R v Addison[2000] QCA 53

SUPREME COURT OF QUEENSLAND

1. McMURDO P:  I agree with the reasons of McPherson JA.

2. McPherson JA in para [11] of his reasons mentions some evidence which raises potential weaknesses in the identification of the appellant as the rapist. To those matters I add the following. The complainant identified the rapist as the taller offender. In the videotaped interview between the police and the appellant (ex 10), the appellant said he was carrying a small piece of pipe and that his co-offender was carrying a torch. The complainant's partner, David Smith, gave evidence that he was bound and gagged by the shorter offender, not the offender with the torch;^[1] that it was the offender with the torch who threatened to put his penis inside Rebecca if he did not cooperate;^[2] and that the person who threatened Rebecca was the taller person.^[3]  A direction in accordance with Domican v The Queen^[4] was required in this case and its absence necessitates a new trial.

3. As McPherson JA points out, the application for leave to appeal against sentence must regrettably be adjourned to a date to be fixed. The appellant, who represented himself on this appeal, was sentenced under s 13A of the Penalties & Sentences Act 1992 and submitted that, since his sentence, he has complied with his undertaking under that section at risk to himself; he argues that in those circumstances the discount given by the primary judge was insufficient recognition of his cooperation.  It is impossible to comment on the merits of that submission on the material before this Court but it is a matter which may provide a new factor relevant to any fresh exercise of the sentencing discretion in due course.

4. I agree with the orders proposed by McPherson JA.

5. McPHERSON JA:  At about 4 am on 27 April 1998 the complainant and her husband David were asleep in the bedroom of their home in Brisbane when they woke to find two men flashing a torch in the room.  The men were dressed in black clothing, with rubber gloves on their hands, and were wearing masks over their faces.  One of them was armed with a knife and the other with either a gun or a piece of pipe.  They approached the complainant and David in a threatening fashion and demanded to be given money or drugs.  David was tied up with his hands behind his back; a sock was stuffed in his mouth and held in place with tape; and he was made to lie with his face down in a pillow.

6. Throughout the evidence of the complainant and David one of the intruders was identified as "the bigger" of the two, and it was he who did most of the talking and ordering about that followed. The complainant thought she recognised the voice of the other intruder, but in the result she has proved to have been mistaken about this. The men packed up many of the items of property in the house, demanded the car keys, and finally drove off in the complainant's vehicle at about 5.30 am. These acts on their part were charged against the appellant Addison as count 3 (entering a dwelling house); count 4 (armed robbery); and count 5 (unlawfully using a motor vehicle).  His accomplice, whose name is Benjamin Hooper, was sentenced in January 1999.

7. At the trial of the appellants, which took place in June 1999, he pleaded guilty to the last three counts in the indictment. However, he pleaded not guilty to counts 1 and 2, each of which charged him with a count of raping the complainant. The jury found him guilty of count 1, but not guilty of count 2, and he was sentenced in respect of counts 1, 3, 4 and 5. This is his appeal against his conviction on count 1 (rape), and also an application for leave to appeal against the sentences imposed on all of those four counts.

8. Shortly after the commission of the offences the appellant was interviewed by the police. At the trial, Det. Garnett gave evidence of two conversations which he had had with the appellant on 3 May 1988. He took notes of the first of them, which he used in giving his evidence at the trial. The second conversation, which followed the first, was tape recorded. The tape was admitted as ex 10, of which a transcript (ex A) was provided, and played to the jury.

9. It is a fair summary of what the appellant said, so far as relevant, in those two conversations that he confessed to having participated in the entry, robbery, and unlawful use offences with which he was later charged and of which he was convicted. However, he completely denied that any rape had been committed on the complainant on the occasion in question. At the trial the appellant was not called and did not give evidence in support of his denial. On the evidence given at the trial, it was, despite certain inconsistencies and discrepancies, open to the jury to accept the testimony of the complainant herself that she had been raped by the "bigger" of the two intruders. According to her account of it, her assailant's penis was not erect, and there may well have been a rational doubt whether or not penetration of her vagina was ever effected on the second of the two occasions in question. Her evidence on count 2, which was somewhat tentative and perhaps confused, was not such that a verdict of acquittal on that count was necessarily inconsistent with the verdict of guilty returned by the jury on count 1.  Her testimony that she had been raped (count 1) was to some extent supported by that of David, and, in assessing her credibility, the jury may well have given weight to the evidence of an independent witness to whom she made a complaint of rape shortly after the intruders left the house about 5.30 am.

10. If sexual penetration and absence of consent had been the only elements of the offence charged on count 1, the appeal against the conviction on count 1 would probably not succeed. The problem is, however, that at the trial there was, in addition to penetration and lack of consent, a further element which it was incumbent on the prosecution to prove beyond reasonable doubt. This was that it was the appellant who had penetrated the complainant's vagina with his penis. There being two intruders, it was not sufficient for the crown to establish that the complainant had been raped without also proving that it was the appellant who was the perpetrator of that crime.

11. There was, of course, no doubt, that the appellant was present at the time the rape was said to have taken place. His statements to Det. Garnett, including those recorded in ex 10, and his pleas of guilty to counts 3, 4 and 5 provided ample evidence of that fact. The problem is, however, that at the trial there was nothing to identify the appellant as the particular intruder in question. The complainant did at one stage of the intrusion into her home see her assailant's unmasked face; but she said she did not have her glasses on at the time; the house was "very dark"; and no attempt was made at the trial to identify his face with that of the appellant. Throughout her own and David's evidence, her assailant was identified simply as the bigger of the two intruders; but there is nothing in the evidence to show that the appellant was bigger than his fellow intruder. The complainant said it was the smaller of the two men who had bound and gagged David before the rape took place; but in the recorded interview ex 10 the appellant said it was he who had done so. She also gave evidence that the man who raped her was wearing only one glove. By contrast, in ex 10 the appellant is recorded as telling the police that he was wearing gloves on both hands.  Exhibit 10 was tendered by the crown, and its contents were therefore available as evidence both for and against the appellant at the trial.

12. It scarcely need be said that, on a charge of a criminal offence, the prosecution is bound to prove beyond reasonable doubt not only the constituent elements of the offence itself, but also that the person accused did in fact commit it. Proof of that element in the case against the appellant is lacking here. In that respect it differs from Domican v The Queen (1992) 173 CLR 555, where the issue on appeal involved the adequacy of the trial judge's direction to the jury on the issue of identification.  Here there was no such direction at all, the summing up being confined to the issues of whether penetration had taken place and (although naturally with less emphasis) whether the complainant had not consented to it.

13. The decision in Domican is, however, relevant in another respect.  No doubt the absence here of a direction to the jury on the matter of identity reflects the way in which the trial was conducted.  It is right to say that the learned trial judge was never asked to direct the jury on the question now being considered.  But in Domican (1992) 173 CLR 553, 561-562, it was said that:

"Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilty of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed."

As appears from this passage in their Honours' reasons, that case was one in which the reliability of the identification evidence was disputed.  Here there was at the trial no evidence at all capable of identifying the accused as the perpetrator, which makes this case so much the stronger for the appellant.  What for present purposes is critical, however, is that the requirement laid down in Domican is expressed to apply "whatever the defence and however the case is conducted …".

14. Proof that it was the appellant Addision and not his companion Benjamin Hooper who committed the rape was, as I have said, a condition precedent to conviction of the appellant on count 1. The point is not raised in the appellant's formal notice of appeal; but he himself raised it in the course of his submissions on the appeal, on which he appeared in person, and which were directed generally to the complaint in ground 1 that the verdict was unsafe and unsatisfactory. In any event, the matter is so fundamental that it is plain that the conviction on count 1 cannot stand and must be set aside. There can be no question of applying s 668E(1A), or what used to be called the proviso to that section of the Code concerning appeals against conviction.

15. Having regard to the state of the evidence adduced at the trial of the appellant, a question arises now whether a new trial should be ordered: cf Director of Public Prosecutions for Nauru v Folwer (1984) 154 CLR 627, 630.  Because of the way in which the case at trial was conducted both by the prosecution and the defence, we do not know whether any and what evidence is available that is capable of proving that the appellant Addision was the perpetrator of the offence charged in count 1.  By the same token, however, one would have expected the experienced counsel who appeared for the defence at the trial to have raised the point if no such evidence had existed or been available at all.  This tends to suggest that the matter was simply overlooked by everyone because it was known to counsel (although not to the jury or to us) that there was in fact available evidence capable of proving identity if the issue had been pursued.  In any event, there may, even on the existing evidence, be a potential under s 7(1) of the Criminal Code for the other of the two intruders,  whichever one he was, to be found guilty as a secondary offender and principal to the offence charged in count; cf. R v Baynes [1989] 2 Qd R 431, 434, 436.  This was not, as it was there, a joint trial of two accused on a single charge of rape; but the remarks of Thomas and Williams JJ in R v Baynes confirm that on count 1 the appellant might be convicted as being either the primary or a secondary offender.

16. For these reasons, including the factor of public interest in the administration of justice referred to in DPP v Fowler, I consider that a new trial should be ordered under s 669 of the Code, rather than that judgment and a verdict of acquittal should be entered under s 668C(2) on count 1, leaving it to the Director of Prosecutions to determine whether or not the evidence is sufficient to justify further proceedings against the appellant on that charge.  Setting aside the verdict and conviction on count 1 makes it unnecessary to consider the application for leave to appeal against the sentence of imprisonment for 10 years imposed in respect of count 1.  It is conceivable that the quantum of the lower sentences imposed for the offences charged in counts 3, 4, and 5 may have been influenced by the extent of the head sentence on count 1.  Now that it will be rendered nugatory by setting aside the conviction on that count, it might be necessary to reconsider the sentences on counts 3, 4, and 5.  It would, however, be a mistake to set aside those sentences before the outcome of the further proceedings, if any, on count 1 is known and before sentence, if any, is imposed in respect of it.  Inconvenient though it may be, I consider that there is no real alternative but to adjourn the application for leave to appeal against the sentences imposed on counts 3, 4, and 5 until the fate of the charge in count 1 is determined at trial or otherwise.  Only then will it be possible to consider the combined impact of all of the sentences, if any, imposed in respect of each of the offences arising out of the crimes proved to have been committed by the appellant in the early hours of 27 April 1998.

17. The orders which in my opinion should be made are as follows:

1. In respect of count 1 of the indictment:

1. the appeal against conviction is allowed, and the verdict and judgment are set aside;

2. there should be a new trial.

2. In respect of the application for leave to appeal against the sentences imposed for the offences charged in counts 3, 4, and 5 of the indictment, the application is adjourned to a date to be fixed.

18. PINCUS JA:  I have read and agree with the reasons of the President and those of McPherson JA.  The case below seems to have been conducted on the assumption, on both sides, that if there was a rape committed the appellant was the offender; but there was no admission to that effect.  The assumption was consistent with the content of the interview the appellant had with a police officer on 3 May 1998.  The appellant then made statements which, if accepted, might have left a jury in little doubt that any rape committed must have been done by the appellant rather than by his co-accused Hooper.  According to the appellant Hooper was "just there for back-up for me, in case I got into any trouble".  The appellant also said that he tied the hands of the complainant's husband behind his back, and that he "might have punched" the husband "to let him know that I was serious" during which time Hooper was "just walking around".  He said that he obtained the key to a car from one of the victims and gave the key to Hooper who "went and moved her car ... for me".

19. Despite these considerations I see no escape from the conclusion that the case is one falling within the principle stated in Domican (1992) 173 CLR 553 at 561-562 and quoted in the reasons of McPherson JA.  That is, the case was one where "evidence as to identification represents [a] significant part of the proof of guilt".  The warning which must be given in such cases is necessary only where the reliability of the evidence of identification is disputed.  Since there were challenges to the reliability of the evidence of the complainant, that condition was in my view satisfied.  And there were matters throwing doubt upon the identification evidence to which, under the Domican principle, attention had to be drawn by the judge.

20. The peculiarity of the case is that there seems to have been no argument, at the trial, about the proposition that if the complainant was raped it was the appellant who did it. Even in these circumstances, unless it is clear that the reliability of the evidence pointing to the accused as the offender is uncontested, the Domican principles apply.

21. I agree with the orders proposed by McPherson JA.