hand, well she is unreliable, if she cannot get it right about such a fundamental matter, how could you have any certainty about what occurred?"

It was submitted that the passage quoted contains error as it invited the jury to reason towards guilt unless some positive answer was available to explain her distress, thus reversing the onus of proof. It was contended that the passage was analogous to inviting the jury to reason impermissibly, for example " Why would the complainant lie?" See Palmer v The Queen (1998) 193 CLR 1.

The appellant submitted that one available explanation for the complainant's distress was that she was frightened by having seen the appellant at the door in the middle of the night and was not a truthful witness. He gave evidence to this effect, "Oh she could've been the reason because well I was in the house when everyone was asleep so I wouldn't blame her for swearing at me".

The question, " what could have caused it (the distress) except rape?" is not in the same league as the forbidden question, "why would she lie?" The distress was an observable state. The question why would she lie involves impermissible speculation. In the present case the distress was very acute. She had gone to bed with her husband, with nothing seeming to be amiss. Seeing an unwelcome man in the house at the bedroom door when everyone was asleep and she was naked may well cause some distress, but not distress of the order recounted by the witnesses. This distress was allied with cries of rape.

The Crown submitted that the true effect of the rhetorical question, in the summary of the Crown's arguments, was to ask the jury whether there was any other evidence in the trial, the appellant having given evidence, that would explain the distress of AO, apart from her assertion that she had been raped.

In his final address the Crown prosecutor said: " On the evidence…, there is no other explanation for her being upset and distressed but for the fact that the events happened in the way which she describes. There was no other incident that happened in the house before she went to bed that might have made her upset in the morning. There was no argument between her and her husband during the night that might have made her upset in the way but for the event that she describes. They are… really, really important parts of this case, because they…make her account of events, although it has her difficulties, it's not free of problems but they are things that provide very significant support for what she has told you about what happened to her".

That argument, which the judge endeavoured to summarise, is not objectionable. The jury would have assessed what the judge said against that background. This was not a case where the Crown's argument or, the judge's summary of it effectively shifted the onus of proof on to the appellant. The Crown relied on the distress evinced by AO as an important supporting factor of her allegation and the evidence of her husband that she had been raped.

In the written directions handed to the jury the judge after referring to the evidence from a number of witnesses as to her distress said: "You are entitled to take into account the evidence of this distress, if you accept it, as supporting her claim that the accused had raped her. This is so, because, on the evidence, she was perfectly content when she went to bed and it was something that roused her, on her evidence, the accused being on top of her, that caused her to be so upset. There is no other circumstance that could have caused such an upset, if you accept her evidence and the evidence of [her husband] and Wayne…"

Those written directions also dealt with the inconsistencies in her evidence. After referring to her evidence that she went to bed with her shorts and underpants on, went to sleep next to her husband and later found herself dragged down the bed with no shorts and no underpants on and the accused on top of her, the directions continued: "She clearly gave a version to the police shortly after the events, that she was lying o n her side and felt penetration into her vagina from behind. Those two versions cannot stand together and may cause you to have doubts about her reliability as a witness.

She also gave evidence as to other matters which may seem to you to be doubtful, eg, what time [her husband] came home, was it just after Home and Away finished or was it at about 8.30pm.

It is dangerous to rely on the evidence of someone whose evidence is contradictory or unreliable unless you find there is other evidence which supports it.

If you consider her evidence on any matter is not certain or is unreliable, you should give consideration to whether there is other evidence to support what she says.

Thus, you may not be certain from her evidence alone whether the accused was on top of her or beside her, but you may consider that [her husband's] evidence that he saw the accused on top of her supports her evidence given in this court. Similarly, the evidence of complaint and the evidence of Wayne… may be considered by you when you consider the essential question in this trial, Did the accused have sexual intercourse with her without her consent ".

The Crown prosecutor, in his final address to the jury and the judge in his summing up and written directions, recognised that there were inconsistencies in AO's evidence. They were also highlighted during the cross-examination of AO and in the final address of the appellant's counsel. This was a short trial. Leaving aside the voir dire and the opening formalities it lasted two days. The Crown opened its case to the jury after lunch on Monday, 30 September 2002. The evidence concluded by about 10.40 am on Wednesday, 2 October 2002. After addresses and the summing up the jury retired to consider their verdict at 12.45 pm that day. They returned with their verdict of guilty at 2.37pm.

The major issue in the trial as fought, was whether the inconsistencies in AO's evidence including her complaints and statements meant that her evidence that she had been raped was unreliable. Her evidence of rape was strongly supported by her husband. He saw the appellant on top of AO. Her complaint of rape was made at the first opportunity.

The judge crystallised the matter at SU 32: "[The appellant's] case…is look she is very inconsistent and that inconsistency must leave you with some doubt about whether there was some doubt about whether there was sexual intercourse without consent. The Crown says she may have been inconsistent in the way she described how it occurred but she was not inconsistent in her stating that she had been raped".

The appellant placed reliance upon the decision of this Court in R v. RJC, unreported, 1 October 1998. That dealt with a markedly different factual situation. In that case only two attempts were made by cross examining counsel to put to the complainant alleged prior inconsistent statements. In the present case, the bulk of the effective cross examination of counsel for the appellant, at the trial, focussed on the inconsistencies between AO's pre trial statements and her evidence. The Crown accepted that there were inconsistencies and so did the judge.

In the circumstances of this case the judge was not required to do more than he did. The summing up put the cases of the Crown and the appellant adequately and fairly. With the evidence of AO, her husband and Wayne and overall there was a very strong case against the appellant on the count on which he was convicted.

The experienced counsel who appeared for the appellant at the trial did not seek any further directions. There has been no miscarriage of justice. Leave to raise Appeal Ground 2 is refused.

The appeal against conviction should be dismissed.

The appellant submitted that it was not open to the judge to hold, that the jury rejected the appellant's evidence to the effect that he entered the house to obtain cigarettes, as the jury were not directed to consider the appellant's evidence in this regard, that is, that he entered the house with the general permission of AO or her husband. Earlier in these reasons that contention has been rejected.

The appellant further submitted that the judge erred when he stated, "In my opinion, the evidence in this case enables me to conclude beyond reasonable doubt that the offender, when he woke, determined that he would go into the house and he would there have sexual intercourse with the complainant". The appellant pointed out that the offence did not include as an essential element an intent at the time of the entry into the house to rape AO. It was submitted that the judge had misquoted the evidence in coming to the conclusion mentioned, by stating that the evidence was to the effect that the appellant had not previously been to AO's house, when the evidence of AO was that he had been a frequent visitor to the house.

The Crown replied that it was open to the judge to find that the appellant's intent at the time of the break and enter was to have sexual intercourse with AO on the basis that on entering her house he immediately went to her bedroom and had sexual intercourse with her. I think that the Crown's reply is correct. The judge rejected the alternative argument that there was no pre-meditation and that the appellant only formed the intention to have intercourse with AO when at the door of the main bedroom he saw her lying on the bed naked from the waist down.

The judge said: "His actions in breaking into the house were deliberate and I am not prepared to accept that this was a crime of sudden impulse or the taking of an opportunity of some kind that presented itself".

The judge attached some weight to the householders having earlier escorted the appellant out of the house, thus making it plain that they did not want him to stay.

What makes this case so extraordinary is the appellant should have intercourse with AO while she was lying with her husband.

As the appellant insisted that he had never been to AO's house before (T123 of 2/10/02) it is hard to sustain the submission that the judge misquoted the evidence.

The appellant complained that the judge made no reference to R v. Fernando (1992) 76 A Crim R 58 and Stone v. R (1995) 84 A Crim R 218 or the principles there stated. It was contended that the sentence was manifestly excessive. The judge described the applicant as coming from an unfortunate and deprived background and gave details of it. He was unwanted as a child. He had no parents with whom he could stay and had to stay with aunties and uncles. He committed crimes so that he could go to a children's home because in such homes no one complained about him, no one picked on him, no one molested him and there was plenty of food. He started drinking when he was 15 or 16 years old. He had little education, leaving school in year 8. He had never had a permanent job. He does some seasonal work and he does CDEP work at Enngonia on those occasions when he is able to get it. He is a single man and has no children. The judge thought that he had " no close relations with anybody much".

The appellant has a long criminal record and has been to gaol many times. He has a chronic alcohol problem and has continued over the years to commit offences despite periods in gaol and appearances before the courts.

The judge correctly treated the offence as a very serious one involving as it did, breaking into AO's home and sexually assaulting her. While the judge could find no mitigating circumstances in the offence he noted that the appellant had not caused AO any physical injury and did not ejaculate. He found that the offence " caused her enormous distress and, even when she was giving evidence…she manifested signs that of continuing distress".

The judge found special circumstances in the appellant's deprived background, his biggest problem of unaddressed dependence on alcohol and this being his first sexual assault. He will need extended support and supervision. This is a very sad case of a man who has had little support in life. The judge correctly found that there were special circumstances.

The judge said that it was very difficult to determine what the correct sentence should be. I agree.

He did not find the Judicial Commission Statistics to be helpful in the present case. While there are 267 cases of aggravated break enter and commit serious indictable offence contrary to Sec.112 (2) of the Crimes Act 1900 there are, we were told, no statistics available where the serious indictable offence is rape (or its statutory equivalent). The available statistics reveal that the subject sentence is in the top 9 per cent of sentences for all offences against Sec. 112 (2). There were 11 instances where the head sentence was 8 years and 7 instances where the head sentence was 7 years.

With an offence of the gravity in question and notwithstanding the compelling subjective features, the actual sentence imposed by the judge is not open to criticism. A lesser sentence is not warranted in law.

I would grant leave to appeal because of the difficulty of the sentencing exercise in the present case but dismiss the appeal.

I propose the following orders: 1. Appeal against conviction dismissed. 2. Leave to appeal against sentence granted. 3. Appeal against sentence dismissed.

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