SUPREME COURT OF QUEENSLAND

1. WILLIAMS JA:  All relevant facts are fully set out in the reasons for judgment of Mullins J; I will not repeat them.

2. Initially the complainant provided a statement in accordance with s 93A of the Evidence Act 1977 (Qld) which became her evidence-in-chief.  She was cross-examined at trial by counsel for the appellant.  The recorded statement was lengthy and was made about a week after the events which gave rise to counts 2 to 5 on the indictment.  I have watched some passages from the video of that statement and the jury would have had a good opportunity of evaluating the complainant girl's intellectual capacity at the time the events occurred from watching that video.  That was important because the trial took place some two and a half years later, and it may well be that the jury could have considered that the complainant had matured a little more during that period.

3. One of the critical issues for the jury was whether or not in about October 2002 the complainant had the cognitive capacity to give consent to participation in sexual activity with the appellant. On that issue the jury had evidence from the complainant's parents, the psychologist Attwood, and the complainant's teacher at Seton College, Mrs Brandenburg. But undoubtedly that evidence would have been considered by the jury in the light of their own assessment of the girl they saw on the video and in the witness box. That assessment would also have been of critical importance when the jury gave consideration to the appellant's alternative contention that he had an honest, but mistaken, belief that at all material times the complainant was consenting to the sexual activity with him.

4. I am also of the view that in evaluating the intellectual capacity of the plaintiff the jury was entitled to have regard to the letter (exhibit 1) to Mrs Brandenburg. The fact that it was admitted as evidence of a preliminary complaint did not preclude it being used by the jury as a document, broadly contemporaneous with the subject offences, having probative value on the issue of the complainant's intellectual capacity.

5. The main contention of counsel for the appellant on the appeal against conviction was that the conviction of rape (count 1) could not stand. The submissions on the hearing of the appeal were primarily that a guilty verdict on that count was inconsistent with verdicts of not guilty of rape on counts 2 and 4, and that in any event the verdict on count 1 was unsafe and unsatisfactory.

6. In considering the conviction on count 1 it is important to put the events into proper context. The complainant was then a girl aged 18 years, but obviously her manner and appearance suggested otherwise. Shortly before the sexual activity which formed the basis of count 1, and then again before the sexual activity which formed the basis of counts 2 and 4, the appellant asked the complainant how old she was. Indeed in evidence-in-chief he said that when he visited the complainant's house (counts 2 and 4) he asked her before beginning to undress: "Are you sure you're 18?" The jury could well have regarded his persistence in enquiring about the complainant's age as an indication that he had some doubts about her capacity to consent to sexual activity.

7. Much was made during submissions of the fact that the complainant did not physically resist the appellant when he inserted his finger into her vagina whilst they were sitting on the bench in the park, and of the fact that she did not specifically say "No"; but those considerations are in no way conclusive. The position under our criminal law was stated by Davies and McPherson JJA in R v I A Shaw [1996] 1 Qd R 641 at 646 as follows:

"A complainant who at or before the time of sexual penetration fails by word or action to manifest her dissent is not in law thereby taken to have consented to it.  Failing to do so may, however, depending on the circumstances, have the consequence that at the trial a jury may decide not to accept her evidence that she did not consent; or it may furnish some ground for a reasonable belief on the part of the accused that the complainant was in fact consenting to sexual intercourse, and so provide a basis for exemption from criminal responsibility under s 24 of the Criminal Code."

8. That is the approach which must be adopted here, and that approach must be considered in the light of the assessment made by the jury of the complainant's cognitive capacity. Clearly a complainant's response would be affected by her appreciation of what was happening to her and her understanding of what responses were available to her.

9. In October 2002 the appellant was aged 39, some 20 years older than the complainant. He had worked as a chef in many parts of Queensland. At the time he was living with a partner, and the jury could well have concluded from the whole of the evidence that he was sexually experienced. In his evidence he said that he did not want to have sex with a virgin, and would have not had sex with the complainant if he had known she was a virgin. He also said under cross-examination that he asked whether she was 18 because he then believed that was the age of consent; he said that if she had said she was 17 he would not have touched her.

10. The jury could well have concluded that on the one hand there was a 39 year old sexually experienced male, and on the other an 18 year old virgin who had at least some intellectual impairment. On the whole of the evidence a reasonable jury could have had little doubt that at all times the appellant was the sexual aggressor. It then would have not been unreasonable for the jury to consider all of the evidence against that background.

11. There seems little doubt that in the park the appellant said words to the effect "do you want to fool around a little". At about that time the appellant was rubbing the complainant's legs (she was wearing shorts) and he made some observation that her legs were a "bit dry" and she might "need some moisturiser". The complainant in evidence said she did not know what the appellant meant when he asked her whether she wanted to "fool around a little", and the jury could have well concluded that she did not understand him to mean that he wanted to put his finger immediately into her vagina. It was a question for the jury to evaluate what the complainant understood that question to mean, and how her reaction, verbal and physical, to that should be evaluated. Mullins J has quoted much of the relevant evidence in her reasons, but the jury's evaluation would not have been limited to those parts of the evidence.

12. Counsel for the appellant in addressing this Court placed great emphasis on a passage in the cross-examination of the complainant as to her conduct immediately after the appellant touched her on the vagina with his finger; the critical questions and answers are as follows:

"And when he did that, put his fingers down your trousers to tough (sic) your vagina, you turned to face him, didn't you? - Yes.

And you did that to allow him to touch your vagina more easily.  Do you understand?  You were doing that to enable him to touch you on the vagina.  You tell me if you don't understand? - I understand.

What I am suggesting is you turned your legs towards him and opened them slightly so it would make easier for him to get his fingers to your vagina.  That's what happened? - Yes."

13. That passage in the evidence was emphasised by defence counsel in his address, and was also referred to in the summing up. It clearly was of critical importance to the jury's deliberations. It is significant that at that point in cross-examination counsel was apparently putting to the complainant the defence case; after the appellant touched her vagina she parted her legs to give him easier access. Though the complainant said that she understood what was being put to her, it was still a question for the jury as to the reliability of her responses to what was being put to her, and what weight, if any, should be attached to the adoption of what was put to her when considered in the light of all the evidence given at trial.

14. That passage in the evidence of the complainant was the focus of attention during addresses and summing up also because in his evidence the appellant told a different story. His evidence was not that after he initially touched the complainant's vagina she opened her legs to make access easier, a scenario which might suggest cognitive consent on her part. Rather his evidence was to the following effect. Whilst they were sitting on the park bench and he was rubbing her legs, she "swung her legs towards" the appellant, and when she did so "I seen her pussy". According to the appellant's evidence-in-chief: "I just seen it, and then I just put my finger [in] her vagina." Nothing of the sort had been put to the complainant in cross-examination, and she had not been asked any questions about the nature of the underwear she had on at the time. Under cross-examination by the Crown prosecutor the appellant said that the complainant's underwear was "loose"; she had loose shorts and loose underwear. On that account the complainant either deliberately or accidentally displayed her vagina to the appellant and he immediately inserted his finger.

15. Given the complainant's intellectual capacity and her obvious difficulty in understanding a number of things put to her in evidence, and given the propositions put to her in cross-examination which she apparently adopted, and given that those matters were not then confirmed by the appellant in his evidence but he gave a contrary version which was not put to the complainant, the jury may well have considered that the complainant's apparent adoption of the proposition that she opened her legs to give easier access to her vagina was deserving of little, or no, weight. As already noted it was for the jury in all the circumstances of the case to determine the significance to be attached to the adoption of the proposition put to her.

16. There was no challenge to the summing up so far as it related materially to issues relevant to count 1. Having considered the evidence I have reached the same conclusion as Mullins J that a conviction on count 1 was not unsafe and unsatisfactory.

17. Further, I agree with Mullins J, for the reasons which she has expressed, that the verdict of guilty of rape on count 1 was not necessarily inconsistent with verdicts of not guilty of rape on counts 2 and 4.

18. Given the matters relevant to the appellant which were put forward on sentence, I am of the view that, particularly in the light of the comparable sentences referred to by Mullins J, a sentence of eight years on each of counts 1, 2 and 4 was manifestly excessive. Counsel for the appellant submitted that if the conviction on count 1 stood, the appropriate sentence was imprisonment for five years with respect to counts 1, 2 and 4. That submission accords with appropriate authorities.

19. In the circumstances I would substitute imprisonment for five years in lieu of eight years with respect to counts 1, 2 and 4.

20. I agree with the orders proposed by Mullins J.

21. CHESTERMAN J:  The issues which arise for decision in this appeal, and the facts which give context to those issues, are set out in the reasons for judgment of Mullins J. 

22. The most serious offence of which the appellant was convicted was that alleged in count 1 on the indictment, that between 20 August 2002 and 10 October 2002 the appellant raped the complainant. The rape alleged was of the kind designated by s 349(2)(b) of the Criminal Code.  The appellant was charged with penetrating the complainant’s vagina with his finger or fingers without her consent.  As Mullins J has explained there was no contest at the trial about the fact of penetration.  The only contest was whether the complainant had given her consent to the digital insertion, or whether the appellant honestly and reasonably believed she had given her consent.

23. As Mullins J pointed out the complainant was intellectually impaired, although it is established by the verdicts on counts 2 and 4 that the jury was satisfied that the complainant was capable of giving consent, or that her behaviour was such as to give rise to an honest and reasonable, though mistaken, belief that she consented, to sexual activity with the appellant. To sustain a conviction the Crown, of course, had to prove beyond reasonable doubt that the complainant had not given consent to the act of intimacy in the park which constituted the alleged rape.

24. An examination of the evidence shows little support for that element of the offence, proof of which was essential. The evidence is to be found in the complainant’s recorded interview which was tendered pursuant to s 93A of the Evidence Act 1977.  The complainant’s account is somewhat lacking in cohesion and continuity.  No doubt this is partly due to her intellectual impairment, but partly it appears due to the undisciplined approach of the interviewers.  Relevantly, the complainant said (at AR514-544):

‘… [I was] [j]ust talking about movies or something and so was he … he wasn’t interested any more.  …  He kept changing the subject …  to more personal stuff  …  [l]ike sex … and all that.  …  [H]e said he wanted to touch me and that.  …  [N]ot fully you know … but he just started touching me. 

… 

[A]nd then after that he just started wanting to touch me and stuff like that …  not … sexually but like he just wanted to finger me … you know, put a finger … up my vagina and stuff like that

…

And when he … touched you with his hand? – Yeah.

Were you standing up or sitting down? -  Sitting … [o]n the seat.

[W]hen he did that, did he have his hand on the outside of your clothing or the inside of your clothing? – Inside.

How did he get his hand on the inside of your clothing …? – [H]e put his hand down my … shorts, and he started touching me  …

…

[W]hat if somebody came along? – … that’s what he was checking for … [and] … I asked him at first like what he was doing and I kind of – I refused to let him do it.  He goes, “Why?” and I didn’t answer him at first …

…

But when Justin was touching you, did you feel … scared, did you feel happy? – I was kind of afraid because … doing it an open area.  …  Yeah, … I was kind of frigging scared, but I just didn’t want to say anything because, you know, it’s not like he was going to … take all his clothes off and that kind of thing.  …  So I wasn’t feeling too scared.

… [W]hen Justin first put his hands down your pants … did you tell him not to do that? – No.

Sorry? – No.’

25. This is the totality of the evidence in chief germane to the issue of consent. The only testimony that the penetration occurred without consent appears in the passage ‘I kind of refused to let him do it’. But this brief statement is unsatisfactory in many ways. The complainant did not say she objected to the penetration. She did not say she resisted. She did not say the appellant persisted despite her ‘refusal’. She did not give, and was not asked, what manifestation her refusal took. She said that he asked why she ‘refused to let him do it’, and she gave no answer.

26. There was other evidence given at the trial relevant to the issue which is inconsistent with the complainant’s account of a refusal of sexual contact. I refer only to the evidence given by the complainant. As Mullins J has pointed out the appellant had a different version of the facts which the jury appears to have rejected. The appellant’s case should be approached on the basis that he was not thought by the jury to be a credible witness and that the better testimony was the complainant’s.

27. This was the evidence in cross-examination:

‘Now, you had some shorts on.  Do you remember [the appellant] making some comment about your legs … that they looked a bit dry?  Do you remember his saying something to that effect? – Yes.^[1]  

And did he suggest that you put something on them, like moisturiser? – Yes, he said that I should put some moisturiser on them.

And within seconds he told you that they were nice legs, didn’t he?  You had nice legs, that you should put some [moisturiser] on them … ? – Yeah, he said I should put some moisturiser on but I don’t remember him saying I had nice legs.

What about saying you had nice legs? – I think he said that.  I wasn’t really listening.

…

You see what I am suggesting is this, that he said “Do you want to have a bit of a fool around?”  …  and you said “Yeah … [alright].”  What do you say to that? – Yeah, I said yes, but didn’t know what it meant …’^[2]  

…

And when you were sitting on the park bench … he put his fingers on the leg of your trousers and down onto your vagina.  Do you understand when I say he put it down in your pants? – Yes.

And touched you on the vagina;  is that right? – Yes.

You were sitting very close to him … when that occurred? – Yes.

And when he did that, put his fingers down your trousers to touch your vagina, you turned to face him, didn’t you? – Yes.

With your legs facing him in his direction, didn’t you? – Yes.

And you did that to allow him to touch your vagina more easily.  Do you understand?  You were doing that to enable him to touch you on the vagina.  You would tell me if you don’t understand? -  I understand.

What I am suggesting is you turned your legs towards him and opened them slightly so it would make it easier for him to get his fingers to your vagina.  That’s what happened? – Yes.

And prior to actually putting his fingers into your … shorts, he had been touching you on the bare legs … hadn’t he? – Yes.’^[3]

You never told him not to or to stop or take his hand away, did you? - … No.’^[4]  

28. The complainant’s statement that although she answered affirmatively to the appellant’s inquiry whether she wanted to ‘fool around’ she did not understand what was meant requires some comment. It might be thought that the complainant’s ignorance diminished the force of her answer indicating that she did want to ‘fool around’. The first point to make is that there is no suggestion in the evidence that she gave any indication to the appellant that she did not understand what she was agreeing to. The second point is that her answer may not be accurate. The complainant explained to the interviewing police officers^[5] who asked her how she felt when the appellant inserted his fingers that she ‘didn’t really feel anything … because … it’s … happened … before.’  She explained that it had happened with a young man she described as her boyfriend and his brother at the Exhibition.  She described the activity as ‘mucking around’.  She described a similar experience with a boy she knew at school.  These events say nothing about whether the complainant actually consented to the appellant’s approach, but they do indicate that the complainant may well have had an appreciation of what the appellant meant when he asked whether she wanted to ‘fool around’.  Her indication that she did, if she had an appreciation of what that meant, is cogent evidence of actual consent.

29. There was other evidence given by the complainant about what happened in the park immediately after this incident. It is relevant as revealing the complainant’s attitude towards the appellant who, on the prosecution hypothesis, had just raped her. The complainant walked with the appellant towards where he had parked his car because she wanted to say goodbye to him.^[6]   She told him that she would give him her phone number so that he could telephone her.  They did in fact make contact as Mullins J’s recital of the facts shows.  The complainant said that she wanted the appellant to contact her because they had ‘become friends’.^[7] 

30. In assessing the evidence one has to remember the context in which the fondling occurred. The appellant and complainant were barely acquainted: they had met once before in the same park. There was a substantial age differential and the appellant must have observed that the complainant was naïve, over-friendly and somewhat childlike. The encounter occurred in open parkland. There may have been, as Mullins J suggests, an element of opportunism in the appellant’s approach. This context may suggest that it was unlikely that the complainant would have given consent but that question has to be decided not by contextual circumstance but by the best evidence: the complainant’s own account of what she said and did.

31. When one looks at the evidence it is, in my respectful opinion, difficult to see anything which affords proof of lack of consent. The only passage supporting such a conclusion is the complainant’s bare statement that she ‘kind of refused to let him do it’. That statement is, of course, a conclusion which is unsupported by evidence of actual words or conduct and, indeed, appears to be contradicted by what the complainant did. When asked if she would like to ‘fool around’ she said yes. She expressed no objection to the appellant putting his hand on her bare leg and moving it up the inside of her thigh beneath her shorts. She did not say anything to the appellant to indicate that she objected to his caress. She did not resist. She did not move away, or put her hand on his to repel it. On the contrary she turned towards the appellant and opened her legs slightly for the purpose, she agreed, of facilitating penetration.

32. Afterwards she walked with him to his car because she regarded the appellant as a friend. She asked him to telephone her in the coming days. She admitted that she was sexually attracted to the appellant and she wanted to have further sexual contact with him.

33. There is thus no cogent factual support for the assertion that the complainant refused to let the appellant insert his fingers. There is, on the contrary, evidence of what appears to be actual consent or, at least, evidence which would give rise to an honest and reasonable belief that the complainant was giving consent. I do not overlook the point that a lack of resistance or objection to a sexual advance does not give rise to a presumption of law, or an irrebuttable presumption of fact, that a complainant has consented to the advance. The proposition was reaffirmed in R v Shaw [1996] 1 Qd R 641 at 646 but is, with respect, a statement of the obvious.  It is equally obvious that a lack of resistance or objection may, depending on the circumstances, be convincing evidence of consent.  Shaw was a case in which the complainant’s submission had no relevance to consent because the accused took the complainant to secluded bushland and held a knife to her throat to secure her submission.  The present appeal is not concerned with circumstances of that kind.  The complainant’s evidence of opening her legs is, in this case, cogent evidence of consent.

34. The evidence which I have rehearsed makes it impossible to conclude that the jury could have been satisfied beyond reasonable doubt that the complainant did not consent, or that the appellant could not have honestly and reasonably believed that she had consented. It was not, on the whole of the evidence, open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the rape alleged in count 1. In coming to this conclusion I do not overlook that the jury was the tribunal of fact entrusted with the responsibility of determining guilt or innocence. My conclusion is based upon an acceptance of the complainant’s own evidence and rejection of the appellant’s evidence. The doubt I entertain about the appellant’s guilt is not dispelled by the fact that the jury saw and heard the witnesses. The point is that the complainant’s own evidence is insufficient to prove the charge.

35. It is not to the point that the evidence might be teased into circumstances which a jury might have considered in a particular way so as to found their verdict of guilty.

‘The question is one of fact which the court must decide by making its own independent assessment of the evidence. …  Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.’ M v R (1994) 181 CLR 487 at 492, 493.

36. In my opinion, approaching the evidence in the manner directed by that authority, the appellant’s conviction of rape, charged as count 1 on the indictment is unsafe and unsatisfactory, and I would quash it.

37. I agree with what Mullins J has written with respect to the appeal against the convictions on counts 2, 3, 4 and 5.

Sentence application

38. I agree that the sentences imposed by the learned trial judge were excessive. The imposition of a term of imprisonment for eight years on each of counts 1, 2 and 4 appears inconsistent. The conviction on count 1 was for rape which carried a maximum sentence of life imprisonment. The conviction on counts 2 and 4 were of unlawful carnal knowledge of an intellectually impaired person for which the maximum penalty is fourteen years. The complainant’s impairment is not severe and the jury clearly thought that she could consent to intercourse, or at least give the appearance of consenting so as to give rise to an honest and reasonable mistake. This factor has considerable significance to penalty. It is difficult to justify a term of imprisonment of eight years on each of counts 2 and 4 when that was thought the appropriate penalty for a conviction for rape.

39. The cases analysed by Mullins J show that a sentence of less than six years should have been imposed. R v Cutts [2005] QCA 306 was a much worse case.  The complainant was physically disabled and Cutts took advantage of the woman’s incapacity to maul and rape her.  Cutts used both subterfuge and violence against a defenceless woman.  There was no element of consent, or the shred of a belief that there was consent.  The sentence was one of six years’ imprisonment.

40. R v Keevers;  R v Filewood [2004] QCA 207 is closer in fact to the present case though, of course, it involved the digital rape of a sleeping woman.  The ‘moderate’ sentence was of two and a half years’ imprisonment, suspended after nine months.

41. The appropriate sentence is somewhere between these two. I would accept the appellant’s submission and impose a term of three years’ imprisonment on each of counts 2, 3, 4 and 5.

42. I would allow the appeal against the conviction of rape and enter a verdict of acquittal. I would give leave to appeal against sentence and allow the appeal by substituting for the eight years’ imprisonment on each of counts 2 and 4, and five years’ imprisonment on count 5, a term of three years’ imprisonment on each count, to be served concurrently.

43. MULLINS J:  The appellant was tried on the following charges:

44. The appellant was found guilty of counts 1 and 3. In relation to counts 2 and 4, he was found guilty of the alternative charge of unlawful carnal knowledge of an intellectually impaired person. In relation to count 5, the appellant was found guilty of unlawful and indecent dealing with an intellectually impaired person. The appellant was sentenced to terms of imprisonment of 8 years for each of counts 1, 2 and 4, 3 years for count 3 and 5 years for count 5.

45. The appellant appeals against conviction and, if necessary, applies for leave to appeal against sentence.

Grounds of appeal

46. The ground of appeal that is set out in the notice of appeal is that “the conviction is unsafe and unsatisfactory and contrary to law”. The specific aspects of this ground that were relied upon on the appeal are:

1. the verdict on count 1 is inconsistent with the jury’s findings on counts 2 and 4 or was unsafe and unsatisfactory;

2. a reasonable jury should have found that the defences in s 216(4) the Criminal Code (“the Code”) were proved;

3. the appellant did not receive a fair trial, as the cross-examination of the appellant by the prosecutor was unfair and abusive;

4. there was a miscarriage of justice as a result of the learned trial judge not including the defences in the written handout that was given to the jury;

5. the trial judge did not make a determination about whether the complainant came within s 93A of the Evidence Act 1977;

6. there was a misdirection on the evidence when the trial judge told the jury that they could exclude consent or mistaken belief as to consent, if they found the complainant did not have the capacity to consent, as there was no evidence that the complainant lacked such capacity;

7. the trial judge misdirected the jury by directing that the letter the complainant had written to her teacher could be used on the issue of the intellectual impairment of the appellant, when the letter was admitted as a preliminary complaint.

47. Counsel who appeared on the appeal were not the counsel who appeared at the trial.

Relevant facts

48. The videotaped record of interview between the police and the complainant that was recorded on 15 October 2002 was admitted into evidence pursuant to s 93A of the Evidence Act 1977.  The complainant was cross-examined at the trial.  The appellant gave evidence at the trial.  There was consistency in the evidence of the complainant and the appellant on many aspects of the relevant events.  The real issues in the trial were:

(a)whether the complainant had the cognitive capacity to consent to the sexual contact by the appellant (or whether the appellant had an honest and reasonable, but mistaken, belief that the complainant had such cognitive capacity);

(b)whether the complainant consented to the sexual contact by the appellant (or whether the appellant had an honest and reasonable, but mistaken, belief that the complainant had so consented); and

(c)whether the appellant had proved that he believed on reasonable grounds that the complainant was not intellectually impaired or that the sexual conduct did not constitute sexual exploitation of the complainant (in reliance on s 216(4) of the Code).

49. The following summary of facts is taken from the evidence of both the complainant and the appellant. Material differences between their respective versions are noted where that is relevant to the grounds of appeal.

50. The complainant was born in December 1983 and at the time of the relevant events was 18 years old. She met the appellant for the first time at an off-leash dog park. The complainant had taken her dog there for a walk. The appellant was there with his dog. The complainant told the appellant her name. The appellant told the complainant that his name was “Justin”. The appellant asked the complainant how old she was and she told him (truthfully) that she was 18 years old. The appellant told the complainant that he was a chef and that he was 39 years old. They chatted about dogs. The appellant described that the complainant appeared friendly and confident to him and that she seemed fine “in regards to her mental health”. The appellant observed that the complainant was of Asian appearance and said that he thought that she had “an Asian-type accent” and a lisp. Neither the appellant nor the complainant could give a precise estimate of the length of time that they spent together on the first occasion, but the inference from the evidence of both of them was that it was a short time – a half an hour or less.

51. The appellant returned to the park with his dog a couple of weeks after the first meeting. The complainant recognised the appellant and walked over to greet him. She had her dog with her. They talked together whilst their dogs ran around. They then sat together on a bench in the middle of the dog enclosure. The appellant asked the complainant where she was born. She told him that she was born in England, her mother was born in Malaysia and her father was English. The appellant conceded that he did have trouble understanding some things that the complainant said. This was also acknowledged by the complainant who said that when they were sitting on the bench on this occasion, they were sitting quite close, as the appellant “was trying to figure out what I was saying to him because I was talking a bit too soft” (AR137 lines 26-40). The complainant did not tell the appellant that she had an intellectual disability, had done a special educational course or that she could not do things like count money or travel on a bus by herself.

52. It was common ground that on that occasion whilst seated on the bench that the appellant touched the complainant’s legs, put his hand in her shorts and he put his finger in her vagina and that she did not say “no”. That incident was the subject of count 1. The complainant accepted in cross-examination that when the appellant asked her “Do you want to fool around a little”, she said “Yes”, but stated that she did not know what it meant (AR139 lines 32-58). In the videotaped record of interview, the complainant was asked “what if somebody came along?”. The complainant responded that that was what the appellant was checking for and stated (AR527 lines 19-24):

“And then – yeah, that’s what he was checking for.  [indistinct] him, oh, um, I asked him at first like what he was doing and I kind of – I refused to let him do it.  He goes, ‘Why?’ and I didn’t answer him at first because I don’t know why [indistinct].  I just didn’t answer him because I [indistinct] know him.  I don’t know why [indistinct], yeah.”

The complainant was asked where her hands were when the appellant was touching her and she said they were by her side.  Later in the interview the complainant was asked when the appellant first put his hands down her pants in the park, whether she told him not to do that and she responded “No” (AR544 lines 29-34).  The complainant confirmed during cross-examination that she did not tell the appellant to stop or take his hand away, but when it was put to her that she responded or acted when the appellant was touching her on the vagina as though she liked it, she responded “No” (AR151 lines 50-56).

53. The following exchange took place in the cross-examination of the complainant (AR156 lines 25-53):

“You see, you had shorts on, didn’t you?--  Yes.

And when you were sitting on the park bench I am suggesting he put his fingers up the leg of your trousers and down onto your vagina.  Do you understand when I say he put it down in your pants?--  Yes.

And touched you on the vagina; is that right?--  Yes.

You were sitting very close to him on the bench when that occurred?--  Yes.

And when he did that, put his fingers down your trousers to tough (sic) your vagina, you turned to face him, didn’t you?--  Yes.

And you did that to allow him to touch your vagina more easily.  Do you understand?  You were doing that to enable him to touch you on the vagina.  You tell me if you don’t understand?--  I understand.

What I am suggesting is you turned your legs towards him and opened them slightly so it would make it easier for him to get his fingers to your vagina.  That’s what happened?--  Yes.

And prior to actually putting his fingers into your trousers or shorts, he had been touching you on the bare legs immediately prior to that, hadn’t he?--  Yes.”

54. The appellant’s evidence was that he had commented to the complainant that “Your legs are a bit dry” and “You might need some moisturiser” and said “You’ve got nice legs.” The complainant recalled the comments about her dry legs and the suggestion that she should use moisturiser. The appellant’s evidence-in-chief on what occurred next was as follows (AR233 lines 15-53):

“All right.  And what happened then?—The atmosphere was – you know, I – we were sitting there and the atmosphere was, I don’t know, it – I said, ‘You’ve got nice legs’, and she goes, ‘Thanks’.  Then I said, ‘Do you want to fool around?’ And she said, ‘Yeah, okay.’  And she – she swung her legs towards me.

What did you do?--  Well, I – when she swung her legs I seen her – her pussy, and-----

What do you mean by that?--  Well, when she’s swinging…

Yeah?--  And I just seen it, and then I just put my finger.

What did you see?--  Her vagina.

Right.  What else happened then?--  Well, I put my fingers in – around her vagina.

How did you do that?--  I – I just slipping (sic) my hand in the side of her shorts…

And you put your hand down into her vaginal area?--  Mmm.

Did you actually enter her vagina with your finger or fingers?--  I think around her vagina.

All right.  Okay.  And did she respond in any way?--  Yeah, she – she – she kind of groaned with pleasure, and, you know, put her head into my shoulder.

All right.  And how long do you think you did this for?--  Maybe a minute, maybe two minutes.

Why did you stop doing that?--  Just there was enough, the nature of the park too, in an exposed area, and, you know, couldn’t do much at – you know, couldn’t do anything – didn’t want to, you know, continue or anything.”

55. In cross-examination the appellant conceded that his finger penetrated the complainant’s vagina (AR243 line 42-AR244 line 2). When challenged in cross-examination as to how the appellant could see the complainant’s vagina, the appellant said that she had on loose underwear and that she was wearing “loose stubbie shorts”. (These aspects of the complainant’s dress had not been put to her in cross-examination.) The subtle difference between the version that was put to the complainant in cross-examination and the appellant’s version was then the subject of cross-examination of the appellant (AR266 line 12-AR267 line 7). Whereas the complainant had been cross-examined on the basis that when the appellant put his hand in her shorts, she had turned to the appellant, the appellant gave evidence that the complainant swung her legs towards him enabling the appellant to see her vagina before he put his hand in her shorts. The difference in the versions was an issue in the trial and was referred to in the summing up (AR406 line 55 – AR407 line 4) when the trial judge stated:

“You will recall that his evidence was, although there’s contrary evidence, really, from the complainant, that she swung her legs around and displayed her genital area to him.  It’s a matter for you what you make of that.”      

56. After this incident the appellant got up and walked toward the creek area and the complainant followed him. Nothing further in the nature of sexual contact happened at that stage. The complainant then walked with the appellant to his car and gave him her telephone number and wanted him to call the next day. She explained that they had become friends and she knew him a bit better. She gave him her address. She told him the best time for him to come around was between 11:00 am (when her mother went to work) and 3:00 pm to 3:30 pm (when her sisters and brother got home).

57. A couple of days later on 9 October 2002 the appellant telephoned the complainant at home and asked her if she wanted him to come over and she said that she did. The complainant let the appellant into the house. There was no one else at home. The appellant told the complainant that he could not stay for long. He asked her “Do you want to have sex?” and the appellant gave evidence that the complainant responded affirmatively, but the complainant said that she did not say anything. The appellant asked her again whether she was 18 years old and she said she was. They went into the lounge room. The appellant undressed. The complainant then undressed. The complainant closed the blinds. The appellant gave evidence that at the park the complainant had told him when he came over to bring protection (AR238 lines 55-56). In cross-examination the complainant said that she did not say anything like that (AR162 lines 23-29). The complainant said that when the appellant was undressed she asked him if he had a condom and that he said “Yes”. The appellant had brought a condom with him and he put it on.

58. The complainant stated in her record of interview that they lay down on the lounge room floor and the appellant got on top of her and “… he kissed me and then he started, um, putting his penis in me” and described what happened (AR537 line 58 – AR538 line 8):

“And do you think it went in – into your – into your body very far?--  Yeah, it went pretty far because it started hurting. 

Did it?--  Yeah.  And then he took – and I told him in the middle of it, and then when I told him, he took it out, and them, (sic) um, after that he, um – before I told him it hurt it, like, um – no, when – after I told him it hurt, he said that he needed a wank, and then – that’s when he first went in with his fingers and then he had something on this – um, on the condom as well.”

This sexual intercourse was the subject of count 2.

59. The complainant described seeing the appellant having “a wank”. This was the subject of count 3. The complainant said that the appellant tried to put his penis back in her vagina again, but “… he didn’t put it too far in because I told him it hurt” (AR541 lines 22-23). The complainant said that the appellant then turned her around so that she was on her knees and “… then he, um, stuck his penis in my arse after that, yeah, but it didn’t hurt because he didn’t stick it far” and that she “didn’t feel it” (AR542 lines 1-4). This was the subject of count 5. In cross-examination the complainant agreed with the suggestion that when she was on her knees, the appellant was moving his penis in the area of her vagina (AR181 lines 3-8). The complainant also agreed in cross-examination that they both then lay beside each other on the floor, the appellant felt her vagina with his finger and that he tried again to have intercourse with her (AR182 lines 34-55). This was the subject of count 4.

60. In cross-examination the complainant accepted that at the committal hearing she had agreed that she was attracted to the appellant in a sexual way and she agreed that she had said at the committal that the whole reason that she had wanted the appellant to come over to her house was because she knew there would be sexual activity and that she had sexual feelings, urges and desires.

61. The appellant said in evidence-in-chief that when they lay down on the lounge room floor, he lay on top of the complainant, but could not keep an erection. He said that he tried to stimulate himself whilst sitting up a bit and that they changed positions in that the complainant got on her knees and he attempted to insert his penis into her vagina from behind her. He said he was unsuccessful in doing that and denied putting his penis into the complainant’s anus. The appellant said that they lay on the carpet again and that his penis entered the complainant’s vagina “a little way”.

62. Both the complainant and the appellant got dressed and the complainant let the appellant out. The complainant stated that before the appellant left, he told her “not to tell anybody at all”. The appellant stated that he did not make any such statement to the complainant.

Evidence of intellectual impairment

63. On 10 October 2002 the complainant sent a letter to a former teacher, Mrs Brandenburg, expressing her concerns about what had happened between the appellant and her. That letter which was exhibit 1 at the trial was relied on by the prosecution as a preliminary complaint and as relevant to the issue of whether the complainant had an intellectual impairment. The text of the letter was as follows:

“I was just wondering if it is alright to have sex with someone old than me.  Why I asking is because yesterday this guy named Justin had sex with me he is old than me.  He was wearing a condom and when he stuck his penis down me it really hurt alot because I have never had sex before.  When we finished doing it I kind of felt sick and I was very itchy and I was feeling very scared that something bad will happen to me.  Will something bad happen to me.  Am I still a virgin after what happen between the two of us.  Also I would like to know why in the middle of having sex a guy has have a wank and what does that mean.  Does a guys penis go hard when they have sex with a girl.  And what is that stuff comes out of a guys penis.  If he is wearing a condom will that stuff still come out of his penis.  Now I am very scared because I felt stuff down me.”

64. Mrs Brandenburg had taught the complainant English, religious education and human relationship education at various times at Seton College which the complainant attended for years 8 to 12 (between 1997 and 2001). Seton College specialises in providing education for students with special needs. Mrs Brandenburg’s experience in speaking with the complainant was that she had a slight speech impediment, talked quickly and could be quite difficult to understand, but that she appeared to comprehend what was said to her on topics with which she was familiar and was forthright in asking questions.

65. The complainant’s mother gave general evidence about the complainant’s limitations in undertaking ordinary activities. The complainant’s mother described the complainant as “a very friendly girl”.

66. The general medical practitioner who examined the complainant on 16 October 2002 described the applicant as having “a mild intellectual disability” which opinion she formed after speaking both to the complainant and her mother.

67. The written report of psychologist Dr Tony Attwood who examined the complainant on 15 February 2003 was read to the jury, as Dr Attwood was unavailable to give evidence. There was no objection to that course by the appellant. Dr Attwood observed:

“[The complainant] has a slight speech impediment that affects her articulation, however, this has not significantly impaired her verbal fluency and ability to understand her speech.”

Dr Attwood was provided information that the complainant’s full scale IQ was assessed in 1997 as being 50.  His report then stated:

“When I conducted an assessment using the Wechsler Adult Intelligent Scale on 15^th of February 2003 her full scale IQ was assessed as being 61.  When a person has an IQ of below 70 they have an intellectual disability, and clearly [the complainant’s] performance on the intelligent (sic) test confirms that she has a diagnosis of intellectual disability.  I was able to examine some aspects of daily living and social reasoning skills, using the Vineland Adaptive Behaviour Scale and several Theory of Mind tasks.  Her level of social reasoning is within the eight to 10 year level and appears to be consistent with her level of intellectual maturity.

She also requires some support in her daily living skills, again, consistent with her intellectual capacity.  I was also able to briefly assess her working memory, namely, to provide information at the beginning of the session and to ask questions based on accurate recall at the end of the session.  At the end of the session she was able to recall the information that I had provided at the beginning of the assessment. 

The test results indicate that [the complainant] is an intellectually impaired person and that she has a disability that is attributable to an intellectual impairment that has resulted in a substantial reduction in the person’s capacity for communication, social interaction, learning and the person needs support.”

68. The jury had the opportunity to see for themselves how the complainant appeared when speaking to others. They were able to observe the complainant in the s 93A videotaped interview and when she gave evidence at the trial. The jury were expressly directed to consider their observations of the complainant in deciding whether the complainant suffered from an intellectual deficit and the extent of the intellectual deficit and whether it deprived her of being able to give consent to an act of penetration. The complainant’s presentation on the s 93A videotape was consistent with the descriptions given of her as a girl who was friendly, talked quickly (but fluently), had a slight speech impediment and was sometimes difficult to understand.

Verdict of guilty on count 1

69. The jury’s verdicts of not guilty of rape, but guilty of unlawful carnal knowledge of an intellectually impaired person, on counts 2 and 4 mean that the jury had a reasonable doubt on each of those charges of rape about whether the carnal knowledge occurred without the complainant’s consent. The trial judge had directed the jury that in relation to each of counts 1, 2 and 4 the prosecution had to prove that the act of penetration was carried out without the consent of the complainant. The trial judge explained that “consent” means consent which was freely and voluntarily given by a person with the cognitive capacity to give consent.

70. Theoretically, in respect of counts 2 and 4, the prosecution therefore failed either to prove beyond reasonable doubt that the complainant did not have the cognitive capacity to give consent or that each act of carnal knowledge took place without the complainant’s consent or failed to exclude beyond reasonable doubt that the appellant had an honest and reasonable, but mistaken belief either that the complainant had cognitive capacity to consent and did consent to the acts of penetration or that, if the jury were satisfied that the complainant had cognitive capacity to consent, the appellant had an honest and reasonable, but mistaken, belief that the complainant consented.

71. There was nothing in the evidence to suggest that the complainant’s cognitive capacity varied between the incident in the park which was the subject of count 1 and the events that occurred at the complainant’s home which took place only a couple of days later. The trial judge’s summing up to the jury did not suggest that there could be any differentiation in conclusion reached by the jury on the complainant’s cognitive capacity for the purpose of each of counts 1, 2 and 4. The appellant’s submissions on the appeal proceeded on the basis that the verdicts of not guilty of rape in respect of counts 2 and 4 indicated that the jury accepted that the complainant had the capacity to consent to the acts of penetration. In the light of the evidence, it is reasonable to infer that the jury were not satisfied beyond reasonable doubt that the acts of penetration on 9 October 2002 that were the subject of counts 2 and 4 took place without the consent of the complainant or that the jury were satisfied that it could not be excluded beyond reasonable doubt that the appellant had an honest and reasonable, but mistaken, belief that the complainant consented to the acts of penetration.

72. It was submitted on behalf of the appellant that the verdict on count 1 was inconsistent with the jury’s acquittals of rape on counts 2 and 4, as there was no material difference between what occurred in the park and what occurred in the house. The appellant’s argument relies on suggested factual inconsistency: MacKenzie v The Queen (1996) 190 CLR 348, 366.  In making that submission, however, the appellant’s analysis of the two occasions was unduly confined.  In respect of the first occasion, the submission of the appellant concentrated on the complainant’s reaction immediately preceding and at the time the penetration by the appellant’s finger occurred, without considering all the relevant circumstances.  Those circumstances commence with the difference in ages between the appellant and the complainant.  The appellant was a 39 year old man who ascertained from the complainant on the first occasion that he met her that she was 18 years old.   The sexual encounter in the park occurred in a public place when the complainant had not known that the appellant would be coming to the park on that day.  She hardly knew the appellant after their first brief meeting, when both were exercising their dogs in the off leash park.  It could be said that there was something artificial and opportunistic about the first sexual encounter between the appellant and the complainant.  In contrast, the encounter at the complainant’s home was in a private place which the complainant allowed the appellant to enter and it occurred after the complainant had experienced the first sexual encounter with the appellant.  On this occasion the complainant voluntarily undressed to facilitate the sexual encounter.  The circumstances of the encounter at the complainant’s home were materially different to that of their first sexual encounter in the park.   The verdict of guilty of rape on count 1 can therefore be reconciled with the acquittals of rape on counts 2 and 4.

73. It was argued in the alternative that no reasonable jury could have convicted the appellant of the rape which was the subject of count 1. It was submitted that upon review of the evidence, the court would conclude that no reasonable jury could have excluded beyond reasonable doubt that the appellant had an honest and reasonable, but mistaken, belief that the complainant was consenting to the insertion by the appellant of his finger in her vagina.

74. In order to reach the verdict of guilty of rape on count 1 the jury not only had to exclude beyond reasonable doubt that the appellant had an honest and reasonable, but mistaken, belief that the complainant was consenting to the digital penetration, but had to be satisfied beyond reasonable doubt that the complainant did not consent to the digital penetration.

75. The complainant had been given sex education at Seton College and acknowledged that she had been taught about bodily functions and sexual intercourse. (Objectively her level of understanding of what she had been taught was shown by the naïve questions she asked of Mrs Brandenburg in her letter dated 10 October 2002 that was exhibit 1.) It is critical in surveying the evidence of what occurred when the complainant and appellant were seated on the park bench to consider where they were and the lack of any prior relationship between them, apart from meeting briefly with their dogs on one previous occasion in the same park. The appellant’s question to the complainant whilst they were seated in the middle of a public park (when they were hardly acquainted) as to whether she wanted to “fool around” did not suggest to the complainant (if the complainant’s evidence on this aspect were accepted by the jury) that the appellant was proposing to penetrate her vagina with his finger, even though his hands were touching the complainant’s legs at that stage. In her videotaped interview the complainant said that she did ask the appellant what he was doing and when he said “why?” she did not answer him because she did not know why. The evidence of both the complainant and the appellant suggested that the act of penetration took place immediately after he asked the complainant whether she wanted to fool around and lasted only for one or two minutes.

76. Although the complainant acknowledged that she did not say “No” to what the appellant was doing with his hand, she said that she was sitting with her hands beside her. Whereas the appellant said that she groaned with pleasure, the complainant in cross-examination denied that she responded or acted when the appellant was touching her on the vagina as though she liked it.

77. It was the prosecution case at the trial that the appellant lied about what had occurred at the park. It is clear from the verdict on count 1 that the jury did not accept the appellant’s evidence that the complainant swung her legs towards him, enabling the appellant to see her vagina, before he put his hands in her shorts. That was not surprising. This evidence of the appellant attempted to give the complainant a role in what occurred that was inconsistent with the instigation by the appellant of the touching episode (which the appellant accepted was the case) and the considerable disparity in age and experience between the appellant and the complainant.

78. There was a discrepancy in the complainant’s evidence in her affirmative response that when the appellant put his fingers down her trousers to touch her vagina, she turned to face him and that she agreed that she turned her legs towards the appellant and opened them slightly, so it would make it easier for the appellant to get his fingers to her vagina.

79. The significance of this evidence is reduced, however, when it is considered that by that time, the appellant already had his hand in the complainant’s shorts and the digital penetration lasted only for such a short time. In considering this evidence, the advantage which the jury had in hearing and seeing both the complainant and the appellant give evidence cannot be overlooked. The videotaped interview with the complainant that was recorded about a week after the incident in the park gives some indication that the complainant would have appeared to the jury as very friendly, unsophisticated and almost childlike. This was also illustrated by her reaction when the complainant said that, after this incident on the bench in the park, she and the appellant were “friends” and she wanted to see him again.

80. The circumstances in which the digital penetration occurred in the park were also extremely relevant to whether the appellant had an honest and reasonable belief that the complainant was consenting to the act of penetration. It is the belief of the appellant which is critical, but it must be both honest and reasonable: R v Mrzljak [2005] 1 QdR 308, 321, 326-327.  In circumstances where the parties were hardly acquainted and the complainant appeared as a friendly, chatty girl who was more than 20 years younger than the appellant, the question that the appellant put to the complainant while sitting on a bench in a public park about whether she wanted to fool around did not direct the complainant’s attention to the appellant’s intention of digitally penetrating her.  It was relevant to the appellant’s belief that there was no protest by the complainant to what the appellant was doing to her.  Although the complainant did not protest when the appellant put his hand in her shorts, the incident involving the digital penetration then happened quickly.  If the appellant had convinced himself in that short space of time that the complainant was consenting to his inserting his finger into her vagina, it was clearly open to the jury to conclude that such a belief could not be characterised as honest and reasonable in the circumstances. 

81. On appeal in making an independent assessment of the evidence the court must pay full regard to the consideration that the jury has primary responsibility of determining guilt or innocence and the advantages which the jury enjoyed: M v R (1994) 181 CLR 487, 493-495;  MFA v R (2002) 213 CLR 606, 614.  Upon the whole of the evidence relevant to count 1, it was not unreasonable for the jury to conclude beyond reasonable doubt that the complainant had not freely and voluntarily given her consent to the appellant using his finger to penetrate her vagina and to exclude beyond reasonable doubt that the appellant had an honest and reasonable, but mistaken, belief that the complainant was consenting to the digital penetration. 

Conduct of the prosecutor

82. The appellant complains that he was not fairly treated by the prosecutor when he was cross-examined. In order to deal with this issue it is necessary to refer in detail to the more significant parts of the cross-examination that are relied on for this submission.

83. The appellant was cross-examined on the length of time that he spent with the complainant on the first occasion that he had met her (AR252 lines 3-42):

“How long were you with her on that occasion?--  On the first time down the park?

Yeah?--  Oh, maybe – how long was I talking to her or how long I was in the park?  I can’t-----

I asked you how long you were with her?--  On the first occasion?  I never – well, it could have been half an hour.

Half an hour?--  Could have been.

With her in the park?--  Yeah.

On the first occasion?--  Oh, could have been.

Well, you’re the person who’s the historian.  How long was it?--  I don’t know if-----

You’re 30 – you just celebrated your 39^th birthday, the first day of it.  As a grownup man, you’re telling us it was half an hour?--  Half an hour.  I don’t know.  I don’t know exactly how long it is.  So I can’t say – it could have been around a half an hour.

I didn’t ask you how-----?--  No, I can’t say then it was half an hour.  I can’t establish exact time.

Not the exact time if you’re saying it was about half an hour, that means it may have been 25, it might have been 35 minutes?--  It could have been.

At least, anyway, in the vicinity of half an hour; right?--  It could have been.

We can only stand upon you for this, you see.  I don’t recollect she was asked how long you were together?--  Pardon?

Sorry, that may be a comment.  I apologise for that.  On your adult assessment, you were together for about half an hour?--  Yeah.”

84. The prosecutor interrupted the appellant when he was endeavouring to respond to further questions about this first occasion (AR253 lines 22-32):

“Describe and tell to the jury what the circumstances were of your first encounter face-to-face with this young woman?--  We were in the park and I-----

‘We were in the park’?--  Yes.

That doesn’t tell us much, does it?--  I’m not quite sure what you’re trying to say.

I’m not trying to say a thing.  I’m trying to get you to say something?--  I know.”

85. The prosecutor continued asking questions in an endeavour to elicit more detail about the first encounter between the appellant and the complainant. The appellant dealt with his inability to remember how the conversation started (A254 lines 1-17):

“She talked to you first, did she?--  I can’t remember.  I can’t remember if I introduced myself to her first or she introduced herself to me first.

‘Introduced’, that means giving names, does it?--  No, just saying ‘Hello’.  I can’t remember if I introduced myself to her and she introduced herself to me.

Look, I’m giving you every opportunity?--  Honestly, I can’t remember.

I’ll shift to another topic whenever you’re prepared to finish it.  Is that what you’re prepared to tell us, you don’t know how the two of you first became acquainted?--  I thought – the way we became acquainted was in the park.

Yes?--  And we just started talking.”

The cross-examination on this aspect ended with the following sarcastic question to which the appellant responded fully and clearly (AR255 lines 2-27):

“ When you first became of her – aware of her existence as a human being within the Brisbane area?--  I just don’t understand what – what – I honestly.  Sorry, your Honour, I just – if you could explain.  I’m not quite sure if I’m explaining myself right, or anything like that.  But I don’t know if I started the conversation first or she started it or I approached her or she approached me.  I just can’t remember that, I’m sorry.”

86. The prosecutor had a tendency to make comments throughout the cross-examination. He was cross-examining the appellant on the incident the subject of count 1, when he made the following comments (AR266 lines 6-13):

“I put it to you of course that none of this happen, but anyway I’m just trying to analyse your version of it?--  Well, none of what happened?

She turned – I put it to you your evidence is just a tissue of lies.  That’s what I’m putting to you, and I’m trying to work out just what it is that you’re trying to tell us.  She turned towards you?--  Mmm.”

87. The submission was made that the prosecutor wrongly suggested to the appellant that there was recent invention on his part in relation to his evidence about when the complainant turned towards him. Reliance is placed on that part of the cross-examination found at AR266 line 50-AR267 line 7 which is referred to in paragraph 13 above. The submission overlooks the subtlety in the versions that was the subject of the cross-examination of the appellant which is also referred to in paragraph 13 above.

88. The appellant put the complainant’s telephone number into his mobile phone under the first three letters of her name. The appellant was cross-examined about his “dishonesty” in doing that (AR278 line 43 - AR279 line 5):

“Your counsel opened the case to the jury by saying you were trying to cut off any inquiry your wife – your de facto might have made about it?--  Yeah.

Is that why you did that?--  Yeah, that’s another reason too.

So another piece of dishonesty?--  Dishonesty?

Well, another piece of cunning, deception if your de facto happened to have a look at your phone?--  Oh, yeah, I guess so, I-----

How long had you and the de facto been together for?--  Oh, about three years.

About three years.  Did your de facto situation with her occur to you as you were ringing from the freeway, or on the morning that you went to – with a condom in your pocket?--  Did it occur to me?

Mmm?--  Yeah, I knew I was in a relationship.”

It should be noted, however, that when the appellant queried the word “dishonesty”, the prosecutor immediately clarified what he meant by using he alternative descriptions of “cunning” and “deception”.

89. The complainant had agreed in cross-examination that the appellant had suggested to her that she should put some moisturiser on her leg, but the appellant was cross-examined on the basis that his evidence about talking to the complainant about moisturiser was an invention (AR285 lines 8-18):

“Why would you have to be telling her, asking her about the rash on her leg and talking about moisturiser to her?--  I just – I just suggested that it might need some moisturiser.

See, I put to you that’s just another one of these inventions of yours to try to cover every nook and cranny of the case against you.  In other words, the rash on the legs, moisturiser, advice, therefore, that gives you a basis, you know, for explaining about how we came to be talking about legs?--  No.  No, I didn’t even think of it like that.  I was just telling her – I don’t know, that she had dried legs.”

It appears that the prosecutor did make a mistake in challenging the appellant’s evidence about the moisturiser as an invention.  It was on a peripheral matter and it was patent in the light of the complainant’s evidence that it was not an invention.

90. The prosecutor then put what he described as a “general proposition” to the complainant to which defence counsel objected and the trial judge intervened to prevent the question being pursued. The cross-examination then concluded with the following exchange (AR285 lines 29-36):

“In other words – anyway, I’m putting to you wherever you see a situation there that’s a problem you will thrash around to try to make up some explanation for it, whether it’s a van, whether it’s next door, whether it’s rashes, whether it’s moisturiser, whatever.  Whatever.  Do you want to comment?--  No, you’re commenting to me.

Hopeless asking a question.”

After the prosecutor had made that comment about “Hopeless asking a question”, the trial judge asked the appellant whether he wished to answer the question of the prosecutor and the appellant responded “No.  I’m not – no.  I thought he was talking to me.” and, when the prosecutor then said “What?”, the appellant said further “I thought you were just telling me, you know, your opinion.”.  When the trial judge invited the prosecutor to pursue that, the prosecutor declined and that was the end of the cross-examination.  Although the prosecutor should not have made the comment “Hopeless asking a question”, the appellant showed that he was equal to the task of making his own observation of what he thought about the prosecutor’s comment.

91. The appellant sought to rely on the similarity between his treatment in the witness-box and that of the defendant in Paterson v R [2004] WASCA 63 (“Paterson”).  One of the successful grounds of appeal in Paterson was that the defendant had been deprived of his right to a fair trial by the manner in which the prosecution case was conducted.   One aspect of the prejudicial conduct in Paterson was that the prosecutor cross-examined the defendant on evidence that he had given that he had asked his de facto partner to call the police.  The prosecutor suggested that the defendant was both lying and had changed his story, when the prosecutor had a statement from a police officer which confirmed that at the relevant time that he had at the police station taken a telephone call from the defendant’s de facto partner.  It was held that this part of the cross-examination was unfair, but was not enough for the trial to miscarry, as the defendant had the opportunity to call his de facto partner and she was not called to give evidence.  It was found, however, that the cumulative effect of that prejudicial conduct together with other prejudicial questions and comments and language on the part of the prosecutor deprived the defendant of his right to a fair trial. 

92. The appellant’s evidence-in-chief was recorded in 18 pages of transcript, his cross-examination in 44 pages of transcript and his re-examination in 3 pages of transcript. It was conceded on behalf of the Crown on the appeal that there was a searching and vigorous challenge to the appellant’s evidence during the cross-examination of him at the trial. It was submitted, however, that in the context of the whole of the evidence given at the trial, the approach of the prosecutor did not cause the appellant to be unfairly treated. The Crown relied on the fact that experienced counsel appeared for the appellant at the trial and the large number of matters which are now the subject of complaint by the appellant were not the subject of objection by the appellant’s counsel at the trial. The Crown also relied on the minimal intervention by the trial judge as indicative of how the cross-examination of the prosecutor was perceived at the trial.

93. The credit of the appellant was clearly in issue at the trial. A vigorous cross-examination of the appellant was to be expected. Although gratuitous comments by cross-examiners should be avoided, it is a question of degree whether the number and content of such comments have prejudiced a fair trial. Perusal of the appellant’s evidence indicates that he was able to handle the cross-examination. The lack of oppression in the trial can also be gauged by the decision of counsel who appeared for the appellant at the trial to take few objections during the cross-examination. Apart from the slip by the prosecutor in relation to the complainant’s concurring evidence about the appellant’s suggestion of using a moisturiser on her legs, the appellant cannot point to any cross-examination of the nature of that in Paterson where the prosecutor cross-examined by suggesting lies in circumstances where the prosecutor’s brief would not support such a suggestion.

94. The few points that the appellant has successfully made about the conduct of the prosecutor at the trial are not sufficient in the context of the whole of the appellant’s evidence to conclude that the appellant was deprived of his right to a fair trial.

Defences under s 216(4) of the Code

95. The defences under s 216(4) of the Code were available for the alternative charges for counts 2, 4 and 5 on which the jury found the appellant was guilty and count 3.  The form in which s 216(4) of the Code exists was first introduced into the Code by Act No 17 of 1989.  At that stage the definition of “intellectually impaired person” was found in s 216(6) of the Code where it was defined to mean “a person who is so intellectually impaired as to be incapable of guarding himself or herself against sexual exploitation”.  That definition was omitted by Act No 65 of 1992 which also inserted the definition of “intellectually impaired person” which is found in s 229F of the Code:

“A person is an ‘intellectually impaired person’ if the person has a disability-

(a)that is attributable to an intellectual, psychiatric, cognitive or neurological impairment or a combination of these; and               

(b)that results in-

(i)a substantial reduction of the person’s capacity for communication, social interaction or learning; and

(ii)the person needing support.”

96. In relation to the defence in s 216(4)(a) of the Code, the appellant had to prove on the balance of probabilities that he believed on reasonable grounds that the complainant was not an intellectually impaired person.  By the end of the trial there was no real issue that the complainant was an intellectually impaired person.  This defence focused on the appellant’s actual belief at the time and whether he had reasonable grounds for the belief. 

97. In light of the evidence given by the complainant and Dr Attwood’s evidence that the complainant did not have significantly impaired verbal fluency, it was submitted on behalf of the appellant that the jury ought not to have rejected the appellant’s account that he did not know or have reason to believe the complainant was intellectually impaired. It was argued that as that defence had to be established only on the balance of probabilities, a consideration of all the evidence must lead to the conclusion that the defence was established.

98. Dr Attwood’s observation about the complainant’s verbal fluency was not particularly significant when the jury observed first hand how the complainant spoke and presented and would have appeared to the appellant. The appellant placed great reliance on the fact that the complainant had not expressly disclosed to him that she was intellectually impaired or informed him of her limitations which would have enabled him to conclude that she was intellectually impaired. That had to be considered, however, in the circumstances of the encounters between the appellant and the complainant, before he attended at the complainant’s home.

99. The jury were not bound to accept the appellant’s evidence as to his belief that the complainant was “fine” in relation to her “mental health”. The appellant’s credit was in issue, as was the reasonableness of any belief, if the jury did accept that he had the requisite belief. In the light of all the circumstances that prevailed at the time of the incidents on 9 October 2002, it cannot be said that it was unreasonable for the jury not to have found that they were satisfied on the balance of probabilities that the defence in s 216(4)(a) of the Code was established.  

100. In relation to the defence in s 216(4)(b) of the Code, the appellant had to prove on the balance of probabilities that the relevant sexual act committed in respect of the complainant did not in the circumstances constitute sexual exploitation of the complainant.  It was submitted on behalf of the appellant that this provision was designed to protect those persons who are so intellectually impaired that it is not possible for them to knowingly engage in a sexual act.  That interpretation of s 216(4) does not take account of the definition of an intellectually impaired person in s 229F of the Code and purports to narrow the circumstances that can be characterised as sexual exploitation of an intellectually impaired person in a way which is not reflected by the terms of the provision.  The trial judge’s direction to the jury that sexual exploitation means taking advantage of the complainant in a sexual way accurately expressed the concept of sexual exploitation.

101. The jury were directed appropriately to consider the nature of the relationship between the parties, the appellant’s understanding, appreciation and knowledge of that relationship and whether the appellant abused that relationship for his own sexual gratification. Even allowing for the fact that the burden of proof of this defence was on the balance of probabilities, it was not unreasonable for the jury to conclude that the defence was not established in the circumstances.  

Written handout to the jury

102. Each of the jurors had been given at the commencement of the trial a copy of the counts set out on the indictment without the formal parts of the indictment. During the summing up the jury were invited to refer to their copies of the indictment in conjunction with a 5 page handout which the trial judge had prepared for the jury that was distributed at that stage. Each page of the handout related to one of the counts of the indictment.

103. A description of page 1 of the handout will serve to illustrate what the document showed. In relation to count 1, the name of the offence “Rape” is set out with two arrows, one leading to the verdict of “Guilty” and the other leading to the verdict of “Not Guilty”. There is no further information on the pathway that ends in the verdict of guilty. The pathway that shows “Not Guilty” for the offence of rape, then has an arrow leading to this statement “Alternative charge (if not guilty of Rape)” which is followed by another arrow to the description of the alternative charge as “Unlawful and indecent dealing with an intellectually impaired person”. Under the statement of that alternative charge are placed 2 arrows, one leading to a verdict of “Guilty” and the other leading to a verdict of “Not Guilty”. The trial jury referred to each page of the handout as a “flow chart” which was an apt description.

104. The appellant’s complaint about the 5 page handout is that it contained written directions to which great weight would be attached by the jury as they had it with them in the jury room and the defences were not contained in the document.

105. The trial judge’s explanation of the handout to the jury was to the effect that it was to assist them in understanding the alternative charges that were open in respect of the charges on the indictment. The trial judge summed up at length on the matters that would result in the jury bringing in not guilty verdicts in respect of the counts on the indictment and the relevant alternative offences. The appellant sought to rely on the fact that the handout was distributed at that point in the summing up when the trial judge alerted the jury to the fact that he wanted to move on “to some directions I want to give you about the law that applies and the charges”. It is clear from what then followed in the summing up that the directions that the trial judge gave the jury on the law and the charges were not confined to what was contained in the handout. The handout was not described as and did not purport to be (and could not be mistaken by the jury to be) a comprehensive statement of the law relating to the matter. The handout was used appropriately by the trial judge as an adjunct to his comprehensive and thorough summing up on the law.

Application of s 93A Evidence Act 1977

106. Before the jury was empanelled, the prosecutor and counsel for the appellant raised with the trial judge how the evidence would proceed. The prosecutor outlined that he proposed to play the s 93A videotape through the investigating police officers who conducted the interview with the complainant and that the complainant would then be the next witness in respect of whom he would ask some introductory questions and then make her available for cross-examination. Although the appellant’s counsel made it clear at the commencement of the trial that there was no admission by the appellant as to the intellectual impairment of the complainant, there was no demur to the proposed method of adducing the complainant’s evidence. The appellant’s counsel had appeared for the appellant at the committal where the s 93A tape had been tendered and had cross-examined the complainant at that stage.

107. The issue which arose on the defence under s 216(4) of the Code was whether the appellant believed on reasonable grounds that the complainant was not an intellectually impaired person.  There was no evidence adduced on behalf of the appellant to challenge the opinion expressed by Dr Attwood that the complainant was an intellectually impaired person.

108. It was common ground at the trial that the s 93A videotape of the complainant’s record of interview was admissible. No express determination as to admissibility was required of the trial judge when there was no issue about the admissibility of the videotape.

Evidence of lack of cognitive capacity

109. The submission was made in the appellant’s written submissions was that there was no evidence that the complainant lacked the cognitive capacity to give consent, as distinct from being intellectually impaired, and that the trial judge misdirected the jury in directing them that the prosecution had to prove beyond reasonable doubt that the complainant had the cognitive capacity to consent to penetration.

110. The issue of whether the complainant had the cognitive capacity to consent to penetration was an issue of fact on which the jury had to be satisfied beyond reasonable doubt in relation to each of the rape charges. Although there was no expert evidence on the issue of the complainant’s cognitive capacity, it was still an issue that had to be canvassed. It may not have been an issue which caused the jury any difficulty, after they had the opportunity to view the videotaped record of interview of the complainant and observe the complainant give evidence before them, but there was no misdirection involved on the part of the trial judge in telling the jury that they could exclude consent, if they found the complainant did not have the cognitive capacity to consent. In any case, as Mr Smith of counsel for the appellant conceded on the hearing of the appeal, his argument on this point was irrelevant in light of the verdicts of not guilty of rape on counts 2 and 4.

Use of the letter written to the teacher

111. Although the letter written by the complainant to Mrs Brandenburg was relied on by the prosecution as a preliminary complaint, it was relied on by both the prosecution and the defence for additional purposes. The appellant relied on the letter to show that there was no complaint by the complainant that she had not consented to what had occurred between the appellant and her. The prosecution relied on the contents of the letter as evidence of intellectual impairment. During the trial, counsel for the appellant acknowledged that the letter could be used to determine the extent of any intellectual impairment of the complainant (AR459 lines 30-49). It is submitted that the trial judge incorrectly directed the jury in suggesting that the letter could be used as relevant to intellectual impairment of the complainant.

112. The trial judge made the following general observations about the letter (AR449 lines 1-9):

“You can consider the text of the letter and consider the questions which are asked and what it means for a number of reasons.  It may have some bearing on consent, for example, in your considerations.  You may think it has some bearing on the question of the intellectual level and capacity of [the complainant].”

113. The fact that the letter was relied on as evidence of a preliminary complainant did not preclude it being used for other purposes for which it could properly be used. The contents of the letter were such that it was open for the jury to have regard to those contents on the issue of the intellectual impairment of the complainant.

Conclusion on appeal against conviction

114. The appellant has been unsuccessful on each of the submissions made in support of his appeal against conviction. The appeal should be dismissed.

Sentence

115. The appellant seeks leave to appeal against the sentences imposed on counts 1, 2 and 4 on the basis that imprisonment for 8 years is manifestly excessive. If the appellant was unsuccessful in his appeal against the conviction for rape on count 1, his submission was that imprisonment of 5 years should have been imposed for each of counts 1, 2 and 4.

116. In the submissions on sentence before the trial judge, the appellant was described as having been brought up in a “very traumatic household” where his father was an alcoholic and his mother was physically and emotionally abusive to him. The appellant was diagnosed in 1986 with schizophrenia and was admitted to a hospital in Melbourne following a psychotic episode. The appellant has been diagnosed as a paranoid schizophrenic who suffers from paranoid delusions and has suffered depression from the time he was at school. He has also had problems with alcohol. The appellant has a minor criminal history in which the offences were primarily committed in 1990.

117. In his sentencing remarks the trial judge described the appellant as having exploited the complainant “ruthlessly” and “in a persistent way”. The trial judge observed:

“Our society requires protection for people in the position of the complainant from the behaviour that you indulged in, and a component of this sentence will be a deterrent to like-minded people who importune and take advantage of those who are intellectually incapacitated and impaired.”

The trial judge concluded that the appellant was “entirely unremorseful” from the evidence which he gave in the course of the trial and the way in which he gave that evidence.    

118. For a comparable sentence the appellant relied on R v Keevers; R v Filewood [2004] QCA 207.  Filewood was convicted after trial of 1 count of rape and sentenced to imprisonment for 2 ½ years, suspended after 9 months for an operational period of 3 years.  The rape involved digital penetration of a woman who was sleeping with her partner in the same unit in which Filewood was staying.  The woman was asleep when she became aware of kissing on her neck and fondling of her breast and awoke to find Keevers seated towards her upper body and Filewood at the bottom of the bed removing his right hand from her vaginal area.  Filewood had no prior criminal history and was 24 years old at the date of the offence.  Filewood had desisted in his conduct when the complainant objected.  The Court of Appeal considered that the sentence imposed was “quite moderate” and dismissed Filewood’s application for leave to appeal against sentence. 

119. In R v R [2003] QCA 285, R was convicted after trial of 2 counts of rape and 2 counts of indecent dealing of his stepdaughter.  The latter offences were committed when the stepdaughter was under 12 years old.  The period of offending spanned at least 6 years.  The evidence revealed many uncharged acts.  A sentence of 10 years imprisonment for each of the rapes was reduced on appeal to 8 ½ years.

120. The victim in R v Cutts [2005] QCA 306 was a wheelchair bound 28 year old woman who, despite her cerebral palsy, lived alone and independently with the assistance of visiting carers.  Cutts was convicted after trial of 3 counts of sexual assault and 1 count of rape.  He was a taxi driver who drove the victim to her unit in the normal course of his work, but asked to use the toilet in her unit.  When Cutts was in the unit, he took advantage of the victim’s disability, assaulted her by rubbing her breasts with his hand inside her clothing, sucking on her breasts and making her use her hands to rub his erect penis.  Cutts then penetrated the victim’s mouth with his penis which resulted in the conviction for rape.  The Court of Appeal dismissed the application for leave to appeal against the sentence of imprisonment of 6 years for the count of rape. 

121. It was appropriate for the sentence for count 1 to be fixed by taking into account the persistence of the appellant’s conduct in taking advantage of the complainant and committing counts 2 to 5. Even allowing for the aggravating features of the appellant’s conduct, his lack of remorse and the need for general deterrence, it is difficult to reconcile the sentence of 8 years for each of counts 1, 2 and 4 with sentences for more serious offences of rape, as reflected by decisions such as R v R.  There are many features that enable Filewood to be distinguished from the present case.  Cutts supports a sentence of 5 years’ imprisonment for each of counts 1, 2 and 4. 

Orders

122. It follows that orders should be:

1. Appeal against conviction dismissed         

2. Grant application for leave to appeal against sentence

3. Appeal against sentence on counts 1, 2 and 4 allowed

4. Sentences of 8 years’ imprisonment on counts 1, 2 and 4 set aside and sentences of 5 years’ imprisonment substituted on each of counts 1, 2 and 4