SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  I agree with Cullinane J’s reasons for dismissing the appeal against conviction and for granting the application for leave to appeal against sentence, allowing the appeal against sentence and substituting a sentence of 10 years imprisonment for the sentence of 12 years imprisonment.  I agree with the orders proposed by Cullinane J.

[2]  CULLINANE J:  This an appeal against conviction for the offences of rape and assault occasioning bodily harm and an application for leave to appeal against the sentence of twelve years' imprisonment imposed in respect of the count of rape.  A serious violent offence declaration followed as a matter of course.

[3] The appellant was convicted on the 12th of November 2009 by a jury after a four day trial.

[4] At the outset of the hearing of the appeal, counsel for the appellant abandoned the grounds of appeal as they appear in the notice of appeal and sought leave to amend to raise five grounds in substitution therefore.

[5] Leave to amend was given.  These grounds are:

"Ground 1:The interview that the appellant participated in with police on 3 September 2007 was wrongly received into evidence and a miscarriage resulted.

Ground 2:The learned trial Judge erred in not directing the jury in relation to the omission of information in the appellant's interview with police.

Ground 3:The learned trial Judge erred in refusing an application to have the complainant recalled for further cross-examination.

Ground 4:The verdict was unreasonable and cannot be supported having regard to the evidence; and

Ground 5:The sentence imposed in respect of count 2 is manifestly excessive."

[6] Some four bases were argued in relation to Ground 1.  These were:

1(a)There were no statements against interest or inculpatory statements made by the appellant in the interview.

1(b)The contents of the interview were irrelevant.

1(c)The appellant's participation in the interview was involuntary.

1(d)The interview should have been excluded on the grounds of unfairness.

[7] At trial Ground 1(a) and Ground 3 were raised before the learned trial Judge.

[8] Ground 1(b), (c) and (d) and Grounds 2 and 4 were not raised. 

[9] It follows that pursuant to the provisions of s 668E of the Criminal Code, the appellant will be entitled to succeed, subject to the application of the proviso, if he satisfies the court that Ground 1(a) or Ground 3 or both are made out.  In respect of Ground 1(b), (c) and (d) and Grounds 2 and 4 the appellant, to succeed, will have to demonstrate a miscarriage of justice.

[10]  The complainant was a woman then aged about 36 who had on the afternoon of 17 August 2007, attended with her then partner at the New Farm bowls club.  Her partner left her at about 5 pm according to the evidence which he gave.  The complainant thought that he left her approximately three or four hours after they had arrived, something which she had thought was shortly after 3 pm.

[11]  Between noon and approximately 7 pm on that day, the complainant had consumed four bottles of Fourex and five stubbies of Fourex.

[12]  A witness present at the bowls club last noticed the complainant at the club at about 7 pm and said that the complainant was no longer at the club at 7.30 pm.  This witness thought that the complainant was intoxicated.  The complainant said that when she left the hotel, she was drunk.

[13]  The evidence thus did not identify with any precision the time at which the complainant left the club.

[14]  Upon leaving the club, she walked out onto Brunswick Street and turned left to a point which brought her to near the New Farm community centre.  Her evidence was that at that time she was grabbed from behind and forced to cross Brunswick Street and enter some dense vegetation in New Farm park.  After being forced a little further, she was forced to the ground.  Her assailant ripped her jeans open and pulled them down to her ankles.  He held her arms above her head and put his penis into her vagina.  She told him not to and repeated this more loudly and called out for her partner.  Each time she called out, the assailant struck her in the face with his fist.  He told her to "shut up".  After what she estimated was some five minutes or so, the assailant desisted, got up and ran off.  The complainant gave evidence that she did not consent to having sexual intercourse.

[15]  The complainant said that she thought that she may have passed out and that when she regained her senses she noticed that it was cold.  She walked out of the park and went to her partner's unit in Brunswick Street.  He opened the door after she had knocked on it and saw that her face was swollen and her jeans were torn.  She told him that she had been raped.  He suggested she call the police.  At about that time she left and he returned to bed.  At about 11.30 pm a Mr Dementiev, who had previously been in a relationship with the complainant, woke to her knocking on his door and when he opened it saw she was upset and had bruises on her face and neck.  She was intoxicated.  She told him she had been raped.  She slept on a couch in his premises that evening.

[16]  The next morning the police were called and the police evidence was that upon arriving at Dementiev's house at about 7.30 am, the complainant appeared to be upset and had swelling and bruising to her face.  She directed the police to a bushy area of the park, opposite the bowls club and neighbourhood centre.

[17]  Later that day, a doctor examined the complainant.  Whilst there were no observable injuries to her genital area, there were bits of dirt seen on the vulva and the peri- anal region.  A purple/blue bruise was present on the left side of the jaw which was painful to touch.  The right side of her jaw was swollen and she complained of pain there also.  There were bruises behind the right ear and she complained of tenderness in the lower right rib area.  There was a superficial scratch on the right shoulder and she complained of tenderness on the tip of the left shoulder.  There was also a bruise to the left of her navel.  She complained of widespread tenderness to the lower back and there were three purple bruises observable above the right elbow and two above the right wrist.  All were consistent with fingertip pressure.  A tender, swollen bruise was present below the right knee and there were superficial abrasions on the left leg.  All of the bruises observed were of recent origin.  Swabs of the vaginal area were taken.  The police took possession of the complainant's jeans, which were torn in the area of the front zipper.

[18]  On 3 September 2007, the police interviewed the appellant.  The admission of this interview into evidence, is the subject of the first ground of appeal.  It is contended that there are four grounds upon which it should not have been received.  It is also the subject of a further ground of appeal relating to the directions given to the jury about the omission by the appellant of certain information in the record of interview.

[19]  The interview was electronically recorded and a transcript of the interview appears at R259/R273.  The police told the appellant that they were investigating a complaint from the complainant that she had been assaulted on the evening of 17 August 2007.  The appellant told the police that some police officers spoke to him on 18 August about a female person who had been assaulted in the park.  He said that he had been in the park drinking with his uncle and with others and said that after some police checked on them.  They left "before dark" and went to his uncle's where they drank some more and where the appellant slept.  The following morning the same two police officers came and asked if they knew anything about the park and "a kiwi bloke".  He told the police that he left the park about 3 pm or 4 pm.  He was asked:

Police:“Sometime before dark in the afternoon, was it?”

Appellant:“It was, yeah it was before dark but yeah.”

He went on to say that that was all he could remember.

[20]  He said he did not know anything about the assault on a woman in the park in the late evening and did not return to the park later that night.  He said he had nothing to do with an assault on the woman.

[21]  A DNA sample taken from the appellant on 3 September 2007 was found upon analysis to match DNA detected on a low vaginal swab, a vulva swab, a peri-anal swab and on tape lifts taken from the complainant's underwear.

[22]  The appellant was called at the trial and gave evidence that on 17 August, he and his uncle had gone to a bottle shop and then into the park.  They were sitting by the library and moved over to the other side closer to the bowls club and whilst it was still light he saw the complainant sitting on a chair.  He described her as "charged up and sobbing".  She was drunk and looked a bit upset and told him she had had a fight and lost her bag.  His uncle left and he and the complainant sat drinking.  After talking for a while, she got up and they started kissing and she showed him her breasts.  At this time it was getting a bit dark.  They went to a more private place and had consensual sex.  He had asked her if she wanted to have sex and she "came over to the more private place and we had sex".  Afterwards he walked with her to a group of units near the banks on Brunswick Street.  There were three or four men there and one told the complainant to go inside and asked the appellant to leave.  He left and went to his uncle's place.  He said that when speaking to the police in the interview, he didn't know who the complainant was and hadn't been shown a photograph but knew who it was when his solicitor showed him a photograph.  He did not understand that when the police were speaking to him in the record of interview, that they were asking him about a rape.  He said that all he knew was that they were asking if he knew anything about "an assault in the park".  He said that he was trying to think of whether he knew anyone who had got hit in the park.  He denied assaulting, punching, grabbing, or raping or in any other way inflicting violence upon the complainant or tearing down her jeans.  In cross-examination he said that he had spoken to the complainant about her having had a fight and having aching ribs and he asked whether she was seeing anybody, living with anyone and kept on asking her and they ended up kissing and going over to the private place where they had sex.  It was dark by the time they had finished.  He was not sure whether he had told the police in the interview that he did not go to the Brunswick Street side of the park but accepted that if it was on the tape he said it.  In cross-examination, it was put to him by the prosecutor that the things he was saying at the trial before the jury were completely different to what he had said to the police.  His response was that all that was different was that he didn't tell the police that he had sex in the park.  He said, "He didn't ask me if I had sex in the park.  He asked me if I hit someone in the park."

[23]  The prosecutor put to the appellant that it was only after the interview with the police, that he found out about the DNA match and had now changed his story.  It was put to him that he had lied to the police on 3 September 2007, to which the appellant responded, "I didn't lie.  I just wasn't asked if I had sex in the park."

[24]  Objection was taken before the learned trial judge to the admission of the record of interview.  The ground that was advanced was that there were no admissions contained in the record of interview adverse to the appellant's interest.  The learned trial judge in relatively brief reasons refused to exclude the record of interview, expressing the view he was satisfied that it was "probative of his knowledge and proximity to the events in question - that is, knowledge of the surrounding area and proximity in a matter of time to the alleged offence, although not the exact time."

[25]  He went on to say that he was "certainly not prepared" to have it admitted as an Edwards[1] lie.

[26]  In my view the conclusion that the interview was admissible because it established his familiarity with and his presence in the park at a time approximate to the offence was justified.  It is true that on one view of the evidence the appellant may have left before the complainant could have arrived but the evidence as to time from the various witnesses was quite uncertain.  In any case, this would not affect the admissibility of the record of interview given the other matters to which I have referred.

[27]  The second basis upon which it is said it should not have been admitted, was that it was irrelevant to any of the issues.  This was based upon the proposition that it was not clear from the record of interview that the appellant was talking of 17 August[2], but rather, may have been talking of the events of 18 August.

[28]  However, when one looks at the record of interview, it is plain that the police officers concerned directed the appellant's attention to what occurred on 17 August.[3]  The questions and answers that follow each of those passages can only be understood as referring to 17 August.

[29]  The third ground upon which it was said that the record of interview should not have been admitted, was on the ground of involuntariness.  No objection was taken at the trial to the admission of the record of interview on the grounds of involuntariness.  It was not suggested that statements made in the interview were induced as a result of a threat, promise or other inducement.  Rather it was said that the police, by confining their enquiries in terms of the language used to an assault, without any reference to rape or sexual assault, may have induced the appellant to take part in the record of interview whereas if he had been informed that it was a complaint of rape that was being investigated, he may have exercised his right not to answer any questions.

[30]  A police officer who conducts an interview with a possible suspect in such a way as to withhold from that suspect the true nature of the offence being investigated and conveys the impression that a less serious offence is being investigated would be rightly the subject of criticism.

[31]  It does not seem to me that this matter raises an issue of voluntariness in the ordinary sense of the word.  In R v Swaffield (1998) 192 CLR 159 at pp 196-197, Toohey, Gaudron and Gummow JJ referring to McDermott v The King (1948) 76 CLR 501 and Cleland v The Queen (1982) 151 CLR 1 spoke of the overlapping which can be discerned from the cases in the rationale for the rejection of involuntary statements.  In Cleland's case, Murphy J said:

"It may be a question of classification whether a confession induced by false representations or other trickery is voluntary."[4]

[32]  This ground is closely associated with Ground 1(d) namely the issue of unfairness.

[33]  Where an issue of involuntariness or unfairness is raised a voir dire will normally be held.  Since no objection was taken in the present case this did not occur. 

[34]  It cannot be known whether the police officers were justified in conducting the interview in the way that they did because of some lack of certainty as to whether the complaint did amount to a complaint of rape or as to some concern about the adequacy of the evidence which they held in their possession.

[35]  It is not possible in the circumstances of this case to conclude that the police officers embarked upon a course of deception of the appellant in conducting the interview.

[36]  I am not satisfied that a miscarriage of justice on this ground has been demonstrated.

[37]  So far as the question of unfairness is concerned, this will largely, although not necessarily exclusively, focus upon the reliability of the evidence which is called into question.  As Toohey, Gaudron and Gummow JJ pointed out in Swaffield (supra) at page 197:

"Unreliability is an important aspect of the unfairness discretion but it is not exclusive."[5]

[38]  See also Tofilau v The Queen (2007) 231 CLR 396. 

[39]  In this case, it is clear that the answers which the appellant gave when questioned accorded with the evidence which he subsequently gave at trial and no question of its unreliability in that sense arises.  There is no basis for a conclusion that a miscarriage of justice has occurred on these grounds.

[40]  Counsel who appeared for the prosecution in the course of his address to the jury identified two areas which he said were lies which the appellant had told the police in the light of the evidence given by him at the trial.  These were when he left the park and the parts of the park that he went to.  He said that in relation to those matters two completely different stories have been given by the appellant.

[41]  In his cross-examination of the appellant, counsel put to him that the "things you are saying today are completely different, aren't they?"  The appellant answered:

"All it was, was what's different is I didn't tell them that I had sex in the park.  That's - that is, that's all that's different.  He didn't ask me if I had sex in the park.  He asked me if I hit someone in the park." [6]

[42]  The learned trial judge dealt with the question of lies in his summing up to the jury:

“Now, members of the jury, you also have heard the record of interview between the police and Howard Purcell from the 3rd of September 2007, and you have heard questions and submissions from the prosecutor which attribute lies to the defendant in that interview.  Now, you will make up your own mind whether he was telling lies and whether he was doing that deliberately.  It is for you to decide what significance those suggested lies have in relation to the issues in the case.  You may decide that if you find the defendant has lied, that only affects his credibility.  However, you should bear in mind this warning:  do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.  That is, the mere fact that the defendant tells a lie is not in itself evidence of guilt.  Adefendant may lie for many reasons, for example, to bolster a true the defence, to protect someone else, to conceal disgraceful conduct of his, short of the commission of the offence or out of panic or confusion.  If you think that there is or may be some innocent explanation for his lies then you should take no notice of them.”  [7]

[43]  As will be seen, these directions were given in general terms.

[44]  The jury must be taken as having understood that no lie that the appellant might be thought to have told could be used as tending to prove his guilt of the offences he was charged with. 

[45]  In her address counsel for the accused dealt with this matter.  She contended that there was no inconsistency between what the appellant had told the police and the evidence that he gave.  She pointed out that if there was consensual sexual relations then there was no physical assault and there was no sexual assault.

[46]  She made the point:

"Short of not precisely knowing what information it is that the police want, you cannot say that Howard Purcell is lying.  He may be confused.  He may have genuinely misunderstood."[8]

[47]  The learned trial Judge in summarising what counsel for the appellant had said in her address touched also on this matter:

"The record of interview, when you look at the defendant, would be not one that would lead you to conclude he had told any lies.  He was giving confirmation of what he knew and he had not been told of a rape and all he was told was that there was some investigation about an assault and this was taking place on 3 September, some time after 17 August when he still may have been confused about the day in question and as to what he was actually doing on the day in question." [9]

[48]  Counsel for the appellant in making submissions on this ground 2 emphasised her concern that the jury may have concluded that the failure by the appellant to give the account to the police that he had given in evidence had lied and might have in the absence of any assistance from the learned trial Judge impermissibly used that as evidence of the appellant's guilt.

[49]  However, I think that the learned trial Judge adequately instructed the jury that no lie could be used as evidence of guilt.  It also in my view is clear that the appellant in his response to the prosecutor's cross-examination advanced his explanation for not giving this account.  This evidence and the treatment of the subject in counsel for the appellant's address and in his Honour's summary of the defence's submissions meant that the appellant’s justification for not advancing his account was clearly before the jury.  Even if the jury rejected this, the summing up makes it abundantly clear that the jury could not treat this as evidence of guilt.

[50]  The appellant also complains that his Honour erred in failing to allow the complainant to be recalled.

[51]  The complainant was cross-examined by counsel for the appellant and in the course of such cross-examination, cross-examined about her consumption of alcohol on that day and what it was put to her was her confusion about various matters.  It was put to her that she was staggering, something that she denied.

[52]  Counsel for the appellant asked for the complainant to be recalled after it came to her notice there was some reference in the doctor’s notes to the complainant having had a ten year history of alcoholism.  Counsel asked for the complainant to be recalled and cross-examined about such matters.  This was opposed by the prosecutor on the grounds that it was peripheral.  The learned trial judge refused the application.  After Dr Thomas' evidence the application was renewed but again refused.

[53]  In cross-examination of the doctor, counsel for the appellant elicited that the complainant had told him that she suffered from alcoholism and had done so for some ten years.  She also elicited that the complainant had told the doctor that she had been diagnosed with hepatitis C.  Her final question was to ask the doctor whether the most likely cause of that was from shared needles.

[54]  The basis upon which counsel for the appellant sought to have the complainant recalled was to put to her further questions about her experience with alcohol and to ask her about her previous evidence that she was not so affected by alcohol that she was staggering.

[55]  It is difficult to see what more the applicant could have obtained in the way of cross-examination than what was elicited from the doctor in what, as senior counsel for the respondent has pointed out, was only hearsay evidence but which went before the jury without objection.  The complainant was not given any opportunity to respond to these matters.

[56]  There is no basis for a claim that there has been a miscarriage of justice on these grounds.

[57]  The final ground of appeal against conviction is that the verdicts were unreasonable.

[58]  I have already referred to the DNA evidence.

[59]  There was evidence of significant facial and other injuries to the complainant as well as evidence of her being distressed.  This came from a number of witnesses.  There was evidence also of a recent complaint to her present and former partners.

[60]  Whilst there was some discrepancy between her physical description of the assailant and the appellant's physical appearance the presence of the DNA of the appellant in the complainant's body and on her clothes, makes this of less significance in this case.

[61]  There was no evidence suggestive of any other person's DNA profile on the complainant or of any act of non-consensual intercourse with any other person on that evening.

[62]  The question under consideration here is whether upon the whole of the evidence it was open to the jury to be satisfied of the guilt of the appellant beyond reasonable doubt.

[63]  In my view it was clearly open to the jury to reach a verdict of guilt.

[64]  There was also an application for leave to appeal against sentence.

[65]  The applicant was born on 12 November 1978.

[66]  He had a substantial criminal history which included a number of offences of violence and also an offence of procuring a child under the age of 12 to commit an indecent act.  He served terms of imprisonment for housebreaking and assault occasioning bodily harm whilst armed and for offences involving deprivation of liberty and assault occasioning bodily harm whilst armed.  He breached the suspended sentence imposed after a short period of imprisonment and was ordered to serve the balance of the term.  He was sentenced to imprisonment for further assaults of occasioning bodily harm. 

[67]  The circumstances of the rape in this case did not involve any weapon but did involve a violent attack upon the complainant to stop her from crying out.  Imposing sentence the learned judge referred to R v Costello [1997] QCA 93 and R v Flew [2008] QCA 290.  On the first of these a term of imprisonment of thirteen years following a plea of guilty was imposed and in the second, a term of ten and a half years' imprisonment following a plea of guilty.  Both cases involved threats with a knife.

[68]  Before us a number of cases were referred to.  The most recent of these was the judgment of the Court of Appeal in R v Dowden [2010] QCA 125. 

[69]  In that case a 19 year old man approached a woman who was walking home in a somewhat intoxicated condition late at night and asked her where he could obtain drugs.  She directed him to a nightclub.  He followed her and she turned into a side street and went into the yard of a house where she waited until she thought he had left.  She walked another block before turning into the street in which her house was located.  She was grabbed around the waist and pushed to the ground.  The assailant told her that he had a knife and she felt a cold object against her temple but when she put her hand up towards it and grabbed it, it did not feel sharp. 

[70]  The defence was conducted upon the basis that she had had consensual intercourse with the applicant.  The applicant in that case had a criminal history which involved a number of offences of breaking and entering in both New South Wales and Queensland.

[71]  The Court of Appeal in that case canvassed a number of rape cases.  These included R v Basic [2000] QCA 155, R v SAS [2005] QCA 442 upon each of which some reliance was placed by the applicant here. 

[72]  In Dowden's case the Court ultimately concluded that the sentence of ten years' imprisonment should be set aside and a sentence of eight years substituted therefore.  No application for a declaration under s 161B of the Penalties and Sentences Act 1992 (Qld) was made.

[73]  Our attention was drawn to the case of R v Kahu [2006] QCA 413.  In that case a 20 year old man was convicted after trial on three counts of rape.  He attacked an intoxicated 15 year old girl whom he pulled by her hair from the street as she walked home from a hotel.  He had vaginal and anal intercourse with her and forced her to perform fellatio on him.  The offences were committed during the operational period of a partly suspended sentence imposed for offences of dishonesty.  A sentence of eight and a half years to be served cumulatively with the four month balance of the suspended sentence was not disturbed on appeal.

[74]  The circumstances of this offence were undoubtedly serious and that together with the criminal history of the applicant called for a substantial term of imprisonment.  He pleaded not guilty and was thus not entitled to the benefit that a plea of guilty would have afforded.  Nonetheless the cases to which we have been referred lead me to the conclusion that the sentence of 12 years imprisonment imposed was excessive. 

[75]  I would grant the application and allow the appeal and set aside the sentence of twelve years' imprisonment.  I would substitute therefore a sentence of ten years' imprisonment and make a declaration that the applicant has been convicted of a serious violent offence.

[76]  The formal orders should be:

(a)Appeal against conviction dismissed.

(b)Application for leave to appeal against sentence granted.

(c)Allow the appeal against sentence in respect of count 2, set aside the sentence of 12 years imprisonment imposed on count 2 and substitute a sentence of 10 years imprisonment on count 2.

(d)The sentence imposed at first instance is otherwise confirmed.

[77]  JONES J:  I agree with Cullinane J and the orders proposed.