The Queen v McLennan[1997] QCA 174

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 546 of 1996

Brisbane

THE QUEEN

v.

JASON MARK McLENNAN

Appellant

Davies J.A.

Ambrose J.

White J.

Judgment delivered 20 June 1997

Separate reasons for judgment of each member of the Court each concurring as to the orders made.

APPEAL AGAINST CONVICTION FOR RAPE ALLOWED, THAT CONVICTION SET ASIDE AND A VERDICT OF ACQUITTAL ON THAT COUNT ENTERED.  APPEAL AGAINST CONVICTION FOR INDECENT ASSAULT AND ASSAULT OCCASIONING BODILY HARM DISMISSED.

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 20 June 1997

Jason Mark McLennan was convicted after a trial in the District Court on 21 November last of rape, assault occasioning bodily harm and indecent assault.  The act of indecent assault was one of carnal knowledge by anal intercourse.  All offences were alleged to have occurred on 15 June 1995 upon Effie Bond.  McLennan appeals against his convictions.  His notice of appeal stated his grounds as follows:

"Having regard to the complainant's refusal to give evidence and be cross-examined once her evidence-in-chief was completed:

1. the learned trial judge erred in failing to declare a mistrial as requested;

2. the learned trial judge erred in failing to withdraw the complainant's evidence from the jury as requested;

3. the verdicts of the jury were unreasonable, unsafe and unsatisfactory;

4. there was a miscarriage of justice."

As appears from the opening words of those grounds they are based on the failure of the complainant to answer questions in cross-examination.  In substance it was submitted before this Court that, in consequence, the trial miscarried and a verdict of acquittal should now be entered.

At the hearing of the appeal a further ground was raised, for the first time, against the learned trial Judge's direction, in effect, that where sexual intercourse commences by consent, but consent is then withdrawn, persistence with intercourse thereafter would amount to carnal knowledge without consent.  The appellant submitted that that direction was wrong in law and that, notwithstanding his failure to seek a redirection in respect of it at the trial or to include it initially in his grounds of appeal, if it was wrong the appellant lost a real chance of an acquittal and the conviction on that account should therefore be set aside.  The appellant was permitted to raise this ground notwithstanding his failure to seek a redirection or to raise it as a ground of appeal before the commencement of the hearing in this Court.

The complainant's failure to answer questions

Although it was never specifically stated in the evidence, it may be safely assumed that the complainant, who was 23 years of age when she gave evidence and who resided at Cherbourg, was of Aboriginal descent.  She had been to a party at a house in Townsville on  the night in question at which the appellant, who was probably also of Aboriginal descent, was staying.  It appears that they met for the first time that night.  She drank some alcohol at the party although it is not clear how much.  She left the party with some young men, not including the appellant, who had offered to walk with her to the house where she was then staying.  The appellant joined the group shortly after this and the incidents which gave rise to the charges occurred in a grassy area not far from the house where the party was held.

When asked in evidence-in-chief whether she could tell her counsel what had happened in this area she answered "I don't remember that much".  When asked to tell what she remembered she said that Jason put his thing inside her, in the back, and that she did not want him to do that because it hurt.  She was vague about what clothing she was wearing that night, although she reluctantly identified some shown to her as hers, and it appears plain that, from the outset of her evidence, she did not want to be giving evidence.  After she had been giving evidence for only a short time the learned trial Judge granted an adjournment "so you can try and regain your composure".  It may be inferred from this that the complainant was visibly upset.  After the break the complainant volunteered, once again, that the appellant put "his thing" in her backside and then said that he put it in the front and in the back.  She then said "Don't want to talk about it.  I just want to go outside".  She was then asked whether she wanted the appellant to do those things to her and she replied "No".  When asked did he touch her anywhere else she said:  "He hit me in the face" and indicated the left side of her face.  She also said that she was "singing out for someone to help me".  His Honour then asked her "Don't you want to be here Effie?" to which she replied "I just want to be back home".

In cross-examination it was first put to her that she did not want to go through with this to which she replied "Not really".  She was then asked her age which she answered.  She was then asked whether she remembered anything that happened before Jason put his thing inside her to which she shook her head negatively.  When told that she had to answer the question rather than simply shaking her head she asked "How long have I got to go?"  When asked whether she wanted to say anything more she replied "There's nothing much I can say".  When asked by counsel for the appellant whether she remembered being at a party earlier that day she simply did not answer and when asked by the trial Judge whether she wanted to answer any questions she again shook her head.

There was then an exchange between counsel and the trial Judge in the absence of the jury although it is not plain what was being sought.  Counsel for the appellant described it as "almost a sort of mistrial situation".  In any event the learned trial Judge told counsel that he should persevere a bit longer, the jury were brought back and the appellant's counsel continued to cross-examine the complainant.

He asked her about what happened earlier that day and about her drinking alcohol to which she did not answer.  The learned trial Judge then asked her if she intended to answer questions and whether she was frightened to which she replied "I don't know, there's so much going through my head".  When asked what was going through her head she said "Just can't think straight".  Counsel then asked her whether she could remember the names of the women that she was with earlier that day.  She then shook her head and replied "No".  When asked by his Honour whether she wanted to answer any of counsel's questions she replied "I'm just trying to think how many glass of moselle I had".  Both counsel and his Honour seemed not to hear that answer and his Honour asked her again whether she was just going to sit there and say nothing to which she replied "I don't know what to say".  She was then asked by counsel did she know what place, what house she was at earlier that day to which she replied "McLennan's" which, it appears, was the name of the residents of the house where the party had been held.  When asked whether she remembered who was there she replied "Not really".  When asked whether she remembered if she was drinking alcohol that day she replied "Moselle".  Again there seemed to be some difficulty both by his Honour and counsel in hearing her because she was asked to and did repeat several times "Moselle".

The learned trial Judge then told the complainant that she had made some very serious allegations against the two men sitting in the dock (the other, at that stage, being the appellant's brother) to which she replied "I don't feel like answering anything".  His Honour repeated that she had made serious allegations against the two men and asked her if she wanted to pursue those allegations to which she replied "Look I don't know what I want to do.  Okay".  When asked by his Honour was she prepared to answer any questions she then replied "No".  Counsel for the appellant then put to her that she did not wish to pursue the claims against the appellant to which she replied "I just want to go home.  I don't want to be anywhere near any courthouse.  All I want is just to get on with my life".  Counsel then indicated that he wished to make a "fresh" application and then in the absence of the jury submitted that "We are at the stage of a mistrial, because we can't proceed further".  The learned trial Judge expressed the view that the application was premature and the jury were brought back.

Counsel for the appellant then indicated that he had no further questions of the complainant.  In re-examination the prosecutor asked the complainant why she did not want to give evidence to which she replied "Cause I'm too upset and I'm scared".  When asked by his Honour what she was scared of she replied:

"This is frightening, going through the whole thing again."

His Honour then asked:

"And you don't want to go through the whole thing again?"

And she replied:

"No."

The impression I have from the whole of this evidence, and one which was plainly open to the jury, was that the complainant did not want to talk about the matter because it upset her too much.  She was also plainly very embarrassed by having her underclothes shown in court and appeared to be overawed by the court proceeding.

During the cross-examination or attempted cross-examination, which appeared to last for some time, counsel for the appellant asked the complainant how old she was, whose house the party was at, who was at the party, what she drank there and what happened before Jason "put his thing" in her.  But at no stage did he put to the complainant that the appellant did not put his "thing" in her front or back, if he did that she consented or that he did not hit her.  This was generally consistent with the way in which the appellant's case was otherwise conducted

The only other witness who gave direct eye witness evidence of the events the subject of the charges was Frederick Craig.  He was the appellant's cousin and was living with him at the house where the party was held on the night in question.  He was one of three young men who had agreed to walk the complainant home.  While they were walking the two others commenced touching her sexually and shortly after that the appellant joined them.  He pushed her into some grass, pulled her pants down and pulled his down also.  According to Craig she did not resist this.  On the contrary she was laughing and giggling.  He then commenced "having sex" with her and she was still laughing.  Then after a while she started crying and screaming, screaming for help, because, Craig said, "Jason was hurting her".  According to him she told the appellant to stop and he kept going.  The appellant's brother told him to "Knock it off and let's go home".  He also recalls seeing the appellant hit the complainant in the face and he heard him tell her to "Shut up" when she was crying and screaming.  When she persisted crying and screaming the appellant ceased and they all ran away.

The appellant's counsel put to Craig that at some point "during the sex" she told him to stop and elicited from him that that was in fact what occurred but that the appellant just kept on going, that she said stop again, that she was screaming and yelling and that they all then "just jumped and took off".  The appellant's counsel did not put to Craig that the appellant did not "have sex" with the complainant, that the complainant did not tell him to stop or did not scream or yell, that the appellant did not persist after the complainant had made it clear that she did not want him to or that the appellant did not hit the complainant.  Nor did the appellant's counsel seek to elicit from Craig what he meant by "have sex", in particular whether it included anal intercourse as well as vaginal intercourse or, if it did, in what order these occurred.

There was strong independent evidence that the complainant was found in a state of great distress that night calling for help and complaining that she had been raped by a man called "Jason".  When seen by a police officer that night she was still extremely distressed crying and apparently in pain.  She was nevertheless able to give an account of events which was consistent with her evidence.  Medical evidence by Dr. McBride a pathologist who examined the complainant was fairly inconclusive as to rape and assault by anal intercourse though there was some blood and mucus about the perineal region between the vagina and the anus.

Although the grounds of appeal relating to the failure of the complainant to answer questions rely on the failure of the learned trial Judge to declare a mis-trial or to withdraw the complainant's evidence from the jury, in argument in this Court Mr. Hamlyn-Harris for the appellant based his contention on the proposition that, because the appellant's counsel was effectively unable to cross-examine the complainant, her evidence should not have been allowed to go to the jury and that, in the circumstances in which it was, the verdicts were unsafe and unsatisfactory.

It is true that without the evidence of the complainant the jury could not have convicted the appellant of sodomy.  Craig did not say that the appellant sodomized the complainant;  nor could that have been reasonably inferred from his evidence that they "had sex".  On the other hand the jury could and possibly would reasonably have thought that his evidence meant that the appellant and the respondent had intercourse, initially by consent, but that the appellant continued after the complainant withdrew her consent and whilst she was crying out to him to stop.  And Craig's evidence would have sustained a conviction for assault occasioning bodily harm.

In determining whether, in the circumstances, the learned trial Judge erred in allowing the complainant's evidence to go to the jury, it is necessary to consider her evidence, and her failure to answer questions, in the light of the case advanced in cross-examination on the appellant's behalf.  The appellant himself did not elect to give evidence.  Consequently the best indication of the appellant's case can be ascertained from his counsel's cross-examination of Craig.  It is significant in this respect that, as I have pointed out, the appellant's counsel did not put to Craig that the appellant did not have vaginal intercourse with the appellant, that he did not have anal intercourse with her as the complainant said he did, that he did not persist in intercourse after she had cried and screamed for him to stop or that he did not assault her.  It is reasonable to accept that, had any of these propositions been in accordance with his instructions counsel for the appellant would have put them to Craig.  And it is reasonable to accept from his failure to put any of them to Craig that, whatever the complainant's state may have been at the trial, he would not have put any of them to her.  This is, to some extent, borne out by his failure to put any of these to her in circumstances in which he asked her quite a large number of other questions to some of which he received answers.

Moreover, as has already been pointed out, the appellant's counsel put to Craig that at some point "during the sex" she told the appellant to stop, that the appellant just kept on going and that once again she called on him to stop, to all of which Craig agreed and added that she was screaming and yelling.  All of this leads me to think that, with the possible exception of initial consent to vaginal intercourse, there was nothing which the appellant's counsel could have properly put to the complainant, on the instructions which he had, which was inconsistent with the complainant's evidence.

There is one further aspect of the complainant's evidence which should be mentioned.  This was not a case in which the complainant gave detailed and incriminating evidence against the appellant in evidence-in-chief but then refused to be cross-examined.  Here her evidence both in  chief and in cross-examination was very limited and it would have been open to the jury to view it as an unsatisfactory basis for a conviction.  But it is not a case in which the appellant has been refused or otherwise denied the right to cross-examine a witness against him.

A right to cross-examine is not a fundamental human right.^[1]  It is an incident of the obligation of a court to ensure that there is a fair trial;  that is, one which fairly balances the interests of the accused with those of the public represented by the prosecution.^[2]  In determining whether the complainant's inability or at least difficulty, in answering questions resulted in a trial which was unfair to the appellant it is necessary to consider its effect.  It did not inhibit the appellant from asking her about the circumstances of the alleged rape and sodomy;  on the contrary it tended to conceal from the jury his inability to put to her that "sex" did not occur or that she did not cry or scream for help or that the appellant did not assault her.  It therefore tended to favour the appellant rather than the prosecution.

Together these factors lead me to conclude that the learned trial Judge was correct in refusing to declare a mis-trial or to withdraw the complainant's evidence from the jury.  His proper course, in my view, was to let the complainant's evidence, together with that of the other witnesses including Craig go to the jury, at least on the issues of indecent assault and assault occasioning bodily harm with appropriate directions.

However there remained a difficulty in respect of the evidence against the appellant on the rape count.  This arises in the following way.  The complainant's initial statement in evidence was that Jason "put his thing inside me, in the back", and that she did not want him to do that because it hurt.  She then went on to say, after again stating that he "put it in my backside" that he "put it in the front and in the back".  The jury would have been entitled to conclude from that that vaginal intercourse preceded anal intercourse and that what the complainant objected to was anal intercourse, because it hurt.  That was consistent with Craig's evidence, although he did not distinguish between vaginal and anal intercourse, that the complainant, when the appellant was initially "having sex with her" was laughing and giggling but then started crying and screaming for help because "Jason was hurting her".

No doubt there were sound tactical reasons for the appellant's counsel not putting to the complainant that she consented to vaginal intercourse and objected only to anal intercourse.  That would have ensured his client's conviction on the indecent assault count.

Ordinarily an accused person is bound by the way in which his counsel has conducted his case at trial especially where, as seems likely here, he deliberately refrained from inviting the jury, or asking the Judge to invite the jury, to conclude that the complainant may have consented to vaginal but not to anal intercourse.  However it is possible that, had it not been for the complainant's reluctance to answer questions, the appellant's counsel may have explored the question of her initial consent with the result that it may have been open to the jury to conclude that it was only anal intercourse to which the complainant had objected.  In those circumstances, though with some hesitation, I am inclined to think that the conviction on the rape count was unsafe.  Accordingly, in my view, it should be set aside and a verdict of acquittal on that count entered.

If the learned trial Judge was right in allowing the complainant's evidence to go to the jury the appellant did not argue in this Court that his Honour's directions with respect to that evidence were in any way inadequate.  I agree with that.

His Honour directed the jury that "it is a significant matter that she was not able to be cross-examined, that her account of what occurred, sparse as that may be, was not tested at all.  She was not able to be because she would not answer the questions by Mr. Fellows about her account of what happened".

Pausing there, what his Honour said may be thought to be unduly favourable to the appellant because, as I have already said, Mr. Fellows, who was counsel for the appellant, did not attempt to put to the complainant, and did not put to Craig with whom there was no similar difficulty, that the appellant did not penetrate her vaginally or anally or that she consented to either;  or that he did not assault her by hitting her during the course of his sexual conduct;  and his questioning of Craig appears to accept that "sex" occurred, that at some stage during the sexual encounter she was crying and calling out for help and that, despite her protests, he persisted.

On later occasions his Honour referred to the fact that "defence counsel was not able to challenge it or test it, or generally question her about her version";  that "her evidence ... was not able to be tested in cross-examination";  that the possibility that she consented to start with and then may have changed her mind "would certainly be an area that would be worth testing, in cross-examination, just to find out what in fact was the position so far as she is concerned but she would not allow herself to be tested";  and that they must be satisfied "beyond reasonable doubt that her evidence untested by cross-examination is nevertheless a satisfactory vehicle for conviction".  He also said that defence counsel "could not suggest things to her because she would not answer".  Finally he reminded them that "it is a very important part of our criminal justice system that the evidence of witnesses be able to be tested and that a thorough opportunity, a full and complete opportunity, be given to any accused person through his counsel to test to the absolute degree the evidence of an accusor and that is a very significant matter in our system".  But in the end, he told them, it was for them to decide why the complainant would not say more;  whether it was because she did not want to be tested, as the appellant's counsel had suggested, or whether it was because she was frightened of reliving the experience or, indeed whether it was some other reason.

These directions tended to favour the appellant.

The trial Judge's direction about withdrawal of consent after penetration

If the conviction for rape is set aside it is unnecessary to consider the question whether, when intercourse commences with consent which is later withdrawn, continuation of intercourse after withdrawal of consent constitutes rape.  If the jury accepted the only evidence about anal intercourse, which was the complainant's, they must have concluded that, from the outset, the complainant objected to anal intercourse.

Allowing the appeal, as I would, only on the rape count has no practical consequence, the appellant having been given, it seems, the same sentence on each count.  There was no application for leave to appeal against sentence and, in any event, any such application, on the facts before this Court, would have failed as the anal intercourse plainly justified the same sentence as the rape.

REASONS FOR JUDGMENT - B W AMBROSE J

Judgment delivered 20 June 1997

I have had the advantage of reading the reasons for judgment of Davies JA which sufficiently set forth the relevant facts.

While it was open to the jury on the evidence of the complainant to conclude that the appellant had both vaginal and anal intercourse with her without her consent the independent witness called by the Crown who was present at the time of the events in issue gave evidence that sexual intercourse between the complainant and the appellant had taken place after the complainant had engaged willingly in other sexual activity with another young man in the group with whom the complainant was walking.  It also emerged from that Crown witness that initially the complainant had consented to the appellant having intercourse with her.  It was open to the jury to conclude that anal intercourse which caused the complainant pain had taken place after vaginal intercourse. 

Stated shortly therefore there was evidence from the complainant that the appellant had first had vaginal intercourse with her without her consent and had then had anal intercourse with her without her consent.  An independent witness gave evidence that the intercourse that he observed the appellant have with the complainant initially had been consensual but later she had withdrawn her consent after complaining that intercourse was causing her pain. 

Undoubtedly counsel for the appellant was impeded in investigation of these matters at any length for the reasons canvassed by Davies JA.

I agree that in the circumstances of the case it would be unsafe and unsatisfactory to allow the conviction for rape to stand.  It was clearly open to the jury to conclude from the evidence of the complainant that subsequent to vaginal intercourse, anal intercourse occurred which she complained about and resisted because it caused her pain.  Independent evidence from Craig supported the Crown case that the appellant had continued to have intercourse against the will of the complainant for some time after she strongly objected to it.

In my view in the circumstances it was clearly open to the jury to convict upon the charge of indecent assault constituted by the appellant having anal intercourse with the complainant without her consent.  For the reasons given by Davies JA however it would be unsafe to allow the conviction for rape to stand in the light of the whole of the Crown evidence and the refusal of the complainant to answer responsively any questions addressed to her in cross‑examination on behalf of the appellant concerning whether or not she consented to vaginal intercourse and objected only to anal intercourse.

I agree that upon the evidence in this case it is unnecessary to consider whether a withdrawal of consent to sexual intercourse which has commenced consensually will constitute continuation of that sexual intercourse rape.  White J has referred to some of the cases touching on this matter.  It is unnecessary to consider this point upon the evidence in this case.

I agree with the orders proposed by Davies JA.

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 20 June 1997

I have had the advantage of reading the reasons for judgment of Davies JA.  I agree with the conclusion which he has reached for the reasons which he expresses.

Since the conviction for rape is to be set aside it is unnecessary, as his Honour has remarked, to consider the question whether consent to sexual intercourse once given may be withdrawn after penetration so as to constitute the continuation of the act as rape.  There are a number of conflicting authorities including R. v. Mayberry [1973] Qd. R. 211 where the Court of Criminal Appeal was divided on the question; R. v. Salmon [1969] SASR 76 which was not followed in R. v. Murphy (1988) 52 SASR 186 after significant legislative amendment; Richardson v. The Queen [1978] TasSR 178 and Kaitamaki v. The Queen [1985] 1 AC 147.

I agree with the orders proposed by Davies JA.