SUPREME COURT OF QUEENSLAND

1. McMURDO P:  The applicant, Mr Puti, who represents himself in this application, asks for an extension of time within which to appeal against his conviction for rape and stealing in the District Court at Brisbane on 12 August 2004.  He was sentenced to eight years imprisonment and 370 days pre-sentence custody was declared as time served under the sentence.  He was convicted but not further punished for the stealing offence and for eight further counts of dishonesty on a separate indictment.

2. I have had the benefit of reading the reasons for judgment of Jerrard JA in which the relevant facts and issues are fully set out. I need only repeat those necessary to explain my own reasons for, regretfully, reaching a different conclusion from his Honour. I would refuse the application for an extension of time within which to appeal.

3. Mr Puti filed this application for an extension of time to appeal against his conviction on 2 February 2005, almost five months out of time. Although he has not given any particularly convincing explanation for the delay in filing an appeal within time, this Court would grant his application if he demonstrated that this was in the interests of justice: R v Tait.^[1]

4. Mr Puti has provided extensive handwritten submissions which, in essence, contend that the jury should have rejected the complainant's evidence that he had sexual intercourse with her without her consent because there was no evidence of forced entry to her home, of any screams or protests, or of serious or obvious injury to her. Although he did not give or call evidence at trial, he has handed the Court a lengthy handwritten statement in which he details what he said was an episode of consensual sexual intercourse with the complainant, after which she gave him some money. He emphasises the complainant's poor recollection of the events surrounding the sexual intercourse and says this was reflected in her statement to police shortly after the alleged offence on 20 December 2002. She made a further statement on 13 June 2003 in which she purported to recall more details. The inconsistencies between the statements and her later more detailed recollection in court demonstrated, he contends, her unreliability. It can be inferred that his contention is that therefore the jury could not have accepted her evidence beyond reasonable doubt.

5. In determining an application of this type, the Court does not ordinarily have the benefit of a record book containing the evidence at trial; that is only prepared if leave to appeal is granted. We have, however, been provided with the transcript of the judge's summing-up to the jury in which the learned trial judge canvassed the following matters. His Honour explained the elements of the offences which the prosecution was required to prove beyond reasonable doubt. Mr Puti's semen was found in a swab taken from the complainant's high vaginal region. Consent was the central question. That was the case put to the complainant by defence counsel. To convict, the jury must be satisfied beyond reasonable doubt that the complainant gave free and voluntary consent without any particular duress or force or pressure, understanding what it was she was about to undergo. His Honour further explained that "a woman who is unconscious, or so drunk as to be unable to make a conscious deliberation, or is, perhaps, so stupefied as to be unable to make a conscious decision, cannot make consent as it is required by the law." His Honour then applied that observation to the facts, referring briefly to evidence that the complainant may have lapsed into a deep sleep through a combination of gardening in the sun and subsequent consumption of alcohol. Mr Puti had falsely denied to police that he had sexual intercourse with the complainant but his Honour reminded the jury that this may have been for some other reason than because he raped her, for example, to avoid trouble with his own partner and there is no complaint about this aspect of the summing-up.

6. At the conclusion of his directions to the jury, his Honour summarised the prosecution and defence case in these terms. The prosecution case was that Mr Puti made an excuse about a mobile phone to enter the complainant's home; he took advantage of her tiredness, exacerbated by the alcohol she had consumed, and had non-consensual sexual intercourse with her; the complainant told Mr Puti "No, no, no" and made it clear that she was not consenting; he then stole $40 from her. The defence case was that the complainant had been drinking and she freely and voluntarily engaged in sexual intercourse with Mr Puti; the complainant said that she had flashbacks and had had counselling since the incident; this would cause the jury to have a reasonable doubt about her evidence; they would acquit on both the rape and stealing counts. In a later redirection, his Honour told the jury that the complainant maintained that she remained conscious during the incident; that she repeatedly said "Don't" or "No" and pushed Mr Puti; that the flashbacks increased her certainty as to what happened but were not the sole explanation for her memory of the event.

7. Whether the complainant may have consented and the reliability of her recollection were central issues at trial and appear to have been adequately left to the jury for their determination. They decided those issues adversely to Mr Puti. On the complainant's version, there was no reason to expect forced entry, screams or significant injuries to her. Mr Puti has not demonstrated on the grounds raised in his application or in his written or oral submissions that it is in the interests of justice to extend time within which to appeal.

8. That would ordinarily be sufficient to refuse the application but Jerrard JA has raised three further matters of concern which I must now consider. The first arises out of the learned primary judge's quotation in the summing-up from the transcript of a question put to the complainant by Mr Puti's counsel in cross-examination. Even if Mr Puti's case was put to the complainant solely in the form of the questions quoted by the learned primary judge, it is clear that Mr Puti's case, that she had consensual sexual intercourse with him and then gave him money, was nevertheless put to the complainant to accept or deny. The learned primary judge made it clear to the jury in his directions that they must acquit unless they were satisfied beyond reasonable doubt that the complainant did not consent and did not give or lend him the money. Their verdict indicates they were so satisfied and there was ample evidence to support their verdict. I am not persuaded this matter shows it is in the interests of justice to grant the application.

9. The second additional matter of concern arises from the judge's directions to the jury as to the use to be made of the complainant's preliminary complaint to Mr Pearson at 4.22 am the morning after the rape was alleged to have occurred. Mr Pearson said that he had showered and dressed for work when the complainant came to his unit. She seemed "a bit sort of upset, distraught" and said, "I think I've been interfered with." He suggested she go to the doctor but she said she could not afford it. She said, "I really need to know if he's done something because I woke up." She said she was naked in bed whereas she always sleeps in her nightdress. She said, "I really need to know if he's done anything. Will you go down and speak to him." She then heard Mr Pearson speak to Mr Puti. Mr Pearson returned and told her that Mr Puti had said no. The judge gave the following direction:

"There is, in the case of a sexual offence, the ability to place before the jury evidence of a complaint of sexual activity that is allegedly unlawful made with reasonable promptness and there can be no suggestion here, and there has not been any, that the conversation in this case was made at what may be called the earliest practicable time.  In other words, when people sort of wake up and start moving about the following morning.

What is important for you to remember is that the complaint is not before you as evidence of the truth of the matter spoken about.  In other words, this is not evidence that there was sexual intercourse or that there was sexual intercourse without consent.  Why it is before you is to allow you to assess [the complainant's] credibility, her consistency.  It is really perhaps a matter of commonsense.  One would expect that if a person has been the victim of some unlawful sexual activity one would make some complaint about it to someone with some reasonable promptitude. 

Now, it does not follow that because someone is loath to make a complaint or perhaps waits until some particular person is present to make the complaint that nothing has happened.  It is just a matter that you can look at in relation to the credibility of the complaint, the credibility of the person making the complaint.

In other words, just as you do not have to cry rape as soon as you are penetrated or fight back it can still be non-consensual if you do not and it can still be non-consensual if you don't make a complaint to someone at the earliest sort of opportunity.  Credibility only is the reason why it is before you and you can have a look at that against the background of her words as attributed to her by Mr Pearson, 'I think I've been interfered with.'  She remembered him 'trying to kiss me' and she was saying, 'No.  I really need to know if he's done something' and she woke up naked in bed and she always goes to bed with a nightdress on.

You have her evidence of what happened as she remembers it.  Is there any inconsistency between her conversation with Mr Pearson and her account or is it a consistent account reflecting some uncertainty.  Something's happened but she doesn't necessarily know what happened."

10. Section 4A Criminal Law (Sexual Offences) Act 1978 ("the Act") provides relevantly:

"4A Evidence of complaint generally admissible

(1) This section applies in relation to … a trial, in relation to a sexual offence.

(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.

…

(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 a 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.

…"

11. During the course of applications for redirection, the prosecutor pointed out to the judge that his earlier direction on preliminary complaint may not strictly comply with the Act but neither he nor defence counsel requested any redirection on it.

12. Although his Honour's direction as to the preliminary complaint offended s 4A(4) of the Act and is not one to be encouraged, his Honour emphasised that the evidence was admitted only as relevant to the complainant's credibility and that the jury could use it only in determining whether the complaint was consistent in her account. I cannot see that the balanced direction given, even though it breached s 4A(4) of the Act, could have caused any miscarriage of justice. I would not grant Mr Puti's application for an extension of time on this basis.

13. The final matter of concern arose from the prosecutor's application for a redirection in the absence of the jury, not about anything said by the judge, but by defence counsel's submission in his address to the jury, which the prosecutor said "was probably a slip of the tongue in the heat of the moment". Defence counsel was said to have asked the jury, "How could [the complainant] have physically withheld her consent when she was asleep?". The prosecutor initially asked the judge to direct the jury that there was no requirement that the complainant physically withheld her consent. He then conceded that this would probably confuse the jury and did not press for such a redirection.

14. As I have already noted, the learned primary judge in his summing-up clearly directed the jury that a woman who is unconscious or so drunk as to be unable to make a conscious deliberation or so stupefied as to be unable to make a conscious decision cannot consent. The jury can have been in no doubt as to this aspect of the law. These comments made by the prosecutor in the course of discussing potential jury redirections do not persuade me that it is in the interests of justice to grant Mr Puti's application for an extension of time.

15. Mr Puti failed to lodge his appeal against conviction within one calendar month of his conviction: see s 671(1) Criminal Code.  Having failed to exercise his right of appeal within the statutory time limit, the onus is on him to explain his reasons for that omission and why the interests of justice require the extension of time within which to appeal.  It is not the function of an appellate court to minutely examine the summing-up in such applications to identify any potential error which, on a full investigation with the benefit of a comprehensive appeal record book, could possibly support an appeal.  To do so would be to give applicants who have failed to comply with the statutory time limit for lodging an appeal and who have no right of appeal more entitlements than those who have exercised their appeal rights within time.  Mr Puti has failed to demonstrate any adequate reason for failing to appeal against his conviction within time and nor has he demonstrated that it is in the interests of justice to grant his application.  I would refuse the application.

16. JERRARD JA:  On 12 August 2004 Mr Puti was convicted after a trial of the offences of rape and stealing.  He was sentenced to eight years imprisonment, and made an application dated 27 January 2005, filed in this Court on 2 February 2005, for an extension of time within which to appeal against his conviction for rape.  The Crown opposes that application on the grounds that he has given no reasonable explanation for the substantial delay in appealing that conviction, and that an assessment of whether his appeal against conviction would be viable, if Mr Puti were granted an extension, shows that it has no apparent prospects of success.  Accordingly, the Crown says it is not in the interests of justice to grant the extension.^[2] 

17. Mr Puti’s grounds for a grant of extension of time appear to blame a lack of correspondence from Legal Aid. He describes having wanted to appeal his sentence and waiting for a reply from Legal Aid, who failed to advise him whether to appeal the sentence or not. He thought he had missed his opportunity to appeal against conviction, but another inmate advised him to apply for leave. He says in his application that he has not been previously imprisoned and was unaware of the workings of the legal system, and in addition, as a Cook Islander he has trouble understanding English. His handwritten arguments reveal he is quite literate. He also said that an earlier trial had resulted in a hung jury and he considered that the Crown had “question marks” over it. He could not plead guilty because he did not commit a crime.

18. Those grounds do not actually establish why Mr Puti delayed between mid- September 2004 and late January 2005 before applying for an extension of time in which to challenge his conviction. Counsel for the Crown is correct in the submission that Mr Puti has not offered a reasonable explanation for his substantial delay.

19. This Court was provided with the learned trial judge’s summing up to the jury and sentencing remarks, which describe the nature of the rape offence, and further information about that can be gleaned from Mr Puti’s document apparently describing his grounds of appeal, and from the written submission of Ms Bain, Counsel for the Crown. Those sources inform that Mr Puti was convicted of an offence of rape committed on or about 19 December 2002, committed after he had entered the apartment of the complainant and had intercourse with her. Mr Puti and the complainant lived in the same building. He had recently moved into a residence there with his wife and children. When interviewed by the police he denied having had intercourse with the complainant, but DNA testing established that spermatozoa in swabs taken from her vagina demonstrated DNA matching his. The trial on the rape charge was apparently conducted on the basis that the intercourse, which the jury would find had occurred, had been with the complainant’s consent.

20. The prosecution case was that she was both intoxicated and tired when he entered her unlocked apartment, and the case put to her in cross-examination, and asserted in his hand written ground of appeal, was that she had invited him into the apartment where intercourse occurred at her suggestion. Afterwards she had lent him $40 which she later said he had stolen from her purse. The $40 was the basis of the stealing count.

Mr Puti’s defence

21. Mr Puti’s counsel was quoted by the learned trial judge in the summing up as having put to the complainant, in one long question, the (at least five) separate suggestions that:

1. although the complainant did not recall it: 

2. Mr Puti had actually knocked on her door and returned a mobile phone to her;

3. she had responded by inviting him to having consensual sex with her;

4. that he had done so; and

5. that the next day as he was leaving or when he was leaving that night she had offered to give him $40.

22. The summing up did not reveal whether counsel was thereafter required by the trial judge to put each of those suggestions as a separate question or not. Counsel was asked to repeat the last part of the long question by the reporter, and had said that “The end of my question was, that as he was leaving, he needed money and you offered to lend him $40”.

23. The learned judge told the jurors when explaining how counsel acted on instructions, that it was a matter for them whether they would infer from that question that instructions had been given by Mr Puti to the effect that there had been consensual sex between Mr Puti and the complainant. That direction makes it possible that counsel was not asked to put the propositions separately. Mr Puti did not give evidence at the trial, and it may be the matter that he now asserts in his grounds of appeal – consensual sexual intercourse at the complainant’s invitation – was not put at his trial, although by inference that was clearly his defence.

What the complainant said

24. The complainant spoke to another neighbour shortly after 4.30 am the next morning and said words to the effect that she thought she had been interfered with. That neighbour described her as appearing “a bit sort of upset, distraught, sort of thing”. The complainant told that neighbour that “I really need to know if he’s done something because I woke up”. At the complainant’s request, that neighbour went and spoke with Mr Puti, and returned and told the complainant that Mr Puti had said “no”, apparently conveying that he had not “interfered with” the complainant. The complainant told that neighbour that she could remember him (apparently Mr Puti) “trying to kiss me”, and that she had been saying “no”, and that she had woken up in bed naked whereas she always went to bed with a nightdress on.

25. That part of the summing up made it clear that the complainant certainly said the next day that she did not know if intercourse had occurred or not, which could certainly imply that any intercourse which did occur was non-consensual. The summing up quoted counsel for the Crown as having submitted that Mr Puti had taken advantage of the complainant’s state of “perhaps tiredness or the combination of tiredness plus the alcohol” the complainant had consumed, to make his way into her apartment using a mobile phone “perhaps as a cover story.” It also quoted the complainant saying to a man whom she identified as Mr Puti the words “No, no, no”; clearly enough conveying non-consent.

What the complainant recalled

26. The summing up, submissions about re-directions, and Mr Puti’s hand written grounds of appeal together reveal that the complainant had made a statement to police on 20 December 2002 which apparently described her not being able to recall who had taken her home the night before, but which statement recorded what the Crown described as the vast majority of the allegations he made at the trial. A second statement given on 13 June 2003 included matters which she described as flashbacks of memory which had come to her after counselling. That counselling had commenced a week or so after 20 December 2002. The summing up described evidence from her that she was conscious that night that there was something happening to her, and who it was with whom it was happening, and of her repeatedly saying “don’t” or “no” and pushing the man; and while the flashbacks had increased her certainty of what had happened they were not the sole explanation for the evidence she gave.

Mr Puti’s grounds of appeal

27. Those grounds place considerable reliance on what the complainant could not recall, and on matters which it was common ground had not happened. The latter included that the complainant had not screamed, had not been otherwise physically assaulted, and that there had been no forced entry into her premises. The positive matters Mr Puti relied on were that his cigarette lighter and some cigarette stubs were left behind by him, and that it was unlikely a man who had committed rape would do that; the rest of his grounds of appeal stress the matters of which the complainant had no recollection.

28. Those included – as described by Mr Puti – that she had no recollection or memory of:

• opening the door to him;
• (allegedly) inviting him in;

• intercourse actually occurring;
• (allegedly) giving him “signals”;
• Mr Puti smoking a cigarette in her bedroom.

Possibly viable grounds of appeal

29. Those points Mr Puti makes were all matters for the jury and would not necessarily raise a reasonable doubt about the Crown case that Mr Puti knowingly had intercourse with a semi-conscious woman. There are still two things revealed in the summing up which may give rise to viable grounds of appeal. The first has already been mentioned, namely whether or not Mr Puti’s case that there was intercourse with cognitive consent was actually put to the jury. Associated with that ground is whether or not arguments were made on his behalf to the jury which misunderstood the law and misrepresented his case. That possibility arises from a submission to the learned judge by counsel for the Crown when discussing possible re-directions, quoting a submission made to the jury by Mr Puti’s barrister and said by the Crown to be in these terms, (and perhaps a slip of the tongue):

“How could she have physically withheld her consent when she was asleep?”

30. The logic of that argument, if made, is that a sleeping woman could not be raped. That is an argument unlikely to appeal to a jury, apart from being wrong in law. In any event, judging from the lengthy question quoted, Mr Puti’s case was that the complainant knowingly consented, rather than that she was asleep. The submission by defence counsel quoted by the Crown put a different and irrelevant, but unhelpful, proposition capable of misleading as to what Mr Puti’s case was. It is quite possible these matters would be resolved against Mr Puti when the trial transcript is examined but they suggest a viable ground of appeal, namely that his defence of consensual intercourse was not put to the complainant or the jury by his counsel, although he had given instructions on it.

31. The other point is whether or not comments by the learned judge about preliminary complaint breached the prohibition, in s 4A of the Criminal Law (Sexual Offences) Act 1978, against a judge suggesting in any way to the jury that the law regards a complainant’s evidence to be more reliable because of the (absence of) length of time before a complainant made a preliminary complaint.

The complainant had made a preliminary complaint as described to the neighbour, and the learned judge directed the jurors that:

“Why it is before you is to allow you to assess [the complainant’s] credibility, her consistency.  It is really perhaps a matter of common sense.  One would expect that if a person has been the victim of some unlawful sexual activity one would make some complaint about it to someone with some reasonable promptitude.”

The judge added soon after:

“In other words, just as you do not have to cry rape as soon as you are penetrated or fight back it can still be non-consensual if you do not and it can still be non-consensual if you don’t make a complaint to someone at the earliest sort of opportunity.  Credibility only is the reason why it is before you…”

32. The learned judge explained in discussion with counsel for the Crown that the judge had endeavoured to avoid the use of the word “recent”, but had still thought it legitimate to comment on the lapse of time and the reasons that are offered as relevant to the question of credibility. It is at least arguable that the judge was in error in the view that those comments were still legitimate; it may be that any error, if one was established, would make absolutely no difference at all in the circumstances of Mr Puti’s case. Nevertheless, it is at least a viable ground of appeal for examination and argument.

33. Accordingly, and despite the paucity of explanation for delay, I consider there are matters warranting a grant of the application for leave to appeal. I recommend that the Registrar (Appeals) provide a copy of this judgment to Legal Aid, with the suggestion that Legal Aid be considered for the possible grounds of appeal specifically mentioned herein. I would order:

• that the application for an extension of time within which to appeal be allowed, and the time extended to 3 February 2005.

34. ATKINSON J:  I agree that the application for an extension of time should be refused and with the reasons of the President for doing so.