R v Webb[2004] QCA 448

SUPREME COURT OF QUEENSLAND

[1]  McMURDO P: I agree with McPherson JA's reasons for dismissing the appeal against conviction and refusing the application for leave to appeal against sentence.

[2]  McPHERSON JA: The appellant appeals against his conviction after a trial in the District Court on three counts of rape and three counts of indecent assault. The complainant in respect of each of the charges was a 29 year old Japanese woman, who was visiting Australia when the offences were committed against her on the night of 8/9 January 2001 at a tourist farm near Canungra. Counts 2 and 4 charged that the appellant inserted his finger in the complainant’s vagina, which by statute in Queensland now constitutes the offence of rape, as also does the insertion of the appellant’s penis in her mouth (count 5). The other counts charged offences of indecent assault by touching and licking the complainant on her breasts and genital area (counts 1 and 3) or, in the case of count 6, masturbating and ejaculating over the complainant’s chest. On all the offences, he was sentenced to an effective term of imprisonment for six years.

[3]  Each of the offences was, of course, alleged to have taken place without the complainant’s consent, and it was consent, or the lack of it, that formed the only issue at trial and on appeal. Mr Farr of counsel who appeared for the accused at the trial submitted that the question of honest and reasonable mistake under s 24 of the Code might be left to the jury; but his Honour ruled that there was nothing to raise it for the consideration of the jury. Although the onus of displacing s 24 lies on the prosecution, there was no evidence suggesting that the accused believed she consented to what he did, and a great deal of evidence to demonstrate that she did not.  The appellant himself did not give evidence at the trial, and he was not interviewed by the police. Mr Lynch, who appeared for him on the appeal, did not have instructions to abandon this ground, but he did not address it in his oral submissions. In my opinion, his Honour’s ruling was correct. Ground 1 in the notice of appeal therefore fails.

[4]  Grounds 2 and 3 of the notice of appeal may, as they were on the hearing of the appeal, be considered together. They are:

2.That the learned Crown Prosecutor’s comments to the jury wrongly suggested the accused had an onus to demonstrate some motive on the part of the complainant to make a false complaint.

3.That the learned Crown Prosecutor’s comments to the jury wrongly suggested that the jury should draw an adverse inference against the accused because he did not give evidence. Further that the comments were calculated to suggest a reversal of the onus of proof.

[5]  The particular passage complained of in prosecuting counsel’s address is as follows. Referring to the complainant and then to the accused, counsel told the jury:

“Ladies and gentlemen, she’s come back from Japan to tell you about it. She has travelled 7 or 8,000 miles to tell you about it.

A person who had to walk 20 metres from there to there, from him you haven’t heard a word. There were two people in the room that night - and I’m not saying he's got to give evidence - I accept the onus is upon the Crown throughout this trial, as in every trial. I remind you again of it, as I reminded you on Tuesday morning, the Crown has to prove his guilt and prove it beyond reasonable doubt to your satisfaction.

He doesn’t have to prove anything. He doesn’t have to give evidence. Of course he doesn’t. But ladies and gentlemen, there were two people in that house that night, and my submission to you, you’ll accept her as decent, honest and reliable; as a person who was outraged repeatedly that night; a person who did not consent in any way to that conduct.

In my submission, ladies and gentlemen, knowing that there were two people in that house that night - you’ve only heard from one of them - will make it a lot easier for you to accept the accuracy, the decency, reliability and the truthfulness of her evidence, because it is not contradicted by one thing at all.”

The reference to a person having to walk 20 metres from there to there was plainly directed to the appellant giving evidence from the witness box.

[6]  There are several reasons why I consider that grounds 2 and 3 of the notice of appeal do not justify setting aside of the appellant’s conviction or the verdicts against him. The powers of this Court as successor to the Court of Criminal Appeal in Queensland are confined to the matters specified in s 668E(1) of the Code and in corresponding legislation in other Australian states and jurisdictions elsewhere having their origin in the Criminal Appeal Act 1907; 7 Edw 7, c 23 in England. Under s 668E(1) an appeal must be allowed if the Court is of the opinion (1) that the jury verdict should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence; or (2) that the judgment (which here means the conviction) of the court of trial should be set aside on the ground of the wrong decision of any question of law; or (3) that on any ground whatsoever there was a miscarriage of justice. Otherwise the appeal must be dismissed.

[7]  This is not a case in which it is suggested that the jury verdict should be set aside as unreasonable or incapable of being supported on the evidence; nor that there was a wrong decision by the court of any question of law. The appellant’s complaint, if it is to succeed, can therefore only be that on some ground “whatsoever” there was a miscarriage of justice. The contention is that such a miscarriage occurred at the appellant's trial because of the statement by the Crown prosecutor set out above, which it was submitted in some way offended the principles laid down by the High Court in Azzopardi v The Queen (2001) 205 CLR 50.

[8]  I am unable to accept this submission. Azzopardi was concerned not with anything that was said by prosecuting counsel in that case, but with the trial judge’s directions to the jury, which the majority of the High Court held had contravened s 20(2) of the Evidence Act 1995 (NSW), of which there is no comparable statutory provision in Queensland. In Azzopardi, the particular defect identified in the summing up was the trial judge’s direction that, the prosecution evidence having been left uncontradicted by the accused’s failure to give evidence himself at the trial, “any doubt which may have been cast upon that witness’s evidence may be more readily discounted and that witness’s evidence may be more readily accepted as the truth” (205 CLR 50, at 76). In the context, this was considered by their Honours as “suggesting that the accused did not give evidence because he was guilty of the offence charged” (205 CLR 50, at 77). A direction to like effect was condemned in this State as long ago as R v Fellowes [1987] 2 Qd R 606, 609, for reasons similar to those given in Azzopardi. But the trial judge here gave no such direction in the present case. The most that his Honour said was that the complainant had said “No” or “Stop” when the appellant put his finger in her vagina, and that the only evidence on that subject came from the complainant: her evidence to that effect was, his Honour said and repeated, “challenged in cross‑examination, but there is no evidence contradicting her evidence on these matters”.

[9]  From saying that evidence is challenged but not contradicted, it is a long step to saying that, in doing so, the trial judge impermissibly commented on the accused’s failure to give evidence, and did so in such a way as to suggest that he had failed to testify because he was guilty of the offences charged. Whether or not evidence is contradicted by conflicting testimony from the accused or any other source is ordinarily a question of fact for the jury to assess and determine; but as such it is also a matter on which by s 620(1) of the Criminal Code a trial judge is entitled, if he or she thinks fit, to make “an observation on the evidence”. What is more, a jury in Queensland is always made aware of the accused’s failure to give evidence by the requirement, fulfilled in this case as in all others, under s 618 of the Code that the accused be asked in open court whether he intends to adduce evidence in his defence.  His election or answer to that question is made in full view and hearing of the jury, so that if, upon the Crown closing its case, he chooses not to testify they are left in no doubt that the evidence adduced by the prosecution is not contradicted by any evidence given by him in court. In these circumstances it would be absurd to suggest that a judge is improperly commenting by referring to evidence as uncontradicted when the statute law of Queensland requires that the absence of such evidence be brought so demonstrably to their attention. The judge in a case like this was doing no more than referring to a fact that was, to the knowledge of the jury, both indisputable and undisputed.

[10]  In any event, on behalf of the appellant, Mr Lynch, as I understood his submission on appeal, professed not to be making any point about his Honour’s reference to the evidence of the complainant being uncontradicted. At one stage he was disposed to submit that his Honour had erred in omitting to direct the jury in terms that they must not use the accused’s failure to testify as a “make-weight” in assessing whether the prosecution has proved its case: cf Azzopardi v The Queen (2001) 205 CLR 50 § 51. But this was not made a ground, original or amended, in the present appeal, and it was not the subject of any request for redirection at the trial. The proposition that the use of that particular expression or verbal formula is always mandatory in summing up was considered but not accepted by this Court in R v DAH [2004] QCA 419. I need not repeat here what was said in the reasons in that case.

[11]  The appellant’s submission in this matter is contained in the two paragraphs of the notice of appeal that have already been set out. They complain in para 2 that the Crown prosecutor’s comments to the jury suggested that the accused had an onus to demonstrate some motive on the part of the complainant to make a false complaint. Ground 3 suggests that the prosecutor's comments wrongly suggested that the jury should draw an adverse inference against the accused because he did not give evidence; and, further, that the comments “were calculated to suggest a reversal of the onus of proof”. This is perhaps a little closer to the effect of what the prosecutor, on a generous interpretation, may have been intending to convey to the jury, but still falls well short of what he in fact said. Indeed, what he said was interspersed with reminders that the Crown bore the onus of proving beyond reasonable doubt that he was guilty of the offences charged. For the purpose of considering the submission, however, it must, it seems, be assumed that these explicit references to the burden of proof were adopted in the prosecution address simply, or perhaps cynically, for the purpose of conveying to the jury the ulterior message or impression that the onus of proof lay on the accused.

[12]  The real sting of the prosecutor’s remarks is to be found in the observation that the complainant had “come back from Japan”, travelling 7 or 8,000 miles, “to tell you about” her experience at the hands of the accused, whereas the jury had “not heard a word” from “the person who had to walk from there to there”, presumably indicating the distance from the dock to the witness box. In my opinion it was inappropriate for prosecuting counsel to remind the jury in this rather graphic way of the fact that the accused had not given evidence. It would, I think, have encouraged them to focus on the complainant’s legally irrelevant action in travelling such a long distance from Japan in order to vindicate her complaint against the appellant; as such, it surreptitiously invited the jury to ask themselves why she would do so if her evidence were not truthful. This and other versions of similar reasoning have been condemned by the High Court, and are plainly illegitimate. See Palmer v The Queen (1998) 193 CLR 1, and the many cases that have followed it.  It was evidently the point at which the appellant was aiming at in ground 2 of his notice of appeal, although it was not perhaps the precise form which the submission took in the course of the appeal before us.

[13]  It was, however, not the trial judge but prosecuting counsel who made the statement that is the subject of grounds 2 and 3. Mr Lynch for the appellant disavowed any suggestion that what counsel says in address is somehow to be attributed to the trial judge. His complaint is that his Honour failed to correct it, although it is not possible to find this complaint explicitly stated anywhere in the notice of appeal. It is true that his Honour made no direct reference to the prosecutor’s remark in summing up, whether by way of repudiating it or otherwise. There are, however, several discernible reasons why he should not have done so. One is that he was never asked to do it. On appeal, it was sought to brush this aside on the footing that defence counsel’s failure to object to it, or to ask for a redirection in respect of it, did not prevent its being raised on appeal. That is so, but only if failure to do so gave rise to a “miscarriage of justice” within s 668E(1) of the Code: R v Soma (2003) 212 CLR 299, 304-305, 324. As to that,  I remain to be persuaded that the omission of the judge in summing up to correct a solecism in the prosecutor’s address to the jury, in circumstances where the judge is not asked to do so, amounts to a miscarriage of justice that vitiates the ensuing verdict and requires it to be set aside on appeal.

[14]  In any event, there was good reason why the learned judge did not in this case take steps of his own motion to correct what was said by prosecuting counsel in his address. One was that Mr Farr of counsel, who appeared for the defence, is a competent and experienced practitioner in criminal trials. The remark that is now complained of appeared at the conclusion of the prosecutor’s address, and Mr Farr was therefore on his feet addressing the jury immediately after it was made. As capable advocates do, he at once turned his opponent’s address to his client’s advantage, by saying -

“Well, ladies and gentlemen, my friend did tell you in one breath that he acknowledges that the Crown have the job in a criminal trial of proving whatever the allegation might be,  and then of course spent most of the address reminding you that you don’t hear from my client. I wonder whether he was in a round about way suggesting that there was some onus on him to do so, notwithstanding that he seemed to be at pains then to say that that’s not the case, but you heard many points about it over and over.

But the pure and simple fact is, as his Honour will direct you as a matter of law, an accused person does not have to prove his or her innocence. That’s something that is presumed by the law. It is the onus - the job of the Crown - to try and prove whatever it is that the Crown are alleging in a criminal trial.”

And so on, with much more of the same, which I need not repeat. In the contest with the prosecution over the point now raised on appeal, it is not possible to say that in his address at the trial Mr Farr did not make effective use of the opportunity presented to him in the closing remarks of the address by counsel for the Crown.

[15]  This leads on to another matter in considering whether a miscarriage of justice has arisen here. For Mr Farr to have complained about the offending passage and solicited a direction from his Honour on the point would have necessitated reference to it being made to the jury once again. Repeating the comparison between the distance from the dock to the witness box and the distance the complainant had travelled from Japan to give evidence as a witness was almost certainly the last thing that defence counsel would have wished to encourage. We may credit the learned trial judge with having recognised this as a reason why no redirection was sought on the point at the trial. It was not a necessary part of the judge’s function to intervene in the course which Mr Farr chose to follow on behalf of his client, which was no doubt why his Honour did not do so. Instead, he addressed himself to the task that as the trial judge he was bound to perform. Under s 620(1) of the Code, this was to instruct the jury as to the law applicable to the case, with such observations on the evidence as he thought fit to make.

[16]  In summing up in this way, his Honour directed the jury that the burden rested on the Crown to prove the guilt of the accused person; that he was presumed innocent unless and until proved guilty; that there was no burden on him to prove his innocence; and that no inference adverse to the accused should be drawn from the fact that he had not given evidence. He repeated statements to this or similar effect on several occasions in the course of summing up including the instance on which he referred to the evidence of the complainant as being uncontradicted. I have noticed four such separate occasions in the summing up. I am told there are more. They all bear out Mr Farr’s prediction that his Honour would direct the jury as a matter of law that an accused person does not have to prove his innocence. No challenge is made in any respect to the summing up, which was detailed and thorough, and occupied over two hours not counting a redirection requested by the jury. It is impossible to accept that the ill-advised remark by prosecuting counsel overwhelmed these judicial efforts to present the evidence and the law fairly and impartially to the jury.

[17]  There was therefore no miscarriage of justice at the trial, and the appeal against conviction should be dismissed.

[18]  As regards sentence, the appellant was ordered to serve terms of imprisonment for six years on each of counts 2, 4 and 5 (which were the rapes) and four years on each of the other three counts (1, 3 and 6) of indecent assault, all to be served concurrently. My first impression was that this may have been a high sentence for offences that did not amount to rape in the conventional sense.

[19]  On reflection, however, I have come to the conclusion that such penalty was justified by the circumstances of the case.  The complainant first met the appellant on 31 December 2000 on the tourist farm where he was working and where the offences were later committed a few nights later on 8 or 9 January 2001. He was then some 56 years of age and she was 29. The property was a popular venue with Japanese tourists who were introduced to the wonders of horse riding, whip cracking, clay pigeon shooting, and other skills of the inhabitants of the Australian bush, in which the appellant was well versed. The proprietors of the property followed a practice of engaging temporary workers from Japan, mainly women, for short periods of two months or more to assist tourists of their nationality. They lived in a dormitory on the farm during their stay and, once suitably trained, helped the clientele with the horse riding and so on.

[20]  The appellant first visited the property with other tourists on the date referred to.  In conversation with the appellant, she expressed a wish to become one of those working on the farm. She had she said always had an ambition to become a tourist guide. She was in Australia on a short term visa during a break in her work, which consisted of secretarial or other such duties at an English language school in Japan. She was herself was not particularly fluent in English and at the trial she gave her evidence through an interpreter.

[21]  The appellant provided her with his business card, in which he was described as the Operations Manager, and suggested that she get in touch with him. She did so a few days later, whereupon he invited her to come and work on the farm. He collected her in a car from the Gold Coast on the evening of 8 January and drove her to the property. On the way, he stopped at a bottle store where he bought a quantity of beer and wine, which he persuaded her to drink as they drove along. She had been led to expect that she would be living in the dormitory with the other Japanese workers; but on arrival he took her to his separate living quarters where he plied her with more drink. She felt dizzy and, having had nothing to eat, was sick in the toilet; but he insisted that she lie on the bed with him, where he attempted to kiss her. There he removed her clothes and carried out the various offences and indignities that are specified in the indictment.

[22]  She pleaded with him to stop, but the ordeal continued through the night, with the appellant periodically waking up from time to time to carry out further assaults upon her person. She was a virgin and it hurt when he pushed his finger into her vagina, which he did on three or more occasions. He was not violent to her; but he used force to subdue her and he slept all night with his hand on her stomach preventing her from moving. She is slim and lightly built and was no match for him in size or strength. On her previous visit she had seen him using a gun and was terrified that he would use it to prevent her escape. Guns are not common in Japan. In the morning she had a shower and managed later to get away from the property as a passenger in a bus travelling back to the coast. Shortly after her arrival, she confided in a Japanese woman acquaintance about what had happened, and ultimately complained to the police. She gave evidence and was cross-examined at both the committal proceedings and on appeal.

[23]  There are several features that combine to make these offences serious examples of their kind. The complainant was a woman of a different culture with different standards of behaviour and an imperfect knowledge of the country, its standards and its language. The appellant took advantage of her vulnerability after plying her with drink. There can be no real doubt that his course of conduct was planned and premeditated and designed to mislead her. She was, as his Honour said, degraded and humiliated, in circumstances in which she believed she was alone and effectively the appellant’s prisoner in a strange place at night. According to her account, he tried next day to persuade her not to report what had happened.

[24]  The learned judge found that the appellant showed no remorse for his conduct. He may have been hoping that the complainant would not persist with the charge once she had returned to Japan. In that respect, however, she showed remarkable determination. He had a prior record of offending. Up to about 1996 he had sustained a series of minor convictions mostly connected with driving vehicles either while unlicensed or under the influence of alcohol. However, in 1996 he was convicted in the District Court at Kingaroy of unlawful stalking with circumstances of aggravation, for which he was ordered to undergo three years probation. The details of the offence do not appear, but as a condition of probation he was required to undergo medical, psychiatric and psychological treatment and to keep away from his victim, who was another woman or girl. While on bail for the offences for which he was tried on this occasion he committed offences of common assault on one child and indecent treatment of another. Both were visitors to the tourist farm on which he worked. He narrowly escaped a prison sentence in that instance, but was again admitted to probation with a condition requiring him to undergo psychiatric treatment. The trial judge in the present case considered that the appellant posed a serious risk and was likely to re‑offend.

[25]  There is not much doubt that the appellant would have attracted a lengthier sentence of imprisonment if he had had sexual intercourse with the complainant without her consent; that is, if he had raped her in what I have called the conventional sense. At one stage he lay on top of her as if to do so, but did not engage in the act. His victim was terrified that he would do so because of her fears of pregnancy and of contracting a disease. She and her friend to whom she later complained spoke of it as “the worst thing”, which fortunately she was able to say had not happened to her. But she was not spared much else. For the experience to which the appellant callously subjected the complainant on the night in question, a sentence of imprisonment for six years does not appear to me to be excessive having regard among other matters to the appellant’s age and recent record of offending, and the way in which he preyed on an unoffending and trusting visitor to this country who had done nothing to encourage such treatment.

[26]  In my opinion the appeal against conviction should be dismissed. The application for leave to appeal against sentence should be refused.

[27]  PHILIPPIDES J: I agree for the reasons stated in the judgment of McPherson JA that the appeal against conviction should be dismissed and that the application for leave to appeal against sentence should be refused.