SUPREME COURT OF QUEENSLAND

[1] KEANE JA:  I have had the advantage of reading a draft of the reasons for judgment prepared by Cullinane J.  I agree with his Honour's reasons and with the orders proposed by his Honour.

[2] CULLINANE J:  The appellant was convicted on 9 December 2008 in the District Court at Cairns for a count of breaking and entering a dwelling with intent in the night time and indecent assault.  He was sentenced to three years' imprisonment on each count and a two months' suspended sentence was activated and imposed cumulatively.

[3] The appellant appeals against his convictions and seeks leave to appeal against the sentences imposed.

[4] The relevant events occurred at the Federal Hotel on Thursday Island.

[5] The complainant was a Dutch woman born in November 1982.  She had arrived at Thursday Island on 19 July 2007 and obtained work as a bar maid at the Federal Hotel.  She lived in a room at the hotel having initially shared a room with another employee but from 12 August 2007, she occupied the room alone.

[6] The appellant was also an employee at the hotel being employed as a yardsman.  The evidence suggests that all of the workers including the appellant and the complainant were on friendly terms, although there is no suggestion on the evidence that any particular relationship had developed between them.  They had attended church together on a few occasions.

[7] Late on the evening of 11 August 2007, a group of persons, including the appellant and the complainant, were drinking in the courtyard of the hotel.  The appellant asked the complainant to go with him and a group of others to a nightclub but she declined saying she wanted to go to bed early because she had church in the morning.  The appellant said, "If you're not going to come out, I'll knock on your door and wake you up."  He repeated this.

[8] The complainant went to bed at about 1am having drank some four stubbies of beer and what she referred to as "two shots" since 10pm.  She thought a shot was a drink with Baileys in it.

[9] She closed her door, changed into long pants and a singlet and went to bed.  She gave evidence that she was awoken by a feeling "someone was taking my pants off" and as she awakened she felt someone touching her and licking her vaginal area.  She saw that it was the appellant and challenged him asking what he was doing there and what he was doing in her room.

[10] They both got off the bed.  There was some discussion in which he asserted that the door was open.  After he left, she went back to bed but the following morning went to his room and spoke to him.  He reacted by pushing her causing her to fall over and then he later tried to calm her down.

[11] The complainant gave evidence that she had taken two showers the morning after these events because she "felt horrible and just wanted to wash it off."  She told a number of other employees what had happened.

[12] The appellant did not give evidence but two interviews he had with police were tendered.  The appellant claimed that whilst they were seated together at the hotel after work had finished, he had asked her if he could see her when he got back to the hotel and that she had said, "Yes".  He claimed that when he did return to the hotel he knocked on the door but got no answer.  He used a duplicate key to the room which he had obtained and entered.  He saw the complainant lying in bed and lay beside her and according to what he told the police, poked her or prodded her to wake her up.  He claimed that they had mutually touched each other and that they kissed and that when he progressed to performing oral sex upon her she objected and at that time he desisted and left the room.  The complainant rejected the suggestions put to her in cross-examination that she and the appellant had kissed and that she had touched his genitals.

[13] A complaint is made about what are said to be erroneous directions given by the learned trial judge to the jury which, so the argument went, had the potential to divert the jury's attention from the need to be satisfied, that he had the intention to sexually assault the complainant at the time he entered her room before he could be convicted of the first count.

[14] Her Honour, in directing the jury about the elements of count 1, said:

"But the first charge of burglary, I will just take you through what the prosecution has to prove to convict Mr Troop of this offence.  The prosecution must prove to you beyond reasonable doubt that Mr Troop entered the dwelling or the room of [the complainant].  Now, that's not in dispute.  Secondly, the prosecution has to satisfy you beyond reasonable doubt that at the time he entered the room he intended to commit an indictable offence, namely sexual assault."[1]

[15] A little later Her Honour said (still talking of what the prosecution had to establish):

"'So what's in dispute in relation to the offence of burglary is, firstly, whether Mr Troop had permission to go into the room and, secondly, what his intention was when he entered the room."[2]

[16] It is worth noting that Her Honour's direction relating to permission to enter the room was a more favourable direction to the appellant than he was entitled to.  See R v Rigney [1996] 1 Qd R 551.

[17] Subsequently when summarising the arguments put to the jury by counsel Her Honour said:

"--- and that you would conclude that he went into that room without the intention - or with the intention of not waking her up and with the intention of sexually assaulting her."[3]

[18] Her Honour thus clearly drew to the jury's attention the need for the prosecution to prove beyond a reasonable doubt that the accused had the intention of sexually assaulting the complainant at the time he entered the room.  The first and second of these directions were given in the context of the learned trial judge's express directions to the jury of what it was the prosecution had to establish before the offence was made out.

[19] We were taken to a number of passages in the directions where in the course of focussing for the jury the issues which arose on the two accounts placed before the jury (that of the complainant in evidence and of the appellant in his interviews with the police) the learned trial judge spoke of the claim by the appellant that the complainant consented to the appellant entering the room and engaging in sexual activity with her or his honest and reasonable belief that she had so consented.

[20] It is these passages that objection is taken to on the grounds that whilst the jury may have earlier been properly instructed as to the elements of the offence, the subsequent references were likely to have overwhelmed the jury's recall of the earlier directions or diverted the jury's attention from them.

[21] The passages to which the appellant refers have to be looked at in context.

[22] As I have said Her Honour was at this time focussing for the jury's assistance on the conflict in the evidence and the factual issues which arose from that conflict and did so in a way that cannot be criticised.

[23] There was no reasonably arguable hypothesis upon the evidence placed before the jury of the appellant having entered the respondent's room and thereafter forming the intention to engage in sexual relations with the appellant.  Indeed this was quite contrary to the account which he had given the police.

[24] There is a degree of artificiality about the appellants’ arguments which ignores the factual dispute which Her Honour was referring to.

[25] In my view there is no reason to believe that the learned trial judge had not adequately instructed the jury of the elements of the offence or that the jury may have misapprehended or overlooked these. 

[26] There was an appeal against the conviction on count 2 which was however dependent upon success in the appeal against conviction on count 1. 

[27] I would dismiss the appeals against conviction.

[28] The appellant seeks leave to appeal against the sentence imposed. 

[29] The learned trial judge imposed a sentence of three years' imprisonment and activated a two months' suspended sentence which was ordered to be served cumulatively.  No order was made as to parole eligibility.

[30] We were referred to a number of cases.  Both parties referred the Court to R v Forrester [2008] QCA 12 and R v Billy [1997] QCA 290.  In addition some reference was made to the Court of Appeal judgment in R v Marsh [1995] QCA 99.  In Forrester the applicant stood outside the complainant's house for some time before entering it and stealing her handbag and re-entering it and rubbing her vagina.  He was 20 years old with a substantial criminal history.  He had pleaded guilty and co-operated with the police.  He had been drinking heavily and taking drugs and was suffering substance induced psychosis or schizophrenia.  He was sentenced to three and a half years' imprisonment with parole eligibility after fourteen months.

[31] Some reliance was placed by the appellant upon the matter of Marsh.  This involved a plea of guilty and unlike the present case did not involve the same degree of intrusion of a woman alone in her bedroom.  I would not regard it as being as serious as the present case.

[32] Consideration of the cases to which we were referred and in particular Forrester and Billy justifies the conclusion that the sentences imposed were within range.

[33] I would refuse leave to appeal against sentence.

[34] The appeals against conviction should be dismissed and the application for leave to appeal against sentence refused.

[35] JONES J:  I have read the reasons prepared by Cullinane J.  I respectfully agree with those reasons and the orders proposed.