R v Heal[2001] QCA 572

   SUPREME COURT OF QUEENSLAND

1. THE COURT:  The appellant was convicted of two counts of rape and one count of indecent assault.  The crimes were said to have been committed upon a complainant who was a British backpacker tourist visiting Cairns.  She had been drinking on the night of the offences at a nightclub in Cairns, and described herself as being “merry, but not staggering”.  There seems no doubt, however, that she was clearly affected by alcohol.  The appellant, himself, was interviewed by police and it is also apparent that he was also clearly affected by alcohol.

2. The complainant left the bar where she had been drinking and believed she had been helped into a taxi by a travelling companion. The vehicle was not a taxi and did not bear any markings which could lead to a conclusion that it was. She made the mistake, she said, because she was used to unlicensed cabs in Britain.

3. The appellant was the driver of that motor vehicle. The complainant said that she noticed that the appellant drove her past the street where she was staying, and that she pointed this out to him. She said that he replied that they would be back in a minute and that he had to go somewhere to get something. The complainant said she became frantic when he continued to drive her away from where she was staying. In fact the appellant took the complainant out to cane fields near the Barron river. At this stage she says she was hysterical and when he stopped at one stage and got out of the car, she attempted to escape but he restrained her. She said that the appellant took her out of the car and committed an indecent assault upon her by putting his penis in her mouth. During this struggle she said she was on the ground.

4. Her allegations went on to say that she was then raped in the back seat of the vehicle and raped again on the front bonnet of the driver’s side of the vehicle. Apparently the appellant then drove the complainant back to a caravan park where she made a 000 call to the police which was played to the jury. The police, when they arrived, described her as being in a distressed condition. She appeared as if she was in shock and had been crying. There were photographs taken two days later which showed bruising on her arms consistent with how she said she was handled by the appellant.

5. The appellant’s defence was that there was consensual sexual contact, and conceded that there would have been penetration. He said that the complainant had been the initiating party, that everything proceeded with her consent and that it happened inside the vehicle.

6. The grounds of appeal raised by the appellant are as follows:

1. that the verdict of the jury on all counts was unsafe and unsatisfactory;

2. there was a miscarriage of justice due to the failure of the Director of Public Prosecutions to tender relevant and admissible evidence, namely the jean trousers he was wearing at the time of the offences, that were subsequently seized by police, and

3. that the sentence is in all the circumstances manifestly excessive.

7. At the hearing of the appeal it became apparent that the appellant also wished to argue a ground that the prosecution had failed to call evidence from an elderly lady who saw the complainant when she returned to the caravan park on the basis that the evidence this lady could give would have been relevant to an issue at the trial.

8. The appellant did not give evidence. However, there was extensive cross examination of the complainant by his counsel, particularly with respect to the clothing worn by both of them and their whereabouts after the alleged rapes and indecent assault.

9. With respect to the indecent assault the complainant gave evidence that the appellant grabbed her on the arms and pulled her out of the car, pushing her on to the ground which had a gravel surface. She said that it was dry but that she could not recall whether it had been raining that day. She described herself as being on her back on the gravel with his legs straddling either side of her. She described that she was in this position for about ten minutes, during which time the indecent assault occurred when the appellant placed his penis in her mouth.

10. With respect to the first rape she said that the appellant picked her up by the arms from her position on the ground, opened the back of the car, and pushed her into the back and got on top of her. She described her position as one where from her knees down she was outside the vehicle, with the rest of her being inside. She said she was lifted into that position. The appellant apparently pulled at her shorts over her protestations. She described her shorts and underclothes as being taken off at the same time. A button apparently broke off at that time.

11. The first rape then occurred.

12. After that incident the complainant got out of the car and said that the appellant “threw her shorts and that” back into the car and that she stumbled around towards the front of the car. The second rape occurred on the bonnet on the driver’s side. On each occasion she was unable to say whether or not the appellant ejaculated.

13. After the three incidents the complainant described herself as walking around to the front of the car to get into the car to look for her “underwear, shorts, and that”. She could not find them at the front of the car and described the appellant as spinning the car around to look in the cane fields to see if they were there. She found the shorts in the back and put them back on. She was then wearing her shorts without any underwear when they both arrived back at the caravan park where she was staying. The complainant gave evidence that she then realised that she did not have her underwear and reached down to where her shorts had been and found her underwear in that position.

14. In cross examination extensive questioning was put to the complainant with respect to the manner in which the accused removed her shorts and underwear, and where those items of clothing were during and after the three incidents. It is fair to say that her version was not shaken in any way.

15. On the other hand the appellant argued that his jeans ought to have had muddy stains if the complainant’s story was true because the ground upon which the first incident occurred was wet. The complaint went further in that he argued that his jeans should have been tendered at the trial because the absence of mud strains on them would have indicated the truth of his contention. At the trial the jeans were never called for by defence counsel. It is fair to say that the court did not know what was on the jeans or whether any stains on them did or did not help the appellant’s case. It may well have been a forensic choice of counsel at the trial not to call for the jeans or to have them tendered. There is, with respect, nothing in this ground of appeal.

16. Another issue was vaguely argued by the appellant at the appeal. It was, at its highest, that no complaint was made by the complainant to the doctor who examined her shortly after the incidents about any soreness in the arms. It is apparently suggested that because she did not make a complaint about it, that makes her version inconsistent. The suggestion seems to be that the bruising came from something else. However, photographs tendered at the trial clearly indicated that there was bruising some two days later which was quite consistent with the manner described by the complainant as to how the appellant lifted her up from the gravel and into the motor vehicle before the first alleged rape. Of course, this was a jury question and quite clearly the jury accepted the complainant’s version.

17. Though not one of the stated grounds of appeal, the appellant complained that an elderly woman, whom he claims was present at the caravan park upon their return, was not called. It is clear that the police spoke to this lady but that no statement was taken. It would be, as the Crown submitted, mere speculation as to what she might or might not have said. If her presence was regarded as important by the appellant’s counsel then her identity could have been obtained from the police and a statement taken by those representing the appellant. If the appellant thought that the evidence might go to the complainant’s demeanour at the time, it would be fairly inconsistent with the complainant making a 000 call immediately upon her arrival at the caravan park and with her almost immediate fresh complaint to the police. There is no merit in this ground.

18. Overall the appellant argues that the verdict of the jury was unsafe and unsatisfactory. In our view there was ample evidence upon which the jury could have come to the conclusion that the appellant was guilty of all three of the offences alleged. The criticisms that were made of the complainant’s evidence are not persuasive, and there is no good reason why the jury should not have accepted her evidence.

19. The appeal against conviction should be dismissed.

20. The appellant also appeals in respect of his sentence of six year’s imprisonment as a head sentence. In our view such a sentence is clearly within the limits of the exercise of a proper discretion by a trial judge in circumstances such as this, particularly where the appellant drove the complainant to a lonely place having first, in effect, abducted her from central Cairns surely knowing that she was in an intoxicated condition and therefore vulnerable.

21. Leave to appeal against the sentence imposed by the trial judge is refused.

22. The orders proposed therefore are:

1. Appeal against conviction dismissed; and

2. Leave to appeal against sentence refused.