SUPREME COURT OF QUEENSLAND

1. DAVIES JA:  I have read the reasons for judgment of Douglas J.  I agree with him that the appeal against conviction for rape should be dismissed and I agree with the other order which he proposes.

2. At the trial there were two diametrically opposed versions before the jury as to relevant events on the night in question. On the complainant's version in her evidence supported as it was in a number of respects by evidence of independent witnesses, she was raped by the appellant on a pool table in his pool hall whilst she was in an intoxicated and obviously distressed state. She was, moreover, only 15 years of age.  Opposed to this was the appellant's version or, more accurately, versions, for there were a number of versions, inconsistent in material respects, given by him to police.  The last of these was that the complainant behaved like a temptress, exciting him and instigating sexual conduct between them.  According to him he attempted but failed to have intercourse with her, though his case was conducted at trial on the basis that intercourse occurred.  He also implied in one of these versions that he was mistaken as to her age.  However this was contradicted by evidence of what he said later to an independent third party.  The appellant did not give evidence.

3. What I have said is no more than a brief summary of those competing versions. They are more fully set out in the reasons for judgment of Douglas J. It is sufficient to say that, in the circumstances of this case, the appellant's version was inherently improbable and was plainly rejected by the jury. There is no complaint that the jury's verdict was unsafe other than in consequence of misdirections and, in one case, a failure to direct when a direction should have been given. The directions which were said to be misdirections were one with respect to lies, one with respect to consent obtained by means of intimidation, and one with respect to the use which the jury might make of the distressed condition of the complainant. The asserted omission was an omission to direct with respect to honest and reasonable mistake as to consent.

Lies

4. The lies were, in short, statements by the appellant that he did not have intercourse with the complainant. Three complaints were made about his Honour's directions on this issue. The first, that his Honour failed to point to any evidence that established the statements to be lies, is without substance. The statements were lies on the defence case at trial.

5. The second requires further discussion. It is that the lies were consistent with a consciousness of guilt of nothing more than unlawful carnal knowledge. It was said that this should have been pointed out to the jury.

6. I think that submission is correct. Having identified the statements as lies which could be used as corroborative of guilt his Honour should have directed the jury about the danger of placing too much weight on them in relation to rape where they could be corroborative merely of guilt of unlawful carnal knowledge: R v May [1962] QdR 456 at 462 – 463;  R v M [1995] 1 QdR 213 at 223.

7. However I do not think that any miscarriage could have resulted from the failure to so direct. The case against the appellant was a very strong one. The complainant's evidence was inherently credible and supported in important respects by independent witnesses, in particular the evidence of Mr Coleman, a security officer, who observed the state of the complainant at a time which must have been immediately after the alleged offence occurred.

8. The final complaint which was made with respect to the directions with respect to lies was that his Honour failed to direct the jury that all of the lies on this topic were capable of an innocent explanation, namely that the appellant did not wish his wife to know that he had had intercourse with the complainant. In respect of statements made to police in the presence of his wife, which were absolute denials of impropriety, this may have been an explanation for his lies and his Honour pointed this out to the jury. But it was not a permissible inference to draw from later denials of intercourse which included admissions of impropriety; for example the admission that he had "sexual relations" with the complainant and "dribbled a bit on the pool table cover where we were lying" but "never penetrated her". It is inconceivable that his wife would not have been as shocked and outraged by that false statement as by an admission that he had in fact penetrated the girl. And in the case of other denials made in the absence of his wife, that inference was, though possible, a remote possibility. I do not think that the failure to so direct about these could possibly have resulted in a miscarriage. This ground must therefore fail.

Consent by intimidation

9. It was open to the jury in this case to conclude either that the carnal knowledge was without the complainant's consent or that it was obtained with her consent by means of intimidation. The appellant was, it seems, a large intimidating figure of a man. The girl, who was slightly built and intoxicated, was, on her own account, crying and frightened. He took her clothes off and got on top of her. She could hardly have successfully resisted him and she passively submitted. It was, in my opinion, an appropriate case on which to direct on both alternative definitions of rape under the former s 347(1). The complaint that his Honour should not have directed on the second of those bases must therefore fail.

10. It was submitted in the alternative to this ground that, if consent obtained by means of intimidation was to be left to the jury they should have been directed as to the possible operation of honest and reasonable mistaken belief by the appellant as to the existence of that consent. No such direction was sought at the trial; indeed the appellant's counsel, on instructions, specifically declined such a direction. There was plainly good reason for that. It would have been seen by the jury to be inconsistent with the defence of the appellant that, far from permitting a mistaken belief as to consent, the complainant had, by her conduct, left no room for doubting her willingness to participate in the intercourse.

11. This ground must therefore also fail.

The use to be made of the complainant's distressed condition

12. The learned trial judge told the jury that they might consider the complainant's distressed condition which was observed by a number of witnesses. He had, only shortly before this, referred to the evidence of one of those witnesses, the security officer Coleman, saying to them:

"Are those observations more consistent with her having been raped or more consistent with the accused's account of her as a sexual machine, all over him, when the security officer was there."

13. A little later, again only shortly before his reference to the relevance of the complainant's distressed condition, his Honour referred to one of the appellant's accounts that the complainant was distressed when he came across her outside his shop. What his Honour was saying to the jury, in my opinion plainly enough, was that the observed distressed condition of the complainant before going into the pool hall with the appellant and the observed condition of her immediately after she emerged from the pool hall were more consistent with the complainant's version that she had been raped as she said than with the appellant's version that she had, in the interim, transformed into a sexual temptress.

14. There was therefore no error in his Honour's direction in that respect.

15. For those reasons I agree with the orders proposed by Douglas J.

16. THOMAS JA:  I have the advantage of having read the proposed reasons of Davies JA and Douglas J.  I agree with the orders proposed by Douglas J and with the reasons proposed by Davies JA.

17. DOUGLAS J:  The appellant was charged and convicted of one count of rape.  At his trial the jury was directed to return a verdict on the charge of rape, and on the “alternative” charge of unlawful carnal knowledge (s 215(1) Criminal Code).

18. At the hearing of the appeal counsel for the appellant and the respondent both agreed that in the circumstances of this case, it was inappropriate that both verdicts should have been returned. It was agreed that the conviction in respect of the offence of unlawful carnal knowledge should be quashed, and that whether or not an indictment is again brought in respect of that offence, should depend upon the outcome of the appeal in respect of the rape conviction.

19. The complainant was a 15 year old girl at the time of the alleged offence, which is said to have occurred on 31 October 1999. The complainant was affected by alcohol, and had become lost after leaving a party at Eagleby. She found herself near or outside the appellant’s pizzeria and pool hall. They met, and, after some conversation, where the appellant offered to help her locate the party, the complainant entered the pool hall. She was there raped on the pool table. The appellant later took her to a couple of places before leaving her in the company of two young women. Following a complaint to them, the complainant was taken to the police.

20. Later that morning the appellant was apprehended by police, and his residential and business premises were searched. In a recorded conversation with police, the appellant claimed a consensual sexual encounter that fell short of actual penetration. Further, it appears that his stated belief as to the complainant’s age was at best equivocal. He also said that at the time they first met, the complainant was sitting on a chair at a table in the pool hall when the appellant, who did not know the complainant, came and sat on a chair next to her. There was a conversation during which the appellant offered to help the complainant find her way back to the party. She also had a drink of bourbon and coke.

21. The Crown case was that the appellant indicated that he was going to lock up the pool hall and, at that, the complainant followed him inside the building and sat at a table near the door. The case went on that the complainant closed her eyes and put her head on her arms. When the appellant (having gone away) returned, he put his hand on her shoulder; and removed her shirt. She did nothing to stop him but started crying because she was scared.

22. The Crown case went on that the appellant carried her over to a pool table, unzipped her trousers and removed those and her underwear. She told the appellant to stop, but not in a loud voice. At this point she was lying on her back and her legs were hanging over the table. She did not struggle. The appellant then pulled her legs towards him, took off his shorts, and inserted his penis in her vagina. After some unspecified period the appellant removed his penis and went away. The complainant put on her clothes and when the appellant returned, he put his arm around her waist tightly, walked her through the back of the hall, locked it, and took her to a house. She was then taken by him to another house where two girls spoke to her. The appellant left her at this house and she then went to the police station with the two girls.

23. The Crown case was that the complainant had at no time consented to sexual intercourse with the appellant. Her memory of events was patchy. She could not recall an alarm going off at the shops, nor a security guard attending the scene. However, there was such a person who attended the site at around 12.45 a.m. on 31 October 1999. He saw the complainant, and the appellant, near the corner of one of the shops. He observed the appellant to have what appeared to be a restraining hold or tight hold around the complainant. He described the complainant’s face as being blank or “deathly”. He thought it was consistent with someone in shock. He observed the couple for a period of about five to ten seconds.

24. Ultimately the appellant took the complainant to the home of one Woods who lived some four doors from the appellant. A girl named Olivia Polzin was staying there and she answered the door knock. The appellant, on the Crown case, said: “I’ve got this 15 year old girl here named … and she’s lost. Can you help her find her way back”.

25. Woods and Polzin drove the complainant around in an attempt to locate the party where she had been, during which a conversation arose wherein the complainant became upsetoweverHowever and under direct questioning agreed that the appellant had raped her.  She then gave details of the rape, inconsistent in some particulars with her evidence in court, and a short time later she was driven to the local police station where a complaint was made.

26. At 6.15 a.m. she was examined by the Government Medical Officer, and although there were no external or internal injuries to her genitals, three genital swabs revealed that the appellant’s DNA was obtained from semen in the vulva, vaginal entrance, and the high vagina respectively.

27. At about mid morning on 31 October the police went to the appellant’s residence where a tape recorded conversation was held. The appellant’s wife was present during part of that conversation. In it the appellant denied ever having any sort of sexual intercourse with the complainant. Later in a further recorded conversation at the place where the rape is alleged to have occurred, the appellant conceded that the complainant had been to the shop operated by him at some stage.

28. In a later account the appellant described the complainant as being the instigator of sexual contact between them. He described a situation where after she had sat down for a while, she suddenly transformed herself into a sexual “fun machine”. He described her as the instigator, saying things such as “I want you”, and removing some or all of his clothing and some of her clothing. He suggested that the complainant was kissing him and rubbing her body against him, and that she pushed him on to the pool table and then jumped on top of him. In that interview he described a failed attempt to penetrate the girl which resulted in him ejaculating on her around the vaginal area. He maintained that he had not raped the complainant saying: “Only being a fucking idiot [indistinct] didn’t check to find out how old she was [indistinct]”.

29. The trial was conducted by the defence on the basis that intercourse did occur. The appellant, himself, did not give evidence but it was put to the complainant that she had assisted in placing the appellant’s penis inside her vagina, which she denied. It was put to her by the appellant’s counsel that the appellant’s penis remained inside her for a couple of minutes, about which she was not sure. It was suggested that she had consented to sexual intercourse, which she denied.

30. Leaving aside the ground of appeal with respect to the return of verdicts in respect of both the charge of rape and that of unlawful carnal knowledge, the only grounds of appeal argued before this court were:

1. the learned trial judge erred in his directions concerning matters said to be lies told by the appellant;

2. the learned trial judge erred in directing the jury about consent obtained through intimidation, when the Crown case did not require such a direction; and

3. the learned trial judge erred in failing to direct the jury as to the proper approach to be taken in respect of the evidence of the complainant’s distressed condition.

31. As to ground (a) above, the first group of lies were described by his Honour the trial judge in his summing up as follows:

“Now, the statements the prosecution points to are firstly, in his statement in the first interview that the complainant did not go inside the shops, or the shop.  Secondly, to his denial shortly after that that he had had sexual intercourse with her.  And then finally to his statement to the police officer in the final interview that although he attempted to penetrate her, and although he ejaculated a little, he did not penetrate her.”

32. The second classification of lies is with respect to a conversation he had with his wife on 6 November when she visited him and when she asked him to tell the truth and the whole truth to her. What she said was described by his Honour in his summing up as follows:

“That what he said to her that as best I could understand her evidence was that he said the security officer was responsible and that he had somehow been set up.”

33. The learned trial judge gave a direction to the jury in accordance with Edwards v The Queen (1993) 178 CLR 193.

34. As to the first group the statements, the subject of the Edwards’ direction involved denials that the complainant had gone into the pool hall or had had sexual connection with the appellant.  As submitted by the Crown, “on the defence case the three identified statements were false, therefore a failure to direct the jury on the need for independent proof of each lie could not prejudice the appellant.”.  I respectfully agree.  There is nothing in this submission.

35. The appellant criticised the learned trial judge, in his summing up, for failing to distinguish between rape and unlawful carnal knowledge in the assessments of consciousness of guilt. In my respectful view the summing up was entirely appropriate. In this case, the defence case at trial was that:

1. intercourse was consensual; and

2. the appellant thought that the girl was of legal age.

36. How in such circumstances, there can be a basis for distinguishing between rape and unlawful carnal knowledge in relation to the issue of awareness of guilt escapes me. It is my view that the fact that the appellant lied about the act of intercourse was relevant and potentially supportive of both offences and, indeed, tended to heighten the probability that the complainant’s testimony was true.

37. As to the lie told to the appellant’s wife, the learned trial judge did alert the jury to the possibility that a false explanation to his wife could be attributed to a wish for domestic harmony rather than a consciousness of guilt. In any event, on the evidence, the attempt to involve the security officer is fanciful. He was only there for between five and ten seconds, a fact which was not challenged at the trial. It was, in my view, a clear and deliberate lie. The jury, in my view, was entitled to take it into account in determining whether it was made in consciousness of guilt. There is no substance in this ground of appeal.

38. As to ground (b) above, criticism is made because the learned trial judge read out the whole of the definition of rape in s 304 of the Criminal Code, including the fact that rape may be procured by intimidation or threats, the submission being that there was no evidence of intimidation or threats in this case.

39. In my experience it is usual for a trial judge when summing up to a jury, to direct a jury in terms of the section as a whole.

40. In any event the facts of this case reveal that the complainant was a slightly built teenage girl who was under the influence of liquor, finding herself in a darkened pool hall with a large hairy man whom she did not know. The evidence revealed an aura of passive submission where there was no physical resistance by her; only fear, weeping, and a softly spoken rejection. In such circumstances a jury would be entitled to find that such a victim may well have been “intimidated”. As the Crown submitted, whether such description was to be characterised as:

1. intercourse “without consent”; or

2. a technical consent through intimidation,

did not matter.  If such an account was accepted, it amounted to rape. 

41. In my view there is nothing in this ground of appeal.

42. As to ground (c) above, the appellant complains of the learned trial judge’s advancement to the jury that the distressed condition of the complainant was a matter capable of providing some support to the complainant. The appellant submitted that insofar as the complainant’s distressed condition was observed by witnesses, the distress was contemporaneous with the complaint, and in the circumstances not capable of being supportive or confirmatory of the complainant’s account of rape. A complaint is made that insofar as the security officer’s observations were concerned, the jury should have been warned that in the circumstances the complainant’s demeanour may reasonably have been explained by her intoxication and disorientation. It is said that in those circumstances the jury should have been warned to place little weight on that part of the security officer’s evidence.

43. With respect to such an argument, it seems to me, as the Crown submitted, to be focussed on one sentence in the summing up, namely “you may consider … her distressed condition which was observed by a number of witnesses”.

44. In this respect the Crown submitted:

“The appellant’s argument assumes that this is a reference to the post intercourse period.  With respect, this ignores the context, most notably:

1. the critical reference to distressed condition is unqualified as to before or after intercourse.  Both periods were the subject of evidence; and

2. his Honour had referred to prior distress, just before this point in the summing up.”

45. Clearly the complainant’s conduct and state of mind both before and after the intercourse were relevant to the issue of consent.

46. The appellant’s complaint really is that there was no warning given in relation to the possible nexus between distress and alcohol and disorientation. One can ask the rhetorical question how such a warning could have assisted the appellant because:

1. intercourse was admitted;

2. the complainant’s situation in relation to alcohol and lost direction existed prior to intercourse; and

3. the appellant emphasised the complainant’s prior condition in his interviews.

47. As pointed out by the Crown such a warning would highlight the complainant’s poor state prior to intercourse and, in turn, would underline further her vulnerability and the improbability of the defence’s version of events.

48. There is nothing in this ground of appeal.

49. Finally, the appellant complains that a defence of honest and reasonable mistake as to consent should have been left (s 24 Criminal Code).

50. No request was made at the trial for a direction in terms of s 24 of the Criminal Code. One should again rhetorically ask the question, how could such a direction assist the appellant in the circumstances described by him where upon being finally interviewed, he described the complainant as the instigator and principal actor in the events which occurred.

51. There is nothing in this ground of appeal.

52. In the event I would make the following orders:

1. In respect of the rape conviction: Appeal Dismissed;

2. In respect of the conviction for unlawful carnal knowledge: Appeal allowed, conviction quashed; and a verdict and judgment of acquittal entered.