R v Raphael[2009] QCA 145

SUPREME COURT OF QUEENSLAND

1. KEANE JA:  On 16 October 2008 the appellant was convicted upon the verdict of a jury of one count of unlawfully procuring an intellectually impaired person to commit an indecent act (count 2 on the indictment), three counts of indecently dealing with an intellectually impaired person (counts 3, 5 and 8), one count of having unlawful carnal knowledge of an intellectually impaired person (count 6), and one count of procuring an intellectually impaired person to engage in carnal knowledge (count 7).  He was acquitted by the jury of one count of indecently dealing with an intellectually handicapped person (count 1).  A further count of indecent dealing was the subject of a directed verdict of not guilty at the close of the Crown case (count 4).

2. The appellant was sentenced to concurrent terms of five years imprisonment in respect of each of three of these offences and concurrent terms of three years imprisonment in respect of each of the other offences.

3. The appellant instituted an appeal against his convictions on the sole ground that the "conviction was unsafe and unsatisfactory". At the hearing of the appeal, the appellant was given leave to add the ground that a miscarriage of justice has occurred because:

1. the learned trial judge failed adequately to direct the jury that the defences under s 216(4) of the Criminal Code 1899 (Qld), even if not relied on by the defence, were to be considered by the jury in reaching their verdict;

2. the trial judge's warning to the jury about the evidence of the complainant was inadequate; and

3. the trial judge wrongly failed to direct the jury that no adverse inference could be drawn from the appellant's refusal to answer questions when questioned by police.

4. The appellant also seeks leave to appeal against his sentence on the ground that it was "manifestly excessive".

5. Because the first ground of the appeal against the convictions must be taken to raise the question whether, on the totality of the evidence adduced at trial, a reasonable jury could have been satisfied of the appellant's guilt beyond reasonable doubt, it is necessary to review the evidence adduced at trial.^[1]  The further grounds require a consideration of the learned trial judge's directions to the jury.

The evidence at trial

6. The complainant is a young woman who was 24 years old in January 2007 when the offences were alleged by the Crown to have been committed.

7. The complainant was a friend of the appellant's son, A, who was then 17 years old. The appellant was 47 years old at the time of the alleged offences.

8. At trial, Dr Alan Keen, a clinical psychologist, gave evidence that he had assessed the complainant by reference to the Wechsler Adult Intelligence Scale as having a full IQ score of about 70. Dr Keen said that the complainant was of a very low level of intelligence, and that her intelligence level was sub-normal. She suffered mental retardation of mild severity which meant that she needed support to plan for, and make, major decisions in her life. Dr Keen said that if she experienced a significant event she would be able to remember it.

9. The complainant's evidence-in-chief consisted of a recorded interview with the police. This interview commenced at 1.05 pm on 7 January 2007. The recording of the interview was admitted in evidence pursuant to s 93A of the Evidence Act 1977 (Qld). 

10. On 22 November 2007 the complainant was declared a special witness. On that day there was also a pre-recording of the cross-examination and re-examination of the complainant. On this occasion, the court failed to explain to the complainant, who was not regarded as competent to give evidence on oath, the duty of speaking the truth.^[2]  Accordingly, the record of this evidence was admissible at trial only pursuant to s 93A of the Evidence Act. 

11. There was a further pre-recording of the cross-examination and re-examination of the complainant on 28 August 2008.

12. In her interview with police on 7 January 2007, the complainant said that she was staying with her father when, on Saturday, 6 January 2007, the appellant and A visited the complainant at her father's house.  There her father's friend, LW, invited them to attend a party at the house of KM, a neighbour of the complainant's father.  The complainant said that before they went to the party, the appellant drove the complainant and A to his house.  There the appellant took her into his bedroom and said that he wanted to see if she was ready for sex.  She said that he touched her "really softly" on "the fanny" on the outside of her clothes (count 1). 

13. In cross-examination, the complainant said that she stayed at her father's house until she walked to the party at KM's house with three ladies. It will be recalled that the jury acquitted the appellant of the charge in count 1.

14. In the complainant's statement to the police, she said that, on the Saturday evening, she went with the appellant and A to the party at KM's house. The appellant asked the complainant to spend the night with A and him at his house. She said that she did not want to go to the appellant's house but "he forced" her to go there. When they arrived at the appellant's house, the complainant went into A's room and changed for bed. The appellant called her into his bedroom and told her to "strip off and have it with him in bed". He said to her words to the effect: "I am the teacher and you are the student and you have to do whatever I say … You have to show [A] what I teach you." The appellant told the complainant to perform oral sex on him. She complied (count 2). He then performed oral sex on the complainant (count 3). In the complainant's statement to the police, she said that the appellant wanted her to do a "sixty-niner" with him. This allegation was the subject of count 4, which was the count of indecent dealing on which the jury were directed to acquit evidently on the basis that this description was evidently used in relation to the incidents referred to in counts 2 and 3 rather than a separate incident.

15. The complainant said in her statement to police that the appellant then put his finger in her "fanny" (count 5). The complainant said that the appellant put his finger in her fanny "up and down side to side … to make [her] fanny a bit wet so he put his dick inside my thing". She said that he made her do it "doggy-style" (count 6). She said that the sex was painful. She said that the appellant became angry and she said that she wanted to go home. He told her not to play games. He ejaculated when she was giving him oral sex. After ejaculating, he told her to go to A's bedroom and show him what he had taught her. Once again she complied. The complainant said that she then went and had sexual intercourse with A as she had been told to do (count 7). The complainant said that she then had sexual intercourse with A four or six times and then slept until dawn. She said that she did not see sperm come out of A. She said she did not have oral sex with A.

16. In cross-examination, the complainant admitted that she had packed an overnight bag with clothes before she went to the party. She agreed that she planned to stay at the appellant's house and not KM's house. She said that she had asked her father if she could stay at the appellant's house the night after the party and that her father had said that that was "all right". At the pre-recording of her evidence on 22 November 2007, she was asked why she had asked her father if she could stay at the appellant's house, and she replied "… 'Cause [the appellant] wanted to do something to me, like sex or something."  She gave evidence that she could not remember why she had asked.  The complainant also agreed with the suggestion by the appellant's counsel that in a conversation with the appellant on the Saturday morning she had asked the appellant if she could go to his house and sleep with A that night.  She seemed to say that she asked her father about this and that he told her to ask the appellant who said it was "all right", and then her father also said "it's all right".  The complainant also agreed with the suggestion that she told the appellant that if he let her stay the night, she would give him oral sex.  It was put to her that when she made this proposal to the appellant he had laughed; she said she did not remember that.  In re-examination she was asked if she knew "what oral sex is", and she replied:  "No." 

17. In her second session of pre-recorded evidence the complainant adhered to her account that she had wanted to spend the night with A and that she had said something to the appellant about "some sort" of sex with him if he let her stay the night. She repeated that she did not understand what was meant by "oral sex".

18. The complainant also agreed with the suggestion by the appellant's counsel that the appellant was very drunk when they returned home from the party and that he went straight to bed. She said, however, that he went to bed with her because he "wanted to do something" with her. She said that the appellant then told her to go with A to "do the same thing".

19. The complainant agreed with the suggestion by the appellant's counsel that the only time during the night that the appellant "did anything like sex" with her was when he woke up to find that she was in his bed and had his penis in her mouth. But in re-examination the complainant said that the appellant had sex with her on his bed and put his penis inside her once or twice.

20. In her statement to the police the complainant said that on the Sunday morning she was having a shower when the appellant came into the shower with her. He said that he wanted to inspect her. He then digitally penetrated her with a finger or hand while she was having her shower (count 8). In her statement to the police the complainant said that "He like, [indistinct] hands, finger or something up my fanny thing … To see if I was broken or not. And I wasn’t."

21. At the pre-recording of the complainant's cross-examination on 22 November 2007, she said that all the appellant did while she was having a shower on the Sunday morning was to knock on the door and speak to her.

22. In her initial statement to the police, the complainant said that the appellant then drove the complainant to her father's house. He told her not to tell anyone about what had happened.

23. KM, the person at whose house the party was held, gave evidence at trial that at about 7.30 am the morning after the party, the complainant and A came to her house to help with the cleaning up. The complainant said: "Please don't tell dad because I'm going to get in a lot of trouble, I've done something wrong." KM said: "Oh, well, you better tell me what you've done wrong … then I'll decide if I tell your dad or not whether you've done something wrong."

24. The complainant then told KM she had gone back to the appellant's place with A and the appellant.  According to Ms KM, the complainant said to her that the appellant:

"told her to go into his bedroom, take her clothes off and lay on the bed and he'd be back in a minute.  Then [the appellant] came back to the bedroom and said he would have to show her how to do her son [sic] before she gets to be with [A]." 

25. KM said that the complainant went on to say that as the night proceeded, the appellant "raped her – oh, had sex with her and then she was sent to [A's] room. She was to have sex with [A] then and this went on throughout the night … [t]o the morning."

26. KM said that she asked the complainant whether she had had a shower. The complainant replied: "Yes, that was the bad part of it all." The complainant told KM that the appellant had entered the shower with her and "inserted his fingers and … his whole fist". The complainant said it "[r]eally, really hurts …" She also said that they had "spermed [sic] on her quite a bit on her body inside and out." KM was asked whether the complainant used the word "rape" or "had sex". KM said that the complainant had said that "he'd done her".

27. LW gave evidence that she too was present at this conversation.

28. The complainant's father gave evidence before the party that the complainant told him that she wanted to go to the party and to stay that night at KM's house. He denied that she had asked him for permission to stay at the appellant's house.

29. Dr George Springhall gave evidence at trial that he carried out a medical examination of the complainant on 7 January 2007 at 4.20 pm. This examination revealed marked abrasions in the vaginal opening and a tear or split on the back wall of the opening of the vagina. These injuries were said to be consistent with vigorous or forceful sexual intercourse.

30. Forensic analysis of the complainant's boxer shorts and vaginal swabs revealed a DNA profile matching the complainant and a male other than the appellant.

31. At 6.00 pm on Sunday, 7 January 2007, police searched the appellant's house. He was told that he was not obliged to answer any questions. He said that he did not wish to answer any questions until he had spoken to a solicitor. Bedding and towels were seized by police, but were not subject to forensic examination. The appellant was transported to the police watch-house where he again declined to be interviewed. Upon continued questioning he denied that he had had sex with the complainant. He said that he "didn't lay a finger on her". When asked if he had sex with the complainant he said: "Nup … she gave me a blowie and that was it."

32. The appellant did not give or call evidence. His case was that the incidents with which he was charged did not occur. It was also argued on his behalf that the complainant was not an intellectually impaired person.

The directions of the learned trial judge

33. In relation to counts 1, 2, 3, 5, 6 and 8, the learned trial judge directed the jury that it was a defence to the charge that the appellant believed on reasonable grounds that the complainant was not an intellectually handicapped person, or that the doing of the act which constitutes the offence did not in the circumstances constitute sexual exploitation of the complainant. His Honour directed the jury that the burden of proving either of these defences was upon the appellant on the balance of probabilities. In this regard, the learned trial judge provided the jury with written guidelines which included the following:

"ELEMENTS of the offence of 'Unlawfully procuring an intellectually impaired person to commit an indecent act'.

For COUNT 2:

The prosecution must prove beyond reasonable doubt that the accused on a date between the 5 January 2007 and the 8 January 2007 at Gympie in the State of Queensland:

1. Unlawfully procured the complainant

2. To commit an act; and

3. The act was indecent; and

4. The complainant was an intellectually impaired person.

In this context:

'Procured' - means to bring about. Procuring can be regarded as bringing about a course of conduct which the complainant would not have embarked upon of her own volition.

• For Count 2 the prosecution alleges that the accused procured (ie., brought about) the complainant to suck his penis.

ELEMENTS of the offence of 'Unlawful carnal knowledge of an intellectually impaired person'.

For COUNT 6:

The prosecution must prove beyond reasonable doubt that the accused on a date between the 5 January 2007 and the 8 January 2007 at Gympie in the State of Queensland:

1. Had unlawful carnal knowledge of the complainant; and

2. The complainant was an intellectually impaired person.

For Count 6 the prosecution alleges that the accused penetrated the complainant’s vagina with his penis.

ELEMENTS of the offence of 'Procuring an intellectually impaired person to engage in carnal knowledge'.

COUNT 7:

The prosecution must prove beyond reasonable doubt that the accused on a date between the 5 January 2007 and the 8 January 2007 at Gympie in the State of Queensland:

1. Procured the complainant

2. To engage in carnal knowledge; and

3. The complainant was an intellectually impaired person

In this context:

'Procure' - means knowingly entice or recruit for the purposes of sexual exploitation.

'Exploitation' - means the act of making use of for selfish purposes; victimising someone.

• For Count 7 the prosecution alleges that the accused procured (ie., knowingly enticed or recruited) the complainant to engage in sexual intercourse with his son [A].

The DEFENCES available in respect of COUNTS 1, 2, 3, 5, 6 and 8 (not COUNT 7) are:

(a) that the accused person believed on reasonable grounds that the person was not an intellectually impaired person; or

(b) that the doing of the act which constitutes the offence did not in the circumstances constitute sexual exploitation of the intellectually impaired person.

The burden of proving either of these [defences] is upon the accused on the balance of probabilities (ie., more probable than not).

TERMS AND DEFINITIONS

'Carnal Knowledge' - means penetration of the vagina with the penis to any extent.

'Deals with' - means 'to have to do with', 'to act towards', or 'to treat' and includes doing any act which if done without consent, would constitute an 'assault' and includes a touching.

'Assault' - a person who strikes, touches or moves or otherwise applies force of any kind to the person of another either directly or indirectly without their consent is said to assault that other person and the act is called an assault.

'Unlawfully' - means not authorised, justified or excused by law.

'Indecent' - bears its ordinary meaning, that is what the community regards as indecent. It is what offends against currently accepted standards of decency. Indecency must always be judged in the light of time, place and circumstances.

'Intellectually impaired person':

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."

34. His Honour directed the jury that, apart from the defences available to the appellant under s 216 of the Criminal Code in respect of counts 1, 2, 3, 5, 6 and 8, the Crown bore the onus of proof of the appellant's guilt.  His Honour reminded the jury that the defence case was that the incidents charged against the appellant did not happen.  His Honour said:

"... You will recall that I said at the outset of my summing-up yesterday, and I repeated several times as I remember, that at all times in respect of the elements of the offences you must be satisfied beyond a reasonable doubt that the prosecution has proved each and every element of each offence and for many offences [the] prosecution also has the obligation of negativing or excluding any valid defence [scil] raised or available on the evidence before you may find the accused guilty or that offence. That certainly frequently happens in cases where a person might be charged with assault occasioning bodily harm, defence [scil] raised of accident or the like. In those instances the prosecution has the obligation to negative or exclude any defence.

This trial, however, falls into a unique category in that, in this trial, because of the nature of the offences charged in respect of counts 1, 2, 3, 5, 6 and 8, that is, all counts except count 7, which is charged under a different section of our Criminal Code the law is that any defence raised or available on the evidence, and there are two possible defences available which I shall read to you, then those defences must be proved by the defendant on the balance of probabilities. In other words, the onus of proof in respect of those possible defences switches to the accused to prove them to you on the basis that on the evidence before you it is more probable than not that either defence has been made out or established.

Now, as we know, the defence case here essentially is that these things never happened but there are two possible defences available to him which I shall raise with you and discuss and the onus of proof in respect of making out a defence to the charges referred to is upon the defendant. That is, the prosecution does not, in this trial, have to negative or exclude those possible defences but that does not impact upon, or lessen, the fundamental and inherent onus which the prosecution bears in the first place to prove each element of each offence to the highest standard of proof beyond reasonable doubt. Do you understand that?"

35. At the request of counsel for the appellant, the learned trial judge gave the following direction to the jury:

"Members of the jury, I just want to make one point perfectly clear if I haven’t already done so, and that is so far as the defences which I gave you on that list that you have there, the defence case is that the incidents complained of on the counts did not occur, so there is no need at all for you to consider any defences that might be available under the particular section.

Further, the defence case is that the complainant is not an intellectually impaired person, and therefore there is no need for you to consider those defences.

I just want to make that perfectly clear. It is a defence, those defences are available, but the defence case here is; A) that these matters didn’t occur at all, and in any event the complainant is not an intellectually impaired person which would bring in, of course, those defences even if the defence was of the view that she was an intellectually impaired person?

Do you understand that situation? So defence case, as I say, is that these things didn’t occur at all, therefore you don’t have to consider those technical defences, if you like, and the other factor is that the defence submits that the complainant is not an intellectually impaired person.

All right. So see those defences as I set them out, [they] really apply if the accused believed on reasonable grounds that the person was not an intellectually impaired person or the doing of the act which constitutes the offence did not in the circumstances constitute sexual exploitation of the intellectually impaired person. But the defence case is that;

A)  they never occurred, and;

B)  she's not an intellectually impaired person in any event."

36. It may be noted here that counsel for the appellant at trial did not seek any further direction from his Honour. In particular, his counsel did not ask his Honour to remind the jury that they were obliged to consider the defences which he had already instructed them to consider.

37. In relation to the complainant's evidence, the trial judge told the jury:

"There is no requirement in law that a complainant's evidence in offences of a sexual nature [requires] corroboration. Now, that's a big word and it means other evidence that goes to the support or confirmation that the complainant's evidence is true. So confirmation or support. Where there is no corroboration evidence, as in this trial, and the only evidence that you have is that of the complainant herself, it is incumbent upon you that you should scrutinise the complainant's evidence with great care before you could arrive at a conclusion of guilt. You have heard the complainant's evidence in detail and I have reminded you of quite a lot of it, but you should only act on that evidence if, after considering it with the warning I have just given you, and after considering all of the other evidence before you, you are convinced of its truth and accuracy. So that's important to consider in your deliberations."

38. It should be noted that the learned trial judge had canvassed the terms of this direction with counsel for the parties before giving it to the jury. The appellant's counsel was content with the terms of the direction to be given in relation to the complainant's evidence.

39. The learned trial judge directed the jury that no inference adverse to the appellant should be drawn from the fact that he did not give evidence, but his Honour made no comment upon the appellant's refusal to answer questions when he was questioned by the police.^[3]  The appellant's counsel at trial did not seek any redirection from his Honour on this point. 

The arguments on appeal

Directions to the jury

40. It is convenient to deal first with the appellant's arguments concerning the learned trial judge's directions to the jury.

41. As to the argument that his Honour failed to direct the jury that the defences under s 216(4) of the Criminal Code were to be considered by them even though they were not relied upon by the defence, it is apparent from the passages set out above that the learned trial judge made it clear to the jury that they were obliged to consider these defences. 

42. His Honour gave the jury an express direction to this effect even though, at the request of the appellant's counsel, he was also at pains to remind the jury that the appellant's principal argument was that the Crown had failed to meet its burden of proving that the incidents charged against him had occurred and that the complainant was an intellectually impaired person. The appellant's argument on this point could be accepted only if the Court were to take a view of the jury's ability to understand and follow directions wholly inconsistent with the constitutional role which the jury plays in the administration of our system of criminal justice.^[4] 

43. The respondent argued before this Court that no defence under s 216(4) of the Criminal Code was raised on the evidence for the consideration of the jury.  Counsel for the appellant disputed this contention.  It will be apparent from the preceding paragraph that it is not necessary to resolve this argument.

44. As to the sufficiency of the warning given in relation to reliance upon the complainant's evidence, there is an air of unreality about the appellant's complaint, quite apart from the circumstances that the terms of the specific direction given the jury in relation to her evidence were agreed to by the appellant's trial counsel. The evidence of Dr Springhall in relation to the injuries to the complainant's vagina was capable of supporting her evidence.^[5]  The complainant had said that she had been hurt when the appellant had intercourse with her, and there was no suggestion that she had suffered any hurt when having intercourse with A.  It would have been quite wrong for the trial judge to suggest to the jury that there was no evidence which might support the complainant's account apart from her own account.  A warning that the complainant's intellectual impairment required that the jury consider the possibility that her account was unreliable was not necessary to ensure that the appellant was not unfairly convicted by a jury which did not appreciate that possibility.  There is no reason to think that the jury were not as alert to that possibility as the judge.^[6]

45. As to the third complaint about the learned trial judge's directions, it is understandable that his Honour made no mention of the inferences which might or might not properly be drawn from the appellant's refusal to answer questions when asked to do so by the police.

46. In R v Eaton,^[7] Jerrard JA, with whom McPherson JA and Philippides J agreed, discussed the desirability of a direction to the jury that no adverse inference should be drawn from the exercise by an accused of his or her right to silence.  Jerrard JA said:

"… certainly if asked the learned trial judge ought to have given the jurors a direction in the terms described in the cases cited or suggested in the Benchbook. But where a judge is not so asked, the critical question is whether a miscarriage of justice has resulted from that not having occurred. No miscarriage of justice will have occurred unless it is shown both that the direction should have been given, and that it is reasonably possible that the failure so to direct the jury may have affected the verdict (See Dhanhoa v R (2003) 199 ALR 547 at 555, at [38], judgment of McHugh and Gummow JJ).  Whether that direction should have been requested in the circumstances is a question to which the answer is not quite as categorical as the cited cases suggest, and it required an exercise of judgment by … trial counsel. Having the trial judge give the direction would emphasise a matter that might otherwise have appeared of no moment at all in the trial. Choosing to let the matter rest was a justifiable forensic decision, and [the appellant's counsel] had failed to establish that there was a reasonable possibility that the judge not giving such a direction might have affected the verdict …"

47. In my respectful opinion, no miscarriage of justice occurred here. A choice by the appellant's counsel at trial to let the matter rest was a "justifiable forensic decision". The possibility that the jury might draw inferences adverse to the appellant from his silence pales into insignificance when compared with the appellant's admission that the complainant gave him "a blowie". It would have been distinctly to the appellant's disadvantage for the learned trial judge to have reminded the jury of the appellant's responses to police questioning.

The reasonableness of the verdict

48. The appellant's argument is that the jury could not reasonably have preferred the evidence of the complainant which inculpated him to the evidence of the complainant elicited in cross-examination which exculpated him.^[8]

49. There would be more force in this submission were it not for the appellant's admission to police that the complainant gave him a "blowie". The jury may have regarded the appellant's admission as good reason to accept that the complainant's evidence that he had sex with her as she alleged was generally reliable. Absence of consent on the complainant's part was not an element of the offences with which the appellant was charged. Further, the jury may have reasoned that the proposal put to the complainant by the appellant's counsel was inconsistent with the further suggestion put to the complainant in cross-examination that she had voluntarily begun to provide "oral sex" to the appellant only while he was asleep. The jury may also have been concerned that the complainant's proposal to the appellant did not, as the appellant's case was put to the complainant, elicit a rebuff from the appellant. In other words, the jury may have regarded the exculpatory case put by the appellant as a half-baked attempt to excuse the inexcusable.

50. The jury may also have been disposed to regard the complainant's complaint at the very first available opportunity as providing support for the general reliability of her allegations against the appellant. The jury may have formed the view that the prompt complaint against the appellant was an indication that her grievance against the appellant had a reliable basis. On the appellant's behalf it was said that there were radical differences between the terms of the complaint to KM and LW and the complainant's statement to the police on 7 January 2007. It is said that the complainant did not mention to the police that she had gone from room to room from the appellant to A during the night; but a close study of the complaint to KM shows that she did not actually say that to them either. It is also said that she did not tell police that the appellant inserted his fist into her vagina in the shower; but she did suggest that he had inserted his hand. It is also said that she did not say to the police that the appellant and A had been "sperming … on her body inside and out"; but she did speak to the police of the appellant ejaculating when he had oral sex with her, and her silence on the issue of A's ejaculation during intercourse is understandable.

51. It was also said on the appellant's behalf that to regard the complainant's inconsistencies as explicable by reason of her intellectual impairment rather than the unreliability of her accusations against the appellant was entirely arbitrary. But this is not a case in which it can be said that there was no reasonable basis on which the jury could have preferred the evidence of the complainant which inculpated the appellant to her evidence that was exculpatory of him. The jury were entitled to regard the complainant's evidence recorded on 7 January 2007 as more reliable than her evidence given many months later. It may be that the jury, having seen the complainant give evidence, formed the view that her answers in cross-examination reflected genuine difficulties of recollection, comprehension and articulation on her part. The jury may also have formed the view that the complainant was unusually suggestible. These considerations may have led the jury to the reasonable conclusion that the most reliable evidence given by the complainant was that given on 7 January 2007.

52. Whether or not the complainant's difficulties of comprehension and articulation and the lapse of time afforded a sufficient basis for disregarding the inconsistencies in her evidence was a matter for the jury. This Court could take a different view only where it is satisfied that no reasonable jury could have taken that view.^[9]  For the reasons I have given, I am not satisfied that this is such a case. 

53. It may also be noted that, insofar as the appellant's case was that the complainant was not intellectually impaired, the jury may also have regarded her evident difficulties as proof of her intellectual impairment. The decision of the appellant's trial counsel to seek no more stringent direction from the trial judge in relation to the complainant's reliability is understandable as a reasonable forensic judgment. A more stringent warning would inevitably have emphasised the complainant's intellectual impairment to the detriment of the appellant's contention that the complainant was not intellectually impaired. 

54. The appellant understandably places emphasis on the evidence which suggests that the complainant may have lied to her father in order to spend the Saturday night with A. The jury might reasonably have regarded the complainant's willingness to lie to her father as consistent with a desire to spend the night with A while not detracting from the reliability of her evidence about the occurrence of the incidents involving the appellant.

55. In my respectful opinion, the verdicts of the jury were reasonably open on the whole of the evidence.

Sentence

56. The principal thrust of the appellant's submission in support of his application for leave to appeal against sentence is that the learned trial judge failed to recognise that the criminality of the appellant's conduct was to be assessed having regard to his own intellectual and psychological difficulties.

57. At sentence, a report by a psychiatrist, Dr Michael Beech, was tendered. Dr Beech diagnosed the appellant as suffering from Bi-Polar Disorder. Dr Beech estimated the appellant's intellectual function to be at the lower end of normal.

58. The learned sentencing judge said:

"By the jury's verdict it accepted the prosecution case that the complainant was an intellectually impaired person and by observing her and listening to her responses for only a short period it was plainly obvious that her mental capacity is markedly diminished quite apart from the medical evidence adduced at trial.

You, therefore, took advantage of a very vulnerable person to satisfy your own sexual gratification and subjected her to demeaning and humiliating sexual acts even to the extent, on the evidence before the Court, of examining her genitalia the following morning and further satisfying your carnal lust by subjecting her to a further act of sexual indignity in a traumatic way. Not content with satisfying your own selfishness, on the jury's verdict, you enticed her to engage in sexual intercourse with your son thus further exploiting the complainant's vulnerability.

I have read the medical report tendered by your counsel at the hearing but much of its contents is inconclusive in respect of your own alleged mental instability. I note that the doctor has made a number of assumptions in respect of your current mental condition but in the event it has not assisted me greatly.

I consider the circumstances of count 8, that is one of the indecent treatment counts, places it at the upper end of the range for that type of offence and therefore a sentence must be imposed that will reflect the community's revulsion of preying on one of the most vulnerable categories of our society, namely the intellectually impaired for gratuitous sexual gratification."

59. The learned sentencing judge's remarks cannot be said to have given less than appropriate weight to the evidence of Dr Beech. In this regard, Dr Beech concluded his opinion with the following observations:

"There is a history of learning difficulties in high school. At interview, Mr Raphael was concrete in his thinking style, there was some minor impairment in his memory, and limited mathematical skills. Overall, it has been difficult to assess his intellectual function but I would estimate it to be at the very lower edge of normal intellect possibly overlapping into borderline intellectual function range. He has however by his account, been able to successfully work as a bus driver in Brisbane for five years which I believe in itself indicates that he does not suffer from a natural mental infirmity.

Mr Raphael clearly disputes the allegations. This dispute does not arise from any mental disorder that I can elicit.

It is highly likely at the time of the majority of the offences he was intoxicated given the large amount of alcohol that he said he consumed at the party. There is nothing to suggest that at the time of the first part of the offences, prior to the party, that he was intoxicated. By his account at the time he was depressed.

If we assume that Mr Raphael suffers from a form of Bipolar Disorder characterised by current periods of severe Depression and brief periods of mood elevation [then] I would see that he would suffer from a Mental Illness. Similarly, if he were seen in earlier periods of his life to have suffered from Schizophrenia, it would seem to me that he has a mental illness. There is nothing however that I can elicit from Mr Raphael which would lead me to believe that at the time of the alleged offences that he was suffering from mental illness other than the possibility that he was suffering from a Major Depressive Episode that had arisen from his grief. His description to me of that episode however does not lead me to believe that at the time he would have been deprived of any capacity which would have rendered him of unsound mind.

Mr Raphael is explicit that at the time of the offences his mood was not elevated. There is nothing on the face of the allegations that I can see which would suggest any psychotic mood elevation to the point where he would have been deprived of the capacity to know what he was doing was wrong or to control his actions. The only caveat I have to this is that sometimes people who suffer from Bipolar Disorder are not aware that their mood is elevated, nor are they aware of the severity of their symptoms or the relationship it has to their actions. There is nothing however in the available material or from Mr Raphael’s account that would lead me to believe that he was psychotic at the time of the alleged offences and nothing on the face of the material which indicates that he was of unsound mind."

60. The learned sentencing judge did not fail to recognise the appellant's own mental problems but proceeded on the basis that they played no significant role in the appellant's persistent sexual abuse of a vulnerable person. That view was not contrary to Dr Beech's evidence. The appellant's intellectual and psychological problems certainly do little to diminish the cruelty and callousness which are prominent features of the appellant's offending conduct.

61. On behalf of the appellant it is submitted that the top end of the appropriate range of sentence for offending involving non-violent consensual sexual activity occurring over a short period of time where the victim was not under the offender's care is three years imprisonment. Reference was made to this Court's decision in R v Libke.^[10]  But in R v Libke this Court imposed a sentence of five years imprisonment for offences of unlawful carnal knowledge committed upon an intellectually impaired woman by a psychologically disturbed man of very low intelligence.  In this Court in R v Libke,^[11] it was said that "[t]he complainant's impairment is not severe", and the jury's verdict reflected the view that they were not satisfied that the complainant had not consented to the incidents in question.  The sentence imposed in this case in respect of the offence of unlawful carnal knowledge is not out of line with the approach taken in R v Libke.

62. It should also be said that the appellant's submission does not take into account the circumstances of breach of trust involved in this case and the demeaning and cruel persistence on the appellant's part involved in the incident in the shower. Thus the submission made on the appellant's behalf does not fit the facts of this case and, accordingly, must be rejected.

Conclusions and orders

63. The appellant's challenges to the convictions must be rejected.

64. The appeal should be dismissed.

65. The sentence was not manifestly excessive.

66. The application for leave to appeal against sentence should be refused.

67. HOLMES JA:  I agree with the reasons of Keane JA and with the orders his Honour proposes.

68. A LYONS J:  I have read the reason of Keane JA and agree with those reasons and the orders his Honour proposes.  I will add a few brief comments.  It is clear from an analysis of the transcript and of the written material given to the jury by the learned trial judge, that his Honour directed the jury in very specific terms in relation to the defences available under s 216(4) of the Code.  His Honour also clearly indicated in that written material that those defences were available with respect to all counts on the indictment except for count 7.  His Honour also gave clear directions that the burden of proving either of the defences available was upon the appellant on the balance of probabilities that is more probable than not.  There is therefore, no substance to the ground of appeal that there was a failure by the trial judge to adequately direct the jury on those defences. 

69. Neither do I consider that there can be any complaint in relation to the adequacy of the warning given by the trial judge with respect to the evidence of the complainant. His Honour expressly stated that it was incumbent on the jury to scrutinise the complainant’s evidence carefully and stated, “You have heard the complainant’s evidence in detail and I have reminded you of quite a lot of it, but you should only act on that evidence, if after considering it with the warning I have just given you, you are convinced of its truth and accuracy.” There is clearly no basis to this ground of appeal.

70. The third ground of appeal is that there should have been a direction by the trial judge that no adverse inference could be drawn from the appellant’s refusal to answer police questions. No such direction was sought at trial and I agree with Keane JA that there has been no miscarriage of justice. Indeed, the very direction may have emphasised a matter which may, in fact, have been “of no moment in the trial”.

71. The appellant also argues that the verdict was unreasonable and that the jury could not reasonably have preferred the evidence of the complainant, which inculpated the appellant, to evidence which exculpated him. In my view, the evidence which the complainant gave some 12 hours after the events in question was such that, the jury were fully entitled to consider that this evidence was the most reliable evidence. The complainant was not cross-examined until many months after the incident. I agree with Keane JA that the jury, having seen the complainant give evidence, may have considered that the inconsistencies in her evidence arose from “genuine difficulties of recollection, comprehension and articulation on her part”. During her cross-examination, the complainant said on several occasions, “I don’t really remember”.^[12] 

72. Furthermore in my view, the jury were entitled to consider that the complainant simply did not understand many of the questions put to her in cross examination, particularly those questions which were lengthy or which contained more than one concept. At one stage this question was put to the complainant:^[13]

“There’s one thing I just should ask you and tell you that Bill says or tells me that when you asked him if you could stay at Bill’s house that night you said you’d give Bill oral sex if you could stay?-- Yeah.

Do you remember that?-- Yeah.

Do you understand what I’m saying?-- Sort of.”

73. In particular, the jury could also have concluded that the complainant was actually inclined to agree with propositions put to her by counsel for the defendant, even if she did not understand those questions. For example:^[14]

“Mr Goodwin:  When you say that you can remember Bill’s penis in your mouth?-- Ah, yes.

Bill tells me that when you finished that he went back to sleep?-- Yes.

You understand what I’m saying?-- Not really.”

74. Accordingly, the jury were entitled to consider that the complainant’s videotaped evidence, given when the events were fresh in her mind, was the most reliable evidence.

75. In terms of sentence, it is apparent that the learned sentencing judge carefully considered the report of Dr Beech which concluded that the appellant’s diagnosis of Bi-Polar disorder, did not impact on his functioning at the time of the commission of the offences. Whilst his Honour was also aware of the appellant’s own low level of intellectual functioning, he did not consider that he suffered from any natural mental infirmity and did not consider it played a role in his offending behaviour. The sentences imposed were appropriate, particularly given the appellant’s domination of the complainant by pretending to be “the teacher” and telling her that he was “teaching her”.

76. I do not consider that any of the appellant’s grounds of appeal are therefore made out. The appeal should be dismissed and the application for leave to appeal against sentence should also be refused.