SUPREME COURT OF QUEENSLAND

1. PINCUS JA:  The circumstances of this case are set out in the reasons of Thomas JA. The appellant was convicted of raping an intellectually disabled woman and acquitted on another charge of having raped her.  He appeals against the conviction on the ground that the evidence of the complainant, being the only evidence against the appellant, was not such as to enable a verdict of guilty to be reached with safety.  It is necessary to make reference to the principal points which throw doubt on the verdict;  there were inconsistencies and improbabilities.  But I will first discuss the complainant's mental state.

2. A psychologist examined her and gave evidence that her intelligence quotient is 53 – corresponding, as I understand the matter, to a mental age of 9. The psychologist also said that the complainant has a reduced capacity to communicate caused by her low intellectual ability and also a speech impediment. The way in which the complainant expressed herself was unusual both as to manner and content. For example, when asked whether she did "any other sort of work at all" – apart, that is, from work she had previously mentioned – the complainant responded simply "Redcliffe Herald". When asked whether she still worked at the Redcliffe Herald, she replied "they bring them". Further questioning elicited that she meant that she worked at home, folding newspapers which were brought to her for that purpose. The difficulties she had in explaining her meaning could not, however, account wholly for the problems which the content of her evidence posed. There were discrepancies which one would not expect to find in the evidence of the average 9 year old child witness.

Clothing

3. The evidence of a police officer Mr M D Butler, was that on four occasions he collected from the complainant items of clothing or bedding supposedly related to the offences charged.  The first supply was on 16 December 1998 and the last on 11 May 1999.  The complainant gave evidence, as to underpants supplied on the first occasion, that they got wet on the occasion when the offences charged were committed.  On the second occasion, two pairs of underpants were supplied and the complainant said that each of them had on it "yucky white stuff", apparently meaning semen, after the events in issue occurred.  When scientifically tested, none of these pairs of underpants showed any trace of biological material.  That would not, perhaps, create any serious problem for the Crown, were it not for evidence given by the appellant that they had not been washed before they were given to the police.  Similar difficulties applied to sheets given to police on 16 December 1998, as well as to nightdresses, and to tissues given to police.

4. There are various matters which could explain this evidence. Perhaps the laboratory in which the items were tested made a mistake or the items were, contrary to the complainant's claimed recollection, washed before the police got them. The second explanation gets some support from the evidence of the pathologist, Mr R G Grice, that some of the items in question appeared to have been laundered (120). The explanation which the jury had to exclude, in order to convict, was that there never was any "yucky white stuff" on an item of clothing or bedding on the occasion in question, because the appellant did not have sexual intercourse with the complainant as she claimed. That was not the jury's view and so they must, in my opinion, have concluded that the complainant was simply mistaken, and repeatedly mistaken, in this part of her evidence.

5. A related problem for the Crown was that on the last occasion when clothing was handed over (11 May 1999) the police were given two pairs of underpants which, according to the complainant, had been given her by the appellant at the relevant time; the appellant, said the complainant, had asked her to wear them. When cross‑examined about this (103, 143) she agreed that the appellant's late wife had left them at the house occupied by the complainant and her husband.  It is difficult to reconcile this with the version originally given.

6. Generally with respect to the clothing, bedding and tissues, the hypothesis that there was deliberate fabrication, as to these matters, is unattractive. The inconsistency and improbability of this part of the complainant's evidence was surely so evident that even a person of such low intelligence as the complainant is said to have would have been expected to know that the version given was difficult to accept; yet, reading the transcript, one is struck by the apparent absence of any consciousness, on the complainant's part, that there was anything unusual about her version of events.

Lactation

7. The same observation applies to the complainant's evidence that she started to lactate when the appellant put hands on her breasts and that she continued to do so up to the time of trial.  No evidence was called as to the medical likelihood of such an occurrence, but even in the absence of such evidence the jury should in my opinion have considered this part of the evidence to be improbable.  It could not easily be explained away on the basis of low intelligence or defective memory.  There was reason to suspect that the complainant simply imagined the lactation.

Recent complaint

8. When she gave evidence (105), the complainant said that she complained to her husband on the morning after the alleged rapes that the appellant had, among other things, put his penis into her.  But the husband denied that (128).  He said that on the morning after the alleged offences the complainant said that the appellant had kissed her and played with her breasts, but that she said nothing about sexual intercourse until months later.  Again, unless the jury had some particular reason to think the husband to be biased or dishonest, this point should have given them pause.  There are of course possible explanations;  one is that as already mentioned the complainant demonstrated a lack of ability in conveying even fairly simple information.  But the point is, in my opinion, an important addition to the reasons for being concerned about the propriety of the verdict.

General

9. Other criticisms of the Crown case were advanced on behalf of the appellant such as that, it was said, it was unlikely that (as the complainant asserted) the appellant (a man in his 40's) could have ejaculated twice with, it appears, little time intervening, and then indicated a wish to have intercourse a third time.  But it is my opinion that the matters dealt with under the headings above, without more, compel a conclusion that the guilty verdict is unsafe.

10. In Jones (1997) 191 CLR 439, the principal judgment uses a number of expressions in explaining the tests for determining whether a verdict is unsafe or unsatisfactory.  In my opinion their Honours favoured the "open to the jury" test – i.e. the question is whether it was open to the jury to be satisfied of guilt.  Although in the same judgment there is reference to the "significant possibility" test, it appears to me that this cannot be treated as having the same meaning as the "open to the jury" test.  Among the sexual cases we have in this Court in which there is most reason for concern are those where determination of guilt or innocence depends simply on whether the word of the complainant or that of the alleged offender is accepted;  commonly, when the complainant is a young girl, there are inconsistencies in the Crown case. 

11. To say that in such cases there is no possibility of the jury having got the wrong answer is surely dubious. The work by Kalven & Zeisel, "The American Jury", published in 1966, used sometimes be relied on as showing that jury verdicts ordinarily agree with what the trial judge would have done; but that is not so: see G M Stephenson, "The Psychology of Criminal Justice" 1992, p 181. The "significant possibility" test makes the word "significant" bear a great weight, when one considers how significant it is, from the alleged offender's point of view, that he or she not be wrongly convicted.

12. It is my opinion that in the present case it was not open to the jury to be satisfied to the requisite standard that the appellant was guilty and I would allow the appeal.

13. THOMAS JA:  The appellant, who was charged with two counts of rape, was convicted by the jury on one count and acquitted on the other.  He appeals against his conviction on the ground that the conviction is unsafe and unsatisfactory.

14. The case is perplexing and it has been necessary to study the evidence with some care.

15. The complainant was a 56 year old woman suffering from a severe intellectual disability. Her IQ level was measured at 53 and the psychologist who described her condition stated that her results revealed a fairly consistent pattern of disability throughout the 12 sub-tests. Little else is known of her personality or reliability other than what can be gleaned from her evidence. The appellant, to whom she referred as Bruce, is her brother-in-law. She married her husband, Graeme, about 14 years before the alleged incident. Graeme's sister, Cheryl, was the appellant's wife. The two families were friendly and visited each other's homes. Cheryl died of cancer about three months before the alleged incident giving rise to the present charges.

16. On Wednesday, 9 December 1998, the appellant arrived at the complainant's house for a two day visit. He left as planned very early on Friday morning, 11 December. Soon afterwards the complainant stated to her husband that Bruce had touched her breasts and had kissed her. He could not recall her telling him anything else. He did not understand that her complaint was of sexual intercourse or of interference in the vaginal area until some months later. He had however just woken up and was still in bed at the time the complaint was made to him. It is of course quite possible that the complainant spoke ambiguously or with reticence, but his evidence certainly fails to support a recent complaint of rape as distinct from indecent assault. His was the only evidence that was relied on by the Crown under that category.

17. The evidence is unclear as to what transpired over the next five days, but by 16 December it is clear that a serious sexual complaint had reached the attention of the police. On that day, the complainant was examined at the Royal Women's Hospital by Dr Margaret Mobbs, an expert in the area of sexual health and sexual assault. The complainant at that time had the benefit of assistance from a group known as WWILD SVP Service, the middle letters standing for women with intellectual and learning disabilities. Dr Mobbs found it extremely difficult to obtain a history. She examined the complainant from head to toe looking for evidence of injury including vaginal injury. The only finding was of lower abdominal tenderness which was consistent with a urinary infection which the doctor identified after taking a sample. No other abnormality was found, but the doctor observed that the lack of finding neither supported nor refuted the occurrence of intercourse.

18. The only specific detail noted by the doctor of any allegation by the complainant, other than her difficulty in getting a history, was that "Ultimately she said that his penis had gone into her vagina." She agreed that "That was in response to probably a direct question from me" and that that statement "was on prompting from me". No history was given to Dr Mobbs of details which later emerged in the s 93A statement^[1] taken by the police thirteen days later.  This statement, which was given in evidence, included the rather bizarre allegation that Bruce had squeezed her breasts and that milk had come out and that she had been lactating ever since.  Consequently, Dr Mobbs made no investigation to confirm or exclude that allegation.  However, Dr Mobbs conceded that such a phenomenon was "most unusual", and the only possible causes of spontaneous lactation known to her, particularly in a woman of the complainant's age who had had a hysterectomy, was a brain tumour or certain drugs.  The only evidence given in the case in relation to any drug taking by the complainant was of asthma sprays and medication to "stop the nightmares".

19. Apart from police evidence largely concerned with the getting of exhibits, the only other evidence called was that of a forensic biologist who examined multiple samples of clothing and other items given to the police by the complainant as items which allegedly contained her blood and "yucky white stuff" which she said the appellant had caused to be left upon them as the result of his activities. The forensic evidence was entirely negative. That is to say, no blood, semen, hair or other relevant material was found on any of them.

20. It is common ground that the case against the appellant rested entirely on the credibility of the complainant. Corroboration was entirely lacking.

21. In a case involving a complainant with an intellectual disability, it is naturally to be expected that more than usual inconsistencies may be encountered and that various matters arising on the evidence may go unexplained. A balance however needs to be maintained between natural sympathy and allowance for a disadvantaged complainant and the rights of an accused person who must be convicted only upon credible evidence and not upon sympathy or guesswork in favour of another person.

22. The complainant's evidence was given essentially in the form of a video-taped interview with the police on 29 December 1998. Three police personnel and a social worker from the WWILD organisation were present. According to her statements in this interview, on the second day of Bruce's visit, she, her husband and Bruce had gone to the RSL at Redcliffe, had lunch and later had bought takeaways. She and her husband had had one Scotch each. She did not know whether Bruce had drunk anything alcoholic. They went home and had an evening meal. Afterwards Bruce had produced a video camera when she was watching TV and he "took a picture" of her while her husband was putting birds into cages. He said he wanted to look at it when he went back home. She kept watching television. She was in a pink top and pink shorts at the time. She got tired and went to bed. Bruce and Graeme were then watching TV. This was at about 9 o'clock.

23. The complainant was sleeping in the spare bedroom. Her husband slept in the main bedroom which was adjacent and, as she later agreed, within hearing distance. She said she was wearing an orange nightie, but the one she had given to the police on 16 December as the one she had been wearing was blue, and the further one she produced on 29 December was pink. She said she was wearing a pad and pants to keep it on. She was sleeping in the spare bedroom because she might need to use a ventolin machine, which was very noisy, during the night. The pink panties which she said she was wearing were in a bag which she gave to the police at or about the time of the interview on 29 December.

24. She closed the bedroom door, went to bed and went to the dressing table to get a box of ventolin for the machine. Bruce walked in and put the light on and closed the blinds and bedroom door. He said he was looking for his keys to lock up his car. She said, "What are you doing in bedroom, you're supposed to be sleeping out in lounge?" He started to kiss her. She was in bed lying down when he started. Bruce was wearing just underpants. Her evidence included the following: "He got in bed and started to kiss me and touch my top part … and squeezing top part … then he started to touch me … top and bottom."

25. She said he was doing so underneath the nightie. When asked to show how he was touching her breasts she replied, "Just going like that and squeezing white stuff" which she described as milk. He said, "You don't like it" and I said, "No." … He wanted to keep going. He touched a part in between her legs with a "part in between his legs". She later said that he touched her front part with his penis. He put it into her private part until she said "no". She was then "the right way up" and he was on top. "I felt a private part getting sore." His penis was in her private parts a "short time". He was "squeezing top breasts … kept on kissing and he said that he wanted to keep going." She said "No I don't like it" then, "there was yucky white stuff" on her front part. Then he walked out of the bedroom. He was wearing his underpants. She added that she had said "No" to him about ten times when he had his penis in.

26. At the time when Bruce's penis was in her private parts her underpants were down around her feet, Bruce having moved them down to that position. She described the pants as "wringing wet" and "soaking wet". She then went to the toilet, and got a pad because she was wet in front part. It was "white wet". She put some cream on her pad and put it back on. When she went to the toilet she put the wet pants in a white plastic shopping bag. She then put new dry pants on and a new pad. She had a drink and went back to bed.

27. After that Bruce was standing there. She had gone to sleep before he came into the bedroom and she saw him standing there. The light was on. He got back in bed and "wanted to keep going with me". He touched her on "top, legs and same place". She said "No" and he said that he wanted to keep going. He stopped after ten nos. He said "Don't tell no-one". He touched her top part underneath the nightie and touched below with "his part in between his legs". It made the front part real sore. "After kissing, he squeezed top for to get some white milk out". He squeezed "the brown part … of breast". Before he left "he said that I got good breasts and he wanted to keep going". He "came out and went to bed in the lounge room". "I went to sleep then woke up and having bad nightmares". She went "a second time to toilet". The second pants were wet and she put them in a bag. In the morning before she got up Bruce had left and she went to see Graeme.

28. Some months after that interview, namely on 11 May 1999, the complainant again contacted the police and produced some more underpants, this time two pairs of Cheryl's underpants. They were in a drawer near the bed in a plastic bag. She said that Bruce had put them in the bag. "He showed me them, then he put them in the bag, then he told me before he left he wants me to wear them". He said that before he left on the Friday she had "just seen them in, in the drawer. In plastic, and Bruce put them there". "He got the bag off his … case and said that I want you to wear these … then I said no".

29. There are several distinct areas which are of concern in considering the acceptability of this evidence and the safety of the conviction. Of greater concern than the adequacy of the story to prove the offence of which the appellant was convicted is the possibility of it being of a delusive origin, in whole or in part. The following are particular areas of concern.

The exhibits

30. Apart from the supply of Cheryl’s undergarments in May 1999 there were three separate occasions when the police were supplied exhibits by the complainant. Many of these items were said by her to contain fluids from the appellant. On the first occasion (16 December) she supplied a blue night dress, a bottom and top sheet, and a pink shirt. She told the police at the time and gave evidence in court that the nightie she supplied was the one that she had worn when these things were done to her and that the sheets were those on which it had happened. She gave the sheets to the police because they had yucky white stuff on them which had come from "down below". She also later (29 December) supplied a pair of pants which she said had blood on them which came from "down below". They also, she said, had "yucky white stuff on them" and that she had not washed them before giving them to the policeman. She did not know how they came to get wet when they had been around her ankles at the material time. They were wet when she supplied them to the police 19 days after the event.

31. The items produced to the police at the time of the s 93A interview, 19 days after the alleged events, comprised pink underpants, a pink nightdress, cream underpants and a bag of tissues. The pink underpants, which were quite damp, had become wet, she said, "from white stuff". They definitely had blood on them and the yucky white stuff. She said she had not washed them before giving them to the police. The second pair of underpants, which were cream coloured, also had white stuff which got on them from her "down below part" when she went to the toilet and changed from the original pair. The pink night dress also definitely still had Bruce's yucky white stuff on it when she gave it to the police. The fact that two night dresses were given to police on separate occasions as the one she had been wearing is unexplained. The tissues had been collected because she had used them to wipe stuff from her breasts and in between her legs.

32. The third occasion when potential exhibits were collected was 5 January 1999. On this occasion a pair of sheets was collected by police from the complainant's linen cupboard. The reason for this is obscure. The forensic biologist observed that they appeared to have been laundered.

33. The forensic biologist was unable to obtain any reaction whatever upon testing the material submitted to him. In particular, he tested the sheets, night dresses and under garments for semen, blood, saliva or any matter capable of supporting the allegations that had been made. This is not a case where negative findings are neutral. As the learned trial judge remarked in his summing up, there is a glaring inconsistency between the raft of the complainant's allegations concerning these exhibits and the forensic results. The only explanation offered by the Crown was that the items might have been laundered, but this was specifically denied by the complainant, both in her s 93A statement and in further evidence in court. Further, the wetness of one of the pairs of underpants, 19 days after the event, is perplexing. The forensic biologist noted their wetness when they were produced to him, and upon refrigerating them there was sufficient moisture for them to freeze. One can only speculate on what, if anything, the complainant may have done with this item and why. But in the end the most pertinent observation upon comparison of the complainant's evidence and the testing of the many exhibits that she produced is that of the learned trial judge – a glaring inconsistency.

34. A further matter of concern is the complainant's production of Cheryl's hipster briefs. Under cross-examination at committal and at trial the complainant admitted that Cheryl had left them there during a visit and had forgotten to take them home. The allegation that the appellant had put them there and said he wanted to see her in them on the occasion of the visit in question after Cheryl's death must cast some doubt upon the complainant's credibility. Counsel for the appellant did not ask the complainant why she had given such a story to the police, and did not put to her that she had told a lie on this point. However, it is difficult to be critical of counsel for engaging in less than full adversarial cross-examination of a disadvantaged witness. He did, however, ask the complainant why it took five months for her to tell the police about these other underpants and received the answer, "Because got confused."

35. The insistence by the complainant that she lactated immediately upon the appellant's handling of her breasts and that she had continued to lactate right up to the time of trial is, in the absence of some special explanation or supporting evidence, to say the least, difficult to credit. It is possible of course that it is true, and the defence did not absolutely exclude that possibility. But to speak in these terms is to reverse the obligation of proof. This is a bizarre aspect of the story and it may well be a delusion. Any concern on this score is only increased by the indications in the record, disclosed by argument in the absence of the jury, that the complainant had made a previous allegation of rape, apparently in Melbourne, which she had claimed had caused her to lactate.

36. The evidence also reveals conflicts between the complainant and the other witnesses called. These include her claim that she had told Dr Mobbs that she was lactating (which was denied by Dr Mobbs). There is also inconsistency between her claim to have made a full complaint to her husband the following morning while her husband recalls only an allegation of kissing and touching. Standing alone, these inconsistencies might be readily explicable, but in the wider context they add weight to concern about the quality of the Crown case.

37. The background circumstances of the parties are of a past normal family relationship with nothing untoward occurring. The allegations include consecutive acts of intercourse by a man said to be in his 40s with copious ejaculations and the indication of a desire to keep going. The proximity to these events of Graeme's bedroom, the fact that he was not disturbed or that his assistance was not called for is simply another fact in the case. None of these factors standing alone would justify one in saying that the story is impossible or incredible, but collectively they assist in making credence more difficult.

38. Evidence was also adduced of affection on the part of the complainant for the appellant. She admitted that at Cheryl's funeral she had cuddled Bruce and told him that she loved him. At committal, she agreed that she had said that but had added, "But I didn't mean to." At trial, she agreed she had said those things and stated, "I didn't mean to say that." Once again, nothing specific can be deduced from this, but it raises a possibility which must be considered along with the many others to which I have already adverted.

39. One matter which has caused me some concern is the limited extent to which defence counsel put any positive case to the complainant. The only fact touching on the appellant's conduct on the night in question that was put to the complainant was that Bruce had come into her room looking for his charger for his mobile phone rather than for his keys. That certainly constitutes an implied admission that he had paid a visit to her room that night, but beyond this I do not think that any inference can drawn against the appellant of the kind recognised in R v Robinson.^[2] Nor does the so-called rule in Browne v Dunn^[3] require a cross-examiner to put to a witness matters that are not intended to be asserted in due course.^[4] I therefore do not think that this Court is entitled to draw any inference adverse to the appellant from the conduct of the case.

40. Some reliance was placed by the appellant's counsel upon the alleged inconsistency of verdict. It is true that the complainant alleged two separate acts of rape, and that conviction had to be dependent upon acceptance of the credibility of the complainant. Counsel for the appellant submitted that it was not reasonably open to the jury to convict on one and acquit on the other. However, counsel for the Crown submitted that the jury may have had a doubt as to whether the complainant was speaking about a second distinct act of rape. Certainly, the details given by her to support it seem to be a repetition of the details of the first alleged act. Further, in complaining to her husband and to Dr Mobbs, there was no suggestion of more than one act. The dearth of detail regarding the second count may have caused the jury to have a doubt. I would therefore not be prepared to set aside the verdict on this ground or upon any view of unreasonableness on the part of the jury from the different verdicts on the two counts. However, in view of the other matters to which reference has been made, there are strong grounds for concern as to the quality of the evidence and its capacity to sustain a guilty verdict.

41. In M v The Queen^[5] it was said that:

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."

More recently, in Jones v The Queen^[6] the duty of a Court of Appeal in dealing with the ground raised in this case was discussed by Gaudron, McHugh and Gummow JJ.  The above test was reaffirmed, along with the following further statement as to application of the test:

"… If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence."^[7]

42. Having examined the evidence in this case, it seems to me that making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted. This conclusion arises not from concern as to the sincerity of the complainant, but from the very real possibility that important allegations insisted upon by the complainant may be fantasy or delusion, and in any event have been shown to a high degree of probability to have been wrong.

43. In the circumstances the appeal should be allowed, the conviction set aside and a not guilty verdict entered on the count upon which the appellant was convicted.

44. BYRNE J:  The pertinent facts are described by Thomas JA. I agree with the order Thomas JA proposes for the disposition of the appeal and, except in a minor respect, with his Honour’s reasons.

45. Thomas JA discusses the limited extent to which defence counsel put an affirmative case to the complainant in cross-examination. As I read the transcript of proceedings, it sufficiently emerged from the way in which the defence case was conducted before the complainant left the witness box, including the content of her cross-examination, that the appellant was putting in issue her account of sexual activity. And so I agree that no inference adverse to the appellant ought to be drawn from the omission of specific suggestions that the encounter had not happened.