SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  I agree with Jerrard JA's reasons for ordering that the appeal against conviction be dismissed: despite the misdirections given by the primary judge, no substantial miscarriage of justice has actually occurred.

[2] I turn now to the application for leave to appeal against sentence.  The facts of the applicant's offending have been set out by Jerrard JA so that I need make only brief reference to them in explaining my reasons for granting the application and allowing the appeal against sentence.

[3] The applicant, now 35 years old, is a mature man with a concerning prior criminal history which includes like offences.  Despite that criminal history, the sentence imposed on him for the present offence must not be disproportionate to the criminality of his conduct constituted by the present offence: Veen v The Queen [No 2].[1]  The applicant's sexual assault on the complainant consisted of a touching of the left breast with threats first to have vaginal and later anal intercourse whilst he tried to pull down the complainant's shorts.  The complainant suffered some bruising to her arms and back in the assault.  The particularly serious aspect of the offence here was not so much its physical aspect but that the applicant committed that assault with an intention to rape.  The maximum penalty for the offence was 14 years imprisonment.

[4] Fortunately the complainant did not suffer serious physical injuries.  Her victim impact statement suggests she is attempting to courageously get on with her life but whether she will suffer long-term adverse emotional effects from the offence cannot presently be accurately predicted.

[5] Although the applicant did not admit his guilt to the offence, he was co-operative with the police in immediately desisting his attack upon their arrival at the scene and by accompanying them to the police station.  He challenged the prosecution case and the complainant's evidence on very limited bases.

[6] In all these circumstances the offence, though terrifying for the complainant, did not warrant a sentence of eight years imprisonment, despite the applicant's concerning previous criminal history.  I agree with Jerrard JA that the sentence imposed was manifestly excessive and that a sentence of six years imprisonment should be substituted.

[7] I would dismiss the appeal against conviction.  I would grant the application for leave to appeal against sentence, allow the appeal and instead of the sentence of eight years imprisonment substitute a sentence of six years imprisonment.  I would otherwise confirm the sentence imposed at first instance.

[8]  JERRARD JA:  On 28 October 2005 Mr Armstrong was convicted by a jury of assault with intent to rape, and on 31 October 2005 was sentenced to eight years imprisonment for that offence.  Two hundred and twenty-nine days of pre-sentence custody was declared time already served under the sentence.  Mr Armstrong has appealed his conviction and applied for leave to appeal the sentence.

Grounds of appeal

[9] The grounds of appeal pursued on the hearing, substituted by leave, were that the learned sentencing judge had erred in the directions given to the jury on intoxication (ground 1); erred in the directions as to the use that the jury could make of Mr Armstrong’s own evidence (ground 2); and erred in directing the jury regarding the inferences to be drawn from the evidence, in that the judge did not refer the jury to all of the relevant evidence regarding an issue under consideration, namely whether Mr Armstrong had attempted to pull down the pants of the complainant female (ground 3).  The grounds of appeal against the sentence are that it was manifestly excessive, that the learned judge had relied too much on deterrence in determining the head sentence, placed too great an emphasis on Mr Armstrong’s criminal history in deciding the sentence, and disregarded other authoritative decisions which indicated that the appropriate head sentence was lower than that sought by the Crown.  The applicant particularly referred to R v Mills [2002] QCA 264 and R v H [2003] QCA 478.

The evidence

[10]  The events on which the conviction was based were as follows.  The complainant H suffered an asthma attack in her home on the night of 16 March 2005, and travelled by ambulance to a nearby provincial city hospital.  She received treatment, but was not admitted, and made arrangements to be collected by a friend at a nearby bridge.  She began walking towards the bridge and on her journey noticed the applicant, who had a pushbike.  She saw that Mr Armstrong was carrying cans that appeared to be cans of rum and coke, and she could hear him talking, apparently to himself. 

[11]  She noticed he was following her, but H had insufficient funds for a taxi to her home, and was obliged to continue walking towards the bridge (her friend had insufficient fuel to drive all the way to the hospital and back).  Mr Armstrong passed her on the bike, and she felt very frightened.  He went into a side street, she kept walking in the middle of the road, and she saw him again when near a park.  He was moving in a dark area of it and, walking fast, H dialled 000 on her mobile phone.  Mr Armstrong was then keeping approximately parallel to her, following her progress, and while she was talking on the phone he came up behind her and seized her.

[12]  He pushed her to the ground, not on the road surface but in the park, and sat on her.  The operator who answered her call for help subjected her to a somewhat hostile cross-examination as to her reason for being out and alone, but fortunately for H made contact with the Queensland Police Service station in that provincial city.  Prompt action in response by Queensland Police Sergeant Steven Szendrey and Senior Constable Carew, and their careful search of the park, resulted in those officers finding Mr Armstrong seated astride H, who was being held flat on the ground on a grassed area near a tree.  Mr Armstrong was sitting on her hips; H weighs 55 kilograms and Mr Armstrong was about 90 kilograms. 

[13]  As it happened the mobile phone had been left on throughout the entire period of the actual attack by Mr Armstrong on H, and some of what was said between them was recorded.  So too was H’s increasing level of desperation in her pleas for help to the operator, to whom she said she could now see the man, in turn progressively described as getting closer; the recording then captured her many desperate pleas to Mr Armstrong to “please go away”, and the many occasions when she begged him to let her go home and see her daughter first.

[14]  Ms H’s evidence included that Mr Armstrong had told her he was going to “fuck me”, said more than once, that he had touched her breasts, and had tried to pull her pants down.  He did that by pulling on the legs of the shorts she was wearing.  She told him she had her period, to which she recalled him responding by saying “[h]e was going to fuck me up the arse”.[2]  The tape recording of the mobile phone does record Mr Armstrong advising H that “[y]ou’re going to cop it up the bum”[3], and while the tape did not record the earlier statement H said he made to her in which he announced he would have sexual intercourse, Mr Armstrong, who gave evidence, agreed in cross-examination that he may have said to H that “I want to fuck you”[4].  He did not deny that she had made clear she did not want to have intercourse with him.

Mr Armstrong’s defence

[15]  The tape recording also records Mr Armstrong saying a little later that “[n]o, I’m not  going to let you – I’m not going to rape you, darl”[5], apparently said just as the police were arriving at the actual scene.  Mr Armstrong’s defence to the charge of assault with intent to commit rape, as explained in his evidence, was that he had intended to grab H and hold her down without hurting her until the police got there; he contended he knew that she had called the police.  He swore that he did not want to hurt H, and that he simply wanted to be taken into custody, because he felt he was out of control.  He explained in evidence in chief that in the past he had been sentenced to a term of imprisonment for a sexual offence, and had done the “12 month sexual offenders treatment program.”[6]  He had felt that night he was in what, on that course, had been identified as a “high risk situation”, namely his being out there alone with a person who could be a possible victim of his (future) actions.  He also said he had consumed about nine drinks, and about five joints of marijuana, over the course of day, and had been depressed.  He had felt his fiancée and new born child were better off without him, and accordingly he was just walking out of town when he saw H.  He denied having purposely followed her, and specifically denied having attempted at any time to pull down her shorts, and the suggestion that he had grabbed her by the breast.

[16]  Consistent with those denials, Mr Armstrong’s counsel put to Ms H in cross-examination that Mr Armstrong did not grab her breasts, and there was the following passage in cross-examination:

“Okay.  Now, you said that he tried to – to pull your – your pants down? -- Yes.

How could he could do that if he was sitting on top of you? --  His hands.

Yes, but see, with all his weight on top of you he’d have to have lifted up the T-shirt, wouldn’t he? -- No, ’cause – the legs were showing still. 

Now, if he’s got his whole weight on top of you and we can see from the bottom of the T-shirt that it’s all wet there, could it be that you might be mistaken about him trying to take your pants down? -- I don’t know.”[7]

[17]  A little later the following was recorded:

“All right.  See, what I’m going to suggest to you is that my client did not grab you on the breast.  Do you agree with that or not? -- He did. 

And I’m suggesting to you he didn’t try to pull your pants down.  Do you agree with that or not? --  I don’t know.”[8]

Ground 3

[18]  That passage in cross-examination was the basis of ground 3 of the appeal.  The learned judge had directed the jury as follows:

“Now, there is other evidence which you can use combined with that evidence on the question of whether he intended to rape.  There is the evidence of the complainant as to what he actually did to her.  She said that he was trying to pull her pants down, he said he was not, but she said he was trying to pull her pants down.  Now, if you accept that he was trying to pull her pants down in the circumstances described by the complainant combined with a statement, ‘I’m going to fuck you’, or, ‘You’re going to cop it up the bum’, the action by the accused in trying to pull her pants down would be consistent with the statements made by him, but at the end of the day it is a matter for you.” [9]

[19]  A redirection was sought, in which counsel for Mr Armstrong asked that the jury be directed that if they were to find they did not accept that Mr Armstrong was trying to pull H’s pants down, then that would be direct evidence that it was not his intention to rape her.[10]  The learned judge then redirected the jury in the following terms:

“Now, I also mentioned to you, ladies and gentlemen, that if you are satisfied that he said to her, ‘I’m going to fuck you’, and that you accept the complainant that he was at that time, or about that time, or around about that time, trying to pull her pants down, [then] that action in trying to pull her pants down would be consistent with the statement.  Likewise, it would also be inconsistent with the statement that he was not trying to pull her pants down and you found that he was sitting on her in such a way that he was not able to pull her pants down. Miss [H] said he was, notwithstanding where he was sitting, trying to pull her pants down.”[11]

[20]  The complaint made on this appeal is that the learned judge in that re-direction did not bring to the jury’s attention in a clear way that H had replied twice “I don’t know”, when it was put that she was mistaken about Mr Armstrong having attempted to remove her pants.  It is true she said that in cross-examination, but it appeared to me that that was because the first, longer, question in which that proposition was put to her contained the rather confusing propositions as well that because Mr Armstrong’s entire weight was on H, and her T-shirt was wet, she could be mistaken about what he was doing.  The jurors would have been entitled to regard the “I don’t know” as really being no more than that H did not understand or accept the asserted logic of the question.  It was also open to the jury to consider the second “I don’t know” response as a continuing uncertainty as to quite what the questioner had earlier been putting, rather than uncertainty as to whether Mr Armstrong had attempted to remove her pants. 

[21]  In any event, the re-direction picked up the central fact that was asserted, in the question put to H the first time the cross-examiner suggested she might be mistaken about an attempt to remove her pants.  That fact was that if Mr Armstrong’s entire weight was on H, he would not have been able to remove her pants.  It was up to the jurors whether they were in doubt about whether Mr Armstrong had attempted to do as Ms H described.  Referring the jurors to the specific evidence, as the appellant’s counsel on the appeal argues the learned judge should have done, would also have involved referring them to the following questions and answers, which came in between the two “I don’t know” answers.  The intervening passage read:

“You don’t know.  Now, I accept that when you first spoke to the police you said this, all right, but what I’m asking you ----

His Honour:  Well, she also said it in this Court.

Mr Collins:  And said it in this Court.  Thank you, your Honour. And you’ve said it in this Court.  What I’m really asking you here, now, is because of your distress, because of, you know, you were hysterical, and I don’t mean that in a – in an insulting way, because of your fear, this might be a mistake? --  No.”[12]

In the circumstances the learned trial judge did not misdirect the jury as urged in ground 3.

Ground 1 – Intoxication

[22]  Ground 1 complains of error in the directions as to intoxication.  In the course of the directions, and after telling the jury that the issue for them was whether at the time Mr Armstrong assaulted H he intended to rape her, the learned judge reminded the jury of Mr Armstrong’s evidence of his consumption of alcohol and cannabis, which Mr Armstrong had said affected his memory of events.  The learned judge then reminded the jurors of evidence by Sergeant Szendrey to the effect that that officer could smell alcohol on Mr Armstrong, and considered Mr Armstrong’s speech was affected, and that there was “no question he had had some alcohol on board; to what extent I’m not sure”;[13] and the further evidence from Sergeant Szendrey that in a conversation held in the back of the police car when travelling to the police station, Mr Armstrong had answered the Sergeant’s questions in a logical fashion.  The judge also reminded the jurors of evidence by Senior Constable Carew that he had mainly noticed the indicia of alcohol but had not smelt the presence of cannabis, which that officer considered had a pungent, strong smell.

[23]  The learned judge then directed the jurors that when an intention to cause a specific result is an element of an offence, intoxication, whether complete or partial and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention in fact existed. The judge was quoting directly from s 28(3) of the Criminal Code 1899 (Qld). 

[24]  The judge then directed the jurors:

“So, you can have regard to the combination of alcohol and drugs here to determine whether an intention to rape existed on the part of the accused at the time he unlawfully assaulted [H].  The accused in fact says he was capable of and did in fact form an intention but that intention was to hold her down until the police arrived.  He said he did not intend to rape her. 

Now, it is a matter for you, ladies and gentlemen, but depending upon the type and quantity, alcohol combined with drugs can clearly be relevant to perception, recollection, memory, recall, response, reaction, understanding, recognition, capacity, appreciation, behaviour, times, observations, thinking, thought process, attitude, mental acuity, temper, control, aggression, mood, intention; all of those matters, and it is a relevant consideration to consider but you should consider all of the evidence given by the witnesses in relation to it.”[14]

[25]  The learned judge returned to that issue with the following direction:

“Well, as to whether he was or was not under the influence of a combination of alcohol and marijuana, you have his evidence that he was; you have the police evidence that he was not.  The matter for you is what evidence you accept or prefer.”[15]

[26]  The complaint about those directions is that it was insufficient to instruct the jurors that it was a matter of simply accepting what evidence to accept or prefer, and that that judge should also have instructed the jurors that if the evidence of intoxication left them in some doubt about the necessary intent, then their duty was to acquit.  On the appeal counsel particularly referred to the following statement by Gibbs J in Viro v The Queen[16]:

“In a case where there is evidence fit to be considered by a jury that the accused was intoxicated as a result of the consumption of drink or drugs, it is not enough to tell the jury that the Crown must prove beyond reasonable doubt that the accused had in fact formed the requisite special intent.  They should also be told that the fact that the accused was intoxicated, whether by drink or drugs or by a combination of both, may be regarded for the purpose of ascertaining whether the special intent in fact existed.  It should be explained that evidence that the accused was intoxicated will not in itself entitle him to an acquittal, because a person when intoxicated may form the necessary intent, and one who has formed the intent does not escape responsibility because his intoxication has diminished his power to resist the temptation to carry it out.  However, the jury should be told that if, because of the evidence as to the effect of the intoxication or otherwise, they are not satisfied that the accused did in fact have the necessary intent, they must acquit of the crime which involves that intent.” (Italics mine).

[27]  Mr Armstrong’s counsel submit that the jurors were not directed in accordance with the italicised words, and that that was a necessary direction, particularly on the facts of this matter.  But it is important to understand that, consistent with that statement by Gibbs J, the directions to the jury did place directly before them as the issue for their decision whether Mr Armstrong did intend to rape H.  Those directions referred to both the possible effect of the asserted possible intoxication and to the rest of the evidence, including the words and actions of Mr Armstrong, both admitted and denied.  The jury was told in the plainest terms, and often, that the issue was whether the prosecution had proved the intention to rape, and were properly reminded of the evidence about that; which did include, as the learned judge directed, that Mr Armstrong said he had an intention, which was to hold H down until the police arrived and arrested him.  The directions the judge gave on intoxication referred the jurors to the relevant evidence, and were in the context of directions as to proof of the specific intent alleged.  I do not consider any error was shown.

Ground 2 – Intent

[28]  That leads to ground 2, complaining of the directions given as to the use the jurors could make of Mr Armstrong’s evidence about his intent.  There was more than one misdirection within those directions. 

[29]  The learned judge gave many correct directions, properly putting the matter before the jury.  Regrettably, he began with one of the misdirections, by telling the jurors that:

“What is in issue in this case more than anything else is the credit of the accused, because the issue for you to consider in this case is whether the Crown have satisfied you beyond reasonable doubt that he intended to rape [H] at the time he assaulted her.  He says he did not.  His case is that if that was his intention he would have done it.”[17] 

As Mr Armstrong’s counsel submitted on the appeal, the issue was not Mr Armstrong’s credit; the learned judge erred in saying it was.  However, the learned judge immediately corrected the mistake, by explaining that the issue was whether the prosecution had satisfied the jurors beyond reasonable doubt of the existence of the intent to rape.  The summing up then continued with appropriate directions, including that it was a question of what Mr Armstrong’s mental state was at the time, and that if the jurors accepted what Mr Armstrong said about not having an intention to rape, then they would find him not guilty; if they had a doubt about his intention, they would find him not guilty.  Again regrettably, the directions then returned briefly to ones about Mr Armstrong’s credit, and whether his evidence was supported by any other evidence, or contained inconsistencies “or mistakes in the evidence compared with what he may have said on other occasions” and “[t]hings like that”, relevant to credibility; as the appellant’s counsel submitted on the appeal, those misdirections tended to elevate Mr Armstrong’s credit to the same plateau as proof of intent, when only the latter was the issue and not the former.

[30]  The learned judge then gave correct directions, including that:

“The issue for you to consider in this case is whether the Crown have satisfied you beyond reasonable doubt after a consideration of all of the evidence that the accused at the time he assaulted [H] intended to rape her.”[18]

The jurors were directed that the Crown was required to prove guilt beyond reasonable doubt, that if they had a doubt whether Mr Armstrong intended to rape H when he assaulted her, he was to be acquitted, and correctly directed that:

“You put his evidence with the other evidence and consider all of the evidence and ask yourselves, after a consideration of all of the evidence, are we satisfied beyond reasonable doubt that he is guilty of the offence charged, or are we not.  If, after you have considered the whole of the evidence, you are satisfied beyond reasonable doubt that the accused is guilty then it is your duty to say so and bring in a verdict of guilty.  On the other hand, if you are not satisfied beyond reasonable doubt that he is guilty then it is equally your duty to say so and bring in a verdict of not guilty.  If you are left in the middle, if you are unsure or uncertain or in doubt as to what his intention was at the time he assaulted [H], you would give him the benefit of that uncertainty, that unsureness, that doubt, and find him not guilty of the charge of assault with intent to rape.”[19]

[31]  In later directions the judge reminded the jurors of the direct evidence of Mr Armstrong’s intention, in the statements recorded by him via the mobile phone including “You’re going to cop it up the bum”, and the statement admitted to have been made, “I am going to fuck you”.  The judge alerted the jury to Ms H’s evidence that Mr Armstrong had said more than once he was going to “fuck me”, was touching her breasts, and that she had felt him trying to pull her pants down.

[32]  Then came the second (or third) misdirection, in the following passage:

“There is also generally the evidence of the accused, depending on how you approach that, which, if you disbelieve the evidence given by the accused, that can be a matter which you can take into account in considering whether he, in fact, had an intention to rape.”[20] (Italics mine)

That misdirection was immediately followed by the following correct direction:

“Now, I will just summarise to you what the accused said in his evidence.  He said that he was aware that she was on the phone to the police because he saw her make the phone call and he could hear bits and pieces of what she was saying.  Now, it is a matter for you as to whether you accept those statements by him or not.  If they cause you to have a doubt about matters you should give the benefit of the doubt to him, and that applies to all of his evidence.”[21]

[33]  Complaint is also made about the following passage, although I do not consider it contains a misdirection.

“That is his evidence, ladies and gentlemen.  It is a matter for you to compare it with the other evidence including in particular the evidence of Ms [H], and the police officers and ask yourselves can we be satisfied beyond reasonable doubt that at the time he unlawfully assaulted Ms [H] he intended to rape her, either vaginally or anally.”[22]

[34]  The effect of the passages identified herein as misdirections are that they treat Mr Armstrong’s credit as a matter in issue, and misdirect the jury that disbelief of Mr Armstrong’s evidence was itself a matter to consider when deciding if he had an intention to rape.  It would have been preferable had the learned judge studied the draft direction suggestion in the Queensland Supreme and District Courts Benchbook at direction 27, from which the judge may have derived assistance.  That draft direction, frequently given, suggests that the jurors be told:

“But where, as here, there is defence evidence, usually one of three possible conclusions is suggested:

(a) you may think the defence evidence is credible and reliable, and that it provides a satisfying answer to the prosecution’s case.  If so, your verdict would be not guilty;

or

(b) you may think that, although the defence evidence was not convincing, it leaves you in a state of reasonable doubt as to what the true position was.  If so, your verdict will be not guilty;

or

(c) you may think that the defence evidence should not be accepted.  However, if that is your view, be careful not to jump from that view to an automatic conclusion of guilt.  If you find the defence evidence unconvincing, set it to one side, go back to the rest of the evidence, and ask yourself whether, on a consideration of such evidence as you do accept, you are satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the offence in question.”

[35]  The directions the learned judge gave did, because the correct position was often enough described, succeed in telling the jurors that the issue was whether the Crown had proved beyond reasonable doubt that Mr Armstrong had intended to rape Ms H; and that if Mr Armstrong’s evidence caused them to have a doubt the jury had to give him the benefit of it.  They were told they could only convict if satisfied on all of the evidence, including the evidence as to intoxication, that he intended to rape Ms H.  Although there were some misdirections along the way, I do not think there was any ultimate misdescription in the jury’s role and task.  Accordingly I am not persuaded that any error was established which could affect the verdict.  That is, the errors made at the trial had no significance in determining the verdict that was returned.[23]  On my assessment of the evidence Mr Armstrong was proved beyond reasonable doubt to be guilty of assault with intent to rape Ms H, and the errors made did not result in any substantial miscarriage of justice.

The sentence appeal

[36]  That leaves the application for leave to appeal against sentence.  Mr Armstrong has a long record of using violence against others, as well as of committing offences of dishonesty, and offences relating to drugs.  On 30 June 1988 he was convicted of three counts of rape, one of carnal knowledge against the order of nature, and one of indecent assault of a female, with all those offences having been committed on 1 April 1988. He was sentenced to four years six months hard labour. On 6 November 1991 he was convicted of assault occasioning bodily harm and indecent assault of a female, and he had committed those offences on 31 August 1991. He was sentenced to three years imprisonment. On 15 April 1994 he was convicted of assault with intent to steal, with the circumstances of aggravation of having used actual personal violence while armed with a dangerous weapon, and sentenced to five years imprisonment. Then followed offences for being unlawfully at large and for possession of drugs, before he was again convicted of an offence of violence. That offence was assault occasioning bodily harm, committed on 28 July 2000; he was sentenced on 20 July 2001 to three years imprisonment. He successfully appealed and the sentence was varied to one of two years imprisonment. In January 2005 he was convicted of possessing and producing dangerous drugs.

[37]  The learned sentencing judge imprisoned him for eight years, and ordered that 229 days pre-sentence custody between 16 March 2005 and 31 October 2005 was time already served under the sentence.  The judge referred to problems Mr Armstrong had had with alcohol and cannabis consumption, a bipolar disorder from which he was said to be suffering, and to the fact that he was described as a good father to his children, and who had supported his family.  The judge considered that despite those personal factors mitigating the penalty, there was no doubt that Mr Armstrong would continue to offend in the future, judging by his past history; that Mr Armstrong had shown no remorse whatever; and the judge concluded the offence was premeditated and that but for the timely arrival of the police Mr Armstrong would have raped H.

[38]  Each of those conclusions was open, but even so the sentence imposed is a very heavy one for assault with intent to commit rape.  Mr Armstrong’s counsel pointed to this Court’s judgment in R v SAS [2005] QCA 442, where a sentence of eight years imprisonment was substituted on appeal for an offence of rape committed with some aggravating circumstances. That eight years was described as the mid-point of the available range for that offence, and that offender had also exhibited premeditation for his offence of rape. He committed it after he realised that the complainant, who was alone with him in the premises of the Nomads Motorcycle Club, had called the police after that applicant had earlier indecently assaulted her.

[39]  Likewise in R v Faifuaina [2004] QCA 262 that offender, who pleaded guilty to two counts of deprivation of liberty, one of attempted rape, and one of rape, was sentenced to terms totalling seven years imprisonment, and his application for leave to appeal was dismissed.  His offences also showed some degree of premeditation.

[40]  On the other hand, in R v H [2003] QCA 478 that applicant had pleaded guilty to one count of deprivation of liberty, one count of assault with intent to commit rape, three of common assault, and three of sexual assault with circumstances of aggravation.  He was sentenced to terms of imprisonment totalling four years, to be served concurrently.  His application for leave to appeal that sentence, which was to be suspended after he had served 18 months, was dismissed.

[41]  In the circumstances I am satisfied the applicant’s counsel has established that the sentence was manifestly excessive, even with Mr Armstrong’s very bad history of violence, and the need to protect the community from him.  I would set aside the order for an eight year sentence and impose a six year sentence, likewise with the declaration that 229 days of pre-sentence custody is time already served.

[42]  HOLMES J:  I have had the advantage of reading the reasons for judgment of Jerrard JA and gratefully adopt his account of the evidence.  However I differ, with respect, from his Honour’s views that there was no error in the direction given by the learned trial judge as to intoxication and that the directions as to the role of the defendant’s credibility in determining intention were adequate. 

The direction on intoxication

[43]  The obligation to direct the jury on intoxication could not be met simply by the learned trial judge’s reading of s 28(3) of the Criminal Code 1899 (Qld) or his repetition of its content. A jury could not be expected, merely by being informed of the section’s terms, to appreciate the context in which the provision occurs - Chapter 5 of the Code, dealing with criminal responsibility - or its exculpatory effect. It has been referred to as a “defence of want of criminal responsibility”[24], but lack of intent by reason of intoxication is, of course, a possibility which the Crown must exclude; or to put it another way, the Crown must prove positively the existence of intent, despite intoxication. 

[44] The learned trial judge did emphasise, repeatedly, that the Crown had to prove the intent of the appellant.  The difficulty is that he failed to identify to the jury what bearing intoxication might have on intent, in any exculpatory sense.  It is not necessarily obvious to the ordinary person that alcohol intake might displace rather than fuel a criminal purpose; indeed, common experience is that the disinhibiting effect of alcohol makes it rather more probable that felonious intent will be acted on. The direction which his Honour gave would have left the jury none the wiser as to how the combination of alcohol and drugs could affect an intention to rape; whether it made it more or less likely.  The fact that he went on to talk about the relevance of alcohol to “temper, control, aggression, mood” as well as intention might well have indicated the former.  He also suggested that it was relevant to “perception, recollection, memory, recall” which, although accurate, may also have obscured the essential point, leading instead to an idea that it bore only on the appellant’s claimed loss of memory as to the precise details of what had happened.  At no time was it clearly put to the jury that they were to consider whether they could, in spite of the evidence of intoxication, nonetheless be satisfied that the appellant could and did form an intent to rape. 

The direction as to the significance of the appellant’s credit

[45]  Nor do I think that the mistake of the trial judge in telling the jury that if they disbelieved the evidence of the appellant, that could be taken into account in considering whether he had the intention to rape was retrieved by other directions in which he told them that they had to be satisfied beyond reasonable doubt of his intent.  It was correctly said that if the jury accepted what the appellant said about not having such an intention he should be found not guilty, and that if there were a doubt about his intention he should be found not guilty; but the third position put by the learned judge was, in effect, that if the jury did not believe the appellant, that could be positively added to the case for his guilt:

“… if you disbelieve the evidence given by the accused, that can be a matter which you can take into account in considering whether he, in fact, had an intention to rape.” 

At no stage did he correct that direction.  If disbelief in the appellant’s evidence were to be treated as incriminatory, an Edwards[25] type direction should have been given. It was not. 

The failure to re-direct on the complainant’s answers

[46]  The third of the appeal grounds, that the learned trial judge failed to give a redirection as to the complainant’s answers in the negative about whether the appellant had been trying to pull her pants down has, as counsel for the appellant conceded, less substance.  Certainly, the redirection that was given was not as lucid as it might have been.  The second sentence of the passage quoted by Jerrard JA,

“Likewise, it would also be inconsistent with the statement that he was not trying to pull her pants down and you found that he was sitting on her in such a way that he was not able to pull her pants down. Miss [H] said he was, notwithstanding where he was sitting, trying to pull her pants down”. 

is particularly difficult to follow. However the gist of the argument about whether he was or was not trying to pull the pants down was before the jury, and it was not incumbent, in my view, on the learned trial judge to repeat to the jury the complainant’s somewhat equivocal “I don’t know” answers. 

[47]  Notwithstanding my firm view that there were significant errors in the directions as to intoxication and what could be made of an adverse view as to the appellant’s credit, I do not think, undertaking the assessment of the evidence directed in Weiss[26], that any substantial miscarriage of justice has occurred. There was no dispute that there was an assault. I am satisfied beyond reasonable doubt on the evidence as to what the appellant said and did that he had an intent to rape, notwithstanding whatever degree of intoxication may have been present. His evidence as to his different intent is entirely implausible, and is appropriately disregarded. I would dismiss the appeal against conviction.

[48]  On the issue of sentence I agree with the reasons of the President and Jerrard JA, and would alter the sentence as they have proposed.