The Queen v Gardiner[1998] QCA 353

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 266 of 1998

Brisbane

[R v. Gardiner]

THE QUEEN

v.

WAYNE ROBERT GARDINER

Appellant

McMurdo P.

Pincus J.A.

Williams J.

Judgment delivered 6 November 1998

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 6 November 1998

1. The appellant, who was 32 years of age at the date of the offence alleged (15 October 1997), was convicted of rape and sentenced to imprisonment.  The only argument advanced on his appeal is that the verdict was unsafe and unsatisfactory.

2. The complainant, 13 years old at the date of the offence alleged gave evidence to the following effect.  She said that she sat on a bed with the appellant to watch television, that while she was watching she drank a glass of rum and Coca‑cola which was supplied by the appellant, that this made her feel "basically drunk", that the appellant then started kissing her, rubbed her leg and rolled on top of her.  According to the complainant, she told the appellant to stop and he did so.  She then sat up and had some more of the drink, then lay down and again watched television.  The appellant, according to her, again started kissing her;  he put his fingers in her vagina, her clothes "came off" and the appellant then put his penis into her vagina.  The entry of the penis causing her pain, she tried to push against him.  The appellant kept pushing his penis in and out of her vagina for 10 or 15 minutes despite the complainant’s protests.

3. Then, the complainant said, the appellant pulled his penis out and apologised, saying that he would tell the complainant’s grandmother and mother the next day.  The complainant said that she immediately complained to one of the appellant’s daughters, but that daughter gave no evidence in support of that complaint;  according to the daughter’s evidence, admitted by way of a video recording, the complaint was made the next morning and was that the appellant had raped the complainant "or something".  On that same morning, according to the evidence of the appellant’s mother, the complainant told her that the appellant "took advantage" of her.

4. A police officer arranged for the complainant to telephone the appellant on the afternoon of 16 October 1997, the conversation being recorded.  No objection was taken to admission of the conversation.  In the course of it the complainant made reference to "last night" and to "the off-chance I’m pregnant";  in response to the latter the appellant said "Hang on.  You won’t be." and a little later added "nothing was put in there".  Medical examination on the same day showed that there was an area of haematoma and a tear of the hymen;  there were also two superficial tears to the area between the hymen and the anus.  The doctor’s opinion was that there had been "very recent trauma to the hymen suggesting a recent penetrating injury to the hymen".  The complainant said that she was a virgin at the time when the appellant had intercourse with her.  Examination of underpants which the complainant had been wearing at the relevant time disclosed semen staining in the crotch and a DNA test on the semen indicated a good match (1 in 18,000) with the appellant’s blood.  There was, however, no semen found in the vagina.

5. When questioned by the police on 17 October 1997, the appellant gave a version of the incident which was to the effect that he went to sleep and was woken up by the complainant, that she was naked at the time, that she sat on him with her vagina in the region of his penis and moved "her bottom half around", that he then grabbed her and pushed her off.  He told the police that he did not know if his penis went into the complainant’s vagina and when asked whether he ejaculated said "Not that I know of".

6. On this evidence the jury could hardly have had any doubt about the proposition that the appellant’s penis caused the rupture in the complainant’s hymen, the issue was consent.  Mr Rafter, for the appellant, relied on a number of features of the evidence to show that it was not open to the jury to accept the complainant’s version.  Those which have the most substance are the following -

1. The complainant gave evidence that immediately after the rape the appellant said that he was going to tell the complainant’s grandmother and mother the next day.  Mr Rafter said this was hardly consistent with behaviour of a person who had just committed rape.  It is our view that the jury might reasonably have regarded it as indicative of remorse;  the remark in question was made, according to the complainant, after the appellant desisted from intercourse and apologised. 

2. Mr Rafter pointed out that in the telephone conversation to which reference has been made above the complainant, after referring to the events of the previous night, said "Um, just on the off chance I’m pregnant".  This, Mr Rafter argued, might have been a reason for a false complaint of rape.  That point was in our view a matter for the jury to consider, but on the issue of consent or not, it was essentially neutral.

3. Mr Rafter relied upon semen having been found in the crotch area, but not in the complainant’s vagina nor on her skirt.  He said the place where the semen was located was more consistent with the appellant’s version than with that of the complainant.  In our view it is a little puzzling that no semen was found in the vagina, but the location of the semen does not appear to us to be evidently more consistent with one version rather than another.   As to the absence of indications of semen on the complainant’s skirt, on which she said she was lying when raped, while it is true that some deposit of semen on the skirt would have given support to this aspect of the complainant’s version of events, the point could hardly have been of critical importance in determining whether intercourse was had with or without consent.

7. We note, and take into account, that the appellant gave no evidence to contradict the complainant.  The version of events the appellant gave to the police, which was that he did not know whether or not his penis had penetrated the complainant’s vagina and did not think that he ejaculated, must have seemed implausible to the jury, since it seems fairly plain that he had sexual intercourse with the complainant and that he ejaculated.  In contrast there was, as it seems to us, nothing inherently improbable about the story the complainant told and it was one  which it was open to the jury, applying the appropriate standard of proof, to accept.

8. We dismiss the appeal.