R v Q[2003] QCA 421

SUPREME COURT OF QUEENSLAND

[1]  de JERSEY CJ:  I have had the advantage of reading the reasons for judgment of Helman J.  I agree with the orders proposed by His Honour, and with his reasons.

[2]  DAVIES JA: I agree with the reasons for judgment of Helman J and with the orders he proposes.

[3]  HELMAN J: This is an appeal against convictions and an application for leave to appeal against sentences.

[4] On 11 March 2003 the appellant, then aged forty years, came before the District Court at Maryborough to answer an indictment charging him with two offences allegedly committed in the early hours of 23 September 2002 at Hervey Bay, Queensland:  entering the dwelling of a young woman backpacker in the night with intent to commit an indictable offence (stealing) in the dwelling, and rape of the young woman.  The appellant pleaded not guilty to each count and the trial proceeded until 13 March 2003 when the jury returned verdicts of guilty on each count.  The learned trial judge sentenced the appellant to imprisonment for four years for the burglary and to imprisonment for eight years for the rape.

[5] The Crown case against the appellant, who did not give or call evidence before the jury, rested on the evidence of the complainant and on statements made by the appellant to investigating police officers on 2 October 2002 in the course of a recorded interview that took place from 12.50 p.m. to 1.20 p.m. at the Hervey Bay police station.

[6] The complainant’s account was that after drinking a bottle of red wine in the company of four travelling companions (two young women and two young men) she had gone to sleep in the early hours of the morning in a bedroom in an apartment in a backpackers’ hostel.  She went to bed dressed in her day clothes:  a denim skirt, vest top, and underwear.  She shared the bedroom with the two young women, but there were no other occupants in the room when she went to bed.  She woke to find a man on top of her touching her and having carnal knowledge of her.  Her skirt had been hitched up and her underpants removed.  She pushed the intruder off and fled to the lavatory, locking herself in.  After some minutes she opened the lavatory door and saw the intruder in the kitchen of the apartment adjusting his clothes, but she could not see him well enough to be able to identify him later.  He then left the apartment.  Later some of her companions returned to the hostel and she made a complaint of rape.  A camera owned by one of her room-mates was found at the bottom of the stairs on the outside of the hostel.  Before the entry of the intruder it had been in the bedroom. Some hours later the complainant was examined by a government medical officer who found a fresh bruise on her right upper anterior thigh and tenderness to the introitus to the vagina.  There was no sign of damage or seminal fluid in that area.  Swabs taken from the complainant were examined by a forensic biologist and revealed no seminal fluid and so no deoxyribonucleic acid.   

[7] The appellant’s statements to the investigating police officers in the course of the interview were to the effect that he had been drinking a cup of coffee on the footpath outside the hostel at the time in question when he saw four people leave the apartment.  Then a young woman, by actions (‘body language’) rather than words, had invited him to the apartment in such a way as to lead him to believe that she would be receptive to his sexual advances.  He accepted the invitation and he and she kissed and cuddled on her bed for three or four minutes, she touching his testicles, he her breasts.  She, according to his account, then said, ‘This is stupidity’, and he desisted and left.  He mentioned the Christian name of the woman to whose room he had gone and it was the same as that of the complainant.  He said that he must have taken the camera but left it on the stairs, because his conscience would have got the better of him.  He denied having forced himself on the woman while she was asleep or having sexual intercourse with her.

[8] The complainant’s evidence then was of entry to the apartment and rape by an intruder and the statements made by the appellant to the investigating police officers, if made and if true, provided evidence that he was the intruder and that he took a camera from the apartment.  The latter evidence provided a foundation for an inference that he had entered the apartment intending to steal something from it. 

[9] The appellant’s sole ground of appeal against his being convicted is that the verdicts of the jury were unsafe and unsound.  The appellant conducted his appeal and application without the assistance of solicitor or counsel.  He made written submissions in which several arguments were advanced. 

[10] The first was that his case was prejudiced by the Crown’s abandonment of an allegation, originally included in the first count, that entry to the dwelling was by means of a break.  He added that the inclusion of that allegation ‘served no other purpose than to point to a nefarious character’.  There is nothing in that argument.  The allegation was justified because there was evidence that the outer door to the apartment was closed before the appellant entered, but after the close of the Crown case his Honour expressed the view that the evidence was not sufficiently clear to enable the jury to be satisfied that that allegation had been proved beyond reasonable doubt, whereupon the Crown prosecutor amended the indictment to delete the allegation and the trial proceeded without objection.

[11] Another argument appearing in the appellant’s written submissions was, as I understand it, directed to the improbability of the appellant’s having raped the complainant.   The evidence of the complainant to the effect that before she woke her underpants had been removed and her skirt lifted was ‘unbelievable in a normal female (even while asleep)’.  Further, the ‘casual demeanour’ of the intruder after the incident pointed, so the appellant argued, to ‘an innocent man.  (A rapist runs)’  The appellant then referred to evidence that he had been willing immediately to have a DNA test, that he knew ‘the people including the victim prior to the rape’, and that there had been no violence.  Each of those matters was no doubt something for the consideration of the jury, although it must be said that the evidence that the appellant knew the complainant and her travelling companions ‘prior to the rape’ was tenuous to say the least:  his knowing the complainant’s Christian name could be explained by his having heard it mentioned by police officers before the interview concerning the rape took place.  Jurors apply their common sense and general knowledge of the world in deciding cases, and clearly enough each matter the appellant referred to would have been relevant when they were deliberating as to whether they were satisfied beyond reasonable doubt of the guilt of the appellant.  It is quite clear, however, that it was open to the jury to, and it did, accept the account given by the complainant of what the intruder had done, and, accepting the truth of the appellant’s statements to the investigating police officers in which he admitted to his being present in the complainant’s room, came to the conclusion that he had committed both offences alleged against him.  The Crown case was not inherently improbable. 

[12] The appellant in both his written and his oral submissions referred to the evidence of the doctor and the forensic biologist. The appellant argued that the absence of evidence of bodily fluids tended to cast doubt on the complainant’s account of what had happened and to confirm the account he had given to the investigating police officers.  But the absence of evidence of bodily fluids would be consistent with both the complainant’s and the appellant’s accounts:  the complainant’s account that she had been woken by the penetration of her vagina by the intruder’s penis and had immediately disengaged herself from him and the appellant’s account of there having been no sexual intercourse. 

[13] In the result it was open to the jury on the evidence before it to accept the two bases of the Crown case and to find the accused guilty on both counts.  It follows that there is no merit in the appellant’s arguments concerning his convictions.  On behalf of the Crown, however, Mr Ross Martin quite properly drew our attention to a possible error in his Honour’s decision to receive the evidence of the appellant’s statements to the investigating police officers in the recorded interview.

[14] Before the Crown opening, Mr Farmer, who appeared for the accused at the trial, asked his Honour to rule on the admissibility of the evidence of the recorded interview to which I have referred.  The objection was first that the evidence was inadmissible, and secondly that, even if admissible, it should be excluded from the jury’s consideration in the exercise of his Honour’s discretion.  On the question of admissibility, Mr Farmer relied on s. 10 of the Criminal Law Amendment Act 1894:

10.No confession which is tendered in evidence on any criminal proceeding shall be received which has been induced by any threat or promise by some person in authority, and every confession made after any such threat or promise shall be deemed to have been induced thereby unless the contrary be shown.

[15] His Honour then heard evidence on the voire dire to determine the objection.  Four police officers gave evidence:  Detective Senior Constable Mark Holloway, Detective Senior Constable David Guild, Senior Constable Christopher Lee, and Sergeant Murray Cavanough.  Senior Constable Holloway gave evidence of having interviewed the appellant from 10.12 a.m. to 10.43 a.m. on 2 October 2002 about a number of burglaries and stealing offences at backpacker establishments, after which interview he took the appellant, who had been arrested before that interview, to the Hervey Bay watchhouse.  Senior Constable Holloway then recommended to officer-in-charge of the watchhouse, Sergeant Cavanough, that the appellant be released on bail subject to a curfew.  Then, according to Sergeant Cavanough, as the bail papers were being prepared the appellant asked to speak again to Senior Constable Holloway.  The appellant told Senior Constable Holloway he wished to say something about the incident that gave rise to the charge of rape. 

[16] The appellant was then interviewed by the officers investigating that incident, Senior Constables Guild and Lee.  At the beginning of the interview the appellant was given the usual warning that he had the right to remain silent but that if he did speak his answers would be recorded and might later be used as evidence, and at the end of the interview he agreed he had taken part in the interview of his own free will.  When asked whether any threat, promise, or inducement had been held out to him to take part in the interview he replied ‘No’.  On the Crown evidence on the voire dire, then, the appellant had spoken to Senior Constables Guild and Lee voluntarily, i.e., in the exercise of a free choice to speak or be silent.

[17] Mr Farmer put to Senior Constable Holloway that a threat had been made to the appellant after the earlier interview.  The questions and answers were these:

I suggest to you that whilst you were in the interview room with my client alone you said these words to him – you said that you would give him bail regarding the other offences – that is, the burglary offences – but if he didn’t cooperate with Guild and Lee regarding the investigations into the Smuggler’s Rest Backpackers’ rape and burglary that you would bend him over and fuck him up the arse? -- No, that’s not correct at all.  I don’t use that sort of language and that was not said.

What I am getting at is that you agreed that it was in your mind to give him bail regarding the earlier burglary offences.  You agreed with that, didn’t you? -- Yes.

You said that in evidence? -- Yes.

The only qualification you make on that is that there was a curfew to be added because of previous burglaries? -- Yes.

You deny that you made that threat to him? -- I do, yes.

The appellant gave evidence on the voire dire that a threat had been made to him.  He swore that Senior Constable Holloway said, ‘We’re going to bend you over’.

[18] Speaking of the issue of admissibility when giving his reasons for his decision, his Honour said:

So far as the question of admissibility goes, reliance is had upon section 10 of the Criminal Law Amendment Act of 1894 and, indeed, it seems to me that also pertinent is the same consideration in common law principles, namely, this confession will not be admissible unless it is voluntarily obtained.  In saying that, of course, I accept that ‘voluntary’ has a meaning which has been well-defined in cases relating to this type of exercise.

In essence, the defence have sought to show that an inducement was held out to the accused to make the confession.  I have said, of course, that the defence have sought to show that.  I do not wish it to be thought for one moment that I have lost sight of the fact that it is for the Crown to persuade me on the balance of probabilities that there was no inducement and no threat or any other disqualifying conduct so far as the question of admissibility is concerned.

His Honour then observed that the only evidence of an inducement which might have operated on the accused’s mind came from him.  His Honour summarized that evidence in this way:

The accused’s evidence is that after this he believed that he was going to get bail because he was told that he was going to get bail.  He gave evidence that at the end of the first record of interview Detective Holloway had said to him words to the effect that, I quote, ‘We’re going to bend you over.’  That was put to Detective Holloway and he denied making that statement.  Indeed, what was put to Detective Holloway included more than that statement, but he denied all of it.

It appears that the accused phoned Holloway from the watch-house and told him that he wished to speak to him about other matters, and Holloway then contacted Lee and his colleague, who returned to the police station, and they then spoke with the accused and the record of interview in question commenced.  The accused has said that he thought that if he didn’t cooperate there was no way that he would obtain bail.

There’s been evidence from the watch-house sergeant that he had in fact commenced the process of granting bail to the accused.  It seems to me the evidence is somewhat ambiguous as to how that process came to be interrupted.  He refers to the need for his taking DNA samples and fingerprinting and so on, but there’s evidence that he commenced the appropriate paperwork for the granting of bail.  In any event, the accused having spoken with Holloway and Holloway having secured Lee’s return to the police station, the record of interview in question then took place, as I have indicated.

[19] Announcing his conclusion on the question of admissibility his Honour said:

As I say, it seems to me the onus is upon the accused in this case to show that there was an inducement made to him to make the confession.  If I am satisfied on the balance of probabilities that there was such an inducement, then I must rule the confession inadmissible, unless the Crown can persuade me that the inducement in no way operated on the accused’s mind to cause him to make the confession.  An onus which, it seems to me, is a very hard one to discharge.

I am not persuaded on the balance of probabilities that the inducement alleged was made or offered to the accused.

His Honour then continued to consider the exercise of his discretion and concluded that there was no proper basis for excluding the evidence in the exercise of his discretion.

[20] His Honour was in error in acting upon the premiss that in a case to which s. 10 of the Criminal Law Amendment Act 1894 applies the onus lies upon the accused to establish on the balance of probabilities that there had been inducement.  It is well settled, as his Honour mentioned earlier in his remarks, that the onus lies upon the Crown to establish on the balance of probabilities that a confessional statement had been made voluntarily before it can be received in evidence:   Wendo v. The Queen (1963) 109 C.L.R. 559, and R. v. Hagan [1966] Qd. R. 219.

[21] Mr Martin referred us to R. v. Doyle, ex parte Attorney-General [1987] 2 Qd. R. 732 and R. v. Clark, ex parte Attorney-General [1999] Q.C.A. 438 on the question whether what was said by the appellant even amounted to a confession ‘such that it fell to be excluded on a voir dire such as that conducted’.  In my view the statements of the appellant relied on by the Crown were confessional, as I shall explain.

[22] In R. v. Doyle, ex parte Attorney-General it was held that the word ‘confession’ in s. 10 of the Criminal Law Amendment Act had the meaning ascribed to it at common law, i.e., a direct admission of guilt or of some fact or facts which may tend to prove an accused person’s guilt, but that an exculpatory statement not a confession as so defined is not protected by s. 10:  pp. 742-746 per Shepherdson J. with whom, on this subject, Kelly S.P.J. and Matthews J. agreed.  In R. v. Clark, ex parte Attorney-General the exculpatory-statement exception was discussed by de Jersey C.J. with whom Jones J. agreed, at paragraphs 20-24 and by McPherson J.A., with whom Jones J. also agreed, at paragraphs 42-44.  In that case exculpatory statements made by the accused, who was charged with murder, when interviewed by police officers did not include any that would ordinarily be characterized as a confession or admission, but they were put before the jury as lies told from the consciousness of his responsibility for the death of the deceased.  It was held that s. 10 did not apply to the statements because they were not confessional. 

[23] In this case, however, the appellant’s statements were both confessional and exculpatory:  confessional in that he admitted having been in the apartment at the relevant time and having removed the camera, and exculpatory in that he denied raping the complainant.  The Crown relied upon the appellant’s confessional statements to establish an essential part of its case:  the identity of the intruder.  That evidence falls into the category referred to by Isaacs J. in Attorney-General for New South Wales v. Martin (1910) 9 C.L.R. 713 at p. 735:  ‘an affirmative link in the chain of evidence, because it admits some fact which tends to prove the guilt of the prisoner’.  There is an important distinction between evidence of lies relied on by the Crown as admissions by conduct, and evidence of an incriminatory admission accompanied by a self-serving exculpatory statement which, on the Crown case, is a lie.  R. v. Clark, ex parte Attorney-General provides an example of the former, and this case of the latter.  In order to be permitted to put the incriminatory admission before the jury in a case in the latter category the Crown must of course lead both incriminatory and exculpatory parts of the statement:  see Mr Andrew West’s report in (1995) 15 Qld Lawyer 15-16 of a helpful summary of the rules concerning the reception of exculpatory statements by Howell D.C.J. in R. v. Kirkwood (unreported, 2 November 1993).

[24] There was then an error on the question of law I have mentioned, but that is not the end of this matter.  His Honour’s finding of fact was, as I read the record, clearly enough a rejection of the account of the appellant and an acceptance of that of the police officers, and in particular Senior Constable Holloway.  There were two versions of what happened between Senior Constable Holloway and the appellant and his Honour rejected that of the appellant.  There was nothing in what his Honour said directly on that subject when he was dealing with it in the passages I have quoted, or indirectly when he was dealing with the other issues before him, to suggest that he doubted the veracity of the police officers.  In any event, once the appellant’s account had been rejected there was nothing before his Honour to suggest that any admissions made by the appellant were made involuntarily, so the presumption is that they were made voluntarily:  MacPherson v. The Queen (1981) 147 C.L.R. 512 at p. 519 per Gibbs C.J. and Wilson J.

[25] It may be accepted that as a matter of pure theory it would be possible to see the way in which his Honour’s finding was expressed as admitting of the conclusion that although his Honour was not satisfied on the balance of probabilities that there had been a threat or inducement he was nevertheless not satisfied that there had been no such threat or inducement, i.e., not satisfied that any confessional statement made by the appellant had been made voluntarily.  Although that is a theoretically possible reading of what his Honour said I am completely confident that it is not correct and that his Honour’s finding of fact should be taken to be one of the voluntariness of the making of any confessional statement by the appellant.  In my view there was in this case no substantial miscarriage of justice arising from his Honour’s error of law.  It is a case for the application of s. 668E(1A) of the Criminal Code.

[26] The appeals against convictions should be dismissed.

[27] Although there could be thought to be some ambiguity in the way his Honour expressed himself when passing the sentences for the burglary and the rape on 23 September 2002 it is clear from the way in which those sentences are recorded in the court papers that his Honour ordered that they be served concurrently but cumulatively upon six other sentences also imposed on 13 March 2003.  Those six sentences were for burglaries committed at Hervey Bay to which the appellant pleaded guilty on 12 February 2003 before his Honour at Maryborough:  one on or about 9 May 2002, three on or about 21 September 2002, and two on or about 30 September 2002.  All six offences were committed in backpacker establishments.  His Honour sentenced the appellant to imprisonment for three years for each of those offences, the sentences to be served concurrently with each other.  Also on 13 March 2003 his Honour dealt with the appellant for breaches of suspended sentences:  sentences of imprisonment for three years suspended after twelve months with an operational period of five years imposed in the Maroochydore District Court on 9 March 2001 on each of twenty-seven counts (four of burglary, four of stealing, seventeen of fraud, one of receiving, and one of entering premises and committing an indictable offence);  and one sentence of imprisonment for two months wholly suspended for an operational period of twelve months imposed in the Ipswich Magistrates Court on 13 February 2002 for an offence of burglary.  In each case his Honour ordered that the appellant serve all of the suspended imprisonment. 

[28] In the result then the appellant will be required to serve imprisonment for eleven years for a number of serious offences.  His Honour referred to the appellant’s extensive criminal history from 1981 chiefly for offences of dishonesty, the appellant’s repeated offences in cheap tourist accommodation, the absence of gratuitous violence at the time of the rape, and the efforts the appellant had made to overcome a drug-taking habit.  The appellant complains that the sentences imposed upon him were manifestly excessive.

[29] On behalf of the Crown Mr Martin referred us to two unreported decisions of the Court of Appeal in cases of rape in similar circumstances to those of this case:  rape by an intruder of a sleeping woman, the intruder desisting and departing without further assault on the woman after the woman woke and extricated herself from her assailant.  In R v. Raymond (C.A. no. 299 of 1994, 12 September 1994) the offender was eighteen years old when he committed the offence.  He pleaded guilty.  He had no prior convictions and was sentenced to imprisonment for eight years with a recommendation that he be eligible for release on parole after serving three years.  That sentence was not disturbed by the Court of Appeal.  Raymond also pleaded guilty to an attempted burglary, on the same night as the rape, of a house near that in which he committee the rape.  He was sentenced to imprisonment for three years for that offence, but that sentence appears not to have been the subject of challenge before the Court of Appeal.  The offender in R. v. Press (C.A. no. 489 of 1996, 14 February 1997) was thirty-four years old.  He too pleaded guilty to a charge of rape, and to charges of burglary and indecent assault arising out of the same incident.  He had two prior convictions, only one of which, arising out of a property dispute in relation to which he was placed on a good behaviour bond, was of any consequence.  In other respects he seemed to have led an honest and useful life.  He suffered a severe beating at the hands of the complainant’s boyfriend and the latter’s stepfather after the rape leaving him with permanent disabilities.  The Court of Appeal determined that the sentence of imprisonment of nine years for rape with a recommendation that he be considered for parole after four years imposed by the primary judge was excessive and reduced that sentence to seven years with a recommendation that he be considered for parole after three years.  (Concurrent sentences of imprisonment for three years for each of the other offences were not disturbed)  Those cases establish a range for offences of the kind in question beginning at imprisonment for seven years.

[30] There are, however, important differences between the appellant’s case and the cases of Raymond and Press.  They pleaded guilty to the offences against them, although remorse for what they had done does not seem to have caused them to plead guilty, rather the recognition of the inevitability of conviction.  Raymond had no prior criminal history and Press had none of any significance, whereas the appellant has a substantial criminal record beginning in 1981.  The eight offences dealt with by his Honour on 13 March 2003 show that the appellant was a persistent predator upon those occupying cheap tourist accommodation at Hervey Bay.  His offences on 23 September 2002 were not isolated incidents but part of a pattern of wrong-doing that deserved substantial punishment.  It should be noted also that the effect of the orders made by his Honour was to allow the appellant to serve the remaining suspended imprisonment to which he was subject concurrently with his other sentences.  His Honour also refrained from making a declaration that the appellant’s conviction for the rape was of a serious violent offence.  Taking all of those matters into account, I conclude that there is no merit in the appellant’s application for leave to appeal against his sentences.  The overall result did not offend the totality principle. 

[31] I should refuse the application for leave to appeal against the sentences.