SUPREME COURT OF QUEENSLAND

1. McMURDO P:  I have read the reasons for judgment of Davies JA in which the relevant facts and issues are set out.

2. I agree with Davies JA that the first argued ground of appeal (that the learned trial judge's summing-up lacked judicial balance and fairness) is without substance and wish only to add some additional comments. The first passage in the summing-up which the appellant relies on to demonstrate this contention^[1] was in my view an attempt by the judge to explain that a woman can be raped even if she consents to intercourse,  if her consent is obtained by force, threats, intimidation or fear of bodily harm;^[2] in context I did not understand his Honour to be stating that his view of the facts was that the complainant's consent was not freely given.  If the jury interpreted those words as stating the judge's view of the facts, the judge told them earlier that the facts were for the jurors and the judge was "not part of the fact finding process, … not as it were, a thirteenth juror".  I am confident the jury did not feel compelled to accept any view of the facts they may have felt the judge had taken.

3. The appellant also submits that the learned trial judge failed to adequately put the defence case. His Honour read to the jury the appellant's evidence denying counts 1, 2 and 4 and claiming that counts 3 and 5 were with the complainant's consent, or that he honestly and reasonably believed she was consenting. His Honour more than once explained the defence case to the jury as being that these incidents occurred in the process of a reconciliation after a tumultuous evening of argument and violence. His Honour did not particularly mention the defence submission that late in the evening after these incidents the complainant became aware that during their separation the appellant had sexual intercourse with three other women and fabricated the allegations to get back at him for his infidelity and hypocrisy. I have obtained a copy of the opening and closing defence addresses and the closing prosecution address. Whilst that submission was made by defence counsel in his closing address, it was not the only or even the principal submission of defence counsel who attacked the credibility of the complainant in many ways. The issue of any possible motive of the complainant was not touched upon in the prosecution closing address which followed the defence address. A trial judge is not required to repeat for the jury every contention made to the jury by defence counsel. The judge may have been reluctant to highlight the question of motive which could distract the jury from the real issue which is, even if a motive is rejected, was the complainant truthful in her evidence as to each offence: R v Palmer.^[3]  In any case, the judge's summing-up adequately put the defence and prosecution cases sufficiently to isolate the real issues for the jury: see R v Mogg,^[4] RPS v The Queen^[5] and R v Lock.^[6]

4. The learned primary judge should not have allowed the cross-examination of the appellant as to why the complainant had not made a false complaint of rape on other occasions when the appellant physically abused her but for the reasons given by Davies JA this has not resulted in any miscarriage of justice. The issue was not mentioned in the prosecution closing address or in the judge's summing-up. The only reliance placed on any suggested motive of the complainant was defence counsel's submission dealt with in the preceding paragraph of these reasons. It may have been preferable had the judge warned the jury that there is no requirement for an accused to prove any motive on the part of the complainant and that even if they rejected the motive suggested by the appellant that does not mean the complainant was necessarily telling the truth: Palmer.^[7]  But no such redirection was sought and nor was it contended on this appeal that such a direction should have been given.  In the circumstances of this case where the potential motive of the complainant was not relied on by the prosecution nor highlighted by the judge, and the evidence was otherwise compelling, I am not satisfied there has been any resulting miscarriage of justice. 

5. I agree with Davies JA that the remaining contentions as to improper cross-examination by the prosecutor have not been made out and that this ground of appeal also fails.

6. I am in general agreement with Davies JA as to the exclusion of the defence evidence from Lammon and Solomon. The latter's evidence was not relevant and was rightly excluded. The complainant's evidence that earlier on the day of these offences the appellant said to Lammon "Come on, do you want to go and gang bang the whore inside?" was admitted without objection, apparently to demonstrate the true relationship between the appellant and the complainant. The case against the appellant was otherwise very strong and this evidence could have had only marginal weight; but once admitted, the appellant was entitled to call evidence from Lammon that he did not hear the appellant say these things at that time; the evidence did not go solely to the complainant's credit but went to an issue, namely the true relationship between the appellant and the complainant. Defence counsel in his opening address told the jury that the appellant would give evidence that after he began to argue with the complainant about her infidelity during their separation five people (whom he named, including Lammon and Solomon) came to the house, including Lammon but because of a ruling of law the defence was unable to call those witnesses to give evidence. This was an improper comment in the light of the judge's ruling and in any case the defence had only asked to call two witnesses, Lammon and Solomon. The learned trial judge understandably interrupted defence counsel's address saying, "I want you to ignore what Mr Walters just said to you. It was quite improper and take no notice whatsoever of what he is saying to you about these other people, ladies and gentlemen. The only witness who is giving evidence for the defendant is the accused. You are not to speculate about these other people as Mr Walters is implicitly asking you to do."

7. It would have been preferable had the judge also directed the jury to ignore the earlier evidence of the complainant as to the appellant's remarks in the presence of Lammon. That evidence however played no significant part in the case; it was not mentioned in the closing addresses of counsel or in the judge's summing-up. As Davies JA has demonstrated, the prosecution case was very convincing. I am satisfied that the modest error in excluding Lammon's evidence or in not excluding the complainant's evidence of the appellant's statement in the presence of Lammon, did not result in a miscarriage of justice.

8. The grounds relied upon alone or in combination do not have the result that the appellant has lost a real chance of acquittal: Wilde v R.^[8]  I agree with Davies JA that the appeal against conviction should be dismissed.

9. I also agree with Davies JA that, for the reasons he has given, the sentence imposed was manifestly excessive and an effective sentence of eight years imprisonment for rape with lesser penalties for the remaining offences should be substituted. I agree with the orders proposed by Davies JA.

10. DAVIES JA:  The appellant was convicted after a trial in the District Court on 8 December 2000 of two counts of indecent assault, one of indecent assault with a circumstance of aggravation and one of rape.  On 11 December he was sentenced to 10 years imprisonment on all counts with a declaration that 419 days pre-sentence custody between 19 October 1999 and 11 December 2000 was time served under the sentence.  He appeals against his conviction and seeks leave to appeal against his sentence.

11. The complainant and the appellant had been in a de facto relationship since 1993. They had three children aged three, two and 10 months. They had been separated, on and off, since April 1999 but had reconciled at the end of September 1999 and were living together at the time these offences took place.

12. On the afternoon of 18 October 1999 the appellant and the complainant were at home with the three children. They were apparently playing cards when the appellant asked the complainant if she had slept with anyone during the period of their separation. The complainant admitted to having slept with a man called Lee. The appellant became angry and called her a slut and a whore. He smashed the telephone.

13. A number of visitors came and went after which the appellant continued to be abusive towards the complainant and to assault her. When she went to the toilet he said: "I should piss on you. You're nothing but a slut, nothing but scum". He then proceeded to urinate on her. This was the first count of indecent assault. He admitted to having done this but, incredibly, asserted that it was consensual or at least that he honestly and reasonably thought it was. This was because, after a considerable amount of abuse and a number of assaults, when the appellant followed the complainant into the toilet in a threatening manner and said this, she replied, according to him (which she denied):

"If it makes you feel any better, do it."

14. Over the course of the next six or seven hours there were constant threats, abuse and assaults of various kinds.

15. He dragged the complainant into the bathroom, ripped off her clothes and threw her into the bath. He then turned the hot water on. She screamed with pain after which he finally adjusted the temperature. He attempted to shampoo her hair, tearing some hair out in the process. By this time, it appears, it was about midnight. He put two fingers into her vagina. This was the second indecent assault. He denied that this took place. Then he hit her around the legs with a belt and put it around her neck. He continued to assault her.

16. He then forced her to fellate him. He admits that this took place but says again it was consensual. Finally he forced her to have intercourse with him. Again he admitted the intercourse but said it was consensual.

17. As the matter was argued on the appellant's behalf only three grounds of appeal against conviction were pursued. It is convenient to consider them in the order in which they were argued.

18. The first ground was that the learned trial judge's summing up lacked judicial balance and fairness and also included expression of the trial judge's own opinion. As a result, it was submitted, the appellant was deprived of a fair trial.

19. Three passages in the summing up were said to show expressions of opinion by the learned trial judge which may have overawed the jury. The first of these was a passage described by the appellant's counsel as critical. His Honour referred to a submission made by the prosecutor that a woman can be raped even if she consents if her consent is obtained by force or by means of threats or intimidation or by fear of bodily harm. His Honour then said:

"I mean, as a matter of common sense you might think that someone does consent if the alternative is to get belted up, and that, I think, was the case with (the complainant), plus she was in fact belted up as well at different stages of the evening or the night."

20. Read in context, his Honour's statement appears to have been an attempt to explain the circumstances which could be relied on for a verdict of rape even if the complainant consented. Moreover no criticism could be made of the statement that the complainant was "belted up" because that was admitted by the appellant. Nevertheless the statement that that was the case with the complainant might have been construed by the jury as an expression of his Honour's opinion that the complainant consented because the alternative was to be further assaulted. However his Honour had, only shortly beforehand, told the jury that it was not his function to influence the jury one way or the other as to what the verdict should be and that it was entirely a matter for them. He said that what he said on the facts did not bind them at all.

21. It might have been better had his Honour not expressed his opinion in the way in which he did. But it was not expressed in strong terms and, in view of his earlier direction, I do not think that the jury could have been misled into thinking that they were bound by his Honour's views of the facts or that they could have been overawed by his Honour's statement.^[9]

22. The next passage in his Honour's summing up which was relied on by the appellant for this ground is a statement by his Honour that:

"Anyone in his position looking at it could not reach the conclusion reasonably that she really was consenting."

Read in isolation this statement looks like another expression of opinion by his Honour but the statement is made in a context in which his Honour was explaining to the jury the appellant's defence of honest and reasonable mistake that the complainant had consented and, in particular, what the Crown had to negative beyond reasonable doubt in this respect.  The sentence immediately preceding this sentence was:

"The Crown would have to negative it beyond reasonable doubt and the Crown can do that if they satisfy you beyond reasonable doubt either that he was not honestly mistaken as he suggests or that the mistake if honestly entertained was not objectively reasonable, was not a reasonable mistake by the standards of ordinary sensible people."

The sentence complained about appears to be an explanation of this proposition.  It was as if there had been a colon at the end of that sentence and the word "that" inserted before "anyone".  His Honour then went immediately to the defence position.  Read in context therefore it was not a statement by his Honour of his own opinion.

23. The same is true of the other passage specifically relied on which Mr Kilvington, for the appellant, contended provided support for his argument. This was a passage in which his Honour was explaining to the jury the relevance of a complaint made shortly after the events the subject of the convictions. He told them that the evidence of that complaint was adduced on the basis that, having regard to all the circumstances surrounding the making of the complaint, including the time which elapsed since the events in the house, what was then said was capable of supporting her credibility. His Honour then said:

"I mean, she is behaving like a person who has suffered these alleged offences.  I mean, it is not as if she sat silently and did not report the matter to anyone.  It is said that she is being consistent between what she said then and what she is saying in court now …

So whether it does support her credibility or not is a matter for you as a matter of fact."

(The emphasis is mine.)

24. The passage complained about consists of the two sentences commencing "I mean". But it is plain that here he was explaining the significance of the evidence of complaint. It was as if, in each of these sentences, "that" were substituted for "I mean". He was not expressing his opinion on the facts.

25. To those specific submissions the appellant added the general submission that, looked at as a whole, the summing up showed a lack of balance. Mr Kilvington submitted that his Honour read a considerable number of passages from the complainant's evidence but not much from the appellant's. One difficulty facing this argument, acknowledged by Mr Kilvington, was that the appellant's case was either a denial that the event alleged took place or an assertion that the complainant consented. Consequently most of the evidence central to the alleged offences came from the complainant. It is not surprising that, in those circumstances, more time was spent by his Honour in his summing up on her evidence than on his. But the appellant could not assert that his case was not put or that time was not devoted in his Honour's summing up to his defences or to his evidence.

26. One specific matter was relied on to support this more general submission. This was the failure of the learned trial judge to include in his summing up references to the defence contention that the complainant had a motive to fabricate a case against the appellant. Rather late in the night, it seems, the appellant disclosed to the complainant three affairs he had had with other women whilst they had separated. It was put to the complainant that this made her very angry, a proposition which she denied. The contention which was made from this by defence counsel at the trial was that this disclosure so humiliated her that she had a motive to fabricate a case against him. Nothing was said about it by the Crown prosecutor in his address. It is true that his Honour did not deal with this at all in his summing up. Nor, among the complaints made about his summing up in the course of requests for redirections, was any complaint made about failure to do this. It was plainly not incumbent on the learned trial judge to mention in his summing up every contention made for the defence. I cannot be satisfied, in the circumstances that it was incumbent upon his Honour to deal with the point at all.

27. For the reasons I have given therefore I do not think that there was any lack of balance in the summing up and consequently this ground of appeal must fail.

28. The next ground argued concerned the prosecutor's cross-examination of the appellant which, it was said, was inflammatory and prejudicial. The passage most strongly relied on for this ground was the following:

"And you told us earlier on there'd been abuse before?--  Yes.

On - on those occasions, to your knowledge, had she gone to the police to make a false complaint of rape?--  No.

No.  And the reason why, I suggest to you, on previous occasions she did not make a false complaint of rape against you or a complaint for that matter of rape was because there was no rape before."

There was then an objection to this questioning which was overruled.  Then the prosecutor asked much the same question:

"The reason, I'm suggesting to you, she did not complain after abuse, as you call it, of rape to the police was because on earlier occasions there was no rape by you of her.  You'd have to agree with that wouldn't you?--  What do you mean on earlier occasions?  From-----

Well-----?--  -----times before?

HIS HONOUR:  Yes.

MR SMID:  Weren't you-----?--  She never went to the police at all the times before.

No.  Because there was no need to go to the police on prior occasions.  That's what I'm suggesting to you."

There was then a further objection by the appellant's counsel and this line of questioning was not further pursued.

29. It was submitted that this line of questioning, inarticulately put, implied that the complainant complained only when her complaint was true and it was for the appellant to explain why she would lie on this occasion. It was consequently, it was submitted, an invitation to the jury to accept the complainant's evidence unless some positive explanation was given by the appellant.^[10]  I would accept this submission.  However, as I have mentioned, it was not further pursued or later relied upon in the case.  In Palmer where it was held that asking questions of this kind in the circumstances of that case occasioned a miscarriage of justice, the court considered that the effect of the cross-examination must have been significant.^[11]  This was because the prosecutor opened his cross-examination of the appellant with questions along these lines and, at the conclusion of his cross-examination, returned to the point.  Here, by contrast, the questioning occurred on only one occasion, was interrupted by objections and eventually abandoned.  I do not think that, in the context of the case as a whole, it could have occasioned any miscarriage.

30. The next passage of cross-examination relied on was the following:

"And then the ultimate humiliation, you stand there like a big brute, I am suggesting, bearing your penis in front of this little woman sitting on the toilet, and urinating on her.  And you say that you have pleaded not guilty, that's what I'm suggesting, to that charge of indecent assault, because she said, 'Oh, Jason, if you feel like doing it, you do it'?--  She said, 'If it makes you feel any better'-----

Yeah?--  -----'You do it.'  Yeah.

And so-----?--  And that made me feel better doing it.

You had her consent to urinate on her?--  Well she said, 'If it makes you feel any better, do it,' so I did it.

You felt you had her consent to do it?--  I don't know what I felt that night.  We were arguing for six hours.

No, look-----?--  I don't know if I felt her consent or not."

31. No doubt that was strong cross-examination. But what the prosecutor was putting to the appellant was the absurdity of his defence that she was consenting to his urinating on her or that he honestly and reasonably believed that, a proposition which, in the end, he did not seem to deny. I do not think it was improper.

32. The third and final passage relied on was the following:

"That you - what I am suggesting is you sank so low on that occasion, urinating on the mother of your children, that it just was a sign of the way – of how deeply you despised her, at that moment?

--  Yeah, I felt bad for doing it, yeah.

No, no.  No, no, don't twist it around.  You despised her?--  What do you mean do I despise-----

HIS HONOUR:  You hated her at the time?--  I hated her at the time?  No, I didn't hate her.  I was just jealous of what - for what she'd done."

Again that was very strong cross-examination but the prosecution case was that, in effect, the appellant treated the complainant like a chattel, reducing her, by his conduct, to a state of abject submission.  In those circumstances, although it would have been better had the questions been put less emotively, I do not think that they were improper or unduly inflammatory and it is plain from the appellant's answers that he was not in the least overawed by them.

33. In my opinion this ground of appeal must also fail.

34. The final ground of appeal related to the exclusion of the evidence of two men, Otis Lammon and Anthony Solomon. These were two of the visitors to whom I referred earlier. They arrived and left during the afternoon, hours before the offences the subject of the convictions occurred.

35. The complainant gave evidence that when Mr Lammon arrived the appellant said to him "Come on, do you want to go and gang bang the whore inside". The appellant denied having said this. Mr Lammon, if he had been called, would have said that he did not hear this said.

36. No objection was made to the complainant giving this evidence but its relevance to the events of that night is at most marginal. It could only have been relevant to show the contempt in which the appellant held the complainant. It was submitted by Mr Kilvington that the jury could have inferred from it an intention at that stage on the appellant's behalf to rape the complainant. I do not think that was an inference reasonably open or one which the jury might have taken into account in determining whether, many hours later, the appellant raped the complainant.

37. As to its possible relevance to show, as it is sometimes put, the relationship between the parties, but more specifically here the contempt in which the appellant held the complainant, that fact was adequately demonstrated by the whole of the evidence in the case, including the evidence of the appellant himself that over the following six or seven hours he subjected the complainant continuously to assaults, verbal abuse and other degrading behaviour knowing, throughout this period, that she was in fear of him.

38. I do not think that the admission of Mr Lammon's evidence could have had any effect on the verdicts which the jury reached.

39. The evidence of Mr Solomon was even less relevant. Had he been called he would have said that at the time he was at the premises the complainant did not look distressed. But as I have already mentioned that was many hours before the events the subject of the appellant's convictions took place.

40. I do not think his Honour erred in excluding either the evidence of Mr Lammon or the evidence of Mr Solomon and, even if the former evidence was marginally relevant, I do not think its exclusion could possibly have resulted in a miscarriage of justice.

41. For those reasons, in my opinion, the appeal against conviction must be dismissed.

42. It is common ground that the learned trial judge erred in the exercise of his sentencing discretion and that error requires this Court to exercise that discretion afresh. His Honour imposed a sentence of 10 years imprisonment without appreciating that a necessary consequence of that sentence was the application of Part 9A of the Penalties and Sentences Act 1992 that the appellant was convicted of serious violent offences.  The question then is what is the appropriate sentence which should now be imposed.

43. The appellant is 27 years of age having been born on 17 December 1973. He does not have a large criminal history but, significantly, it involves two counts of assault occasioning bodily harm, once whilst in company and armed with an offensive weapon, on 25 December 1992, one count of assault occasioning bodily harm whilst in company on 11 November 1995 and one count of assault occasioning bodily harm on 6 February 1997.  That history and the circumstances involving the commission of these offences show him to be of violent disposition.

44. Plainly he demonstrated no remorse for his conduct against the complainant. She suffered considerable physical pain and her victim impact statement shows that she suffered nightmares, no longer felt able to live in Ayr and had to move elsewhere.

45. Mr Kilvington conceded in his written outline that the range for these offences was between five and nine years. Mr Heaton for the respondent put it as between eight and nine years. They relied on similar authorities, both referring principally to R v Chinfat CA Nos 354 and 355 of 1995, 17 November 1995.  None of the cases cited to us are closely comparable to this.  But they do show, in my opinion, that an appropriate sentence for the rape in this case would have been one of eight years imprisonment.  Appropriate sentences for the other offences would have been four years imprisonment for the indecent assault with a circumstance of aggravation and three years imprisonment for each of the other indecent assaults.  I would however make the declaration which the learned primary judge made that 419 days pre-sentence custody between 19 October 1999 and 11 December 2000 be time served under the sentences.

Orders

1. Appeal against conviction dismissed.

2.(a)Application for leave to appeal against sentence granted.

2. Appeal allowed.

3. Set aside the sentences of 10 years imprisonment and substitute sentences of eight years imprisonment for rape, four years imprisonment for indecent assault with a circumstance of aggravation and three years imprisonment for each of the other offences of indecent assault.

4. Declare that 419 days between 19 October 1999 and 11 December 2000 be time served under the sentences.

46. PHILIPPIDES J:  I agree with the reasons for judgment of Davies JA and with the additional reasons of McMurdo P.  I agree with the orders proposed by Davies JA.