The Queen v Maddox[1998] QCA 413

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 299 of 1998

Brisbane

[R v Maddox]

THE QUEEN

v.

LESLIE JAMES MADDOX

(Applicant) Appellant

McPherson JA

Thomas JA

White J

Judgment delivered 4 December 1998

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

APPEAL AGAINST CONVICTION DISMISSED.  APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 4 December 1998

1. I agree with the reasons of Thomas J.A. for holding that both the appeal against conviction and the application for leave to appeal against sentence should be dismissed.  I would, merely by way of emphasis, add that I am satisfied that there was evidence on which the jury could properly and reasonably have arrived at the verdicts reached.  Acquitting the appellant of some of the counts or circumstances of aggravation with which he was charged did not, in the circumstances of the case, signify that they rejected as unreliable the substance of the complainant’s evidence at trial; but demonstrates at most that they were cautious about some details as to which they considered he may possibly have been mistaken.

REASONS FOR JUDGMENT - THOMAS JA

Judgment delivered 4 December 1998

1. The appellant was found guilty upon three of the five counts tried in the District Court.  The counts and the verdicts are set out hereunder.

2. The only ground of appeal in relation to the convictions is that they are unsafe and unsatisfactory in that the verdicts are inconsistent. 

3. The complainant and the appellant were both young men who had met in 1991, become friends and drifted apart.  The Crown case is that the complainant who had not seen the appellant for about a year at the time of these events was confronted by the appellant on the evening of 31 July 1997.  The complainant had attended a function organised by the Assemblies of God Church and had been driven by a fellow member to a 7-Eleven store which was only a few hundred metres from the unit at which the complainant lived.  Having purchased some items at the store and having commenced to walk towards his unit he noticed a blue Ford XD style station wagon.  He recognised the appellant walking towards him and noticed that he had a black coloured pistol in his hand.  The appellant told him to “Get into the fucking car” and the complainant complied.  He made no attempt to escape because he feared that the appellant might use the gun.  The appellant drove to a park a short distance away and ordered the complainant from the car.  With the gun in his right hand he grabbed the complainant by the jacket and pushed him into the park.

4. Within the park the appellant forced the complainant to his knees and demanded that he suck the appellant’s penis.  He placed the gun next to the complainant’s head and the complainant performed fellatio upon him.  After the appellant withdrew his penis from the complainant’s mouth he put the gun into the complainant’s mouth and told him to drop his pants.  The complainant complied.  The appellant removed the gun from his mouth and ordered him to put his head on the ground.  The appellant moved to the rear of the complainant who said that he did not know where the gun was at that stage.  The appellant then sodomised the complainant causing him severe agony and ejaculated inside him.  After the appellant withdrew his penis he urinated on the complainant over his jacket from behind.  The complainant could feel and smell it was urine.  The urination incident was the subject of count 5 (indecent assault).

5. The appellant then asked for the complainant’s wallet upon which the complainant removed it from his inside pocket and handed it to the appellant.  The appellant told him that if he told anyone about what had happened the complainant and his mother would both be killed.  The appellant left the scene while the complainant lay on the ground crying.  The complainant eventually retrieved his wallet from the place where the car had been parked and upon checking the contents found that the money (approximately $15) was missing but that the other contents (mostly cards) were intact.

6. It is not necessary to canvass in detail the remaining evidence.  It is fair to say that there is good and satisfactory evidence of recent complaint and of distressed condition.  There was also evidence from a medical practitioner who worked at the Brisbane sexual health clinic to which the complainant was taken.  On anal examination the doctor noted injuries consistent with penetration of the anus accompanied by a severe degree of blunt force.  The area was moist and swollen with blood stained fluid oozing postero-laterally.  There were four lacerations, a further possible tear and dilated venules, and intense spasm was noted.  Swabs revealed the presence of spermatozoa.  However DNA typing was not possible due to the low numbers of sperm present.

7. Prior to the police taking possession of clothing, the complainant’s mother had washed his jeans and jacket because they “really smelt”.  However his T-shirt remained unwashed and was handed to police.  Forensic testing did not reveal the presence of sperm on it and the forensic biologist stated that there was no detectable smell on the T-shirt other than that it smelt quite clean.  The complainant’s evidence was that urine had gone onto the bottom of the T-shirt but this was not confirmed by forensic testing.

8. There was also evidence from a neighbour of the complainant that on 1 August 1997 (the day following the incident) the appellant whom she had not seen for some months had come to her house and asked for the complainant.  It may be inferred that he was attempting to see the complainant and the complainant was not then present. 

9. The appellant, when interviewed by police on 2 August denied any contact with the complainant on the night in question.  He stated that he had not seen the complainant “for ages”, and that on that night he had been at the Hamilton Hotel playing pool until 9.40 or 9.45 p.m.  He had then gone to his mother’s house and to the Homestead Hotel.  He had been driving an old greenish coloured Mazda.  During this and subsequent questioning he repeatedly denied any knowledge of a blue Ford Falcon station wagon or of having access to such a vehicle.  The appellant’s initial version may be described as denial and alibi, although the defence of alibi was not raised at trial.

10. On 25 August 1997 as Detective Hopkins was leaving the Boondall Police Station he noticed the appellant and his mother in a blue Ford Falcon station wagon.  Further inquiries revealed that the vehicle was registered to the appellant’s mother’s boyfriend.  Other evidence was called in relation to the movements and location of the appellant at various times during the days preceding the incident and on the night in question.  This showed the appellant to have been present at places other than he had claimed to have been (including at the Prince of Wales Hotel at about 9.20 p.m.).  Other evidence suggests that the appellant had been seen in a darkish blue Ford Falcon XD or XF on the day before and possibly the day of the incident.

11. A search of the appellant’s premises failed to locate any gun.

12. The appellant neither gave nor called any evidence.

13. Had the jury convicted the appellant on all counts, the convictions would plainly have been safe and satisfactory.  There was an adequate case, supported by corroborative evidence, including the condition of the complainant’s anus.  The false denials of the appellant are deserving of considerable weight, and the natural conclusions to be drawn from the evidence remain unexplained and uncontradicted.  The only potential weakness lies in the fact that the jury chose to acquit on some counts.  It must therefore be asked whether the verdicts are properly reconcilable.

Discussion of verdicts

14. The principal submission of counsel for the appellant is that it was an essential part of the complainant’s story that the appellant was in possession of the gun during the entire episode and that the verdicts suggest that the jury had a reasonable doubt as to whether he was armed at all.

15. Counsel readily conceded that the acquittal on count 5 was explicable by reason of the failure of forensic testing to confirm the presence of urine and the accompanying possibility that the complainant was mistaken in relation to that incident.  That is an appropriate concession.  In my view there is equally no difficulty in understanding the jury’s acquittal on count 4 of armed robbery (and of the lesser offence of robbery).  In order to understand this, it is necessary to advert to the indictment and to the directions of the learned trial judge with respect to that count.  The essentials of the charge are that the appellant stole from the complainant with actual violence a wallet and contents.  There is then alleged as a circumstances of aggravation that the appellant was armed with a dangerous weapon.  In summing-up the learned trial judge, having explained the meaning of stealing, continued:

"The next requirement of robbery is, that there should be actual violence used or a threatened use of violence.  That is actual violence to obtain the property stolen or to prevent or overcome any resistance to its being stolen...

The circumstance of aggravation alleged by the Crown is that the accused was armed with a dangerous weapon...

If you look at the verdict on count 4 you will be asked first whether the accused was guilty or not guilty of armed robbery...

If you say not guilty then you will be asked for a lesser verdict, that is whether he was guilty or not guilty of robbery.  And you will see that question of the accused being armed is dropped out on the lesser charge".  (My emphasis).

16. Apart from reading s. 409 to the jury the learned trial judge did not advert to the question of the time at which the “actual violence in order to obtain the thing stolen” needed to be shown.  Section 409 of the Code allows for such violence to be used “at or immediately before or immediately after the time of stealing” but the actual directions which relevantly were essentially confined to the above statements could conceivably have left its members with the impression that  violence had to be shown at the actual time of the stealing.  The jury was told there had to be actual violence in order to obtain the thing stolen.  As to this, the evidence of the complainant was that after the rape and the urination incident, “the defendant asked for my wallet, which I pulled out of the inside pocket of my jacket and handed to him”.

17. In these circumstances it is quite conceivable that the jury may have taken the view that an  essential element of that count, namely actual violence, had not been established.  In such event the appellant could not be convicted of robbery with actual violence, with or without the additional circumstance of aggravation namely being armed with a weapon.

18. As to count 1, unlawful deprivation of liberty, it is difficult to agree with the contention of appellant’s counsel that the jury must have rejected the existence of the gun in relation to all counts.  There is for example, evidence that the light was quite good at the scene of the abduction, but no evidence seems to have been led on the question of the adequacy of the light at Mungo Scott Park.  Juries do not necessarily take matters for granted to the same extent as judges  and counsel when no issue is taken about a matter such as this.  It is quite possible for a juror to have accepted the complainant’s evidence about the use of the gun near the 7-Eleven store but to have had some doubt as to whether the complainant could see the gun at various stages in the incidents in the park.  At all events I do not consider that it can be safely said that the jury must have rejected the existence of the gun in relation to count 1.

19. The only verdict which occasions difficulty is that with respect to count 2 - indecent assault with a circumstance of aggravation.  On this count the appellant was found guilty of the indecent assault but not of the circumstance of aggravation.  This suggests that the jury accepted that the act of fellatio occurred but that it entertained a doubt as to whether the appellant was armed whilst it occurred.

20. The evidence in relation to count 2, so far as the gun is concerned, is:

‘He was standing in front of me with his pants down and his penis semi-erect and he told me to ‘suck his cock‘ and placed the gun next to my head.‘

The complainant then did what he had been told to do.  It is not clear whether the placing of the gun “next to my head” was a visual observation or a tactile sensation.  If the former, the state of the light may have been thought relevant.  The evidence then continues that after the oral sex incident the appellant put the gun in the complainant’s mouth and told him to drop his pants.  This incident, which obviously records a tactile sensation is subsequent to count 2 and may be seen as preparation for count 3 (rape).  It is not essential for the maintenance of the convictions that the jury must have accepted every detail of the complainant’s evidence, including the allegation that a gun was at that particular moment placed in his mouth.  In any event the jury’s conviction of the appellant on count 3 and its failure to be satisfied in relation to the use of the gun with respect to count 2 are not inconsistent with their acceptance of the gun in the mouth incident occurring between those two events.  In my view the appellant’s main premise, namely that the jury must have rejected the entire account of the appellant in relation to the gun is not acceptable.

21. There remains however a difficulty in relation to the unwillingness of the jury to find that the appellant was armed during the oral sex incident.  This verdict is however as readily explicable upon a doubt as to the accuracy of the complainant’s evidence on this detail, founded on the possibility of error, as it is with the rejection of the complainant as a witness of truth on a matter central to his entire story.

Principles when verdicts are said to be inconsistent

22. The question then is whether having regard to the principles set out below the verdicts can rationally stand together.

23. “An appellant seeking to persuade an appellate court that a jury has returned inconsistent verdicts has the burden of establishing that the verdicts could not stand together, meaning thereby that no reasonable jury who had applied their minds properly to the facts in the case could have arrived at that conclusion.  And this will be so only if there is no rational basis for the apparently inconsistent verdicts.”^[1]

24. This test has been consistently applied in this court, and it remains consistent with the principles that have been stated in judgments in the High Court in Jones v R^[2] and Mackenzie v R.^[3]  In the latter case the following statement of Devlin J was adopted by Gaudron, Gummow and Kirby JJ.

"The appellant must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand".^[4]

It may be added that the introductory words of Devlin J were:

"When an appellant seeks to persuade this court as his ground of appeal that the jury had returned a repugnant or inconsistent verdict, the burden is plainly upon him."^[5]

25. Reference has also been made to the understandable reluctance of courts to accept the submission that verdicts are inconsistent in the relevant sense.^[6]

26. In a criminal appeal, the view may be taken that the jury has simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be “proved beyond reasonable doubt”.^[7]  In the present case the jury was told that they were entitled to accept parts of a witness’ evidence and to reject other parts, that they had to consider each charge separately and on its own merits.  It was specifically directed in relation to count 2 that “if for some reason you are not satisfied that the accused was armed, you will be asked for a verdict on the lesser charge”.

27. It is also well accepted in Australia that:

"The appellate court may conclude that the jury took a ‘merciful‘ view of the facts upon one count; a function which has always been open to, and often exercised by juries".^[8]

28. It is further accepted that:

"[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges.  Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law.  Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number.  This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries.  Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty."^[9]

29. There will be occasions where, despite the absence of a logical explanation, a jury may sometimes “hold back” or refrain from convicting on some counts concluding that convictions on other counts are sufficient to meet the justice of the particular case.^[10]  In the present case it is not necessary to resort to the possible explanations of merciful verdict or sufficient conviction on other counts, as other rational explanations are available.  It is fair however to acknowledge that the strength of the Crown case in the particular matter, unanswered as it is, and the absence of any other feature that might raise concern, produces  a natural reluctance to accept the submission that the verdicts are relevantly inconsistent.  The present case might well be seen as one where, if no other rational basis could be seen it would be appropriate to interpret the jury’s verdicts in one of the ways suggested by King CJ in Kirkman.^[11]

30. For the above reasons the appeal should be dismissed.

Application for leave to appeal against sentence

31. The applicant is 20 years old and was 19 at the time of committing the offences.  He was sentenced to seven years imprisonment for rape, and to concurrent sentences of three years for the indecent assault and two years for deprivation of liberty.  His only previous conviction was for possession of a dangerous drug, to which he had been fined $300.00.   The main submission for the applicant relied upon his youth, lack of previous convictions and good employment record as justifying a recommendation for early parole.  On the other hand, there was an apparent lack of remorse, the circumstances of the offences were very serious, and they terminated in the applicant threatening to kill the complainant and his mother if he went to the police.  The learned sentencing judge quite rightly observed that general deterrence was of considerable importance in such matters.  The victim who seems to have been a small physically weak young man was degraded and humiliated and has subsequently experienced nightmares and depression.

32. The former offence of sodomy has now been transposed to that of rape, and whereas the former penalty for sodomy was 14 years imprisonment, under the current law (in force at the time of commission of these offences) the penalty for rape is and was a maximum of life imprisonment.  There is therefore a difficulty in making valid comparisons with past sentences, although some reasonable consistency needs to be maintained.  For present purposes, without losing sight of the obvious differences between the two offences, there does not appear to be any pressing reason why different levels of sentence should be adopted with respect to the offence of rape according to whether it is the sodomitical or vaginal rape.  It is not necessary to list former sentences on both classes of offence, as the present sentence of seven years imprisonment, taking into account the additional criminality of the additional offences involving fellatio and deprivation of liberty, falls comfortably within the range of sentences imposed respectively for sodomy and rape.  There was no necessity that an earlier recommendation be made for parole, particularly when it is recognised that in the absence of such factors as his lack of previous convictions and his good work record a head sentence of higher than seven years could reasonably have been imposed. 

33. The application for leave to appeal against sentence will therefore be refused.

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 4 December 1998

1. I have had the advantage of reading the judgment of Thomas JA and agree for the reasons which he has given that the appeal against conviction and the application for leave to appeal against sentence should be dismissed.

2. I am satisfied that by acquitting the appellant of some of the charges and of a circumstance of aggravation the jury did not return verdicts which were inconsistent and unreasonable.  They may have had some doubt about the more lurid of the details of the offences given by the respondent whilst overall been satisfied with the correctness of his account of what occurred.