R v M[2001] QCA 166

COURT OF APPEAL

McPHERSON JA

THOMAS JA

MACKENZIE J

BRISBANE

DATE 01/05/2001

JUDGMENT

McPHERSON JA:  The applicant has appeared in person to argue his appeal against conviction at a trial and the sentence, imposed in consequence, in the District Court at Townsville.

The offences of which the jury found him guilty were committed on the night of 28, 29 November 1999 at the complainant's home where she lived with her young children.  The offences were one count of burglary, one of rape, assault occasioning bodily harm, deprivation of liberty, two counts of indecent assault with circumstances of aggravation and a count of assault.

The appellant and the complainant had been living together off and on for the best part of nine years and they had five children under eight years of age.  They had separated shortly before the incident in question.  The complainant had obtained a domestic violence order in October 1999 and the evidence at the trial was that the complainant had arranged for the applicant's name to be removed from the lease, and was occupying the house on her own with her children.

On the appeal before us the appellant sought to present us with a letter obtained in April this year, which came from the relevant government department and referred to the question of whether or not the house had been transferred from one name to another; but that evidence, which would constitute new or fresh evidence for this purpose, was not presented at the trial in November 1999 and is not admissible at this hearing.

The grounds of the appeal consist of alleged misdirections by the trial Judge.  It is convenient to consider them in the context of each particular offence to which they relate. 

At about 11.30 p.m. on 29 November 1999 the appellant used a trampoline to enable him to climb through a window of the house in which the complainant was living.  This was the subject of count 1, burglary.  On entering the house he showed the complainant a number of zip ties and asked her if she knew what they were for.  The objects in question are depicted in the photographs which were among the exhibits at the trial.  It is apparent that they are lengths of black plastic strapping.  The complainant took fright on being shown the ties and, because she mistook them for spear nails, she began to cry. 

The appellant then pulled her by the hair into the bedroom and, although she did not struggle, she screamed out of the bedroom window.

To this the appellant responded by punching her in the eye.  That punch was the subject of the charge in count 2 of assault occasioning bodily harm.  The appellant ordered the complainant to undress and she complied through fear.  He tied her hands to the bed head with the zip ties, which resulted in the charge in count 3 of deprivation of liberty.

He then left the room temporarily and returned with a 30 centimetre knife.  He put his penis in the complainants face and ordered her to suck it, which she did.  Again, as she said in evidence, she did so under threat of retribution if she did not comply with his orders.

The complainant then complained to him that the restraints were too tight and he replaced one of them.  He brandished the knife about and then got on top of her and forced her to suck his penis again.  That was the subject of count 6, which was the charge of indecent assault. 

He then penetrated her vagina with his penis which gave rise to the charge in count 7 of rape.  He refused her request to be untied and left her tied up while she and he went to sleep. She managed to free herself from the bed head and tried to use the phone in the house in order to ring the police.  She found, however, that the telephone was not operating.

She then left the house with a towel wrapped around her body and a dress over the top taking the two children with her.  She made a distressed 000 call from a public telephone box some distance away.  The recording of that call at the point of its receipt was put in evidence at the trial.

At about 3.10 a.m. the police collected her from the telephone booth.  She was distressed, with injuries to her face, including a black eye and abrasions around her wrist.  When the police went to the house they found the appellant asleep there in the bedroom and still naked. 

Also in that room they found the zip ties (some of them still tied to the bed and some lying cut on the floor), a 30 centimetre knife and a pair of the complainant's underpants as well as what is described as a makeshift sanitary napkin.  These items were lying on the floor of the bedroom. 

At the trial, the real question was what inferences could appropriately be drawn from these facts in relation both to intent and also, in regard to the rape and other acts, the matter of the complainant's consent.  The only significant challenge to the complainant's evidence was to her assertion that the appellant had threatened her as he waved the knife at her between the sexual acts that I have described.

She claimed that he had said to her:

"If the coppers are going to come round, I'm just going to cut your tits off and have sex with you up the arse."

Although tested in cross-examination, this complaint, or evidence, by the complainant remained essentially uncontradicted.  It should perhaps be added at this point that the appellant himself did not give evidence at the trial, so that what the complainant said was essentially uncontradicted throughout.

The first three grounds in the notice of appeal are essentially related to the condition of the telephone, the inferences that might be drawn from its condition, and the inferences that might be drawn from the use of the zip ties.  

Ground 1 complains that the Judge erred in law when he directed the jury, in relation to the telephone, that they could infer that the appellant had caused the damage.  The uncontradicted evidence on this point was that the telephone had been working a day or so before the appellant's entry into the house; that the complainant went to use it immediately after she had freed herself from the bed after the offences were committed; and that the telephone was not working at that point.  It was later discovered that the wires from the junction box underneath the house had been cut.  Before us, the appellant argued that there was no evidence that he had cut the wires.  However, there plainly was material on which the jury could base an inference that it was the appellant who had done this.  There was certainly no suggestion that anybody else had done so, or that they may have wanted to do so for reasons that no one has explained to us.

Grounds 2 and 3 complain more specifically that the Judge had failed to direct the jury that they could find that it had been the accused who damaged the phone only if they were satisfied of that matter beyond reasonable doubt.  In substance, therefore, the submission was that it was necessary that the jury be satisfied beyond reasonable doubt that the appellant had damaged the telephone before they could make a proper finding or inference that he had done so.

With respect, that is quite plainly wrong.  The rule in relation to circumstantial evidence does not require that the prosecution prove each item of evidence beyond reasonable doubt in order to establish a fact relevant to the trial.  It is, of course, necessary for the Crown to establish an offence beyond reasonable doubt, whether that offence is proved, or sought to be proved, by circumstantial evidence or otherwise. But in this case, the appellant had not been charged with cutting or damaging the telephone wires or, indeed, doing anything else with respect to the telephone that constituted an offence.  The evidence about the damage to the telephone was simply part of the Crown's case against the appellant, and it was not necessary for the jury to be satisfied beyond reasonable doubt that it was the appellant who had caused the damage.

The same applies, essentially, to the zip ties and to the question whether the appellant had brought them with him.  A good deal of time was spent on this question in argument before us. I am, to a large extent, unable to see its relevance.  In fact, if the applicant, as he was a little inclined to do, is suggesting to us that he obtained the ties inside the house, it does not to my mind assist him in relation to the count charging deprivation of liberty.  He had, on the evidence, committed that offence by tying the complainant up with the zip ties.

His purpose in disputing this question seems, however, to have been to cast doubt on the Crown's proof of intent in relation to the burglary charge and possibly also the rape.  All those matters were, however, questions for the jury.  It was for them to decide whether an inference should be drawn that the ties were brought with and by the appellant into the house or whether he found them there; and, if so, whether any appropriate inference would arise from their presence and use in the case.

The ensuing grounds 5, 6 and 7 are concerned with the trial Judge's direction to the jury about the factors to be taken into account in determining the intent of the accused in relation to Count 1, which is the burglary count. 

His Honour directed the jury that it was open to them to take into account the following factors, among others, in determining whether or not the requisite intent to commit an offence accompanied his entry into the house.  Those factors were as follows:  the existence of the domestic violence order, the damage to the telephone if they were satisfied he had done it, the zip ties if he entered the house with them and so on.  From my part I was a little doubtful whether in fact the existence of the domestic violence order could be used in this way; but, having reflected on it, it seems to me clear that the jury may well have concluded that it was only because there was a domestic violence order that the appellant would have chosen to enter the house in this way at that time of night or morning.

In response to that, the appellant referred us to some passages in the evidence which showed that it was not entirely unusual for him to break into or enter the house in that way. The reason for that was that, when given a key to the house, he often lost it.  The complainant had therefore declined to give him a key on previous occasions, and he had taken to entering the house in that unorthodox way.  The fact of the matter is, however, that the jury was confronted with evidence which was capable of leading them to the conclusion, if they chose to arrive at it, that the applicant had entered the house with the intention of committing an offence.  The condition of the telephone supported that, as did the presence of the zip ties, and the existence of the domestic violence order was a fact that they were entitled to rely on in coming to the conclusion they did.

His Honour Judge Wall in summing up to the jury gave the appropriate direction on the use of circumstantial evidence.  The appellant, as I have said, did not give evidence himself at the trial, and it was therefore open to the jury with somewhat greater confidence to draw inferences from the evidence that remained uncontradicted.  What his Honour said was that each of those circumstances that have been mentioned considered separately might not be enough; but he went on to tell the jury: 

"... if you put them all together it may make the drawing of the inference stronger, but you must - before you can conclude that he had an intention to commit an indictable offence in the house - be satisfied beyond a reasonable doubt that that was the only intention he had and that you can, beyond reasonable doubt, exclude all reasonable hypothesis  consistent with innocence."

It was in this context that his Honour referred to the domestic violence order and observed to the jury that it did not prevent the appellant from entering the house, and pointing out to the members of the jury that the appellant had been at the house as recently as a week before this incident.

It is quite plain, therefore, that the jury was well seized of the relevance of the fact that this method of entering the house had sometimes been used by the appellant.  It was for them to decide what conclusions arose from the circumstances as proved, and I can see no error in law or in fact in either the direction or the conclusion they reached having regard to the evidence adduced at the trial.

Grounds 8 and 9 are concerned with what is alleged to have been a misdirection to the jury.  The Crown had only to show that a knife had been used to threaten the complainant in order to gain a conviction in respect of assault.  That plainly is the law.  Threatening with a weapon is sufficient under the Code to amount to an assault.  Defence counsel did not challenge the complainant's evidence that the appellant had taken a knife into the bedroom and brandished it at her between the acts of sexual activity while the complainant was tied in the bed.  There was no innocent explanation for the use of the knife and, in consequence, the jury would have been justified, and were justified, in concluding that an assault had been committed.  Before us the appellant raised some point about the identity of the knife that was found at the scene with the knife that was actually used.

For my part I find it difficult to follow this.  A knife was found in the bedroom after the incident at a time when the appellant was still sleeping in the bedroom.  It appears, according to what the complainant said, to be, or to be like, the knife that was used and it could not possibly matter to the success of this appeal that there had been another knife used, even if there was evidence to that effect, which there is not.

It is then said as part of ground 10 that the trial Judge erred in law in failing to direct the jury the appellant may have had a defence under s.24 of the Criminal Code.  The point at issue here is whether he had an honest and reasonable belief that the complainant was consenting to the act of sexual intercourse that took place.  In fact, in summing up to the jury on s.24, his Honour omitted the reference to the reasonableness of the belief, thereby making the direction more favourable to the appellant than in law it should have been.

The question of consent, especially in circumstances like those demonstrated by the evidence in this case, was a matter for the jury.  A woman who is tied down, having been punched and threatened with a knife, may well be thought by a jury not to be consenting to an act of sexual intercourse that follows, and that was the conclusion that the jury reached.  There is no reason for disturbing it. 

The appellant also submitted that there was either no corroboration of the allegation of rape or that his Honour had insufficiently directed on the point.  It is plain that the appellant is under the impression that the law still is as it was stated many years ago by the High Court in Kelleher v. Queen (1974) 131 CLR 534.  But matters have changed since then.  Section 632 of the Criminal Code now makes it clear that corroboration is not a necessary prerequisite to a conviction for rape.  In the present case, I might say, there was ample evidence capable of supporting the complainant's testimony about what had happened to her and that a rape had been committed on her.  What is more, his Honour, despite s.632 of the Code, did, in fact, direct the jury on the matter of corroboration and the evidence that might be used in support of it.

In all these circumstances, I have come to the conclusion that there is no substance in the appeal against conviction and I would accordingly dismiss it. 

I turn from that to the question of sentence in this case.  The sentence imposed on the appellant was imprisonment for nine years.

Dissecting that term of imprisonment for the purpose of this appeal, it seems to me quite clear that the appellant could not have expected a sentence of less than seven years' imprisonment for the rape and associated indecent assaults considering them in isolation from the other offences of which he was convicted.

As to the other offences, when it is considered that he broke into the complainant's house at night, terrified her and the children, punched her, giving her a black eye, threatened her with a knife and tied her up so as to deprive her of her liberty, it seems to me that a cumulative addition of two years to cover those particular offences was well merited. 

He was, as has been mentioned, subject to a domestic violence order at the time of these offences, and he is a person with a considerable prior history of criminal offending.  He is 31 years old and among the offences recorded against him are four previous convictions for assault occasioning bodily harm, one of which was committed against the complainant's mother, as well as the domestic violence order that I have mentioned and some convictions for breaching it or some other similar order which had been made at an earlier time.

In the circumstances, I do not think there is any basis on which this Court could properly interfere with the sentence imposed in the case.  The trial Judge mentioned a number of features of the appellant's conduct which led him to conclude that it was an appropriate case for a sentence of the dimensions which he imposed.  Among the factors that he referred to were that it was a case of gratuitous violence on a defenceless woman.  The appellant was oblivious to the presence of the children in the house.  A degree of deliberation and planning evidently went into it.  It is true that the appellant was affected by alcohol, but that does not excuse his conduct, and it is plain that he was sufficiently aware of what he was doing to be able to plan the entry, to interfere with the telephone and to bring the zip ties with him.

The learned sentencing Judge debated whether to make a declaration of a serious violent offence before deciding not to do so.  To that extent the appellant perhaps was fortunate because, had such a declaration been made, which it would have been open to the Judge to make, it would have resulted in his not being available for parole until he had served 80% of the sentence.

In all the circumstances, therefore, I do not regard the application for leave to appeal against sentence as one that could be sustained in this Court and I would refuse it. 

In the result, I would dismiss the appeal against conviction and refuse the application for leave.

THOMAS JA:  I agree. 

In relation to the sentence, it occurs to me that a sentence of nine years was perhaps high in the light of the fact that the complainant considers the applicant to be a useful and trustworthy father of their children apart from his drinking problem, puts his conduct on this occasion down to drink and speaks of getting back together again with him after he has been away for a few years.

It is significant, however, from the appellant's submissions to this Court that he is quite without remorse and has little consciousness of any wrongdoing.  Having regard to this and the fact that he was convicted after a trial and additional factors which have been referred to by Mr Justice McPherson, I cannot say that the operative sentence of nine years is manifestly excessive.

Accordingly, I agree with the orders that are proposed.

MACKENZIE J:  Yes, I agree with what has been said by the presiding Judge and Mr Justice Thomas.  I would only add that the basis upon which the Crown case was conducted was that the appellant had gone to the house which he had intermittently occupied with the complainant, intending to commit an indictable offence, entered the house through a window in the night-time, assaulted and threatened her, tied her to a bed and raped her. 

There were circumstantial elements relating to the case of entering the dwelling house with intent upon which the appellant addressed us.  These included that the telephone had been found to be rendered inoperable and that ties with which the complainant was tied to the bed had been taken there by the appellant.

The trial Judge adequately directed on the lack of direct evidence concerning these matters and while there was no onus on the accused to give evidence, the ease of drawing the inference contended for by the Crown was somewhat increased by the absence of evidence to the contrary.

There was evidence also from the complainant that his right to occupy the home had been terminated by her.  There was also a domestic violence order which was not put in evidence but which, it was common ground, prevented him from visiting the house.  There was indeed no objection to the course adopted and this aspect was indeed pursued by the defence for tactical reasons on the basis that the complainant had in fact allowed him into the house about a week before.

If the jury accepted the Crown's view of the facts the case was one where the appellant had, with some premeditation, gone to the house intending and prepared to commit an indictable offence.  There was direct evidence from the complainant that she had been threatened, assaulted, tied to the bed and raped. 

Section 24 was directed on with respect to consent.  As the presiding Judge has indicated, it was probably the subject of a direction which was more favourable to the accused than necessary.  It was a jury question as to whether they found the charges proved and it was open to them to come to the conclusions that they did.

On the view of the facts upon which the jury evidently acted the series of offences was serious and, in my view, the sentence effectively imposed was not manifestly excessive.

I agree with the orders proposed.

McPHERSON JA:  The orders are that the appeal against conviction is dismissed and the application for leave to appeal against sentence is refused.