R v Mitchell[1998] QCA 31

DAVIES JA:  The appellant was tried in the District Court on 21 August last year together with two others, Mark John Mason and Stanley James Saunders, who were with him convicted of a number of offences.  They also appealed against their convictions and those appeals have been dismissed.  They also sought leave to appeal against their sentences and to a limited extent only, to which I will refer later, their applications were granted and their appeals were allowed. 

The appellant here was convicted of the following offences: assault occasioning bodily harm in company; four counts of rape; two of indecent assault with an aggravating circumstance which was anal intercourse; three of indecent assault with an aggravating circumstance, that being his penis coming into contact with the mouth of the complainant; and indecent assault.  I pause there to say that the appellant's other co-offenders were also tried and convicted of those offences.  But the appellant was then convicted of a further count of indecent assault with an aggravating circumstance, that being his penis coming into contact with the mouth of the complainant and a further count of indecent assault with an aggravating circumstance, that being anal intercourse.

The appellant was sentenced to 15 years imprisonment on each of the rape counts, 12 years for each of the indecent assaults by anal intercourse, 10 years imprisonment for each count of indecent assault by oral intercourse, three years for the indecent assault, and 12 months for the count of assault occasioning bodily harm in custody.  337 days in presentence custody were declared to be time served under the sentence.

A declaration was also made that the appellant was a serious violent offender and I will return to that question a little later.  The circumstances of the complaint, as appeared from the complainant and other Crown witnesses, were as follows. 

The complainant knew the appellant and his co-offenders.  On the evening of 19 September 1996 and the early hours of the following morning she was drinking with some people including those three at a number of nightclubs in Rockhampton.  In the early hours of 20 September, her boyfriend, a man called John Stephens, was arrested for drink driving and she told some people early that morning that she was going to the watch-house to see him.

The appellant, Mitchell, offered to drive her and she got into Mitchell's car with Mitchell and the other two co-offenders, Saunders and Mason.  The complainant invited another person to join her but Mitchell said, "Don't worry about him, we will take you around and that."

She was not driven to the watch-house.  The car was, first of all, driven to a Mobil service station.  The complainant said she felt uneasy at that point and went to the ladies toilet.  When she came out, the car had been driven around to the vicinity of the toilet and she was then, in effect, manhandled back to the car.

When the car was then driven away, the appellant before this Court, told the complainant that "they were going to fuck me all night and all day".  They were her words.  Saunders made similar statements and Mason was apparently laughing at this.  At one point, the complainant tried to get out of the car but she was prevented from doing so by this appellant. 

They drove out of town to a reasonably remote location where the appellant pulled the complainant from the car and told her to remove her clothes.  She did not do so; this appellant hit her in the mouth splitting her lip and causing it to bleed.  He then grabbed her by the hair and all three demanded that she remove her clothes.  He commenced hitting her across the head. She eventually removed her clothes and he, this appellant, forced her to the ground.  He had sexual intercourse with her, that being the second count of those I have already related.

What then happened was that the others took turns to have intercourse with her and, after the second of the others had done so, this appellant, Mitchell, grabbed her by the hair, and pushed her face down on the bonnet of the car.  He then inserted his penis in the complainant's anus, that being count 4.

At the same time the others were attempting to assault her, Mason by attempting to force his penis into her mouth and Mitchell was pushing her head towards Mason's penis.  Another car came along and Mitchell pushed the complainant to the ground and jumped on top of her.  He said to her, "Don't try to do anything or say anything or do anything to get away."

After the car had gone he placed the complainant on her back on the bonnet and put his penis inside her anus again; that was count 6.  The others were similarly assaulting her by, in one case, putting a penis into her mouth and the other by forcing her to masturbate him.

At this stage the complainant was crying loudly and she was again threatened, this time by Saunders.  Mason then had sexual intercourse with her whilst this appellant forced her to suck his penis.  As other cars drove past she was thrown to the ground and on each occasion this appellant told her that he would kill her if she did anything.

At one point he was choking her and he was restrained by the others.  He said, after being restrained, "I don't believe how psycho I get sometimes."  This course of conduct continued with the others assaulting and having sexual intercourse with her.  They then returned towards the city in the car, Mitchell forcing the complainant to suck his penis.  They then went back to Mitchell's flat, picking up another female on the way.  The complainant had been threatened by Mitchell not to say anything.

They then went back to the flat and Mitchell took the complainant into his bedroom.  He made the complainant suck his penis again, that being count 12, and sodomised her again.  He then fell asleep and she made her escape. 

She was examined by a doctor on 20 September and the doctor noted a number of injuries:  a cut on the top of the lip and inside the bottom lip; bruises on both breasts, on the right buttocks, on the lower back; scratches on both knees and scratch marks on her back; tenderness in the vaginal opening; two small lacerations on the cervix which were bleeding; and tenderness upon digital examination of the anus.  Some samples and swabs were taken.

Mitchell was later interviewed by the police, when he denied the complainant's allegations. He said that he and his companions went home in a taxi after the nightclub and went to sleep. He denied any form of sexual activity with the complainant that night.

A number of the complainant's items of clothing were later examined and blood consistent with her were found on her jeans and polo shirt and on items of clothing of some of the other offenders but not, in this case, Mitchell.  An examination was made of Mitchell's car; items belonging to the complainant were found under the driver's seat including a pair of pink panties. Blood consistent with hers was found on the passenger side of the bonnet, the rear luggage compartment window and the rear driver's side door trim.  Fingerprints of the complainants were found on the bedroom window of Mitchell's flat.

The other offenders did not give evidence at the trial but Mitchell did.  He gave a version inconsistent with that which he told the police, his defence being consensual intercourse by the complainant with all three.  There was also some evidence given that there had been a fight between the complainant and another woman at a nightclub; that evidence supporting a view that some part of the injuries observed to the complainant may have been caused otherwise than during the events which she related.

The appellant, before this Court, has appealed on substantially three grounds.  The first of them is that the summing-up of the learned trial Judge was not fair.  In explanation of that before this Court, Mr Mitchell has said that the learned trial Judge did not mention a number of inconsistencies between the complainant's evidence and that of other Crown witnesses.

I have looked at the learned trial Judge's directions to the jury.  They seem, to me, to be very careful and extensive and one must also bear in mind, as Mrs Clare has pointed out to us today, that the defence submissions made to the jury were very extensive indeed.  They constituted, in total, a length of four to five times that of the prosecutor.  They were by experienced counsel, particularly in the case of counsel appearing for Mr Mitchell at the trial and the learned trial Judge commented on the extensiveness and competence of those submissions and the comprehensive nature of them.  In those circumstances, in my view, there can be no proper complaint about the fairness or balance of the summing-up. 

The second ground of appeal is against the safety of the conviction, asserting that it is unsafe and unsatisfactory; the particulars really being that the medical evidence was not consistent, in any way, with the nature of the assault alleged by the complainant and Mr Mitchell has expanded upon that in the course of his oral submissions today by pointing out, as was no doubt pointed out by defence counsel at great length at the trial, that some of the injuries which were sustained by the complainant were consistent with her altercation earlier on the night in question and also it was submitted, in effect, that if she had been subjected to the conduct of the type that I have described she would have sustained more obvious serious injuries.

It seems to me, however, that it was open to the jury to conclude that the injuries which the complainant suffered were consistent with the version which she gave and, in my view, there is no basis for concluding that the verdict was unsafe.  There was, in fact, an application for redirections with respect to these injuries and re-directions were given with respect to them and no complaint is made about those.

The third ground of appeal has even less substance, in my view, than the others.  It relates to the bailiff coming to the Judge, at some point, and indicating to the Judge that the jury could not reach a decision.  In fact, the trial Judge said, at the time, that "The jury hasn't indicated they can't reach verdicts so we just have to be patient with that."  He said, "The bailiff mentioned that the foreman has expressed some reserve about whether they can reach agreement or not, but they haven't said that publicly as yet."

We have been furnished with an affidavit from the appellant's former solicitor which suggests that what the bailiff said was in slightly stronger terms than that; he said, "The jury can't reach a verdict" but there is nothing, in my view, inconsistent with His Honour's description of what took place and, in my view, what His Honour said must be accepted as correct.

In any event, however, it cannot make any difference to the result of the case or to this appeal.  For those reasons, in my view, the appeal against conviction must be dismissed. 

The application for leave to appeal against sentence relates to only one matter and that is whether, in fact, Part 9A of the Penalties and Sentences Act 1992 applies to the offences committed here.  This Court decided in The Queen v. Mason and Saunders (CA Nos. 355 of 1997 and 357 of 1997, 28 November 1997) this point in the applicant's favour and the point has been conceded by the respondent.

I would therefore also conclude, in this case, that Part 9A does not apply to the offences here committed before its commencement, other than section 161C2(b), which applies to earlier sentences, and I would therefore grant each of the applications and allow each appeal against sentence only to the extent of setting aside, in each case, the declaration that the offences to which I have referred earlier were serious violent offences.

PINCUS JA:  I agree.

BYRNE J:  I agree.

DAVIES JA:  The orders are as I have indicated.