SUPREME COURT OF QUEENSLAND

1. THE COURT:  The appellant was charged in the District Court at Townsville with one count of deprivation of liberty, one count of assault occasioning bodily harm, one count of rape and one count of unlawful and indecent assault.  He pleaded not guilty and was convicted after a three day trial of deprivation of liberty and assault occasioning bodily h arm, but was found not guilty of rape and unlawful and indecent assault.  He appeals against his convictions.

2. The appellant, who represents himself on this appeal, claims in his notice of appeal that the verdicts are inconsistent and that the complainant gave inconsistent evidence; no blood was found on the appellant's clothing; a photograph showed that the bedroom door had no lock on it whereas the complainant claims she was locked in the appellant's bedroom; and the prosecution witness, Ann-Maree Kelly, was not asked about the appellant's statement to her that he had head butted the complainant. He has expanded on these grounds in his written outline and in his oral submissions.

3. It is necessary to first consider the facts. The prosecution case turned primarily on the evidence of the complainant who was a friend of the appellant. The complainant gave evidence that prior to this incident she had not had sexual intercourse with the appellant; their relationship was platonic, involving the sharing of cones of marijuana and motor bike rides. Just before midnight on 27 July 2000 the appellant woke her by rattling at the louvres of her bedroom. He told her that her boyfriend and his sister, Ann Maree, were together at the pub and to put on her best clothes so that they could "catch them out". She thought they had a couple of quick cones of marijuana before they left her home for the hotel. On the way they passed the appellant's home and dropped in to see if her boyfriend and Ann-Maree were there. The complainant did not get on with Ann-Maree. They were not at the appellant's home and the appellant and the complainant smoked some cones of marijuana in his bedroom. She tried to open the door to leave for the hotel. The appellant at first helped her with the door which was jammed but then slammed it shut, grabbed her from behind and pushed her back into the room. They struggled; the appellant had his hand over her mouth and nose making it difficult for her to breathe. He said she had been talking to someone and saying something and the police were not her friends. She said, "I don't know what I've done" and he replied that she knew what she had done. As she was having difficulty breathing, she scratched him on the face and shoved her fingers up his nose. He lay on top of her on the floor. She was 4 foot 10 and a half inches tall and weighed 45 kilos. The appellant was tall and powerfully built. She fought until she could not fight any more. She said, "If you want to have sex with me or whatever, just – you didn't have to do all this – don't do all this to me, Stewie. I'll just do whatever you want me to." By this time her eye was bleeding because he had punched her three times to the head. He then slowly removed her clothes and had sexual intercourse with her. The act of intercourse took only a couple of seconds and the appellant told her to be quiet. Blood was running from the cut over her eye and was streaming down her neck and was on the appellant's face. She felt she was choking on blood running down her throat. During the act of sexual intercourse, the appellant's sister, Ann-Maree, knocked on the door and asked where the bong was. The appellant replied, "Downstairs" and said not to come in: "I've got someone in here that shouldn't be here." Ann-Maree said, "I don't care anyway. I just want to know where the bong is" and left without entering the room.

4. After the act of intercourse the complainant was frightened that the appellant would kill her. The appellant told her to have a shower and whilst she was showering he washed the blood off her body and ran his hands over her breasts for about 10 minutes. After the shower they returned to his room. She wanted to go home but he would not let her go. He said, "Yep, you're not going home. You are going to stay here the night." She was too scared to argue back and lay down with him on the bed. After a while she asked if she could roll over and go to sleep. He said, "You can do what you want."

5. In the morning, the appellant let her go and she said that she would "just tell everyone that I fell down your front steps, so, you know, we don't tell anybody." She said this because she was scared that he was still going to do something to her. She returned to her home. Her younger sister told her that the complainant's boyfriend had been waiting for her all night in her bedroom. The complainant said, "I've been raped and it was Stewie" and began to cry.

6. The appellant's sister, Ann-Maree Kelly, gave evidence that she came home after work to the house she shared with the appellant. She heard male and female voices talking quietly but could not hear what was said. She heard two sets of footsteps walk through to the bathroom and heard the shower running for about 10 or 15 minutes. She then went to sleep in her bedroom which adjoins the appellant's and is only partially partitioned from it. When she heard her brother return from the bathroom to the bedroom she went out to say goodnight and said she would wake him in the morning. He said, "I've got somebody in here that I shouldn't have." About 15 or 20 minutes after she went to bed she heard moaning and groaning, "like a sexual pleasure".

7. The complainant's sister gave evidence that when she first saw the complainant at about 7.00am on the morning of 28 July, the complainant was upset, had dried blood on her left eyebrow and on her clothes and had been crying. She asked the complainant what happened and the complainant said she had been raped by the appellant.

8. The complainant was examined by a doctor at 8.20am on 28 July 2000 who noted multiple scratch marks, lacerations to the left eye, tender swollen left temple, swelling and bruising of the left forearm and elbow, and swelling and bruising of the right knee and left upper thigh. No treatment was needed.

Inconsistent verdicts

9. The appellant's primary contention is that verdicts of guilty on the assault occasioning bodily harm and deprivation of liberty are inconsistent with the verdicts of not guilty on the offences of rape and indecent assault. This proposition has some initial appeal. On reflection, however, the evidence justifies a rational basis for at least the verdict of guilty of assault occasioning bodily harm.

10. The learned primary judge correctly directed the jury that they must look at each count separately, a separate verdict was required on each count and the verdict on each count need not be the same. The judge explained to the jury in his summing-up that the defence case was that the count of rape and the count of unlawful and indecent assault were "make up sex after an argument" and that the complainant either in fact consented, or the prosecution had not proved beyond reasonable doubt that the appellant did not honestly and reasonably believe she was consenting.

11. The view of the evidence, urged upon the jury by the defence, received some support from the evidence of the appellant's sister. On the basis of mistake of fact, it was open to the jury to be left in doubt as to the guilt of the appellant on the rape and indecent assault offences without rejecting the complainant's evidence and to nevertheless be satisfied of the appellant's guilt beyond reasonable doubt of the offence of assault occasioning bodily harm.

12. The evidence against the appellant on the assault count was compelling. The complainant's evidence was not controverted by other evidence. It was supported by her condition later that morning, by photographs and by the medical examination. The only defence raised by the appellant to exclude his responsibility for the assault was that the complainant was consenting to the struggle in which she suffered injury amounting to bodily harm. This hypothesis was self-evidently unattractive and it is not surprising that it was rejected by the jury in their guilty verdict.

13. Ultimately, the consideration as to whether the jury verdict on assault occasioning bodily harm is inconsistent with the other verdicts must turn on whether the verdict of guilty of assault occasioning bodily harm was unsafe or unsatisfactory: Mackenzie v The Queen.^[1]  There was ample evidence to rationally allow the jury to reach a verdict of guilty on assault occasioning bodily harm whilst still acquitting him of rape and indecent assault.

14. The inconsistency between the verdicts of guilty of deprivation of liberty and not guilty of rape and indecent assault is more problematic. It was possible for the jury, consistent with its verdict of not guilty to rape and indecent assault, to have convicted the appellant of deprivation of liberty prior to the alleged rape offence. But a conclusion that the prosecution had not established beyond reasonable doubt that the appellant did not honestly and reasonably believe the complainant was consenting to sexual intercourse must also mean, on these facts, that from that point at least, the prosecution failed to prove that the appellant did not honestly and reasonably believe the complainant was consenting to being confined in the bedroom. The prosecution case was that the appellant had unlawfully detained the complainant in the bedroom throughout the evening.  No special verdict was sought as to whether the offence of deprivation of liberty related to the entire period or only the period before intercourse.  The jury were not told, as they should have been on the facts of this case, that before they could convict the appellant of the offence of deprivation of liberty, the prosecution must prove beyond reasonable doubt that the appellant did not honestly and reasonably believe the complainant was consenting to her stay in the bedroom.  Had the jury been so directed, the only verdict consistent with their verdicts on the charges of rape and indecent assault would have been not guilty of the offence of deprivation of liberty after the commencement of sexual intercourse.  As no distinction was made in the trial between the two timeframes, the verdict of guilty of deprivation of liberty cannot stand and a verdict of acquittal must be entered.

15. In the circumstances, nothing would be gained by ordering a retrial on the relatively minor offence of deprivation of liberty during the earlier timeframe, the circumstances of which are, in a general way, covered by those surrounding the assault occasioning bodily harm. In reaching this conclusion, we take into account that the appellant has already served 15 months of his sentence.

The remaining grounds of appeal against conviction

16. In determining whether there has been a miscarriage of justice, it is necessary to consider briefly the remaining grounds of appeal raised by the appellant in his notice of appeal and in his oral and written submissions which now only have relevance to the assault conviction.

17. He complains about the questioning of the witness Ann-Maree Kelly, his sister, as to statements he made to her. He was unable to provide the Court with a copy of any statement from her but it seems he hoped that his counsel would elicit some self-serving inadmissible material from her in cross-examination. There is nothing in this ground of appeal.

18. The appellant has pointed to a number of instances which he says demonstrate the inconsistency of the complainant's evidence. The appellant did not give evidence and the complainant's evidence supporting the elements of the offence of assault occasioning bodily harm was uncontroverted by other sworn evidence. The primary judge reminded the jury to take into account any inconsistencies in the evidence of the witnesses and to consider whether such inconsistencies have been explained satisfactorily. He reminded the jury that unless they accepted the complainant as an honest, accurate and reliable witness in relation to the crucial elements of the charges, they could not convict the appellant. The judge even told the jury that they should approach the complainant's evidence with great care and that human experience in the courts is that complainants in such matters for all sorts of reasons and sometimes for no reason at all tell a false story which is easy to fabricate and difficult to refute. This direction was very favourable to the appellant. None of the inconsistencies raised by the appellant are significant and, especially in the light of the directions given by the judge, this contention is without substance.

19. The appellant contends that the judge told the jury the issue as to the offence of assault occasioning bodily harm was whether the appellant caused the bodily harm. This submission misconstrues the judge's directions to the jury as to the elements of the offence of assault occasioning bodily harm. The judge informed the jury of those elements, said that the defence case was that it was "a consensual type argument" and elsewhere explained to the jury that the defence case was that "there was a struggle between the accused and the complainant, … a struggle that both were effectively engaging in". The defence of self-defence or accident was not raised on the complainant's unchallenged evidence and the judge correctly summarised the defence case for the jury. There is nothing in this contention.

20. The appellant contends the judge's direction on recent complaint was unfair but as this related to the offence of rape it is irrelevant to these charges. In any case, the direction was appropriate in the circumstances.

21. The appellant contends the judge unfairly suggested in his summing-up that the appellant had locked the complainant in the room. In the passage complained of the learned trial judge summarised the effect of the complainant's evidence. It seems that there was no lock on the door, the complainant did not give evidence of any lock and whether or not there was a lock was not an issue in the trial. The judge's figurative reference to "effectively locking her in" did not refer to a physical lock and key but rather to the conduct and actions of the appellant towards the diminutive complainant; it was not improper. In any case, this evidence has only peripheral relevance to the assault count. There is nothing in this contention.

22. The appellant claims that the complainant's reference to a photograph as being of his ex-girlfriend and baby was in fact his current girlfriend and baby. But that was not the complainant's evidence. The judge was entitled to refer the jury to the evidence. There is nothing in this contention.

23. The appellant points out that the summing-up records the judge misquoting passages of evidence. The contentious passage^[2] appears in the transcript of summing-up as one continuous quotation from the cross-examination of the complainant.  In fact, it is a number of questions and answers extracted from different portions of the cross-examination.  One question is recorded as: "Well, don't you – wouldn't you agree with this, that he didn't punch you at all after you had scratched him. …"    The question recorded in the trial transcript was "Well, don't you – wouldn't you agree with this, that he didn't punch you at all until after you had scratched him."  It is true that the omission of "until" changes the meaning of the question.  The complainant ultimately answered: "I'm not sure how it happened" and this answer is correctly recorded in the transcript of the summing-up.  This noncommittal answer makes the question largely irrelevant.  It is not entirely clear whether this and other less significant errors were typographical errors in the recording of the summing-up or whether the judge did misread the evidence in this way.  But even if the judge misquoted the minor evidence in this way, the jury had only recently heard the evidence.  The mis-quotations were not significant and elsewhere his Honour emphasised that the facts were entirely for the jury.  The judge made it clear in the summing-up that the defence case was that both the appellant and the complainant were consensually engaging in a struggle during which she was injured.  Defence counsel made no application for redirections.  These matters have not resulted in a miscarriage of justice.

24. The appellant has raised a number of other points, such as the order of the prosecution witnesses, which are of no substance. He also contends there was no evidence to support the charge of assault because there was no blood on his clothing. There was however ample evidence, including medical evidence and photographic evidence upon which the jury were entitled to conclude the complainant suffered bodily harm whilst in the room with the appellant. In the circumstances, the absence of blood on his clothing did not assist his case.

25. As we have stated, the verdicts of not guilty of rape and indecent assault do not mean the jury rejected the complainant's evidence on those counts; in our view, the verdicts are consistent with a finding that they were not satisfied beyond reasonable doubt that the appellant did not honestly and reasonably believe that she was consenting to his sexual acts. There was ample evidence on which the jury could rationally conclude that the appellant was guilty of assault occasioning bodily harm. Neither the appellant's acquittal on those two counts nor the many other matters raised by the appellant suggest that the verdict of assault occasioning bodily harm has resulted in a miscarriage of justice.

Sentence

26. The learned primary judge sentenced the appellant on the basis that the deprivation of liberty was for the entire evening and that the appellant assaulted the complainant because he was angry over what he perceived she had been saying to others. The sentence imposed was two years imprisonment for the deprivation of liberty (maximum penalty three years) and three years imprisonment for the assault occasioning bodily harm (maximum penalty seven years). The conviction for the offence of deprivation of liberty throughout the entire evening was a feature which made the offence of assault occasioning bodily harm in context more serious. The appellant did not apply for leave to appeal against sentence within time but in all the circumstances he should now be granted the necessary time extensions and be permitted to make that application. This was foreshadowed at the hearing of the appeal and the respondent has since supplied written submissions on sentence.

27. The appellant has a concerning criminal history commencing in the Children's Court in 1986, progressing to the Magistrates Court in 1987 and to the Supreme Court in 1988. He has convictions for street, driving, drug and dishonesty offences. But of most significance are his convictions for three counts of rape, sodomy and indecent assault in 1988 for which he was sentenced to an effective term of four and a half years imprisonment; his convictions in 1991 for assault occasioning bodily harm and indecent assault on a female for which he was sentenced to 12 months and three years imprisonment respectively and his conviction for armed robbery in 1994 for which he was sentenced to five years imprisonment with a recommendation for parole after two years. He has a serious record of violence, including violence against women. He has shown no remorse in this case and does not have the mitigating benefit of a plea of guilty. Fortunately, the physical injuries to the complainant were not serious and required no treatment. A review of the schedule of sentence imposed for assault occasioning bodily harm, provided by the respondent, establishes that in all the circumstances, the sentence imposed on count 2 of three years imprisonment was manifestly excessive. A sentence of two years imprisonment appropriately reflects the serious aspect of this offence.

28. We would allow the appeal against conviction but only to the extent of quashing the conviction on count 1 (deprivation of liberty) and directing a verdict of acquittal be entered on that count. We would otherwise refuse the appeal against conviction. We would grant the appellant an extension of time within which to apply for leave to appeal against sentence until 26 November 2001, grant the application for leave to appeal against sentence, allow the appeal and instead of the sentence of three years imprisonment imposed on count 2 (assault occasioning bodily harm)we would substitute a sentence of two years imprisonment. We would otherwise confirm the sentence, specifically noting that the declaration as to time served under the sentence stands.

ORDERS:

1. Allow the appeal against conviction only to the extent of quashing the conviction on count 1 and directing a verdict of acquittal on that count.

2. Otherwise the appeal against conviction is dismissed.

3. Extend the time within which to apply for leave to appeal against sentence until 26 November 2001.

4. Grant the application for leave to appeal against sentence, allow the appeal and instead of the sentence of three years imprisonment imposed on count 2, substitute a sentence of two years imprisonment.

5. The sentence is otherwise confirmed.