R v Ross[2007] QCA 244

SUPREME COURT OF QUEENSLAND

[1]  WILLIAMS JA:  I agree with the reasons of Keane JA and with the order proposed.

[2]  KEANE JA:  On 15 February 2007, the appellant was convicted upon the verdict of a jury of one count of rape.  He was sentenced to four years imprisonment with a parole eligibility date of 14 February 2009.  At the commencement of the hearing of the appeal, Mr P E Smith of Counsel on behalf of the appellant sought and was granted leave to amend the notice of appeal. Pursuant to that grant of leave, the grounds of appeal are:

(a)  that the learned trial judge:

• "failed to adequately sum up"
• "erred in failing to direct on s 24 of the Code"
• "erred in directing as to preliminary complaint"

(b)  that the "verdict of the jury was unreasonable"

I will discuss these grounds of appeal after first summarising the Crown case at trial and the case presented on behalf of the appellant.

The Crown case at trial

[3] The appellant was charged with the rape of the complainant on or about 8 August 2004.  At that time, he was almost 22 years of age.

[4] The complainant was 19 years of age at the time of the alleged offence.  She knew the appellant from high school where he had been a grade or two above her.  In 1999, when the complainant was in Grade 8, they had been involved in a romantic relationship without any sexual activity.  This relationship broke up after one week.  The complainant left the school the following year, but she saw the appellant again in 2002.  On 6 August 2004, they met again by chance.  They saw each other on the next night, 7 August 2004, at a Thai kickboxing event.

[5] The complainant said that she was at the kickboxing on the evening of 7 August from about 6.00 pm until about 12.30 am.  She was tired because she had been up since 4.45 am on 7 August.  During the time she was at the kickboxing, she said that she had six or seven Vodka Cruisers.  She said that she was "a little bit drunk but not out of control".  She said that she met him by chance outside during intermission.  She said that, after the fights were over, he rang her on her mobile phone and asked if she "wanted to do something".  She said that she had given him her mobile phone number the day before.  She agreed to meet him at the service station next door to the kickboxing venue.  From there they went back to his house, which was across the road.  They got there somewhere between 12.30 am and  12.45 am.  They went into the back yard and played with his dog for a few minutes. They went inside, and he went to the toilet while she sat on the couch and fell asleep.

[6] The complainant said that while she was on the couch, she "thought he was just trying to move [her]".  She fell asleep again and when she woke up she was on a bed and the appellant was on top of her penetrating her with his penis.  Her shoes, jeans and underpants had been removed, but her shirt and jacket were still on.  Her mobile phone, which had been in her jacket pocket, was on the dressing table.  The appellant still had his jumper on and his underwear was around his knees.

[7] The complainant's evidence was that she had not given any permission to the appellant to have sex with her.  She screamed at the appellant to get off.  Eventually, she kicked him and he got off.  He yelled at her to be quiet and said:  "You wanted this."  She cried out: "Leave me alone", and he threw her clothes at her.  He walked out of the bedroom shutting the door behind him.  She then sent a message to her aunt on her mobile phone asking for help.

[8] The complainant said that she then got dressed and ran out of the bedroom and down the hallway.  The appellant grabbed her at the front door where she hit him in the head with her shoes and ran out onto the road.  She rang her aunt asking her to come and get her.  She then ran to a female security guard at the kickboxing venue.  She told the security guard that she had been raped.  Shortly thereafter, her uncle arrived, followed by her mother and then the police.

[9] The complainant was then taken for examination by Dr Mahoney who examined her at 3.45 am on 8 August 2004.  She told Dr Mahoney that she had gone to the boxing night, had met the appellant and had gone back to his place.  She told Dr Mahoney that she had telephoned Christopher Sherlock from the appellant's place to tell him that she would not be able to meet him to go to a party as they had arranged.  She told Dr Mahoney that she then went to sleep, and awoke to find the appellant having sex with her on his bed.

[10]  Senior Constable Phillips gave evidence that he went to the appellant's residence at 2.48 am on 8 August.  There he spoke to Mr Ian Riseley who lived in the same house as the appellant.  The appellant was located asleep in his bedroom.  It was admitted by the defence at trial that Mr Riseley had earlier phoned the appellant to get a lift back to their residence.  Mr Riseley phoned at 12.34 am, 12.59 am and 1.06 am and spoke with the appellant each time.  The appellant finally picked him up at 1.13 am.

[11]  Dr Mahoney saw the appellant on 8 August 2004.  The appellant denied that vaginal intercourse had taken place, but said that the complainant had touched his penis.

[12]  The Crown called Dr Park, a forensic scientist, who gave evidence that a vaginal swab of the complainant revealed no seminal fluid but that, in blood staining on the complainant's underpants, there was a DNA profile the same as that of the appellant but no seminal fluid.  There was no seminal fluid on the complainant.  The complainant's DNA was on the appellant's penis and on a stain on the inside of the appellant's underpants.  In cross-examination, Dr Park agreed that the complainant's DNA on the appellant's penis and underclothing could have come from hand contact by the complainant on the appellant's penis, and that the appellant's DNA found in the complainant's underpants could have been transferred by the complainant.  There was no evidence of genital injury to the complainant.

[13]  The complainant's aunt gave evidence that she had been at the kickboxing with the complainant, and last saw her there between 12.15 am and 12.30 am.  At about   1.00 am, she received a telephone call from the complainant who said:  "Help me.  Help me".  The aunt asked:  "What's happened", and the complainant said:  "He's fucking me".  The aunt said she rang the complainant back and told her that her uncle was coming.  The complainant said:  "I've been raped.  Help me.  Come and get me".  The aunt said that she also received a text message from the complainant.  The aunt said that the complainant seemed to be very upset.

[14]  The security officer said that the kickboxing finished at around 11.00 pm.  Later, she was cleaning up when she heard a commotion and saw the complainant running on the road, yelling into her phone and screaming hysterically.  She was saying:  "He said I wanted it" and "He's coming after me."  She told the security officer that he raped her.  The security officer said that the complainant said that she had not seen her assailant for ages and that they had run into each other at the kickboxing.

[15]  Christopher Sherlock confirmed that he had been phoned by the complainant at about midnight.  He said that, at that time, she seemed quite jovial.

The appellant's case at trial

[16]  The appellant did not give evidence at trial; but on his behalf it was put to the complainant in cross-examination that she got herself into the appellant's bedroom and undressed herself.  She accepted that she had no actual recollection that she did not do this.  The appellant's counsel put to the complainant the proposition that she must have been conscious when she went from the couch to the bedroom, and, in particular, he elicited her agreement with the proposition that she did not "sleep walk".  This cross-examination also elicited the complainant's testimony that she is a heavy sleeper.  She admitted that her mobile phone was on the dresser in the appellant's bedroom and that she had no explanation as to how it came to be there.

[17]  It was put to the complainant that, when she and the appellant were on the bed, she was on top of the appellant.  She denied this.  It was put to the complainant that she was "rubbing [her]self over" the appellant and he was "responding" when he said something about his girlfriend, and at this point she started to scream.  She denied this proposition saying that there was no conversation between them before she screamed.  It was also put to her that, after she began to scream, the appellant offered to drive her home and that she declined the offer.  She denied this suggestion.

[18]  In cross-examination, she admitted that, when she had met the appellant again on 6 August 2004, they had chatted and he had driven her home.  They swapped telephone numbers.  He told her that he had a girlfriend.  She did not tell him that, as was the fact, she had a boyfriend.

The appellant's arguments

[19]  On the appellant's behalf, it is contended that the learned trial judge failed to provide the jury with adequate directions.  It is argued that his Honour failed adequately to direct the jury in relation to the defence case, in particular as to the element of consent in a charge of rape, and in relation to the availability of a defence under s 24 of the Criminal Code 1899 (Qld).  It is also argued that his Honour failed to give an adequate direction to the jury in relation to the use which the jury might properly make of the evidence of the complaints made by the complainant.  Apart from the asserted inadequacy of the learned trial judge's directions, the appellant also argues that no reasonable jury could have failed to entertain a reasonable doubt as to the appellant's guilt.

The learned trial judge's directions to the jury

[20]  The learned trial judge's directions to the jury were brief.  That is hardly surprising:  the trial commenced on 13 February 2007, and the judge's summing up to the jury began at 12.00 pm on 14 February.  The evidence was therefore fresh in the jury's mind, as were the addresses of counsel for each side. 

[21]  It is also the case that the issues were in short compass:  in discussion between the learned trial judge and counsel in the absence of the jury, it was agreed that the only issue was the question of consent to intercourse.  The appellant's counsel at trial did not formally admit that intercourse had occurred, but he did not suggest that there was an issue about that; and more importantly, the cross-examination of the complainant did not suggest that intercourse had not occurred.  In this regard, the questioning of the complainant to the effect that she was "on top" appears to be predicated on the assumption that intercourse did occur.  Furthermore, the appellant's counsel at trial accepted that this was a situation in which no question of a defence under s 24 of the Criminal Code arose.  Indeed, as will be seen, the appellant's counsel at trial was insistent that the learned trial judge's directions to the jury on the issue of consent should be formulated on the basis that s 24 of the Criminal Code was not in issue.

Preliminary complaint

[22]  In relation to preliminary complaint, the learned trial judge directed the jury relevantly in the following terms:

"Consistency between the account of the complainant … about the alleged offence and what [the complainant] said, as reported by each of those witnesses, is something you may take into account as possibly enhancing the likelihood that her testimony is true.

     You may also similarly take account of the evidence of [the complainant's] distressed condition immediately after the event.  Of course, you may also take into account any inconsistencies between the accounts given by the complaint witnesses and the accounts as given by [the complainant] in assessing [her] credibility, and you should also consider that there may be other explanations for [the complainant's] distressed condition.  However, you cannot regard the things said in those out of court statements as proof of what actually happened.  In other words, evidence of what was said on that occasion may, depending on the view you take of it, bolster [the complainant's] credit because of consistency, but it does not independently prove anything."

[23]  On the appellant's behalf, it is contended that:

"the jury could well have been confused about  [the highlighted part of this] direction because the direction that it could not be used to independently prove anything may have been regarded as given with respect to distressed condition as distinct from preliminary complaint."

[24]  This submission is without substance.  The jury would clearly have understood that they could not use the complainant's complaints of rape for any purpose other than to bolster her credibility as a witness.  The very brevity of the summing up of which the appellant complains was apt to ensure that the jury well understood the judge's direction on this point.  Indeed, if anything, the direction in question was unduly favourable to the appellant in that it lumped the evidence of objective observation of the complainant's distressed condition in with the statements made by the complainant as being relevant only to the complainant's credibility.  In truth, her distressed condition was of some evidentiary value as affording objective support for the proposition that the complainant had been sexually assaulted.

Consent and s 24

[25]  It is convenient to consider the appellant's arguments as to adequacy of the learned trial judge's directions in relation to consent and the absence of a direction in relation to s 24 of the Criminal Code together.

[26]  The learned trial judge directed the jury relevantly as follows:

"The elements of the charge of rape.  The prosecution must prove the defendant, one, had carnal knowledge of the complainant.  The prosecution must prove that the defendant penetrated the genitalia of the complainant with his penis.  Any degree of penetration is sufficient.  It is not necessary for the prosecution to prove that the defendant ejaculated.  And two, without her consent.  Consent is a common word in every day use.  When it is used in the context of sexual activity, it means consciously, i.e. freely or voluntarily permitting the act of sexual intercourse to occur.

     Consent may be defined as the agreement to or the acquiescence in the act of sexual intercourse by the complainant.  The defendant does not have to prove she consented, the prosecution must prove that she did not.  A person's consent to an act is not freely and voluntarily given if it is obtained by force, or by threats or intimidation or by fear of bodily harm or by exercise of authority."

[27]  Subsequently, the jury requested further assistance of the learned trial judge.  The jury asked:  "Is it rape when the victim is unconscious or asleep?"  In response to this question, his Honour said:  "I direct you that if the victim is unconscious or asleep and the defendant knows that, there can't be any consent."

[28]  This direction was given with the agreement of counsel for both sides.  The relevant discussion was in the following terms:

"HIS HONOUR:  Gentlemen, the note received from the jury that's some time ago now because I had to complete a sentence and I quote, "is it rape when the victim is unconscious or asleep"?  My inclination is to say in respect of that, that it remains at all times for the Crown to prove beyond reasonable doubt that there was no consent.

MR NOLAN:  Well, that really avoids the question.  Oh, we talked about this outside.  Isn't the correct answer, if the victim's unconscious and the accused knows that, then there can't be any consent-----

MR GOODWIN:  Can't be a consent.

MR NOLAN:  -----and as such it has to be right.

HIS HONOUR:  Yes.

MR NOLAN:  Keep in mind that there's no section 24 raised here.

HIS HONOUR:  No.

MR NOLAN:  But you still have to add, that the accused must know it.

HIS HONOUR:  Yes.  If the victim is unconscious-----

MR NOLAN:  And the accused knows it.

MR GOODWIN:  Unconscious or asleep.

MR NOLAN:  Or asleep – well, the same thing, yes.

HIS HONOUR:  Yes.

MR NOLAN:  Then there can't be any consent.

HIS HONOUR:  Knows that.  There can't be any consent.  Leave it at that?

MR GOODWIN:  I'm happy with that.

HIS HONOUR:  Okay.  That's it.

MR NOLAN:  Are you happy with that, yes."

[29]  Counsel for the appellant at trial was evidently concerned to ensure that the jury's attention was focussed clearly and squarely on the issue whether the appellant knew that the complainant was asleep.  Now it is said on the appellant's behalf that, although his counsel at trial disclaimed reliance on s 24 of the Criminal Code, a defence under that section was raised on the evidence by the complainant's evidence that the appellant had said to her "You wanted this", and the possibility that the appellant was mistaken as to whether the complainant was awake. 

[30]  It may be accepted that, however an accused may choose to run his or her case at trial, it is necessary that the jury should be directed to consider every defence which is raised on the evidence.[1]  The difficulty which confronts the appellant's submission in relation to s 24 of the Criminal Code, however, is that in the evidence at trial there was nothing which raised the possibility that the appellant mistakenly believed that the complainant was awake when intercourse took place. 

[31]  The appellant's case, as put to the complainant, was that she was, in fact, clearly awake and had freely gone into the appellant's bedroom partially undressed, and actively participated in intercourse.  It was not suggested on the appellant's behalf, for example, that the complainant was passively acquiescent in the appellant's advances.  That suggestion was a necessary first step towards a s 24 hypothesis.  The complainant gave no evidence to support any such suggestion.  For the appellant to raise now the possibility that the complainant accompanied the appellant to his bedroom and acquiesced in intercourse in a state of somnambulism so as to give the appellant the mistaken impression that she was consenting to intercourse is to engage in impermissible speculation.  It was not incumbent on the learned trial judge to give a direction to the jury on the basis of such a speculation.  As was said in R v Wickson:[2]

"The fundamental obligation of a judge presiding at a criminal trial is 'to ensure that the trial is conducted fairly and in accordance with the law' (MacPherson v The Queen (1981) 147 CLR 512 at 523).  It is no part of the duty of a trial judge to warn the jury against the presence of a chimera in the courtroom, or gratuitously to disparage complainants in cases of sexual offences (Longman v The Queen (1989) 168 CLR 79 at 95)."

[32]  Upon the appellant's behalf, reliance was placed upon this Court's decisions in R v Soloman[3] or R v SAX.[4]  In those cases, there was an issue, alive on the evidence, as to whether or not the accused might have been mistaken as to whether a complainant, who was apparently conscious but allegedly stupefied with drink, was capable of consenting to intercourse.  Here, the evidence of the complainant was that she was asleep when intercourse occurred.  The suggestion put to her by the appellant was that she was awake and actively participating in romantic contact with the appellant.  It was suggested to her that she and the appellant were actually engaged in some form of conversation while this was going on.  While it is true that a jury is not bound to adopt the entirety of the case put by either side, it is not entitled to speculate about matters that are simply not raised on the evidence as a reasonable hypothesis.  Here, neither side supported the suggestion that the complainant had walked to the bedroom and undressed while in her sleep and then, while still asleep, was passively receptive to the advances of the appellant.  The possibility that she had done so was not raised in the complainant's evidence, and was actually inconsistent with the cross-examination of the complainant on the appellant's behalf.  There was thus no basis for a possible finding by the jury that it might have appeared to the appellant that the complainant was consenting to his advances even though she was, in truth, asleep.

[33]  That the appellant said to the complainant "You wanted this" is consistent, both with the case put for him in cross-examination, viz that she was an active participant in consensual intercourse, and with an appreciation on the appellant's part that she was willing to have intercourse by reason of her willingness to come back to his house with him.  On the first of these possibilities, the question was whether the jury could entertain a doubt that what was put to the complainant on the appellant's behalf might be true.  There can be no doubt that the jury were fully alert as to this issue.  As to the second of these possibilities, no-one suggested, or would suggest, that the postulated appreciation could afford a reasonable basis for believing that the complainant had consented to intercourse if the complainant had fallen asleep before intercourse occurred. 

[34]  Accordingly, I am of the opinion that counsel for the appellant at trial was correct in his appreciation that no issue arose requiring a direction in respect of s 24 of the Criminal Code. 

[35]  The original direction in relation to consent may not have been sufficient in the circumstances of the case to alert the jury to the precise issue involved in respect of consent raised by the possible findings of fact open to the jury.  However that may be, any deficiency in that regard was cured by the terms of the redirection in which counsel for the appellant at trial had concurred.  Once again, the direction given by the learned trial judge was, if anything, unduly favourable to the accused.  Coupled with the direction as to the onus of proof, the effect of the redirection given by the learned trial judge was that, if the jury entertained a doubt as to whether the appellant knew that the complainant was asleep when he had intercourse with her, they should acquit.  That direction had a distinct advantage for the appellant over a direction in relation to s 24 of the Criminal Code which would have required a consideration of the reasonableness of any belief held by the appellant as to whether the complainant had at any time actually consented to intercourse.

Unreasonable verdict

[36]  The appellant argues that, on the whole of the evidence, the jury could not have been satisfied of the appellant's guilt beyond reasonable doubt.[5]  In particular, it is submitted that:

"it is contrary to common sense that the complainant (who was not overly intoxicated) was, without her knowledge and consent, taken from the couch in one room and then had her lace up shoes and tight fitting jeans removed. The complainant had made a phone call from the house (supposedly just before she went to sleep) in an excited/jovial mood. There were no genital injuries. The complainant's phone was in the bedroom consistent with the phone call to Mr. Sherlock being made from that location."

[37]  This submission must be rejected.  The points made in the appellant's submission deserved, and no doubt received, consideration by the jury in deciding whether or not they accepted the accuracy of the complainant's evidence.  These points do not mean that the jury were bound to entertain a doubt about the reliability of the complainant's account. 

[38]  It was open to the jury to accept that the complainant was taken by the appellant into the bedroom and undressed by him, and her mobile phone placed on the dresser after it fell from, or was taken from, her jacket, if they were prepared to accept that she was in a deep sleep until she was awakened by the act of penetration.  The complainant's evidence in this regard was not contradicted save by the appellant's assertions in the course of his interview with the police.  The reliability of the complainant's evidence was supported by her immediate flight and complaint.   

Conclusion and order

[39]  In my respectful opinion, the appellant's challenges to the conviction cannot be upheld.

[40]  The appeal should be dismissed.

[41]  MULLINS J:  I agree with Keane JA.