SUPREME COURT OF QUEENSLAND

[1]  HOLMES JA:  The appellant was convicted after a trial of one count of burglary, one count of indecent assault with a circumstance of aggravation and two counts of rape. (He was acquitted of a third count of rape.) He was sentenced to eight years imprisonment in respect of one of the rape counts and three years imprisonment concurrently on the remaining counts, and now appeals against both conviction and sentence.

The Crown case

[2] The complainant’s account was that the appellant, who had for several years been her sister’s de facto husband, visited her on 8 March 2006. He had a number of cans of bourbon and cola with him, some of which he drank while in her unit.  He asked if he could have a shower. After it, he emerged from the bathroom wearing only a towel around his waist.  He disappeared into the complainant’s bedroom, which she entered after a short interval.  He dropped the towel, leaving him naked, and told her, in a manner which she found threatening, to take her pants off and get onto the bed.  She complied.  He opened her legs, licked her vagina (the indecent assault count), put his fingers in her vagina (the first count of rape), inserted his penis into her anus (the rape count of which he was acquitted, after a direction on accident) and penetrated her vagina (the remaining count of rape).  After the incident the appellant dressed, asked the complainant for $20, which she gave him, told her not to tell her sister or he would “get his friends after [her]”, and left the unit.

[3] In light of the complainant’s evidence, the burglary count seems to have been a very technical one. The elements of the relevant offence under s 419(1) of the Criminal Code are that the offender is “in the dwelling of another with intent to commit an indictable offence”. In this case, where the complainant willingly admitted the appellant to her unit, and the evidence suggested that the intention to rape was formed subsequently and spontaneously, it is difficult to understand why the charge was brought. It seems to have been entirely incidental to the offences of rape and indecent assault that the intent to commit them was formed in a dwelling, rather than any other sort of premises. However, no point was taken at trial or on appeal as to the appropriateness of the count, and it is unnecessary to consider it further.

[4] The complainant rejected suggestions in cross-examination that the intercourse had been consensual.  Immediately after the appellant left her unit, she rang her Community Mental Health case manager, who was called as a Crown witness. She said the complainant, in a state of considerable distress, told her that her brother-in-law had assaulted her, had licked her and had put his penis in her vagina and anus.  The complainant underwent a medical examination the same day which found bruising around the genital area and a small tear in the anus.  She gave an account of events to the examining doctor which was consistent with her evidence.  The complainant’s sister gave evidence that the next day the complainant told her she had been raped by the appellant.

[5] The appellant did not give evidence. A police officer who had charged him with the offence of rape on 9 March 2006 said that on the following day the appellant volunteered to him that he had had sex with the complainant, but it was consensual.

The appeal against conviction

Evidence and directions concerning the complainant’s psychiatric state

[6] Two of the grounds of appeal concerned the complainant’s psychiatric state.  The first was that the learned trial judge had erred in failing to direct the Crown to obtain medical evidence as to the complainant’s mental state and in failing to allow the defence to obtain such evidence. The second was that he had misdirected the jury by telling it that there was no evidence to suggest that the complainant’s medical mental health conditions were relevant to whether she was likely or unlikely to consent to intercourse, or to her reliability or honesty as a witness.

[7] Those grounds arose out of the complainant’s statement in evidence that she was on a disability pension for a number of medical problems, which included disassociative identity disorder.  She was asked about it in cross-examination and said that at times she had “different personalities”.  In re-examination, she said she was not suffering from, or affected by, the disorder on the day in question.  The condition, the appellant submitted, was relevant to the issue of consent because the appellant might have had, at the time of intercourse, a “different personality” from the personality which had made the rape complaint.  This ought to have been the subject of an expert opinion.  In addition, such opinion would have been admissible on the question of the complainant’s reliability. The trial judge should not have directed the jury as he did, but should have directed it as to the Crown’s failure to produce such evidence.

[8] But it was not suggested to the complainant in cross-examination that the condition had any bearing on the events or on her capacity to give evidence.  None of the witnesses who had contact with her on 8 March or the day following was asked any question concerning her psychiatric state.  Her case worker had known her since she was a mental health unit in-patient and had continued to see her as a case manager with the Community Mental Health Service.  She was not cross-examined about the complainant’s mental state at the time of her initial complaint or at the time she gave evidence. Nor was any such question asked of the complainant’s sister, or of the doctor who had physically examined her at the hospital.

[9] Before the learned judge summed up, he asked counsel whether either of them submitted that the complainant’s medical and mental health conditions had any bearing on whether she had consented to intercourse or on the reliability of her evidence.  Both answered in the negative.  In the course of discussion, his Honour mentioned that there had been no cross-examination of the case worker, who could be expected to have some relevant knowledge of the complainant’s mental health issues.  The appellant’s counsel explained that that was “explored to an extent at the committal” and “there was such a variety of variables, you can’t really …”.

[10]  Those responses and the learned trial judge’s direction, now complained of, are unsurprising.  There was no evidence that the complainant’s disorder could have had any bearing on either consent or reliability.  In the absence of such evidence there was no occasion for a Bromley[1]-type warning.  As to whether the matter might have been explored further, it was not the role of the trial judge to interfere in the case in the way suggested[2]. Counsel for the appellant did not choose to explore the issue: that might have been because it was known that the condition was in remission or was controlled by medication or was simply not such as to manifest itself in any way relevant to consent or reliability.  There would be considerable risk of exciting sympathy for the complainant and distaste for the appellant by cross-examining the former on a disability which could not be shown to be of any relevance. At any rate, there is no reason to suppose that counsel’s decision was not a legitimate forensic choice[3], perhaps based on what had been established at the committal.

[11]  It was said that the Crown ought to have called an expert as to the complainant’s dissociative identity disorder, but nothing in the evidence indicated the existence of such a person able to give material evidence about the effect of the complainant’s condition at the relevant times. In any event, it is hard to see why the Crown should have embarked on the exercise when no issue was raised about it. The appellant suggested that the question of the complainant’s cognitive capacity was somehow relevant under s 348 of the Criminal Code[4], requiring the Crown to adduce evidence of it. But there was no hint of an impaired cognitive capacity in the complainant’s evidence or that of other witnesses; and, more importantly, it would hardly have been in the appellant’s interests for the Crown to call evidence to demonstrate an absence of cognitive capacity, thus obviating any issue of consent.

The trial judge’s intervention in and direction on, the complainant’s sister’s evidence

[12]  Two further grounds concerned the evidence of the complainant’s sister, Theresa.  They were, that the learned trial judge erred in intervening when she gave evidence and erred again in directing the jury that Theresa’s apparent disbelief of the rape complaint was irrelevant.

[13]  The passage in which his Honour intervened is as follows:

“And what happened when you went to your mum's?-- I walked inside and Cheryl's phone was on the bench. I'd asked if she was there. No-one answered me, so I walked into the room where she stays when she's there. She was looking at the floor. I asked her what was wrong. She never answered me, so I asked her again. She still never answered me and then I asked her again and she told me that HAK had just raped her. I said, ‘Bullshit’ and walked out and left and went home and asked HAK.

Do you remember Cheryl's exact words of what she said to you? -‘I don't want to tell you this, but HAK raped me’.

Okay. And you then said, ‘Bullshit’ and left?-- Yeah, I stopped in - stopped past dad and said, ‘Oh, who's she going to accuse this’ – ‘the next time?’ and walked out.

HIS HONOUR:  No, we don't want to know about that?-- And then walked out, went home.”

[14]  The complainant had also given evidence of the conversation:

“She come in and asked several times what was wrong with me and I said, ‘Nothing’, and then I told her what had happened. She said that, ‘Oh, sure. Who are you going to blame next? Your brother?’, and left.”

[15]  At the close of the case, in discussing directions, the learned trial judge foreshadowed that he would give a direction to the jury that they should ignore Theresa’s apparent disbelief of the complainant as irrelevant.  Counsel for the appellant took no issue with that approach, and the learned trial judge directed accordingly.

[16]  It was argued that the evidence suggested that the complainant had previously made false allegations of rape, which would be relevant as going to her credit and whether in fact sexual intercourse in this instance was consensual. I doubt that objective assessment of the passages cited could rise beyond speculation to an inference of a previous false allegation.  There was no evidence of the kind before the trial.  But in the absence of objection, this court received transcript of Theresa’s evidence at the committal proceedings about other sexual assault allegations which, according to her, the complainant had made to the police. It merely confirmed that Theresa’s account of such allegations was pure hearsay.

[17]  The learned trial judge’s intervention was, properly, undertaken to prevent the giving of any hearsay or opinion evidence.  In any case, it seems that the relevant interchange between the complainant and Theresa was given in full.  Theresa’s response of disbelief was, strictly speaking, inadmissible, although one can understand why it might have been thought appropriate to give the jury the entire conversation.  Any view that Theresa might have had about the complainant’s credibility could only be opinion, and the learned trial judge’s direction as to its irrelevance was entirely appropriate and correct. Any account by her of previous allegations was equally inadmissible as hearsay.  The appellant’s counsel, correctly, did not seek to lead any such evidence from Theresa. Nor did he ask the complainant any questions about supposed previous complaints of rape.  There is no basis on which this Court could suppose that the latter approach was based on anything other than a rational decision by counsel as to the best way to proceed.

The learned trial judge’s summing-up on the defence case

[18]  The appellant contended generally that the trial judge had failed properly to summarise the appellant’s defence, and made two more specific complaints about particular matters discussed in the summing up.  As to the first, general ground, the learned judge directed the jury in conventional terms as to the need to be satisfied beyond reasonable doubt before convicting of any one of the offences, and in turning to the elements of the offences of rape and sexual assault, the necessity in each case to be satisfied beyond reasonable doubt that the contact occurred without the complainant’s consent.  He also reminded them of the only evidence which could be said to constitute the defence case: that the appellant had told the police officer that sexual relations were consensual; pointing out that that statement was made very soon after the relevant events.  It does not seem that there was any aspect of the appellant’s case which was omitted in directions.

[19]  However, a more specific complaint was made: that the learned trial judge had reminded the jury that the complainant had alleged a threat by the appellant: “he told me that I wasn’t allowed to tell my sister, Theresa, or he’d get his friends after me”; but had failed to mention a version put by counsel to the complainant: that the appellant had in fact said “Please do not tell Theresa about this or she’ll kill us both”.  The submission is ill conceived; no evidence of the making of the latter statement was adduced, since the complainant denied it; and the learned trial judge could hardly have put counsel’s question to the jury as if it were evidence.

[20]  Secondly, it was said, the learned trial judge had erred in putting to the jury the doctor’s evidence of injury to the complainant’s genital area as capable of corroborating her complaint, without also telling the jury that it was “equally consistent with ‘very rough sex’”. That was a proposition with which, the appellant said, the complainant had agreed under cross-examination, and the doctor had said she could not exclude the possibility. 

[21]  Turning to what was actually said, the relevant question and answer in the complainant’s cross-examination is as follows:

“The sex was somewhat rough, I think we'd agree on that, wouldn't we?-- Yeah, it was rough.

Yes?-- He hurt - he hurt my vagina and my legs.”

Clearly the complainant there was talking of intercourse which was not only “rough”, but was not consensual.

[22]  The doctor’s cross-examination on the “rough sex” possibility proceeded in this way:

“Right. It's - the injuries that you saw, having regard to the positioning of the parties, if I can put it that way, it's equally consistent with what's been described by the complainant as rough - very rough sex?-- It's difficult to comment. I would have thought it was unlikely, given the severity of the damage I saw, that ---

You can't exclude it, can you?-- I can't exclude it, no.

No?-- I think it's likely that somebody would have tried to stop rough sex before it resulted in the type of injuries I found.

Yes.  The complainant has given evidence that he was saying, ‘Sorry’ on a number of occasions as he was doing this rough sex, so would that give you some comfort?-- Not particularly having seen the damage, no.

But you can't - certainly can't exclude it?-- No, I can't exclude it.”

[23]  As a general proposition, it is not incumbent on a trial judge to bring the jury’s attention to every piece of evidence. In this particular case, it seems doubtful, given the doctor’s clear disinclination to accept that the injuries were consistent with consensual intercourse, that reiteration of this passage would have assisted the appellant. It is certainly not a case in which his Honour’s failure to remind the jury of the doctor’s very limited concession could be said to have produced imbalance in the summing up.

[24]  None of the grounds of appeal against conviction is made out.

The sentence

[25]  At the time of the offences, the appellant was 33 years old.    Although he had worked in the past as a labourer, he was then unemployed.  He and the complainant’s sister had three young children. He had a criminal history which included some minor drug offences and some dishonesty offences, but he had never been sentenced to imprisonment.  However, after the commission of the rape offences, he was sentenced to two years and ten months imprisonment for trafficking in dangerous drugs. 

[26]  A victim impact statement was tendered; it indicated that the complainant had suffered significant pain from her genital injuries and feelings of depression after the rape.  It had caused a division in her family, and she had a constant feeling of insecurity both in and out of her home.

[27]  The learned trial judge observed that the appellant’s prior convictions were for the most part relatively minor, and none were for offences of violence.  However, it was an aggravating feature that the offences were committed while on bail on the trafficking charge.  The complainant had suffered injuries, although they were self-healing, and the episode had had a “significant and negative effect” as well as harming her relationship with family.  His Honour accepted the possibility that the offences were committed spontaneously.  He regarded them as a single episode, the criminality of which was properly reflected in a sentence of eight years for the rape count which caused the genital injuries. 243 days of pre-sentence custody was declared.

The appeal against sentence

     Specific errors

[28]  The appellant argued that the learned sentencing judge had erred in the exercise of his sentencing discretion by taking into account irrelevant matters, and that the sentence was manifestly excessive.  As to the first ground, there were three complaints: it was said that the learned judge had erred by taking into account an irrelevant matter, the fact that the complainant was cross-examined by counsel, and by drawing an erroneous conclusion that counsel had, on the appellant’s instructions, put to the complainant she was a liar, when no such questions were put; both of those references suggesting that cross-examination of the complainant was an aggravating factor. Thirdly, the judge had wrongly assumed that the appellant must have known about the complainant’s physical and mental conditions.

[29]  It is important to understand the context for the first two complaints.  Counsel for the appellant had suggested to the learned judge on sentence that while the appellant was not entitled to any discount for demonstrated remorse or full co-operation evidenced by a plea of guilty, he could take into account in his favour the fact that the conduct of the defence case did not involve any unpleasant cross-examination.  His Honour responded to that submission by saying that the cross-examination putting to the complainant that the sex was consensual did amount to calling her a liar.  He regarded the fact that it was “low-key” cross-examination as standing to the credit of counsel rather than the appellant.  His Honour’s observation as to the cross-examination’s effect was correct; but in any event, he at no stage suggested that the fact of cross-examination was an aggravating factor; rather he declined to regard the style of cross-examination as a mitigating factor. 

[30]  As to the third complaint, his Honour discussed with counsel his client’s awareness of the complainant’s health condition, the fact that she was a pensioner and her need for the support of a case worker.  Counsel for the appellant responded, “that must have inferentially been known to him as a member of the family; they interact …”.  That was in a context in which the appellant had been in a relationship of many years with the complainant’s sister.  If his Honour drew the inference in the light of that background and counsel’s concession, complaint can hardly be made of it now.

The “manifestly excessive” ground

[31]  Both counsel for the Crown and the appellant drew to this Court’s attention the judgment in R v Gogouk.[5]  The applicant in that case was convicted of raping a young woman who, intoxicated, had fallen asleep in the city mall.  She woke to find him on top of her and felt something in her vagina.  The sentence proceeded on the basis that the applicant had, to some extent, inserted his penis in her vagina.  The applicant was Sudanese, had been a refugee with a particularly tragic history and was suffering post-traumatic stress disorder.  He was 26 years old, and had some minor criminal history.  He had served 17 months in custody which could not be declared as time served.  The sentencing judge in that case proceeded on the basis that eight years was an appropriate sentence and reduced the period to six years and seven months with a serious violent offence declaration, to recognise the period in custody.  The Court of Appeal observed that while the crime was abhorrent - the applicant who was suffering from syphilis (although it was not transmitted to the complainant) had violated a vulnerable young woman in public view - it did not involve any actual or threatened physical violence.  Eight years without a declaration was the appropriate starting point for the sentence.  Allowing for the 17 months in custody, a sentence of six years imprisonment, with a parole eligibility date which permitted eligibility half way through the time actually served, was substituted.

[32]  The Crown also relied on R v Raymond.[6]  The appellant in the case was convicted on a guilty plea of rape and attempted burglary.  He was sentenced to eight years imprisonment with a recommendation for eligibility for parole after three years on the rape count.  At the time the offences were committed, he was 18 years old and had no previous convictions.  There were two complainants, one a woman who woke to find the applicant having intercourse with her, and the other a woman into whose house the applicant had attempted to gain entry on the same evening.  The evidence against the applicant was overwhelming.  The Court described the invasion of the first complainant’s home and the substantial emotional and psychological effect on her as serious aggravating features of the offence.  In addition, it said, the learned sentencing judge was entitled to regard the plea of guilty as a recognition of the inevitability of conviction rather than a sign of remorse.  The Court concluded that the aggravating features of the rape offence justified a sentence of eight years imprisonment, while the mitigating features – the applicant’s plea of guilty, his youth and lack of previous criminal convictions - were sufficiently taken into account in the recommendation for early parole.

[33]  In R v Q,[7] also relied on by the Crown, the appellant had entered a backpackers’ hostel during the night.  One of the residents woke to find the appellant having intercourse with her.  The appellant was convicted, after a trial, of rape and burglary and was sentenced to eight years imprisonment for the rape.  That sentence was imposed cumulatively on other sentences for burglary offences committed at backpacker hostels and activated suspended sentences for burglary, stealing, fraud and receiving, with the result that the appellant was imprisoned for a total of 11 years.  He had an extensive criminal history, chiefly for offences of dishonesty.  The Court of Appeal, observing that the appellant was a persistent predator on occupants of cheap tourist accommodation and that the suspended sentences of imprisonment were imposed concurrently with other sentences, concluded that the overall result did not offend the totality principle.

[34]  The appellant relied on R v Taiters.[8]  The appellant there was convicted after a trial of three counts of indecent assault, one with a circumstance of aggravation, and one count of rape, and was sentenced to 10 years imprisonment.  He had had an argument with his de facto wife;  after abusing and assaulting her in multiple painful and humiliating ways, he concluded by raping her.  He had a criminal history which, while not extensive, included offences of violence.  The trial judge had sentenced that appellant to 10 years imprisonment but had erred in failing to recognise that that sentence automatically entailed conviction of a serious violent offence. The Court noted that the appellant had shown no remorse and that his victim had suffered considerable physical pain and psychological harm.  A sentence of eight years imprisonment for the rape was substituted.

[35]  In R v Stirling,[9] the appellant was convicted of rape after a trial.  He and the complainant lived in adjacent units and had spent an evening consuming liquor and marijuana in the company of some fellow residents.  After the rest of the company had departed, the complainant went to bed and the appellant said he was leaving.  However, in the early hours of the next morning, the complainant woke to find him licking her genital area; he proceeded to have sexual intercourse with her despite her resistance.  The appellant was 30 years old and had a criminal history which did not contain any offences of a sexual nature.  He had, however, served a long sentence of imprisonment for armed robbery, deprivation of liberty and break, enter and steal offences. 

[36]  Thomas J noted that relevant features in that case included intoxication, the absence of significant violence or injury, a persistence in putting the complainant through the ordeal of a trial and the fact that the appellant was on parole at the time of the offence.  The other members of the Court agreed with the exception that Davies JA did not consider intoxication relevant.  All agreed with Thomas J’s observation that a nine year sentence of imprisonment was more appropriate in cases involving serious factors such as the infliction of injury, the use of serious threats, possession of a weapon or some other particularly aggravating factor.  A sentence of seven years imprisonment was substituted.

[37]  In the present case, the offences were committed on a complainant of some physical and mental frailty (apart her psychiatric condition, she suffered from cardiac and respiratory problems and diabetes).  On the other hand, the appellant was on her premises by permission; it was not a case of surreptitious or forced entry by an unknown intruder at night.  Although the actual penetration caused some injury to the genital area, there was no other violence or force used during the sexual assault, and no weapon was involved.  The appellant had no history of sexual offences, or apart from a single common assault, of offences of violence. On the whole, it seems to me that the case lacks the more serious aggravating features which would warrant a sentence of eight years imprisonment. 

[38]  I would dismiss the appeal against conviction, set aside the sentence on count four and substitute a sentence of seven years imprisonment.  Otherwise, I would not alter the orders of the learned trial judge.

[39] MUIR JA:  I agree with the reasons of Holmes JA and with the orders she proposes.

[40] MACKENZIE AJA: I agree with the orders proposed by Holmes JA for the reasons given by her.