SUPREME COURT OF QUEENSLAND

KEANE JA:  On 26 September 2008 the appellant was convicted upon the verdict of a jury of one count of common assault, one count of deprivation of liberty and three counts of rape.  He was sentenced to six and a half years imprisonment on each of two counts of rape and to less concurrent terms in respect of the other offences.

The appellant seeks to have the conviction set aside on a number of grounds.  As one of those grounds involves the contention that the verdict of the jury should be set aside because no reasonable jury could be satisfied on the whole of the evidence of the appellant's guilt beyond reasonable doubt, it is convenient to summarise at the outset the evidence adduced at trial before moving to a discussion of the grounds of appeal.

The case at trial.  The charges against the appellant arose out of incidents which occurred on 23 and 24 June 2007 at the Club Hotel in Croydon.

The complainant was a Canadian backpacker who was working as a waitress at the Club Hotel.  She was 19 years old.  The appellant was a licensed security provider who had been hired by hotel management for the weekend of the Poddy Dodgers Festival on 21 to 23 June 2007.

During the 10 days prior to 23 June, the complainant had been sharing her donga at the hotel with Mr Nelson Finch.  Mr Finch gave evidence that on the evening of Friday 24 June the complainant and others were drinking until 4.30 am on the Saturday.  Mr Finch and the complainant woke at about 6.30 to 7.30 am and in the afternoon drank beer and smoked marijuana together.

According to the complainant, she met the appellant at the hotel where she served him a meal and he gave her a bottle of beer.  The appellant was 40 years old.  At about 8.00 pm on the Saturday evening, a group of hotel staff, including the complainant and the appellant, travelled by bus to the ground where the festival was being held.  At the festival, the complainant was drinking rum and coke.

Mr Finch was also at the festival.  He was with his family and a former girlfriend.  He went home with her and spent the night with her.  One of the complainant's friends gave evidence that the complainant was upset about this.

The complainant walked back from the festival to the hotel with another friend Mr Kenneth Horrobin.  The appellant returned by bus.  There was an altercation between the appellant and Mr Horrobin after which the appellant and the complainant went back to the appellant's donga.  It was common ground that they had sexual intercourse that night and after sunrise the next morning.

The complainant said that after the altercation between the appellant and Mr Horrobin the appellant grabbed her by the back of the head and threw her backwards.  She started crying.  He then pulled her up by the left arm and led her towards his donga.  He repeatedly threatened to kill her if she did not shut up.  They were, according to the complainant, walking close to one another, side by side, with the appellant pulling on her arm and leading her. 

According to the complainant, once they were inside the appellant's donga, he had vaginal intercourse with her.  It was painful.  He repeated his threats to kill her.  She said that he then stuck the tip of his finger into her anus.  She said: "Please don't."  He returned to having vaginal intercourse.  She tried to leave, but he prevented her.  He had sexual intercourse with her again the following morning.  On each occasion that he had sexual intercourse with her he withdrew his penis and ejaculated on her stomach.  On the appellant's account, he did this at her request.

The complainant left the appellant's donga at about 8 am on Sunday 24 June.  She went to her donga to see if Mr Finch was there, but he was not.

The complainant then told her cousin, Ms [SF], that she wanted to leave Croydon.  According to Ms [SF], the complainant was upset and said to her that she "basically had sex with a security guard so that he wouldn't hurt her."  Ms [SF] said that the complainant was crying at this stage.  The complainant told Ms [SF] that "the security guard grabbed her by the back of the hair and threw her on the pavement."  Ms [SF] said that she and the complainant then went to see Brent, her boss at the hotel.  They saw Brent and he told them to speak to the police.  Brent described the complainant as red-eyed and upset.

After speaking to the police, the complainant underwent a medical examination which revealed some bruises and tenderness.  The urine sample showed, on countback, an alcohol level of around .1836 at midnight on the Saturday, as well as a significant level of cannabis.

The complainant said that at the festival she did not dance with the appellant and saw him only once, on which occasion she shrugged him off.  The appellant gave evidence that he danced with the complainant at the festival.  The complainant's friend, Emily Beck, gave evidence that she saw the complainant and appellant dancing together "like waltz type of dance."

The complainant said, in relation to the confrontation between the appellant and Mr Horrobin, that the appellant came from behind Mr Horrobin and punched him in the face several times until Mr Horrobin slumped to the ground and then continued to punch him.  The appellant's evidence was that he struck Mr Horrobin only once.  Mr Horrobin said, both on the night in question and in his evidence at trial, that he was hit only once by the appellant and that he was not knocked out.

After the altercation, Mr Horrobin left the scene.  The complainant's evidence was that immediately after the appellant's altercation with Mr Horrobin, the appellant grabbed her arm and pulled her past her own donga and the dongas where police officers were staying, to his donga.  There was no suggestion that she called out for help.  She said that she was afraid of the appellant as a result of his violent behaviour earlier.

Mr Robert McBriar was called as a witness for the Crown.  He said that he saw the altercation between the appellant and Mr Horrobin.  Later he saw the complainant and the appellant talking behind a four wheel drive vehicle and he saw them walking back towards the appellant's donga by a route which did not take them past the donga where the police were staying.  He saw that the appellant was not holding the complainant in any way and that they were both walking normally.  The appellant gave a similar account.

Mr McBriar's account was put to the complainant and she rejected it.  It was the third count on the indictment, one of the counts of rape, which was supported by the complainant's evidence that during the first act of intercourse the appellant stuck his finger "just the tip" in her "back end."  She said that at this point she "started moving around a lot more and making a lot more noise so he took it out and just said, like, 'No, no', again."  In cross-examination, the complainant agreed that she had told the police that it was at the point of the insertion of the appellant's finger into her anus that she "started screaming … started getting hysterical by getting louder … and I was actually fighting back."

Mr Daniel Poile and Ms Jodie Melissa Brown each gave evidence that they spent the night in question in the donga next door to the appellant's donga.  Each of them said that they heard only light conversation coming from the appellant's donga: they heard no screaming.  They were able to hear snoring from the donga on the other side.  It was undisputed that the walls of the donga were thin.

It should also be noted here that in the complainant's initial complaint to the police, she denied any anal penetration.  She also denied that anal penetration had occurred to the doctor who conducted the medical examination.  There is no independent medical evidence which supports her allegation in this regard.

The fourth count on the indictment concerned the charge of deprivation of liberty.  In this regard the complainant's evidence-in-chief was that, after the first act of sexual intercourse, she had sought to leave the appellant's donga but the appellant told her that she was spending the night with him and that she was his girlfriend now.  She said that the appellant fell asleep on the side of the bed closest to the wall.  The door was unlocked, but she said that she did not leave because she was afraid.  She said that in the morning after the second occasion of sexual intercourse, she said, "Oh, what time is it?  I'll have to go to work soon."  The appellant "didn't look like he was going to keep me in there, so I kind of just keep going and I left."

The appellant gave evidence that after the first act of intercourse he fell asleep and was awakened in the morning by the sound of a truck starting up at which time he woke the complainant.  Mr Poile and Ms Brown testified that they heard the truck.  The complainant said that she did not hear it.

I turn now to discuss the first ground of appeal advanced by the appellant.

The submission made on the appellant's behalf under this first ground of appeal is that this Court must conclude that the jury could not have been reasonably satisfied of the appellant's guilt on the whole of the evidence beyond reasonable doubt, because "on each objective fact on which the complainant's account can be tested, it is shown to be false."

This Court must, of course, respect the advantages which the jury have of seeing and hearing the witnesses give evidence.  These advantages may explain the willingness of the jury to prefer the complainant's evidence to that of the appellant, even though it can be said that some aspects of the complainant's account seem improbable.  It must be said, however, that this is not a case of word against word as between the appellant and the complainant.  The evidence of Ms Beck, Mr McBriar, Mr Poile and Ms Brown cast doubt on the complainant's account, both in relation to the circumstances which were said to constitute the offence of assault and in respect of an essential aspect of the complainant's account as to her virtual abduction against her will by the appellant.

The evidence of Ms Beck and Mr McBriar was out to cast doubt on the central aspect of the complainant's account, namely that she had been forced against her will to accompany a virtual stranger to his donga.  If that aspect of her account is subject to doubt then there must also be a doubt as to the complainant's claim that she did not consent to what ensued once she arrived at the appellant's donga.  The evidence of Mr Poile and Ms Brown is inconsistent with her account of vocal resistance to the appellant.

Each of these witnesses was called to give evidence by the Crown.  No reason was suggested as to why the evidence of any of them should not be believed.  While the jury had the benefit of seeing and hearing the witnesses, I am unable to accept that this advantage afforded the jury a sufficient basis to disregard beyond reasonable doubt the evidence of each of these witnesses in its entirety.

There is no basis apparent to me on which the evidence of these witnesses and the account for the complainant can be reconciled in a way which is apt to exclude a reasonable doubt as to the appellant's guilt.  Compare R v Thaiday [2009] QCA 27 at paragraphs 22 to 23.  I am unable to see how the evidence of these witnesses could have failed to raise reasonable doubt in the minds of the jury as to the accuracy of the complainant's version that she was an unwilling companion of the appellant at the time when they repaired together to his donga and thereafter. 

Accordingly, I would uphold the first round of the appeal.

On that footing, it is unnecessary to determine the second and third grounds of appeal advanced by the appellant.  I consider that on the whole of the evidence, a reasonable jury could not have been satisfied of the appellant's guilt of the offences in question beyond reasonable doubt. 

In my opinion then the appeal should be allowed and the convictions set aside.  Verdicts of acquittal should be entered in respect of each count on the indictment.

MUIR JA:  I agree.  I merely wish to add the following. 

The complainant's account was of a violent abduction followed by two brutal rapes, accompanied by oral threats and noise which at times must have been substantial on her account.  That account is quite inconsistent with the clear evidence of witnesses whose evidence was not impugned to any material degree.

FRYBERG J:  In my judgment, the appeal should be dismissed.

As to the first ground, the appellant advanced a number of matters which in his submission demonstrated that the verdict of the jury was unreasonable.

The first was that there was contradiction of the complainant's testimony that she did not dance with the appellant at an earlier time in the evening on which the events occurred.

That was an issue which went to credibility and was one, in my judgment, specifically for the jury.

The second matter was that the complainant gave an account of an altercation between the appellant and Horrobin which it was said gave her the basis for the fear of the appellant which was the basis of the rapes.  That version was that the appellant came from behind Horrobin and punched him a couple of times until he went down and continued to punch him while he was on the ground.

That, according to the appellant, is an account to be rejected because Horrobin's account both on the night and at the trial was that he was hit only once and not knocked out.

I do not read his evidence at the trial to substantiate that submission.  It seems on my reading of the evidence that Horrobin did say at the trial that it he was knocked out, and that would account for his inability to remember being hit more than once.

It is true that on an earlier occasion he had said to the contrary, but again, the assessment of his evidence at the trial was a matter for the jury.  They were properly instructed as to the use to be made of previous inconsistent statements and it does not seem to me that that matter is one which would lead me to go behind their assessment of his evidence because they have an advantage which we do not.

Thirdly, the appellant asserts that the complainant said that immediately after the altercation with Horrobin, the appellant assaulted her, grabbed her arm and pulled her down a certain route past the dongas in which the police were staying to his donga.

In contrast, says the appellant, the independent witness, Mr McBriar, testified that he saw the complainant and the appellant talking behind a four wheel drive before they walked a quite different route back to the appellant's donga.  He said that he observed that the appellant was not holding, let alone dragging her, and that they were walking in a normal fashion.

The evidence relating to the route was, in my judgment, inconclusive.  More important was the evidence relating to the question whether the appellant was holding the complainant.  That evidence was in my opinion ambiguous.  The complainant was asked in cross-examination "Well, do you say you had - physically had hold of you all the way to the room?‑‑ He did have hold of me a lot."

At that point, her Honour interrupted to say, "Sorry, he did have hold of me?" and received the response, "He did have hold of me.  He was - I was walking like right beside him so he was like holding my arm."

I do not take that answer to negate the proposition in the earlier answer that he had “hold of me a lot”.  That earlier question was the only one which focused directly on the question of whether the appellant, according to the complainant, held her all of the time.  Subsequent questioning, referring to forcing and pulling her by the arm towards the room, did not address the time issue.

It is quite consistent with that evidence that Mr McBriar saw the appellant and the complainant at a time when he did not have hold of her but was walking beside her and by domination leading her to his room.  Whether that occurred was in my judgment a matter for the jury.

Fourth, the appellant asserts that the complainant gave evidence that during the first act of sexual intercourse, the appellant put his finger into her anus and that she accordingly started moving around a lot more and making a lot more noise.  That in itself is said to be inconsistent with the evidence of persons in the next door donga that they did not hear anything untoward, let alone screaming.  I do not see any inconsistency in that evidence.  She may have made a lot more noise and have done so without any increase in volume.  That is not inconsistent with the people next door not hearing it.  There was no direct evidence of the thickness of the wall, although there was evidence that another wall of the neighbour's unit was thin enough to allow snoring to be heard.  The neighbours did hear some sounds of talk coming from the appellant's room.

That point is then supplemented by the submission that the complainant had earlier told the police that at that point she "started screaming, started getting hysterical by getting louder and was actually fighting back."

One knows from experience how statements initially given to the police can contain elements of emphasis which are not later asserted by the maker of the statement.  The complainant did not assert in her evidence that she was screaming and it was a matter for the jury as to whether or not they were unsatisfied of its truth by reason of her earlier assertion of screaming.

She also attempted to adhere to her earlier assertion of hysteria by explaining that she meant by hysterical a sense which the word would not on a cool analysis bear.  It may be that at an earlier time the complainant had exaggerated to the police what had happened.  That was not, in my judgment, enough to mandate that the jury must have had a reasonable doubt about her evidence.  The jury was entitled to accept the evidence of the complainant in part and to reject it in part. They may well have accepted her evidence and rejected the assertion in the earlier statement and not used it as evidence of her unreliability.  That in my judgment was a matter for them.

The same, I think, is true of the point which was made relating to her failure to complain to the medical practitioner in relation to penetration.  There was no exploration of the sense in which she understood penetration.  She said that the tip of the appellant's finger was placed in her backside.  Whether she understood that to be inconsistent with what the doctor asked her about penetration was not explored to such an extent as mandated in my judgment the holding of a reasonable doubt.

In short it seems to me that this was a case where the jury had to assess the evidence and come to a conclusion.  It had the evidence of the complainant and the other Crown witnesses and it also had the evidence of the accused.  He gave evidence and the jury had the opportunity to assess that evidence.  It is evident from their verdict that they rejected it.

I therefore would not allow the appeal on the first ground.

The second ground related to the distressed condition of the complainant and the direction which was given by the learned trial Judge in relation to that distress.  The evidence in short was that to some persons the complainant displayed distress, to others she did not. 

The submission was that the Judge erred, first by leaving the evidence to the jury as supportive and once having done so, by failing to warn and properly direct the jury to the shortcomings in the evidence.

In my judgment, a fair reading of the summing-up does not support the view that the Judge left this evidence to the jury as supportive.  The Judge summarised the prosecution case and she summarised the defence case.  That was a perfectly proper thing to do.  She did not weigh those cases one way or the other, nor did she direct the jury as to how they ought to use those cases or that evidence.  There is, in my submission, no force in that ground of appeal.

Finally the appellant submitted that the Judge erred in leaving to the jury the question of whether the evidence of bruising supported the complainant's evidence with respect to the issue of consent.  It was not the Crown case that the bruising occurred during intercourse.  It was apparent that the bruising had, on the Crown case, occurred at the time of the earlier altercation.  The three marks on the arm in particular were consistent with the application of force by three fingers and were consistent with the complainant's account of being pulled by the arm.

The age of the bruises could certainly not be accurately established by the medical evidence, but they were described by the doctor as “fresh” and the complainant gave evidence that they had not existed before these events.  That she could not say precisely how they occurred is unsurprising on any view of the facts of the case.

In my judgment, it was correct for the Judge to say that the bruising did provide support for the complainant's evidence with respect to the issue of consent.  It provided support because it showed that there had been force applied to the plaintiff which was calculated to overcome her resistance and which made it unlikely that she would have consented to the subsequent act of intercourse.  Indeed as I understand the reasons of my colleagues, they accept the view that subsequent acts of sexual intercourse were unlikely on the version given by the plaintiff.

I would reject that ground of appeal also.  It follows that in my judgment the appeal should be dismissed.

KEANE JA:  The orders of the Court will be:

The appeal allowed.

The conviction set aside.

Verdicts of acquittal to be entered in respect of each count on the indictment.