SUPREME COURT OF QUEENSLAND

1. McMURDO P:  The appellant, P, was convicted after a three day jury trial of raping an intellectually impaired 48 year old man.  The rape was said to be committed between 7 April and 12 April 2003 when the appellant forced a fork into the complainant's anus.  The appellant applied for leave to appeal against the sentence imposed of seven and a half years imprisonment, contending it was manifestly excessive.  He also appealed against his conviction, originally only on the ground that the verdict was unreasonable.  He was given leave to add a number of grounds, including that the learned primary judge erred in the direction he gave the jury on the topic of "preliminary complaint" and that the appellant's legal representatives failed to adequately deal with the medical evidence, thereby depriving the appellant of the chance of an acquittal that was fairly open to him. 

2. In support of the last mentioned ground of appeal, the appellant was given leave to file and read affidavits from him, his present solicitor and Dr Douglas Nicholson, a specialist general surgeon whose practice involves the treatment of anal and rectal complaints. Dr Nicholson's report was not obtained until after the appellant's conviction.^[1]  In response, Mr M J Copley was given leave to file and read an affidavit annexing a report from colorectal surgeon Dr J W Lumley.

3. At the conclusion of the appeal hearing on 18 April 2005, this Court granted the appeal, set aside the conviction, ordered a retrial and stated it would deliver the reasons for those orders later. These are the reasons for those orders.

The evidence at trial

4. The prosecution case was that the complainant attended respite care from Tuesday, 8 April until Friday, 11 April 2003 when his parents, with whom he usually lived, were out of town. After he returned home, he said he had pains in the bowel; he had previously reported like problems associated with constipation. He attended a general practitioner, Dr Tuckett, on 28 April 2003 complaining of constipation. The complainant reported that he had not passed blood; nor had his mother noticed blood on his clothing, although she had observed some faecal fluid in his underwear. Dr Tuckett did not perform a rectal examination, but, after examining the complainant's abdomen, prescribed laxatives. He did not return to Dr Tuckett until 25 June 2003 when he complained that he was passing blood. Dr Tuckett referred him to a surgeon for a colonoscopy.

5. It seems there was no further complaint or visit to medical practitioners until 18 August 2003 when he saw surgeon, Dr Vigna-Rajah, who performed a colonoscopy two days later. The surgeon found the prongs of a standard-size fork about 10 cm into the complainant's rectal passage. Dr Vigna-Rajah said in evidence in chief that it was very difficult to give a time frame as to how long the fork had been so positioned but he would expect some damage, such as a perforated or lacerated rectum, had it been there for a long time. It was possible the fork had been so positioned for four months since April but, if so, he would have expected a lot more injuries. He observed chronic granulation tissue in the rectum above the anus. This was a reaction to the presence of a foreign body; the granulation tissue can arise within a week and can last for a long time.

6. In cross-examination, the following exchange occurred:

"Doctor, just the mechanics of how the anus and rectum would deal with something being inserted into it, would there come a – if something was inserted – say the tip of something was inserted into the anus, what sort of force would be required for it to be actually pushed the whole way up? --- You only need a minimal of force because once it goes above the sphincter it gets sucked in around the rectosigmoid junction.  That's where normally the faeces come and rest before it – the action starts. 

So it would be just – it would be inserted, get up to the sphincter and then it would be sucked in? --- Sucked in up to the junction and every time he goes to open the bowels it just comes down and then if it doesn't come out,  it goes back again.

Would it require a force to even get to that stage if somebody was aware that it was about to occur in the bowel itself; does it have muscles that would contract? --- Usually when it goes in, there's a mucus which is a slimy substance to lubricate itself, so it won't be that difficult for a smaller diameter object to go in.

… The handle actually is small, so once it goes on, the prong side was facing outside so it – it will slip in."

7. Dr Vigna-Rajah completed the difficult procedure of removing the fork without lacerating the rectum. He gave the fork to the complainant's parents who returned home with the complainant. The complainant's mother said that they were all "pretty distressed". They asked the complainant if he knew from where the fork came. He said, "Yes, [D's] place." She took him into his bedroom, sat down with him and tried to talk quietly and calmly. He said, "Is dad upset?" She said, "No, but we've got to find out what happened. … Did you do this to yourself?" He said, "No, I'm not that silly." She asked him who had done it. He said, "[P]."

8. In cross-examination, she agreed that in her statement to police she said, "We were very upset and I took [the complainant] into his room and [the complainant] said to me, 'Is dad upset?' and I said, 'No, we just want to get to the bottom of it.' I said, '[The complainant], you did not do this to yourself.' [The complainant] said, 'No, I'm not that silly.' "

9. The complainant's mother contacted Ms B, the manager of the community organisation which arranged the complainant's respite care and accommodation with another person with a disability, D, in April 2003. During the period of the complainant's respite care with D between 7 and 12 April 2003, the appellant was a rostered casual carer. On 20 August 2003, she received a telephone call from the complainant's mother requesting that she visit urgently. She was on annual leave but attended at the complainant's home the next day. The complainant's mother showed her a fork. She went to D's home and noticed that the fork was of the same type as used in D's kitchen. She spoke to the complainant, whom she knew well, to try to ascertain what had happened. He described P as a diabetic and said that it was P, who gives himself the injections, who had done it to him. He said P came in and checked on him, went away, came back and then did it while the complainant pretended to be asleep.

10. A complaint was subsequently made to the police. They interviewed the complainant in a recorded interview tendered at trial under s 93A Evidence Act 1977 (Qld).  In that interview and in his oral evidence at trial, the complainant said that when he was staying at D's place, he finally went to sleep at about 10.30 pm but woke up and noticed something funny.  The appellant said "pull your pants down and he shoved a fork up me arse and that's all he said and he said don't ever say anything, hey … and I was frightened hey, that's all he said … and I heard the door shut then."  He then slept until morning.  He knew it was P because the person who did this had black, curly hair.  He saw the fork in his hand; it was silver and shining.  The room was dark and the curtain was closed.  He said he "just pushed [the fork] up and when I felt this pain I screamed and I said, don't, don't and he just walked out".  He said not to tell anybody and laughed.

11. Mr PAP gave evidence that he had been a carer for D until he lost his employment. He felt very disappointed about the disability system because of its treatment of him. One day after losing his employment he returned to D's house where he saw D and the appellant. The appellant said, "We lost a fork up one of their arses the other day." In cross-examination, Mr PAP admitted he had previously falsely alleged that his brother's girlfriend, W, was having sex with other people because he was concerned that she might not do the right thing by his brother. Whilst he had once been friends with the appellant, their friendship had ended acrimoniously.

12. The appellant was charged and processed at the watch house by police officer Bennett. She was completing his details on the fingerprint form when he asked, "What do you think I'd get if I plead guilty?" She said, "What penalty do you mean?" He said, "Yes." She said, "Well, I'm not familiar with the circumstances so I really couldn't say. That'd be up to the Magistrate." He said, "I shoved a fork up a guy's arse." She said, "I really wouldn't know. The penalty would be up to the Magistrate." He said, "I'm going to lose my job over this."

13. The appellant gave evidence that he did not commit the offence. He acknowledged that he had been caring for the complainant at the time the offence was said to have occurred. He admitted that he had the conversation with police officer Bennett but said it was not an admission of guilt but a request for information so that he could assess his position. He denied the remark attributed to him by Mr PAP.

The further evidence

14. Dr Nicholson saw the tendered photograph of the fork found in the complainant's bowel and read the transcript of the evidence at trial from Drs Tuckett and Vigna-Rajah and the evidence of the complainant. In his report, he opined that the insertion of the fork in the manner described by the complainant without his consent would require considerable force and would be difficult to achieve without lacerating the anal skin. If the fork were inserted in this way, the passing of a stool would most likely ensure the fork, which appears to be longer than a rectum, was forced against the wall of the anal canal, probably lodging in its side, causing exquisite pain, spasm and no doubt severe and rapidly spreading infection because faecal bacteria are particularly toxic. In his view, contrary to that of Dr Vigna-Rajah, "to postulate that a fork could float about against a current of forcible evacuation of 'constipated stool' … without the sharp tines of the fork lodging in the anal canal is fanciful to say the least." For the fork to have been in the canal for even a week, let alone a period of four months, was extraordinary. Granulation tissue is consistent with other irritants, including a history of constipation such as here. The fork could not have been in the rectal canal for more than a couple of days.

15. Dr Nicholson gave evidence on the hearing of this appeal and was cross-examined. He had by that time also read Dr Lumley's report. Whilst recognising Dr Lumley's high level of expertise, he contended that his own practical experience in these matters was greater than that of Dr Lumley. Dr Nicholson conceded that anything is possible in medicine but reaffirmed his view that the fork was extremely unlikely to have been in the complainant's rectum for four months prior to its removal.

16. Dr Lumley practises solely as a colorectal surgeon and is on the executive of the Colorectal Surgical Society of Australasia and of the section of colorectal surgery of the Royal Australian College of Surgeons. He has reviewed the relevant evidence and Dr Nicholson's report. Dr Lumley did not give oral evidence on the hearing of this appeal. He agreed in his report that it would be difficult to insert a fork into the anal canal of a conscious person without any lubricant and that this would certainly cause a degree of discomfort and pain. He is "less convinced that it is fanciful to suggest that a fork could stay within the rectum for a period of four months. … it is impossible to be pedantic about length of time a retained fork could stay in the rectum and certainly it is not outside the realms of possibility that it had been there for four months."

17. Despite Dr Lumley's evidence, Dr Nicholson's evidence is capable of raising a real doubt as to the reliability of the prosecution case (that the appellant committed this offence in April when the complainant was in respite care about four months before the fork was discovered in his rectum). Dr Nicholson's evidence that the fork was extremely unlikely to have been in the rectum for four months prior to its removal was not before the jury. Dr Vigna-Rajah may have had a similar view but, inexplicably, that was not explored, nor apparently emphasised, at trial. Mr M J Copley for the respondent with his customary professionalism and fairness conceded at the hearing of the appeal that had Dr Nicholson's evidence been before the jury, there would have been a significant or real possibility that a reasonable jury would have acquitted the appellant. That concession was plainly rightly made.^[2] 

18. It followed from this Court's receipt of Dr Nicholson's further evidence that the appeal against conviction must be allowed.

Was the verdict unreasonable?

19. Although the appeal has been allowed on a different ground, this Court must give some consideration to the appellant's contention that the guilty verdict was unreasonable in determining whether to order a retrial.

20. The evidence at trial is sufficiently outlined earlier in these reasons. The complainant's evidence gained some support from the evidence that the appellant had the opportunity to commit the offence in April 2003 as alleged, from Mr PAP's evidence and from the appellant's questioning of police officer Bennett at the watch house. Against this, the appellant gave evidence that he did not commit the offence; denied that he had the conversation with Mr PAP, who had previously made a false allegation against another person, and gave an innocent explanation for his questioning of police officer Bennett.

21. Despite the appellant's evidence, the jury were entitled to accept the complainant's evidence which was not so inconsistent or improbable that it had to be rejected. The evidence before the jury was well capable of satisfying the jury beyond reasonable doubt of the appellant's guilt: M v The Queen.^[3] The further evidence from Drs Nicholson and Lumley before this Court suggests that if there is a retrial there may be conflicting expert views on the crucial matter of the likelihood of a fork being retained in the rectum for four months.  That issue, together with the credibility of the complainant, are very much questions for a properly instructed jury to determine on the evidence before a trial court.  It cannot be said at this stage that, even with the benefit of Dr Nicholson's evidence, no properly instructed jury could convict the appellant.  That is why this Court has ordered a retrial. 

The direction as to the evidence of preliminary complaints

22. Despite this Court ordering at the hearing of the appeal that the appeal be allowed, the conviction quashed and a retrial ordered, counsel requested that this Court also deal with the ground of appeal alleging that the learned trial judge erred in the direction given to the jury on the complainant's preliminary complaints to his mother and Ms B because the issue would inevitably arise in a retrial.

23. Unsurprisingly, the appellant does not contend that the evidence from the complainant's mother should not have been admitted: it allowed the defence to suggest the complaint was falsely made so that the complainant would not be in trouble with his parents. He contends, however, that at least the first part of the statement was not admissible as a preliminary complaint under s 4A Criminal Law (Sexual Offences) Act 1978 (Qld) ("the Act").  That section relevantly provides:

"(2)  Evidence of how and when any preliminary complaint was made by the complainant about the alleged commission of the offence by the defendant is admissible in evidence, regardless of when the preliminary complaint was made.

(3)  Nothing in subsection (2) derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied it would be unfair to the defendant to admit the evidence. 

(4)  If a defendant is tried by a jury, the judge must not warn or suggest in any way to the jury that the law regards the complainant's evidence to be more reliable or less reliable only because of the length of time before the complainant made a preliminary or other complaint.

(5)  Subject to subsection (4), the judge may make any comment to the jury on the complainant's evidence that it is appropriate to make in the interests of justice.

(6)  In this section –

"complaint" includes a disclosure.

"preliminary complaint" means any complaint other than –

(a)the complainant's first formal witness statement to a police officer given in, or in anticipation of, a criminal proceeding in relation to the alleged offence; or

(b)a complaint made after the complaint mentioned in paragraph (a)."

24. The learned primary judge gave the following direction:

"Now, in this case there has been what is described in law as being 'preliminary complaints' … .  The complainant told his mother that the defendant had put this fork inside him.  He told Mrs [B], he identified the defendant as the one who injected himself for diabetes as the person who did it, and he told Mrs [B] the defendant came in, went out, came back, did it and the complainant pretended to be asleep.  Now this complaint to Mrs [B] you might think is somewhat inconsistent with his earlier evidence in the statement, but you are entitled to take any inconsistency between the terms of the complaint on one occasion, and another as possibly reducing the likelihood that the complaint was accurate and a truthful description of the events which happened.  It is a matter for you what weight you give for that discrepancy.

What use can you make of the preliminary complaints?  The evidence may only be used as it relates to the complainant's credibility.  Consistency between the account that was given by two witnesses, [the complainant's mother] and Mrs [B], and the complainant's evidence before you is something you may take into account as possibly enhancing the likelihood that his testimony is true.  However, you cannot regard the things said in those out of court statements by the complainant to his mother [and] Mrs [B], as proof of what actually happened; namely the rape.  In other words, evidence of what was said on … those occasions may, depending on the view you take of it, bolster the complainant's credit because of consistency, but it does not prove anything in relation to the actual act of rape as alleged."              (my emphasis)

25. The appellant contends that this direction was flawed: even if the evidence was admissible, it could not be used to bolster the complainant's credit because it may have been a false complaint in response to a leading question or suggestion from the mother to avoid getting into trouble for his own act, or for a consensual act with another.

26. Were the statements to the mother and Ms B preliminary complainants under s 4A of the Act? The definition of "complaint" in s 4A(6) of the Act "includes a disclosure". "Disclosure" is not defined in the Act, but has the dictionary definition of "the act of disclosing; exposure; revelation". The dictionary definition of the verb "disclose" includes "to cause to appear; allow to be seen; make known; reveal: … uncover, lay open to view".^[4]  It follows that a "disclosure" includes a revelation or disclosure after questioning, even questioning which might suggest a particular response.  The legislature, in enacting s 4A, plainly intended that the jury have the full context of any preliminary complaint or disclosure so as to most accurately assess the credibility (or lack of credibility) of the complainant and the complaint.  The complainant made the initial allegation to his mother and the later allegation to Ms B in response to his mother's suggestion that he would not do such a thing to himself.  Nevertheless, his statements to his mother and Ms B were undoubtedly disclosures and so complaints as defined in s 4A(6) of the Act.  It follows that the evidence of how and when he made those complaints (as defined to include disclosures) about the alleged commission of the offence was admissible under s 4A(2) of the Act.^[5]  Of course, a court retains its discretion to exclude evidence where its probative value is slight compared to its prejudicial effect so that it would be unfair to a defendant to admit it: see s 4A(3) of the Act and s 130 Evidence Act 1977 (Qld).

27. In directing the jury, his Honour first highlighted the inconsistency between the complainant's evidence and his complaint to Ms B and that this may detrimentally affect the complainant's credibility. His Honour then told the jury they may find the complaints to his mother and Ms B enhanced his credit.  It is self-evident that the jury would not find those complaints would enhance the complainant's credit if they found that he fabricated the allegation to avoid trouble with his parents.   His Honour's use of the words "may", "possibly" and "may, depending on the view you take of it" make this sufficiently clear.  The judge's direction adequately instructed the jury that they could not treat the evidence of the preliminary complaints as proof of what the complainant had alleged, consistent with this Court's observations in R v RH.^[6]

28. Significantly, there was no request for a redirection on this issue. Trial counsel did not consider the direction inferentially suggested that, if the jury thought the complainant had made a false allegation against the appellant, then the evidence from his mother and Ms B as to the preliminary complaints could enhance his credibility. They were plainly right. To conclude otherwise would be an affront to the common sense of jurors. Whether the jury found the preliminary complaints supported the complainant's credibility depended, as the judge said, on the view the jury took of the evidence. They would not, of course, conclude the preliminary complaints were supportive of his credit if they thought he may have made a false allegation at his mother's suggestion to avoid trouble with his parents. There will be cases where the jury's attention should be specifically drawn to the possibility that the complaint may have been in response to a suggestion from another,^[7] but this was not one.  His Honour's directions to the jury as to the use to be made of the evidence of preliminary complaints were appropriate here and did not constitute any error of law.

The other grounds of appeal

29. The parties agreed that, in the light of the orders made at the hearing of the appeal (allowing the appeal, quashing the conviction and ordering a new trial), it was unnecessary to deal with any further grounds of appeal or the application for leave to appeal against sentence.

30. JERRARD JA:  In this appeal I have read and respectfully agree with the reasons of McMurdo P.

31. PHILIPPIDES J:  I agree with the reasons for judgment of McMurdo P and with the orders proposed.