SUPREME COURT OF QUEENSLAND

[1]  WILLIAMS JA:  I have had the advantage of reading the reasons for judgment of Keane JA and I agree with all that is said therein.  The appeal should be allowed, the conviction set aside and a new trial ordered with respect to counts two to five on the indictment.

[2]  JERRARD JA: In this appeal I have read the reasons for judgment of Keane JA, and respectfully agree with those and the orders proposed by His Honour.  I add that the first question the jurors asked, namely “If both parties involved are not aware that a crime is being committed and one party finds out it was a crime after the event etc.”, was probably a question about the position if one party was not aware that a crime is being committed.  So understood, the first and third questions asked by the jury did raise the need to direct on s 24 of the Criminal Code 1899 (Qld).  The jury asked the first question, then the learned judge answered it, then the jury asked the second question and it was answered, and then the third question was asked, and the jurors intimated that it had already been answered.  That process did not alert counsel or the learned judge to the apparent connection, much more obvious with hindsight, between the first and third question.

[3]  KEANE JA:  On 25 August 2006, the appellant was convicted, upon the verdict of a jury, of three counts of rape and one count of deprivation of liberty.  The appellant was acquitted on one count of indecent assault.  He was sentenced to concurrent sentences of eight years imprisonment in respect of the offences of rape and two years in respect of the deprivation of liberty.  A total of 368 days was declared as time served in respect of the sentences. 

[4] The appellant seeks to appeal against the convictions.  An application for leave to appeal against sentence was abandoned. 

[5] The grounds of appeal which were argued may be summarised as follows:

(a) the trial judge erred in not leaving to the jury the issue whether the appellant honestly and reasonably, but mistakenly, believed that the complainant consented to the acts of penetration;

(b) the trial judge misdirected the jury to the effect that the consent of the complainant was not relevant to the jury's deliberations;

(c) the trial judge erred in leaving to the jury the evidence of a nurse, Mrs C, that damage to the fourchette of the complainant had occurred within 24 hours of the examination of the complainant by Mrs C, when that evidence was neither admissible nor corroborative;

(d) the conviction on count 5, the deprivation of liberty count, was unsafe and unsatisfactory.

[6] The first three of these grounds related to the convictions on the counts of rape.  The fourth ground related to the conviction for deprivation of liberty.  Counsel for the respondent accepted, correctly in my view, that the Crown case in relation to the deprivation of liberty charge was so intertwined with the Crown case in relation to the counts of rape, that if the convictions for rape were set aside, the conviction for deprivation of liberty should also be set aside. 

[7] In order to understand the arguments which arise in respect of these grounds of appeal, it is necessary first to summarise briefly the evidence at trial.  I will then discuss the grounds of appeal.

The evidence at trial

[8] The complainant was a young Aboriginal woman from Aurukun.  At trial, she was 18 years of age.  She gave evidence through an interpreter.  The transcript of evidence is not always easy to follow. 

[9] The complainant said that, while she was with her friends, S and L, in Pikkuw Street, Aurukun, the appellant forcibly abducted her.  Thereafter, he had sexual intercourse with her without her consent on three occasions.

[10]  The complainant said that the appellant dragged her by her shirt from the street past a disco hall and then to a place near a tower which she marked on a map tendered in evidence.  The complainant said that, as the appellant was dragging her away, S called out for help, and the appellant hit the complainant several times.  When they were near the tower, the appellant said that he wanted sex and the complainant said: "I don't want to have sex with you."  The appellant pulled his trousers down and the complainant said "No".  She said that he then forced his penis into her vagina.

[11]  The complainant said that the appellant then pulled her by her shirt to the school.  When they got there she said:  "No, don't want to go in."  He forced her into the school, pulling her by her shirt, underneath B block.  There, according to the complainant, "He said again for sex".  She said that he broke the leg off a water sprinkler at the school at this time.  She said he then "forced [her] in room for sex, to have it".  She said that "he took down his trousers, and he wanted to take mine, too and [she] said, 'No, I want to go'.  And he forced [her]".  She said that he threatened her with the leg from the broken sprinkler, saying "I'm thinking of killing you here in the dark at the school".  He also threatened M, the complainant's aunty.  The complainant said that the appellant then forced her to have sex "on the stool".  While they were having sex on the stool, they fell onto the ground.

[12]  The complainant said that, after they had sex at the school, they went to "[A's] at the circle".  A was the appellant's sister.  Her house was in Pikkuw Street.  There, she said to the appellant that she wanted to go to her aunty's place.  She said she did not want to stay at A's house.  According to the complainant, the appellant said "the first room is a mattress.  He said for one more sex".  The complainant said that the appellant gripped her shirt and "pulled it with force".  She said that he forced her to have sexual intercourse again.  He pulled her trousers down, and she pulled them up.  Once again, she told him that she did not want to; but he forced her to have sex.    They stayed in the room for the rest of the night.

[13]  The complainant said that the police came to the door of the house "in the day time".  The complainant's evidence was that, after the police had gone, the appellant said "One more sex".  She said:  "I don't want to."  She said that "after he'd had sex the police then came" again.  At that time, the complainant was in the toilet.

[14]  Constable R gave evidence that she spoke to the complainant's mother at 8.15 am on 21 July 2005.  Constable R went to A's house at 8.30 am where A refused to allow the police into the house.  The police returned at 11.10 am in the company of the owner of the house.  They entered the house, and the complainant came out of the toilet after Constable R had tried to open the toilet door.  The complainant said to Constable R that the appellant hit her in the face.  The complainant was then taken to the police station.  The police found the appellant in a bedroom, the door to which was locked.  While Constable R was taking details of the complainant's claim that the appellant had hit her in the face, the complainant asserted that the appellant had raped her.  On 22 July, Constable R returned to A's house where the appellant's nephew, I, gave her the sprinkler leg.

[15]  The complainant's friend, L, gave evidence that, on a night in July 2005, she was in Pikkuw Street with the complainant and S.  The appellant came and grabbed the complainant by the shirt collar and the waist.  The complainant struggled, but the appellant pushed her down the street to the hall.  The complainant was saying to the appellant:  "Greg, leave me alone, I want to go home", but he kept pushing her to the hall.  L then went home to tell her uncle what had happened.

[16]  S gave evidence that, on 20 July 2005, she was in Pikkuw Street with the complainant and L.  The appellant came along and pulled the complainant's shirt saying "How come you didn't come back to me?".  S said that the complainant replied:  "I don’t want live with you anymore."  It is convenient to mention here that the appellant gave unchallenged and uncontradicted evidence that the complainant and the appellant had been in a sexual relationship prior to 20 July 2005.  S said that the appellant kept pulling her down the street by her shirt while the complainant tried to turn back.

[17]  The appellant's nephew, I, gave evidence that the broken sprinkler which he had seen at the school was in the first room of A's house where, the witness said, the appellant spent one night.

[18]  The Crown also called Mrs C, who was the nurse on duty at Aurukun on 21 July 2005.  At about 2.30 pm on 21 July 2005, Mrs C examined the complainant's genital area where she observed grazing to the posterior fourchette which she described as "very recent".  Mrs C said that this damage had occurred within the previous 24 hours because it had not begun to scab over.  She then went on to say:  "But I am not an expert, so I couldn't tell you for sure."  The complainant also had two six centimetre scratches on her back which were fresh but superficial.

[19]  Mr B, a security guard at the school, gave evidence that, in July 2005, he noticed that a water sprinkler was missing from the school, the leg of which was similar to that located by the police at A's house.  Mr B lived 60 metres from B Block at the school.  He had two dogs which roamed the school grounds at night.  Mr B said that he could not recall any night in July 2005 when he had occasion to investigate what his dogs were barking at.

[20]  The appellant gave evidence that he lived with the complainant prior to February 2005, when he left town.  He returned to Aurukun in July 2005.  The complainant lived with him for a week, and then left.  He said that he received sad news about his sister's death on 21 July 2005 and went to the hotel where he broke a light with a stick.  He left the hotel because he thought the police might come for him.  He said that he saw the complainant in Pikkuw Street with L and S.  The appellant said that he asked the complainant to come and stay at his sister's place, and that she agreed. 

[21]  The appellant said that, in his anxiety about the police, he grabbed her by the hand and walked off past the disco hall.  He said that they had consensual sexual intercourse, once at a house where no-one lived and once at the tower, before they went to A's place.  He said that the complainant lay down and took off her clothes, and he took off his trousers.  The appellant said that he and the complainant then walked through the school in order to avoid police.  They sat under B Block.  A dog was barking, and the appellant broke the leg off a sprinkler to protect the complainant from the dog.  They then went to A's house where they had sex again and fell asleep.  The appellant said that the first time they had sex the complainant had said "okay", the second time she said "all right", and the third time she said "yeah". 

The trial judge's directions on s 24 of the Criminal Code

[22]  It is convenient to address the first two grounds of appeal together.  These grounds concern the application of s 24 of the Criminal Code 1899 (Qld).  Section 24 of the Criminal Code provides relevantly that:

"[a] person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist."

[23]  At trial, counsel for the appellant sought to cross-examine the complainant, from a written statement previously made by her, to establish their prior sexual relationship.  A possible defence of honest and reasonable mistake of fact as to consent under s 24 of the Criminal Code was raised during discussion between counsel and the learned trial judge in relation to this line of cross-examination.  After a somewhat confusing exchange between counsel for the appellant and the learned trial judge, this line of questioning was not further pressed.  It was unfortunate that the effect of his Honour's intervention seems to have been that a potentially relevant, and perfectly permissible, line of cross-examination was not pursued on the appellant's behalf.  In any event, the issue of mistaken belief as to consent on the appellant's part was not mentioned by the appellant's counsel in his address to the jury, or by his Honour in his directions to the jury.  The burden of the argument put by the appellant's counsel to the jury was that they should entertain a reasonable doubt as to whether the penetration which had occurred had been without the complainant's consent. 

[24]  The appellant now contends that he was denied a fair trial according to law because he was denied the benefit of the possibility of an acquittal on the basis that he honestly and reasonably, albeit mistakenly, believed that the complainant consented to having intercourse with him.

[25]  The respondent contends that the evidence did not give rise to an arguable case that the appellant believed, albeit mistakenly, that the complainant was consenting to intercourse.  The respondent argues that the only issue for the jury was whether the complainant had consented to intercourse: her evidence that she had not consented was either true or false.  If the jury were not satisfied beyond reasonable doubt that the complainant had not consented to intercourse, they were duty bound to acquit.  The respondent's contention fails to recognise, however, that the jury may not have been disposed to accept, in its entirety, the version of either the complainant or the appellant.

[26]  In this regard, after the jury had retired, they sought further assistance from the learned trial judge.  They posed, orally through their spokesperson, questions to which his Honour responded.  The relevant exchanges were as follows:

(a) "If both parties involved are not aware that a crime is being committed and one party finds out if – it was a crime after the event, is this a crime?"  His Honour replied that "knowledge of what the law is is of no relevance whatsoever".

(b) "We'd just like you to clarify again what constitutes rape if that's possible?"  His Honour replied by reminding the jury of the elements of the crime of rape.

(c) "If there has not been a verbal refusal, under what circumstances does a rape occur?  There has not been – if there has not been a verbal refusal, under what circumstances does a rape occur?  And I think you may have answered that."  His Honour contented himself with his response to the second question.

[27]  I pause here to note that it is unfortunate that the usual practice that such questions by the jury be reduced to writing was not followed.  That practice allows both counsel and the trial judge to reflect upon the questions posed and to give proper consideration to the answers necessary and appropriate to meet the jury's concerns.

[28]  On the appellant's behalf, it is submitted that the jury's questions made it clear that they were seeking directions as to the criminal liability of the appellant on the footing that they were addressing the possibility that, in fact, the complainant did not consent to intercourse but did not say so or otherwise make her lack of consent clear to the appellant.  That is, I think, gravamen of the third question upon which the jury sought the assistance of the learned trial judge. 

[29]  It is submitted by the appellant that, in these circumstances, the learned trial judge should have directed the jury as to the need for the Crown to negative the operation of s 24 of the Criminal Code.  In this regard, it is clear that his Honour's responses to the jury's questions did not address s 24 of the Criminal Code at all. 

[30]  In my respectful opinion, the appellant's submissions must be accepted.   The jury are the arbiters of the facts of the case.  It was open to the jury to "work out for themselves a view of the case which did not exactly represent what either party [had] said".[1]  In this case, the jury's questions were a clear indication that they were not minded to accept either version of the events in question in their entirety.  In these circumstances, a direction in relation to s 24 was required to ensure that the jury was fully instructed on the law applicable to the facts of the case as the jury might find those facts.[2]  As White J said in R v Soloman,[3]

"It is particularly important, as his Honour has emphasised, that a jury be fully equipped by appropriate and correct directions to return a verdict according to law. The very divergent evidence of the parties here might well have caused the jury to moderate both versions of what happened. If that were the case, and it was a real possibility, then a jury needed to be directed about s 24 …"[4]

[31]  The respondent argued that s 24 of the Criminal Code was not raised in this case because the appellant had not given explicit evidence that he believed that the complainant was consenting to intercourse.  The appellant's evidence was that the complainant indicated her consent by words and conduct.  In these circumstances, it was not necessary for the appellant expressly to assert that he believed that the complainant was consenting to intercourse.  Evidence by an accused that the complainant consented to intercourse will usually convey that the accused's belief or understanding was that the complainant consented to intercourse.  In R v Cutts,[5] Williams JA said:

"Where an accused person gives evidence admitting the sexual activity but contending that it was with the complainant's consent there is evidence that he believed the complainant to be consenting. If the jury rejects the correctness of the accused's evidence and accepts the evidence of the complainant that she was not consenting, that does not mean that the accused did not hold the belief to which he swore. In those circumstances the jury should go on and consider whether or not the belief was honestly and reasonably held, unless in the circumstances there is some good reason for not doing so. In a case such as that the rejection of the accused's evidence to the effect that the complainant was consenting does not necessarily amount to a rejection of the evidence that he held such a belief. This case is clearly distinguishable from that situation. The preference for the complainant's evidence and acceptance of it beyond reasonable doubt does not leave for consideration any evidence from the appellant as to his belief that the complainant was consenting. By his sworn testimony he has eschewed the holding of any belief that the complainant was consenting to the acts which the jury have found he committed. The only conclusion open as to the appellant's belief, consistent with his sworn testimony, is that he held none to the effect that the complainant was consenting to sexual activity with him."

Jerrard JA made observations to similar effect.[6]

[32]  In my respectful opinion, the respondent's argument must be rejected.

[33]  In summary in relation to the first two grounds of appeal, the appellant was entitled to have the jury directed upon the issue whether he was honestly and reasonably mistaken as to the absence of consent in relation to the counts of rape.  Because this direction was not given, the appellant did not receive a fair trial according to law.

The trial judge's directions on corroboration

[34]  In relation to corroboration, his Honour identified the evidence of L and S as evidence which was capable of supporting the complainant's evidence in relation to the circumstances of her forced abduction against her will, and of her evidence that "she didn't want to have sex with him".

[35]  The trial judge also directed the jury that the evidence of the finding of the sprinkler leg in the bedroom of the house where they stayed the night could support the complainant's evidence that it was used by the appellant to threaten her in order to procure her submission to sexual intercourse.

[36]  The appellant makes no complaint about the directions referred to above.  The appellant complains, however, that the trial judge directed the jury that they could regard the evidence of Mrs C as affording support to the complainant's evidence that intercourse with the appellant was violent and forced.  The appellant argues that this evidence was not admissible to support a conclusion that the complainant had not consented to intercourse with the appellant.  That is said to be because Mrs C expressly disclaimed any expertise such as would enable her to say when the injury to the fourchette had occurred.

[37]  Once again, I respectfully consider that the appellant's submission must be accepted.  Mrs C's evidence as to the timing of the injury was admissible only as evidence of opinion, and hence admissible only if Mrs C was sufficiently qualified to give such an opinion.  On her own admission, she was not.

[38]  This ground of appeal must be upheld.  It was conceded on the appellant's behalf that this ground would not, of itself, have been sufficient to warrant the setting aside of the conviction.  

Conclusion and orders

[39]  It was not argued for the respondent that this Court is in a position to conclude that the convictions can be sustained on the footing that no substantial miscarriage of justice has occurred by reason of the insufficiency of the learned trial judge's directions.[7]  In my respectful opinion, no argument to that effect could sensibly have been made.  Accordingly, the appeal must be allowed and all the convictions set aside.

[40]  I would propose the following orders:

1. The appeal against conviction should be allowed. 

2. The conviction and verdict should be set aside.

3. There should be a new trial in respect to counts 2 to 5.