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  • Unreported Judgment

R v AJ

 

[2003] QCA 50

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

CA No 298 of 2002
DC No 1409 of 2002

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

DELIVERED ON:

21 February 2003

DELIVERED AT:

Brisbane

HEARING DATE:

10 February 2003

JUDGES:

McMurdo P, McPherson JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – RELEVANCE – GENERALLY – appellant convicted of rape – where place of purchase of objects used in the commission of the offence was connected with the purpose of the purchase – where the purpose of purchase of relevance to the question of consent – where the place of purchase of the objects was a fact relevant to a fact in issue and admissible

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – PREJUDICIAL EVIDENCE – PARTICULAR CASES – where trial judge admitted evidence of a conversation between the appellant and the complainant in which the appellant said he was proud that he had not hit the complainant – whether evidence did not advance Crown case and was prejudicial – where it was the complainant’s evidence that the appellant was angry during and leading up to the commission of the offences – where evidence was supportive of complainant’s account and was rightly admitted

CRIMINAL LAW – EVIDENCE – CORROBORATION –  WHAT CONSTITUTES CORROBORATION – where complainant and appellant gave conflicting accounts of incident -and a mark on the complainant’s arm was consistent with both accounts – whether the evidence concerning the mark was intractably neutral – whether or not the evidence does provide corroboration or support is a question for the jury

CRIMINAL LAW – APPEAL AND NEW TRIAL AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where the factual matters relied on by the appellant to argue that the verdicts were unreasonable were canvassed during the trial and were before the jury – whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of appellant’s guilt

M v The Queen (1994) 181 CLR 487, applied
R v Kerim [1988] 1 Qd R 426, considered

COUNSEL:

A J Rafter for the appellant
R G Martin for the respondent

SOLICITORS:

Gilshenan & Luton for the appellant
Director of Public Prosecutions (Queensland) for the respondent

[1] McMURDO P:  I agree with the reasons for judgment of Mullins J for concluding that the appeal should be dismissed.

[2] McPHERSON JA:  I agree with the reasons given by Mullins J for dismissing this appeal.

[3] MULLINS J:  The appellant was convicted after trial of one count of deprivation of liberty and two counts of rape.  At the time of the offences the appellant and the complainant were engaged to be married.  The date of the offences was 19 November 2001.  Count 1 which was the deprivation of liberty offence arose out of the complainant being unlawfully detained in the bedroom against her will.  Count 2 was the first rape count and was based on the insertion of an object into the complainant’s vagina.  Count 3 which was the second rape count was based on the forcing of the complainant to take part in oral sex.

[4] The grounds of appeal are:

 

(1)the trial judge erred in admitting evidence of the place of purchase of a cucumber and carrots which were utilised in the commission of count 2;

(2)the trial judge erred in admitting evidence of part of a conversation between the appellant and the complainant on 20 November 2001 in which the appellant stated that he was proud of the fact that he had not hit the complainant;

(3)the trial judge erred in directing the jury that a red mark on the complainant’s arm was capable of constituting corroborative evidence;

(4)having regard to all of the evidence, the verdicts of the jury were unreasonable.

Prosecution case

[5] The complainant stated that on 11 November 2001 she and the appellant went to the Petrie markets and among the items she purchased was a continental cucumber and a bag of carrots which she wanted for a salad, as her parents were visiting for a barbecue lunch.  She said that these items were not actually used in the salad and that the appellant put a lot of pressure on her to use them during sexual intercourse.  She said that she always refused until 18 November 2001 when she agreed and the appellant used a carrot and then a cucumber to insert into her vagina.  The complainant stated that on that occasion she told the appellant to stop as it was hurting and he did.

[6] The complainant stated that she and the appellant had an argument on the morning of 19 November 2001.  The complainant stated that they continued arguing later in the morning and the appellant kicked the complainant’s car and pulled the aerial off.  The complainant stated that she ran to a park nearby and then when she returned home she told the appellant she was sorry about what she had called him earlier in the morning and that he told her to get upstairs and get organised because they were going out.

[7] The complainant said that after a shower she was lying on the bed reading a magazine, when the appellant came upstairs and said they were not going anywhere and that he was going to tie her up.  The complainant stated that she began to scream and the appellant got angrier and put his hand over her mouth.  The complainant stated that the appellant told her to get on the bed and put her hands behind her back, the appellant’s phone then rang and the appellant then told her that if she moved he would kill her.

[8] The complainant described how the appellant tied her hands behind her back using a brown leather belt, that she was crying and that he placed the pillow over her head, because she was screaming and crying.  The complainant stated that the appellant told her that he was going to get the cucumber and carrot out of the refrigerator and that she responded “No, no”.  The complainant stated that when the appellant came back he took her pants off and told her “You fuck me, I’ll fuck you harder”.  The complainant stated that the appellant inserted the carrot into her vagina for about a minute and that he then used the cucumber, but did not push it up as far as he had the carrot and did that for about 20 or 30 seconds.

[9] The complainant stated that the appellant then knelt over her and began to masturbate and then told her to open her mouth and he placed his penis in her mouth and ejaculated.

[10] The complainant stated that after the incident he untied her and told her to clean herself up as they were going shopping to look for sofa beds and that is what they did.

[11] The complainant stated that as soon as the appellant left the next morning to go to work, she packed her things and eventually went to her mother’s workplace and told her that the appellant had tied her up and raped her.

[12] In response to a question about any injuries that the complainant received in the incident, she stated that she had some red marks on her wrists which were photographed by the police.  Those photographs were Ex 10.

[13] The complainant made a pretext telephone call to the appellant from the Cleveland Police Station at 1.25pm on 20 November 2001.  The following exchange occurred during the course of that conversation.

 

Appellant: “I think I did - I think I did pretty good yesterday really.  I was quite proud of myself for …

Complainant:Why are you proud of yourself?

Appellant:Because I didn’t hit you.”

[14] A search warrant was executed at the residence of the appellant and the complainant and police located a cucumber and a carrot in the kitchen tidy bin.  A photograph was taken depicting the bag of carrots in the vegetable crisper in the refrigerator (Ex 5).  On a later occasion the police executed a further search warrant and took possession of the bag of carrots (Ex 6).  The bag was described as a clear plastic bag which was torn.

[15] One of the witnesses for the prosecution was Mr Charlie Ginardi who was a farmer who sold produce at the Petrie markets on 11 November 2001.  He said that he sold carrots in clear plastic bags and a plastic bag similar to that used by Mr Ginardi was Ex 1.

[16] Mr Wrench who was the store manager at Woolworths Deception Bay described the manner in which carrots were packaged by the store.  At the relevant time 1 kilogram packages of carrots were sold in plastic bags with the Woolworths logo on the front as well as a description of the product with nutritional facts, bar code and Woolworths labelling on the back.  He stated that it would be very rare for such products to be sold in clear packaging, but was not able to say that carrots were not sold in clear plastic bags in October/November 2001, although he did regard it as extremely unlikely.  The subject cucumber still had on some of its plastic wrapper.  As the Woolworths labelling could have been on the part of the wrapper that was removed, Mr Wrench could not say whether the cucumber came from his store.

[17] The complainant was examined by Dr Keneally on 20 November 2001.  A general physical examination revealed a small red mark on the radial side of the complainant’s left wrist.  Dr Keneally stated that a detailed genital examination revealed no evidence of injury.

Defence case

[18] The appellant gave evidence.  He stated that he and the complainant had discussed using vegetables in connection with sexual intercourse and that it was common knowledge between them that they would buy a cucumber and carrot for that purpose.  He stated that happened at Woolworths Deception Bay.  The appellant stated that the complainant hand picked the cucumber and a bag of carrots and that she was “sort of giggling and laughing a bit and she was holding it up to me”.  This accorded with what the appellant had stated in his record of interview with the police on 20 November 2001.

[19] The appellant stated that on the night of Friday 16 November 2001 the complainant agreed to the use of the cucumber and a carrot.  The appellant stated that the complainant “thought the cucumber hurt a little bit but she commented that she was willing to try it again but it’d probably have to be a couple of days because she was a little bit sore”.  The appellant stated that the carrot and the cucumber were washed and put back in the refrigerator.

[20] The appellant who was a pest control technician stated that he decided not to go to work on Monday 19 November 2001, because it was raining.  He stated that after breakfast when he told the complainant that he was going back to bed, she swore at him.

[21] The appellant stated that when he arose later in the morning, he argued with the complainant and he agreed that he banged her car and pulled the aerial off it.  The appellant stated that he followed the complainant up the road and spoke to her and that he returned home and then the complainant came back and that they made up and said they were sorry.  The appellant stated that he told the complainant that she should go and have a shower and that when he went into the bedroom and grabbed her by the hand to give her a hug, the complainant went berserk starting to scream saying “I don’t want to be hit.  Don’t hurt me”.  The appellant stated that he tried to hug the complainant and “she just kept going berserk just yelling and screaming”.  He stated that he grabbed a pillow off the bed to put over her face and told her to calm down and that she stopped and was all right.

[22] The appellant stated that the complainant then said to him that she wanted him to make love to her.  The appellant said that he initially refused, but his attitude changed after he asked her if they could do what they had done on the Friday night and the complainant agreed.  The appellant stated he went to get the cucumber and carrot out of the refrigerator and when he returned he asked the complainant if he could tie her up as he had done on the Friday night and that the complainant said “Yes, but don’t use rope”.  The appellant stated that he used the belt that he had used on Friday night around the complainant’s wrists and then used the cucumber and carrot on the complainant.

[23] The appellant stated that after showering they both went to visit a finance broker at Lawnton and then shopping for a sofa bed at Amart Lawnton and Safeways Furniture Virginia.  The defence called the witnesses who had seen the appellant and the complainant that afternoon.  None of these witnesses had observed any sign that the complainant was upset.

Issues at the trial

[24] On each of the rape counts, the question for the jury was whether the act of penetration was without the complainant’s consent or, alternatively, based on s 24 of the Criminal Code, whether the prosecution could exclude honest and reasonable, but mistaken, belief on the part of the appellant that the complainant was consenting to the act.

Admissibility of evidence of place of purchase of vegetables

[25] When the appellant was interviewed on 20 November 2001, he stated that the complainant had picked the cucumber and carrot out at Woolworths for the purpose of being used in connection with sexual intercourse.  The prosecutor at the trial therefore sought to adduce the complainant’s evidence as to where she said the cucumber and carrot were purchased and what she said was the purpose of the purchase on the basis that it was relevant to the issue of whether the complainant consented to the act of penetration involving the carrot and cucumber.  The prosecutor stated at trial that this evidence supported the complainant’s credibility and contradicted what the appellant had said in his interview about the purchase of these items.  The appellant’s counsel at trial submitted that as these items were used consensually prior to the incident resulting in the charges, it did not matter for what purpose the items were bought.  The learned trial judge allowed the evidence of the purchase of the vegetables to be adduced, although observing “the matter is at the periphery of the case”.

[26] On the appeal, the admissibility of evidence of the place of the purchase of the vegetables was attacked on two bases:  that the source of the cucumber and carrots was not so closely connected to the facts in issue to warrant admission or that the evidence was not cogent.

[27] In light of what the appellant had stated in his record of interview, the place of purchase of the vegetables was connected with the purpose of the purchase.  Although the significance of the purpose of the purchase of the vegetables was diminished by the fact that the complainant had agreed on one occasion prior to the date of the offences to the use of them in a similar manner to which they were used on the date of the offences, the purpose of the purchase of the vegetables remained of relevance to whether the complainant was consenting to what occurred on 19 November 2001 and, particularly, to whether the appellant had an honest and reasonable, but mistaken, belief about the complainant’s consent.  The place of purchase of the vegetables was therefore a fact relevant to a fact in issue and admissible on that basis.

[28] It was also argued by Mr Rafter of Counsel on behalf of the appellant that the evidence of Mr Ginardi and Mr Wrench did not prove much.  He pointed out that Mr Ginardi’s evidence did not establish that he had actually sold the items in question or that he was the only farmer selling produce at the Petrie Markets on 11 November 2001; that the evidence of Mr Wrench left open the slight possibility that the carrots had been sold at Woolworths Deception Bay; and that, in respect of the cucumber, Mr Wrench was unable to say whether it had been sold by his store or not.  The contentions of the defence in respect of these aspects of the evidence from these witnesses were, however, referred to in the summing-up, about which no criticism was made at the time or on this appeal.  The prosecution relied on the evidence of Mr Ginardi as consistent with that given by the complainant as to where the carrots were purchased and that of Mr Wrench as to how carrots sold by his store were usually packaged.  Primarily, the evidence relating to the purchase of the vegetables was given by each of the complainant and the appellant.  The evidence given by Mr Ginardi and Mr Wrench was far less compelling, but not incapable of being used by the jury in the manner contended for either on behalf of the appellant or the prosecution.

[29] In the circumstances in which the place of purchase of the vegetables was relevant to the purpose of purchase, there was no error in the evidence being admitted.

Admissibility of appellants statement that he was proud that he had not hit the complainant

[30] The relevant statement made in the course of the pretext telephone call is set out above.  At the trial, objection was taken to this passage on the basis that it did not advance the Crown case and was prejudicial, as the jury might conclude that there were other occasions where the appellant had struck the complainant.  It was also submitted at trial that it was not denied by the appellant that he had been angry in the course of the argument that had preceded what had occurred in the bedroom.

[31] It does not follow from the plain meaning of the words used by the appellant in the record of interview that the inference was open that the appellant had hit the complainant on any prior occasion.  It is implicit in the statement that the appellant had “pride” in himself for not hitting the complainant, that hitting the complainant is what he was tempted to do.  It was the complainant’s evidence that the appellant was angry during the course of the events that occurred in the bedroom.  The evidence was supportive of the complainant’s account and was rightly admitted.

Corroborative value of red mark on complainants arm

[32] Counsel for the appellant at the trial requested the learned trial judge not to leave the injury to the left arm as supporting evidence of the complainant’s account, because it was common ground that the appellant grabbed the complainant’s arm before tying her up and it was also not entirely clear that the injury was not present at an earlier time.  The learned trial judge left the matter to the jury, but in a way that dealt with the issues raised by the appellant’s counsel as to the quality of the evidence.  The learned trial judge stated:

 

“All you have is a small mark on her wrist as the only physical finding.  You might think, members of the jury, that that small mark on the wrist is of very little assistance in this case because there is evidence which seems to be common ground that the accused grabbed her by the arm.  So, there is a possibility the mark on the wrist came from him grabbing her on the arm.

There is another possibility, the mark may have been there beforehand.  These are all matters for you to decide as the sole judges of the facts.  You might think that the small mark on the wrist is of little assistance in the facts of this case.”

[33] The learned trial judge’s observation that the mark may have been on the wrist beforehand was quite generous to the appellant.  The complainant was asked in chief “… did you receive any injuries in relation to this incident?”.  She responded “I had some red marks still on my arm – on my wrists, I mean, and my car”.  The complainant was not cross-examined with respect to the possibility that the mark on her left wrist may have been there prior to the events which were the subject of the charges.

[34] The appellant relied on the statement made by Macrossan J (as he then was) in R v  Kerim [1988] 1 Qd R 426, 447:

 

“The corroborative evidence may have a certain consistency with both versions but it must be capable of being regarded as more consistent with guilt than with innocence and to be acted on by the jury as corroboration it must, in the end, be regarded by it as supportive of a conclusion of guilt: R v Berrill and R v Stratford and McDonald.  The evidence must not, however, be intractably neutral in its effect if it is to serve as corroboration: Ridley v Whipp (1916) 22 CLR 381, 387, 390; Eather v The King (1914) 19 CLR 409, 415 and Eade v The King (1924) 34 CLR 154, 158.”

[35] The submission was made that the injury to the complainant’s wrist was “intractably neutral”.  The fact that an accused person has an account of the relevant event that is capable of explaining away the corroborative or supporting evidence does not deprive that evidence of its character as capable of corroborating or supporting the complainant’s evidence.  It becomes a question for the jury whether or not it does provide that corroboration or support.

Whether verdicts unreasonable

[36] As was submitted on behalf of the appellant, this case was essentially one involving the complainant’s word against that of the appellant.  It was a matter for the jury to determine whether they accepted the complainants evidence beyond reasonable doubt.  Each of the factual matters relied on by the appellant on this appeal to support an argument that the verdicts were unreasonable was a matter that was canvassed during the trial and was before the jury.  Upon the whole of the evidence, it was clearly open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty: see M v The Queen (1994) 181 CLR 487, 493.

Conclusion

[37] None of the grounds of appeal have been made out.  I would therefore order that the appeal be dismissed.

Close

Editorial Notes

  • Published Case Name:

    R v AJ

  • Shortened Case Name:

    R v AJ

  • MNC:

    [2003] QCA 50

  • Court:

    QCA

  • Judge(s):

    McMurdo P, McPherson JA, Mullins J

  • Date:

    21 Feb 2003

Litigation History

No Litigation History

Appeal Status

No Status