R v R[2002] QCA 294

SUPREME COURT OF QUEENSLAND

[1] DAVIES JA:  I agree with the reasons for judgment of Williams JA and with the orders he proposes.

[2] WILLIAMS JA:  The appellant was tried in the District Court on two charges of indecent treatment and three of rape.  The complainant in each case was his step-daughter.  He was found guilty of two charges of rape (counts 3 and 5 on the indictment) but not guilty of the other charges.  He was sentenced to seven years’ imprisonment.  He appeals against conviction on the following grounds:

1. The convictions on the two rape charges were unsafe and unsatisfactory having regard to the inconsistency with the verdicts of acquittal on counts 1, 2 and 4;

2. The learned trial judge erred in law by failing to properly direct the jury as to the limited use they could make of evidence of violent acts by the accused upon the complainant.

The second ground was added by leave.  The appellant also seeks leave to appeal against sentence on the ground that it was manifestly excessive.

[3] The complainant was born on 25 March 1972, and the period during which the offences were said to have occurred was from 1 January 1986 to 30 January 1989.  During that period the complainant was aged between 14 and 16 years.  At trial she was aged 29.  The circumstances giving rise to the five charges can be summarised as follows:

[4] Count 1 –Indecent treatment of a girl under 16.  This incident occurred in about November 1986 after the complainant attended a pool party.  That evening, when she was alone with the appellant in the lounge room, she rubbed some cream on her legs because they were dry from swimming that day.  The appellant told her he would rub cream on her back and shoulders because she was probably sunburnt.  The complainant was wearing a nightie with thin shoulder straps.  The appellant proceeded to rub cream on her back and then moved his hands around her rib cage and underneath her breasts.  The complainant moved away and the appellant left the room.

[5] Count 2 – Indecent treatment of a girl under 16.  After the event constituting count 1 the complainant went to sleep on the lounge whilst watching television.  She awoke some time later and realised that one of her legs was lying across the appellant’s lap.   She felt his hand on her breast and his finger through the side of her underpants and inside her vagina.  The complainant immediately sat up;  the appellant grabbed her by the hair so that it hurt and said “Don’t say a word of this to anyone.  We will discuss this later.”

[6] Count 3 – Rape.  This incident occurred in about May 1987 in the home at Redbank Plains.  The complainant had run away from home because she alleged she had been subjected to general sexual touching by the appellant.  The day following her return home she was to attend a party at a friend’s place.  In the morning before the party the complainant had a shower and was returning to her bedroom wearing a brunch coat and underclothing.  As she passed the appellant’s bedroom he called her in and said he wanted to talk to her about “what goes on at these parties”.  He said that he was talking “about sex, because when you go to these parties, that’s all those young blokes are after.”  He then said words to the effect that he would be the best person to show the complainant how it was done because he would take care to see that she wouldn’t get pregnant or any diseases.  The complainant indicated that she was not interested and the appellant then grabbed her by the shoulders, threw her on the bed and removed her underpants.  He took off his boxer shorts and the complainant noticed that he had a condom on his penis.  The appellant then proceeded to have intercourse with the complainant.  When the act was completed he made a statement to the effect that he had the complainant’s best interests at heart and he was the best one to show her what to do.  He also said that she should say nothing about what happened because if she did her sisters would be sent to a foster home.

[7] Count 4 – Rape.  This alleged incident occurred when the complainant was aged about 16 years and was being taught to drive a motor vehicle.  On the occasion in question, on pretext of showing the complainant how to steer the vehicle properly, the appellant retracted the driver’s seat, sat in it, and then compelled the complainant to sit virtually in his lap.  The complainant was wearing her school uniform, a short skirt and underwear.  In the course of the drive the appellant undid his fly, exposed his penis and the complainant felt her underwear being pulled to one side.  She said:  “I remember feeling like his hand under me, positioning himself inside of me.”  Under cross-examination she asserted that penetration of her vagina by his penis had been effected.  The appellant then pushed her off and ejaculated into a tissue.

[8] Count 5 – Rape.  This offence occurred in February 1989 immediately prior to the appellant leaving the family home at Redbank Plains to take part in an RAAF training course for ten weeks.  The other members of the family were asleep when the complainant awoke to find the appellant in bed with her.  The appellant said he was not going to see his special girl for a long time and proceeded to have sexual intercourse with the complainant.  Again on this occasion he ejaculated into a tissue.

[9] The complainant gave evidence that after the first incident of touching her breast the appellant regularly touched her on the outside of her clothes in the region of her breasts and thighs.  She also gave evidence that the appellant was unnaturally possessive of her.  The appellant and the complainant’s mother were members of the Mormon church and the complainant attended from time to time social functions associated with that organisation.  Through those activities she became friendly with a boy named Cleaver;  he apparently attended the same school.

[10] In about June 1987 the complainant was talking to Cleaver on presentation night at the school.  The appellant approached them and the complainant told Cleaver to walk away.  The appellant slapped the complainant across the face and said, “I knew I couldn’t trust you, you sneaky little slut”.  He then grabbed Cleaver by the throat and told him to stay away from the complainant.  He then ordered the complainant to get into the car and drove her home where she “got a hiding with the jug cord” across the back of the legs.  The blows were hard enough to leave raised red marks on her legs and she was unable to go to school the next day because of those marks. 

[11] The complainant also gave evidence of another incident early in 1988 around the time of her sixteenth birthday.  She was then attending school in Brisbane and was friendly with a boy named Diamond.  On one occasion when she was walking with Diamond from school towards the railway station the appellant drove up in his car and told her to get in.  He told her she was permanently grounded.  Later in the day the complainant was again with Diamond, the appellant made threatening remarks to Diamond and said to the complainant:  “I don’t know what you see in him . . . I’m better looking than him  . . .  what does it feel like  . . .  when he was rooting you.”  There was also further evidence from the complainant that she frequently observed the appellant watching her when she was at school.  

[12] The complainant gave evidence that around Easter 1988 she told her mother that the appellant had had sexual intercourse with her in about May 1987.  As a result of that the complainant remembers going to the Oxley police station but does not recall speaking to a police officer;  she does recall that her parents went into the station.  The appellant in evidence admitted visiting the Oxley police station, and his version of that will be dealt with later.

[13] Further there was evidence, not disputed by the appellant, that he was sanctioned and punished by the Mormon church because of some sexual relationship between he and the complainant.  Again his version will be referred to later.

[14] She also gave general evidence of the appellant on occasions pulling her hair, hitting her with the electric cord or an egg-lifter, and on one occasion (said to be at “a later date”) hitting her for some unstated reason with the open hand on the backside. 

[15] The complainant was cross-examined at some length and some relatively minor inconsistencies emerged in her evidence;  there was, however, nothing which was so significant as to cast serious doubts upon her veracity.  She did concede that her mother and the appellant were very strict and did not like her associating with anyone who was not in the Mormon church.  Generally one could infer from the evidence that the complainant rebelled to some extent against that strict regime and that could in part have led to her leaving home for a period and there being some animosity between her and her parents.

[16] Cleaver and Diamond gave evidence generally confirming the complainant’s evidence of the incidents involving each of them. 

[17] The appellant was interviewed by police in Wagga Wagga, New South Wales on 30 March 1999.  In the course of that recorded interview the following relevant passages appear:

“Q.Did you ever have sex with S at any  time prior to living at Wagga?

A.Yes.

Q.Where was that at?

A.That was in Redbank Plains . . . Oxley police station has all the details on that.

Q.And how have they got all the details on that?

A.Well we were members of the Mormon church up there at the time this happened on three occasions over a period of I think about a week, probably two weeks and I went to the church and told them about it and went through a Church Court as well.  Then we went up, R and S accompanied me to Oxley police station.  I told them about it and S was taken into an interview room by herself, interviewed, and I hadn’t heard anything of it since, until now.

. . .

Q.And was it ever investigated by police?

A.Not to my knowledge.

. . .

Q.How old was S when you said you had sex with    her?

A.Sixteen.

. . .

Q.And how many times had you had sex with her?

A.Three occasions, over a period of about a week or two weeks.

Q.And whereabouts did that happen?

A.In the house at Redbank Plains.

. . .

Q.Can you outline the circumstances relating to those incidents?

A.No, I can’t. . . .  I don’t remember them.  It’s too long ago but I do know that I feel like I was the one that was molested, and not me, not the other way around.

Q.Sorry, I don’t understand.

A.I feel like S molested me, instigated the thing because a lot of the details are involved that I won’t tell you now that I’d rather tell a magistrate or whatever if it goes to court, or tell my solicitor.

. . .

Q.Has S ever given you consent to have sex with her?

A.On the three occasions, yes.

Q.How was that consent given?

A.I don’t remember the details of that, it was too long ago.  I know that she was very promiscuous at the time. . . .  I just don’t remember the details of how it actually happened.

. . .

Q.I’ve been told that you were ex-communicated from the church because of the sex with S in Queensland.  Is there anything you can tell me about that? 

A.That’s correct.

Q.Do you recall what you told the Mormon people in relation to what happened?

A.No I don’t.  Just that I’ve committed the offence and they took it from there.

Q.When you say you committed the offence, what do you mean by that?

A.Committed sex with S.

Q.Why would you have sex with S who is your stepdaughter?

A.I don’t know why.  Something, circumstances happen, just it happened.  I can’t explain why or how it happened.”

[18]  Later in the interview he denied specifically the circumstances alleged to constitute counts 1 and 2 on the indictment.  Thereafter the investigating police put the circumstances of the three counts of rape to the appellant and he denied each of them.  The interview went on:

“Q.Do you agree that previously in this interview you said you’ve had sex with S on three occasions?

A.Yes.

Q.Can you indicate from incidents I’ve just put to you now when the incidents were that you say you had sex with S? 

A.No, I can’t.  I can’t remember the details of when they were or how they even happened. 

. . .

Q.On the three occasions you say you had sex with S, and you said she was sixteen, is that right?

A.Yes.

Q.And you said that each time happened in the house at Redbank Plains.  Can you tell me whereabouts in the house it happened?

A.In the main bedroom.

Q.In your bedroom or S’s?

A.My bedroom.

Q.Day time or night time?

A.Night time I guess, be the only time I’d be home.

. . .

Q.When you say you had sex with S can you describe what you actually did?

A.Just intercourse.

Q.All right.

A.Very quickly.

Q.And do you recall if S had reached puberty at that stage?

A.She had.”

[19] The appellant gave evidence at trial denying he sexually molested or raped the complainant.  He did not challenge the accuracy of any of the answers recorded in his interview with the police;  his explanation as to what he meant by those answers will become apparent.

[20] In his evidence-in-chief he quoted from the Bible:

“But I say unto you that whosoever looketh on a woman to lust after her have [sic] committed adultery with her already in his heart.”

[21] He maintained in the course of his evidence at trial that it was in the light of that passage that he made statements to the investigating police to the effect that he had had sex with the complainant.  In his evidence-in-chief he expanded on the three incidents which according to him constituted the conduct to which he admitted.  On the first occasion he saw the complainant in skimpy clothing walking around the house.  He was reading in his room, became aroused, and thought of having sex with her.  On the next occasion the complainant was wearing a leopard skin bikini which was very brief.  Again the appellant was in the main bedroom, and became aroused with thoughts of having sex with her.  On the third occasion the complainant was in bikinis lying on the lounge room floor in front of the appellant, his wife, and other daughters.  She was stroking herself around the vaginal area.  The appellant became aroused on this occasion.

[22] According to his evidence he felt guilty as a result of those events and told a Mormon bishopric of his guilty thoughts.  A church court was convened and he was ex-communicated for twelve months.  The church also told him to advise the police what had occurred.  As a result he, his wife, and the complainant went to the Oxley police station.  According to him the police spoke to the complainant, and he also spoke to police who eventually told them all to leave.

[23] Under cross-examination the appellant conceded he did not differentiate when confessing to the church court between committing adultery in the mind and the physical act.  He said:  “All I told them was I committed adultery or whatever and had sex with my step-daughter.”  Further, when questioned about the record of interview he conceded he did not clarify with the police that he was only admitting to having “had sex in my heart”.

[24] It should also be noted that the appellant denied using a jug cord to hit the complainant at any time, denied assaulting her in any way, denied assaulting Cleaver at any time, and denied spying on the complainant at any time whilst at school. 

[25] The complainant’s mother gave evidence that at the time of trial she was divorced from the appellant.  She described the complainant as a rebellious teenager.  She referred to the complainant playing inappropriate music and wearing revealing clothing.  She recalled going to the Oxley police station but did not herself speak to the police.  She says she recalls the complainant telling her that nothing had occurred.  She denied any conversation in which the complainant alleged the appellant raped her.

[26] The complainant’s maternal grandmother was also called by the defence.  She denied evidence given by the complainant to the effect that she had had a conversation with the complainant in which mention was made of the appellant sexually interfering with her. 

[27] Finally a daughter of the appellant also gave evidence.  She was in the same room as the complainant at the time the rape, count 5, occurred.  She said she did not wake up during that night, that she was a light sleeper, and that she slept on the top bunk above the complainant.

[28] There was no complaint about the summing up, except with respect to issues raised by ground 2 which will be considered later.

[29] It is in the light of the circumstances and evidence outlined above that the first ground of appeal has to be considered.  It is clear that there is an onus on an appellant seeking to establish that verdicts are inconsistent to establish that no reasonable jury, properly applying their minds to the facts, could have arrived at the conclusion in question.  The relevant principles are well established and set out in Mackenzie v The Queen (1996) 190 CLR 348 especially at 366-7, Jones v The Queen  (1997) 191 CLR 439 and The Queen v Maddox CA 299 of 1998, judgment 4 December 1998.

[30] A reasonable jury may well have concluded that the touching described by the complainant with respect to count 1 never reached the stage of constituting indecent treatment.  Counsel for the appellant focussed on alleged inconsistency between the not guilty verdicts on counts 2 and 4 and the guilty verdicts on counts 3 and 5. 

[31] It is not difficult to conclude that a reasonable jury would have rejected the appellant’s evidence that in confessing to the church and the police he was only admitting to committing adultery in his mind.  The record of interview extended over a period of time and involved a significant number of detailed answers.  The oral evidence of the appellant was far from convincing.  At the very least, a reasonable jury could well have concluded that the appellant was admitting to having had sexual intercourse with his stepdaughter on three occasions, though one could not specifically relate such admission to any of the three incidents referred to by the complainant.  But, and perhaps significantly for the jury, the admission referred to sexual intercourse at Redbank Plains, and the complainant said that counts 3 and 5 occurred there.  Given the reasoning in R v Sakail [1993] 1 Qd R 312 the admissions by the appellant could be regarded as generally corroborative of the evidence of the complainant with regard to sexual intercourse.

[32] Further, the jury may well not have been satisfied, despite the evidence of the complainant, that actual penetration was effected during the incident in the motor vehicle.  The positioning of the appellant and the complainant was such as to make penetration difficult, and indeed it may not have been possible for the complainant to distinguish between a penis and a finger in those circumstances.  The jury may well have considered that there was some doubt about the commission of the charged offence, though generally accepting the evidence of the complainant that some sexual impropriety occurred on that occasion.

[33] Once the jury accepted that the appellant made a voluntary confession of having had  sexual intercourse with the complainant, it was almost inevitable that findings of guilty on counts 3 and 5 would be returned.  Those counts related to sexual intercourse in the home and to that extent matched the admission.

[34] In all the circumstances the appellant has not discharged the onus of establishing that the verdicts were inconsistent.

[35] I now turn to ground 2.  At the outset it should be noted that the complaint is only in respect of “evidence of violent acts”.  There is no complaint as to the full directions given by the learned trial judge with respect to the evidence given by the complainant of uncharged acts of a sexual nature.

[36] At the outset it should be said in dealing with this ground that the learned trial judge, as one would expect, concentrated upon the evidence with respect to the sexual conduct in question and the circumstances in which that occurred.  In consequence there was little or no reference in the summing up to the complainant’s evidence of “violent acts” by the appellant towards her or her male friends.  The learned trial judge did say:

“Now, in this case in deciding whether the complainant consented, if you find that the acts occurred, you would bear in mind the relationship between the parties, that of stepfather to stepdaughter and obviously he was in a much more powerful position than she, and the threats that she said occurred and the violence that she said occurred from time to time in the course of their relationship. So when you’re considering whether there was consent induced by threats, intimidation, and things of that nature, bear in mind the relationship between the two parties.”

[37] There was no specific complaint directed to that passage, nor could there be.  It put the evidence in context and there was no undue emphasis placed on evidence as to “acts of violence”.

[38] Then there was a passage which specifically referred to Cleaver and Diamond:

“In relation to the evidence of Mr Diamond and Mr Cleaver, there is just one thing I wanted to talk to you about that.  The Crown says that, in effect, there was this relationship between the accused and the complainant and that he became effectively like a jealous lover and would follow her and became very possessive of her, and that these two incidents with Diamond and Cleaver demonstrate the way in which he was acting jealously.

Now, it is a matter for you, what interpretation you put on that evidence, but if at the end of the day you decide it shows nothing more than a father who was concerned about the child following the family rules, as it were, or even an extra strict father ensuring that the child did not get involved with boys that he didn’t think were suitable, basically, then obviously that doesn’t show what the Crown wants it to show.

If that is all you decide, at the end, that shows, or if you decide that is a reasonable inference to be drawn from that evidence, then you really can’t use that as anything to support the Crown case.  You just put that to one side, because we know that they were involved in a church where there was fairly strict moral rules, and you are not here to make a moral judgment on the rights or wrongs of the Mormon church, but if you decide that it is no more than just showing – or capable of reasonably showing that he was an extra strict parent, rather than a jealous person, then just put it to one side.”

[39] Again no specific objection was taken to that passage, nor could there be.  It put the evidence in proper context.  The incidents involving both Cleaver and Diamond directly involved the relationship between the complainant and the appellant and it was for the jury to determine whether the evidence, as the Crown contended, established a jealous possessiveness on the part of the appellant.

[40] That was all that was said of relevance in the body of the summing up.  Counsel for the Crown in making submissions on redirections referred to “the alleged violence upon Cleaver”.  He submitted that the learned trial judge “might wish to do a propensity type of warning in relation to it that they’re not to reason he’s of bad or violent disposition”.  He went on to note that by doing so might “be accentuating the point”.  He said he raised the matter because he was concerned the courts adopted a “fairly cautious approach to that type of evidence”.  The learned trial judge then asked defence counsel what he wanted to say;  in so doing she broadly indicated that it may well be covered by what she had specifically said about Diamond and Cleaver. Defence counsel responded:

“There’s nothing else in the case which suggests that he’s a violent person in that sense.  I meant there was pushing here and there but it’s not a really a case about violence directed towards other people.  I wouldn’t have thought that’s the way the evidence came out.  Certainly neither my (friend) nor I really addressed the jury in relation to that type of issue.”

[41] In the light of all that the learned trial judge gave a redirection as follows:

“And the other thing I just wanted to mention to you, in relation to the Cleaver incident, the complainant says, I think, that Cleaver was grabbed by the throat and Cleaver said the accused swung at him and he couldn’t remember whether he hit him or it didn’t connect.  I just remind you not to use that to reason that he was a violent man because he swung at Cleaver.  You cannot use that sort of reasoning when you are considering whether the Crown case has been proved.

If you decide he did swing at Cleaver, then there is no evidence that he is normally violent to other people and it seems as though that was something that was pretty much one off in relation to other people.  Of course, the complainant says that he was violent to her and that’s a different matter.  But don’t use it to reason that he must, therefore, have been violent to the complainant.”

[42] Counsel for the appellant did not specifically object to anything said in that redirection.  As already noted ground 2 is limited to “violent acts by the accused upon the complainant”.  The submission was made that overall the directions given in the summing up were inadequate because the jury should have been told that the evidence by the complainant of violence towards her and others by the appellant could only be used for the limited purpose of determining whether she feared the appellant in relation to the issue of consent, and to explain the relationship that existed between them.  It was also said that the jury should have been expressly told that if they accepted this evidence they were not to reason that the appellant was the type of person likely to commit the offences charges because of his violent behaviour.  In support of those submissions reference was made to the decision of this court in R v D [2001] QCA 256. 

[43] R v D can be distinguished.  The appellant in that case was convicted of three counts of a sexual nature against his young step-daughter, and one count of common assault, being a punch to her stomach.  Evidence was led of other significant acts of violence towards the complainant and also of numerous uncharged acts of a sexual nature.  Given the particular circumstances of that case it was held that a direction should have been specifically given instructing the jury that such evidence did not show a propensity to commit offences of the kind in question. 

[44] The High Court in KRM v The Queen (2001) 75 ALJR 550 held that there was no absolute rule that a judge must always give a propensity warning;  the requirement to do so depended upon the circumstances of the case.

[45] Given the issues which arose in this case I am not persuaded that the summing up was deficient because it did not contain express directions in the form contended for by counsel for the appellant.  Defence counsel at trial in his response to the learned trial judge quoted above clearly indicated that the “acts of violence” did not constitute a significant issue in addresses to the jury.  It seems clear that addresses to the jury, and the summing up, concentrated upon the charges before the jury and the sexual relationship between the complainant and the appellant.  Saying more could well have emphasised to the jury evidence the only significance of which was to show the control exerted by the appellant over the complainant. 

[46] Given the summing up as a whole and the specific passages quoted above, I am not satisfied that there was an error in failing to direct in the form contended for by counsel for the appellant.

[47] It follows that the appeal against convictions should be dismissed.

[48] I now turn to the question of sentence.

[49] The appellant was 46 years of age at the time of sentence.  At the time these offences were committed the appellant had no criminal history, but in 1999 he was convicted of two counts of assault with an act of indecency.   Both incidents involved a female bar attendant.  On one occasion he pinched her on the bottom, and on the other occasion firmly squeezed her left breast.

[50] In the present case the learned sentencing judge referred to the age of the girl (between 14 and 16), the fact that the appellant was in a position of trust, and the fact that the appellant had shown no remorse.  She also referred to the appellant’s good work history with good references.  It seems that apart from the commission of the offences in question the appellant has been a responsible member of the community.

[51] Before the sentencing judge both counsel submitted that the appropriate range was six to eight years.  Again each counsel before this court submitted that the appropriate range was six to eight years. 

[52] In those circumstances it cannot be said that a sentence of seven years’ imprisonment was manifestly excessive.  There is no merit in the application for leave to appeal against sentence.

[53] The orders of the court should therefore be:

1. Appeal against convictions dismissed.

2. Application for leave to appeal against sentence refused.

[54] HOLMES J:  I agree with the reasons for judgment of Williams JA and with the orders he proposes.