SUPREME COURT OF QUEENSLAND

[1]  McPHERSON JA: In 2003, the complainant S and C, both about 20 years of age, shared a residence at Surfers Paradise. Their friend L came to stay with them on the night of 7th May 2003.  At about 10 pm the three of them went to a night club in central Surfers, travelling in S’s red Lancer sedan which she parked in Orchid Avenue. At the club they danced, talked and drank. C had to go to work the next day, so she left at some time between midnight and 1.00 am.

[2]  S and L moved on to The Drink Nightclub across the road. S was interested in a young man named DA with whom she was dancing. L was dancing with another young man named DB. At some stage, S approached the appellant, who was also there, and asked if he knew where L had gone. He was sitting down, and when S bent down to ask him this he kissed her on the mouth. She pushed him away; but, as luck would have it, DA returned at that moment bringing a drink. He was angry and left the nightclub after throwing his drink over them. Despite her efforts to explain and persuade him to stay on, DA called a taxi and departed. The appellant followed them outside, and, when she sat down and began crying, he sat beside her telling her she was beautiful and that she did not need DA.

[3]  S located L and said they were going home. They began walking to the car in Elkhorn Avenue, with DB walking with L. The appellant came with them and he tried to kiss S again. She pushed him off and told him in no uncertain terms to stop it. When she arrived at her car, she unlocked and opened the driver’s side door. Suddenly she was pushed “really hard” in the upper back. She fell forward with her knees on the driver’s seat and her head and arms on the passenger’s seat. Then she felt someone crawling over the top of her. He sat down in the passenger’s seat. It was the appellant.

[4]  The vehicle did not have a central locking system. S turned and tried to get out of the driver’s side door, but he held her tightly by the left arm so that she could not move and reached over and closed and locked the driver’s door from the inside. This formed the subject of count 1 against the appellant of confining S in a motor vehicle against her will. The appellant then grabbed her legs and set about pulling her jeans and panties off. In the course of being pulled down she hit her head on the door with a bump. She was hitting the appellant about the head trying to stop him, but he pulled her jeans and underclothing off, spread her legs, and put his head down and inserted his tongue into her vagina (count 2: rape). She remonstrated with him saying that she had an infection, but he responded by saying this was just an excuse. The appellant put a finger into her vagina and then two fingers (count 3: rape). She was struggling to get away but he was holding her down under him. Then she succeeded in unlocking and opening the door and rolled herself out of the car.

[5]  She saw a taxi moving off and ran after it shouting, but it did not stop. As she ran, she was “kind of hopping and running at the same time and pulling my pants up”, so that for a time she did not have any pants on.  She called out to L and DB who were sitting some little distance away. After she had passed them, she heard L scream and turned back. L was on the ground, with the appellant and DB standing over her. She ran back and started to hit them. They told her to settle down and the appellant hit her on the left side of her face. This was the subject of the charge in count 4 against the appellant of common assault. She grabbed L and they started to run towards the beach. Eventually the two men stopped following them and she and L returned to her car. She found the keys on the driver’s side seat and used them to start the car and drive off. Their location there supports her claim that she was getting into the car when she was struck in the back.

[6]  On the way home they stopped at another night club and tried to get help there; but it was closed. When they arrived home they found C outside, where she had been sitting all night because the house keys did not work. On arrival, L was screaming and crying, saying that she had been hit and had fallen down on the ground “and … S nearly got raped”. S confirmed to C that this was true and told her “bits and pieces” of what had happened. S, said C, was just sitting in the car crying. They took L back to her mother’s place. C then rang S’s mother but she could not help as she was taking children to school at that time. So C telephoned a family friend named JL, and S told her what had happened. She then took C to work, and on the way back she stopped at the boat ramp and fell asleep in the car. She was wakened by two policemen knocking on the car window. They asked what she was doing there. She did not complain to them about what had happened to her because, she said, they were men and she wanted to speak to a woman.  She drove home and waited for the locksmith to come to open the door.

[7]  Later, she and C went to Surfers Paradise police station to lodge a formal complaint; but the receptionist said there was no one available at the time, and to come back later. The following morning C persuaded S to come to work with her “to get your mind off things for the day”. That evening they went to the Southport Police Station, where S was shown in to a policewoman who took her complaint. She was then referred to Dr Elizabeth Culliford, Government Medial Officer, who examined her physically.

[8]  The jury found the appellant guilty of each of the counts in the indictment except for count 4 (common assault). The notice of appeal against conviction contains two grounds. The first is that the verdict was unsafe and unsatisfactory; the second that it was an inconsistent verdict. This is a reference to the verdicts of guilty on counts 1 to 3 but not guilty on count 4, which is at odds with the other verdicts. It is possible, however, to explain the difference on the basis that in the case of count 4 there was nothing but the unsubstantiated word of the complainant to support this charge. Dr Culliford found tenderness but no objectively discernible marks or other obvious signs that the complainant had been struck on the left side of the face as she claimed. The present case therefore falls within the terms of the fourth of the propositions stated by Gaudron, Gummow and Kirby JJ in MacKenzie v The Queen (1996) 190 CLR 348, 367:

“.. if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.”

Here there was, I consider, evidence independent of the complaint tending to support the guilty verdicts on counts 1, 2 and 3, but not necessarily anything comparable on count 4. There is nothing here to show that a miscarriage of justice would ensue if the first three verdicts were left to stand with the verdict of acquittal on the lesser, and factually separate, charge in count 4 of common assault.

[9]  The jury must necessarily have accepted S’s evidence in essential respects about what happened in the car; otherwise they could not have returned guilty verdicts on the three charges in counts 1 to 3. My impression is that they looked elsewhere for some confirmation of S’s testimony in relation to the first three counts, and found it in the evidence of Dr Culliford. She is a medical practitioner of considerable experience in examining victims of sexual assaults. When she examined S on the evening of 9 May 2003, she found (1) a deep 2 cm scratch on the left inner labium; (2) inflammation of the entrance to the vagina; (3) an abrasion at the posterior fourchette; and (4) a 1 cm bruise on the posterior medial thigh on the left. Elsewhere on the complainant’s body she found a bruise on the right shoulder; a tender lump with some early bruising on the right upper arm; a 5 x 4 cm tender lump with early bruising just below the right elbow, and a small 1 cm tender bruise on the mid forearm of the right arm. On the left arm there were five or so ovoid bruises clustered over about 10 cms on the medial part of the left arm just below the armpit. There were also tender areas on her mid-front chest and underneath the left rib. There was a tender area over the back scalp consistent with banging her head, a large 10 x 15 cm bruise to her left buttock, and a 12 x 3 cm bruise on her left lateral thigh.

[10]  The jury may have thought that these injuries went beyond the ordinary concomitants of sexual encounters between consenting parties. Of the five or so clustered bruises over the inner left arm, Dr Culliford said they were classical types of blunt force injury caused by finger tips grabbing the arm firmly. The jury may well have considered that these marks tended to support the complainant’s evidence that she was held very tightly by the arm. According to Dr Culliford, the large 10 x 15 cm bruise on the complainant’s buttocks could have been caused by her coming up hard against the handbrake. It is not a position one would readily choose even in the heat of passion. The abrasion on the left lip of the vagina was, she said, a common injury caused by “fingering” the vagina, and the pressure of forceful fingering could also have caused the abrasion at the posterior fourchette. It is consistent with the complainant’s evidence that he used his fingers in her vagina to hold her down. It was put to Dr Culliford that she had assessed the bruising as under 18 or 24 hours old because there was no yellowing at the time of her examination. Much was sought to be made of this by the appellant in his submissions on appeal, in which he seemed to be suggesting that the complainant might have sustained these bruises in some way after the encounter with him on the morning of 8 May; but Dr Culliford explained her evidence by saying that absence of yellowing of bruises meant the injuries were likely to be less than 18 or 24 hours old but were certainly unlikely to be more than two days old. The jury may very well have concluded that it was most improbable that the complainant had sustained two such assaults by different people on successive days. There was no evidence that she had done so, and any hypothesis to that effect, which was not suggested in cross-examination, is entirely speculative.

[11]  Dr Culliford’s evidence about her physical examination of the complainant, and what she noticed in the course of it, was relevant to the only issue in the case, which was whether the first three counts had taken place with the consent of the complainant. The appellant himself was interviewed by the police on 11th May 2003, which was three days after the alleged offence and the day after her complaint was recorded by police. He said that on the night or morning in question he had walked back with S to her car. He was “not really clear” about who had hopped into the car first, but he was sitting in the passenger seat with S in the driver’s seat. There was some heavy petting “that was done by myself” - oral sex and using his finger. He had inserted only one finger into her vagina, when for some reason she just “freaked … and jumped out of the car and ran off”. Later, when asked about it, he said he had got into the car on the passenger’s side, adding “I can’t really answer that”. Later still, he agreed he jumped into the passenger side, but he could not say how the passenger side door had been unlocked for him to do so. He denied he had pushed the complainant into the car on the driver’s side, or that she had told him to stop what he was doing. He agreed he had pulled off her jeans, and he recollected there being a zip. He claimed that at one stage L had come round to the car when they were in it, opened the passenger door, and spoken to S. At that time, he said, he was engaged in oral sex, which he stopped when L opened the door. He had been drinking and had had about 10 bourbons during the night.

[12]  There was, when closely analysed, not a great deal separating the two accounts except for the critical matter of consent. The jury may well have been satisfied that, having regard to the medical evidence of S’s injuries, the acts of locking her in the car, holding her down, pulling her jeans off and sexually penetrating her had taken place without her consent. The appellant did not give evidence at the trial, so that there was no sworn testimony to contradict what she said. After the incident, she had manifested distress and she complained soon afterwards not once, but on several different occasions to various people. It was not her fault that the Surfers Paradise police station was too busy to receive her complaint on the evening of 8 May. Judging by the transcript the complainant gave her evidence in a confident and convincing manner, and she was not shaken by a lengthy and competently conducted cross-examination.

[13]  The appellant’s written outline on appeal argues that the complainant’s version of events is “an invention or fantasy”, falsely and deliberately concocted and based on an “untested” version of events at odds with other evidence. This is no more than generalised vituperation; but it approaches more closely to particularity in four respects in which the appellant seeks leave to adduce further evidence on appeal. The first item concerns the internal dimension of the Lancer sedan. The appellant suggests that the complainant’s version of his entry to the passenger seat and what he did to her there was “implausible acrobatics”. To this end, he tendered (ex C to affidavit of Mr J) material obtained from Mitsubishi Motors showing the exterior dimensions including the height of Lancer models from 1989 to 2004  There is nothing to suggest that this evidence was not readily obtainable in that form and from the same source at the time when the trial took place. The new material does not show that it would have been impossible for the assault to have taken place in the manner suggested by the complainant, however cramped it might have been inside the car. Indeed, it would have been cramped whether or not the sexual activity took place with her consent.

[14]  Then there is ex A to the affidavit of Mr J. It is an undated handwritten letter or note from a Mr JS, a doorman at The Drink Night Club. In it he says that on 8 May 2003 at about 4.30 am he saw “this girl with Uppy being very friendly to him” and holding hands as they left the night club. It may be assumed that Uppy is the appellant HX, but “this girl” is not identified; the statement is not sworn to, and we know nothing about the date or the circumstances in which it was given. Along the top it bears a fax receipt, with the name of Mr J, dated 24.9.2004 which was the day on which the trial began in the District Court at Brisbane. What is more, Mr J, who has been helping the appellant with this appeal, deposes that he obtained a copy of the file from solicitors at Southport who were acting for the appellant at the trial. There is therefore no reason to doubt that the appellant’s legal advisers had Mr JS’s handwritten note during the trial, but had decided not to call him as a witness. What he recounted in the note was at best, only indirectly relevant to the question whether the appellant’s sexual penetration of the complainant took place without her consent.

[15]  The third item of evidence which it is sought to adduce on appeal is an unsworn statement from LG of Melbourne. She used to live on the Gold Coast and had known L for many years.  She had at first been unable to locate her but succeeded in doing so in June or July 2003. L told her that she was  trying to avoid contact with S. One reason was that S had been “hassling” her about her statement to the police over the rape charges against the appellant, but L was reluctant to help as she did not think that what S was saying was true. More importantly, she did not want to ruin her relations with her boyfriend R by having to admit what had happened between her and DB at The Drink Nightclub. There is some indication in the cross-examination of S that defence counsel at the trial was armed with this statement from LG. Its content was necessarily hearsay and it was collateral to the real issue in the case. L said in evidence and in cross-examination that she “didn’t remember about the night” - only “bits” of it. She did say that she walked up to where S’s car was and did so in time to see her jump out and run across the street. She was not asked and did not say that, as the appellant claimed, she opened the passenger door and spoke to her in the car. S, she said, was running down the street, but L could not recall whether she was dressed or not. It was put to her in cross‑examination that S had telephoned her some three weeks after the incident, but she said nothing about being pressured to give evidence that was untrue. That would have been the time to cross-examine her about her conversation with LG; but counsel for the defendant, wisely it may be thought in view of L's professed poor memory of the occasion, refrained from doing so. LG’s statement, if it had been adduced at the trial, would if admissible only have gone to S’s credit and not to the critical issue of consent. Only L might perhaps have been asked about it, and she was not requested to recount the detail of her conversation with LG if indeed it happened in the form now put forward.

[16]  The final or fourth item of evidence it was sought to adduce on appeal was astronomical information about the time of sunrise. In May 2003 sunrise would have been at about 6.18 am and civil twilight at 5.53. C said that S and L arrived home at about 5.45 am on 8 May. On the figures given, it would just have been getting light at that time. This was claimed by the appellant to conflict with the complainant’s evidence that they had left The Drink Nightclub at 4.30 am and that it was getting light then or at any rate by the time she ran back to the car after the incident. She was plainly uncertain about the time and in cross‑examination agreed with the suggestion that when she left The Drink Nightclub it was after five. It is in any event difficult to see why the exact time matters very much.  The appellant admitted in the police interview that in the car in Orchid Avenue he had penetrated the complainant both orally and digitally. Whatever the precise time at which it happened, that element of counts 2 and 3 was proved by his own statement. Perhaps it was slightly less likely that the appellant would have done these things at a later time without her consent for fear of being seen by others; but the complainant’s efforts to solicit assistance from others at that early hour were, in any event, noticeably unavailing. If it was in fact later than she thought, no one came to her aid when she ran away from the car screaming. By contrast, the appellant’s version was that the incident in the car came to an end when a street sweeper came past the vehicle.

[17]  The fundamental problem with all four of these items of “new” evidence was that, even if presented now in admissible form, it was available to the appellant at the time of his trial; and, if it was not, it gives rise to no significant possibility or anything approaching a likelihood that, if it had been laid before the jury at the trial, they would have entertained a reasonable doubt about the appellant’s guilt. See Mickelberg v The Queen (1989) 167 CLR 259, 273, 301-302; R v Main [1999] QCA 148, where these criteria for admission of new evidence on appeal were considered and applied. It leaves no impression that the outcome might have been different if the jury had been provided with this additional material at the trial. In consequence, I would not admit it on this appeal.

[18]  The remaining challenges to the integrity of the verdicts rendered at the trial consisted of complaints that could and should have been, and possibly in some respects were in fact, made the subject of comment in the addresses to the jury at the trial. It is suggested, for example, that no evidence was adduced at the trial to prove that the locking mechanism of the car door was working properly; and that no evidence was tendered to prove “beyond reasonable doubt” that the appellant closed and locked the door and confined her in the car against her will; that there was no evidence to support the complainant's allegation that the appellant pushed really hard with his fingers down inside her vagina; that the complainant’s jeans were not put in evidence and were not available to be tested; that the zipper on the jeans was not tested by police; that, according to Dr Culliford, there was no complaint to her about any internal bruising or discomfort to the vagina, and she conducted no internal exmaination of the complainant; that the complainant said she was not working at the time, whereas her mother evidently thought she was; that the police officers who saw her asleep in the car at the boat ramp described her clothing differently from what the complainant said it was; that the complainant said she found her keys on the driver’s seat when she returned to the car, but never said she took them out of the car door after she had opened it and before she was pushed; and that there was no sign of injury to her consistent with her having sat on the keys during the course of the encounter complained of.

[19]  None of these were or are matters that can be used on appeal to challenge the integrity of the verdicts. The prosecution succeeded in proving its case in relation to the first three counts to the satisfaction of the jury beyond reasonable doubt. It did so primarily on the evidence of the complainant herself, supported as it was by Dr Culliford’s physical examination of the complainant conducted less than 48 hours after the event, and by adducing evidence of the consistency of the complainant’s conduct immediately afterwards. The critical issue for the jury was whether the appellant’s acts in the car took place, as he claimed in his interview with the police, with her consent or, as the Crown succeeded in showing, without it. It hardly lies with one who elected not to give evidence about the essential matter in issue as to which he was the only other eye witness to be minutely critical after the trial about verdicts reached by the jury on evidence which he had done nothing himself to gainsay or contradict. In my opinion, there is no substance in any of these essentially peripheral criticisms that would justify this Court in setting aside the verdicts or forming the conclusion that there has been a miscarriage of justice in this case.

[20]  As to sentence, the penalty of imprisonment for one year on count 1 and three years on counts 2 and 3, to be served concurrently, is well within the range of sentence appropriate for those offences and the circumstances and manner in which they were committed. The appellant was 27 years old at trial and has no previous convictions of any kind. He was described as a family man and he has, it seems, been regularly employed as a security guard at a night club. The result for him is tragic, and one is inclined to ascribe his behaviour on this occasion to the intake of an excessive amount of alcohol on the night in question. For the complainant the experience was brutal and terrifying and has left her with a changed outlook on life and on socialising with others, whereas formerly she had been an outgoing person. As the learned trial judge said in the course of sentencing, the appellant seemed determined not to heed the messages she was plainly sending to him that his attentions were not welcome. The effective sentences of three years for two rapes in counts 2 and 3 are within the appropriate range for these offences, as illustrated by R v Filewood [2004] QCA 207 and R v Millar [1998] QCA 276.

[21]  I would dismiss both the appeal against conviction and the application for leave to appeal against sentence.

[22]  FRYBERG J: I agree with the orders proposed by McPherson JA and with his Honour’s reasons for those orders.

[23]  HOLMES J: I agree with the reasons of McPherson JA and with the orders he proposes.