SUPREME COURT OF QUEENSLAND

[1]  MARGARET McMURDO P:  On 25 May 2011, this Court allowed the appellant's appeal against conviction, set aside the convictions entered and ordered a re-trial.  These are my reasons for those orders. 

[2]  The appellant was convicted after a trial in the Townsville District Court of one count of sexual assault (count 1) and two counts of rape (counts 2 and 3).  All the offences were said to have occurred on 5 June 2009 and involved the same complainant who was the appellant's step-niece.  He was sentenced to six years on each count of rape and to three years for the offence of sexual assault.  He appealed against his conviction and applied for leave to appeal against his sentence on the following grounds:

• The direction to the jury on the elements of the offence of rape was insufficient.
• The directions to the jury were insufficient with respect to the need to scrutinise the evidence of the complainant with particular care.
• There was a miscarriage of justice because the learned trial judge did not adequately direct the jury on the effect of the appellant’s exercise of his right to silence.
• The sentence is manifestly excessive.

[3]  As the appeal against conviction has been allowed, it is unnecessary to deal with the application for leave to appeal against sentence.

The evidence at trial

[4] Before returning to the grounds of appeal against conviction, it is necessary to have an understanding of the evidence at trial. 

[5] The complainant had known the appellant since she was a small child but they were not in constant contact.  On 5 June 2009, the appellant telephoned her and they arranged to meet.  They eventually did so at a hotel where the appellant introduced the complainant to his partner, F.  The appellant and the complainant decided to go to a shopping centre.  The complainant asked him whether he should tell F but he said that she was already aware of the arrangements. 

[6] In the shopping centre car park the appellant asked the complainant to feel the energy: it was like a glass full of ice.  In a nearby street, they sat on some stairs and spoke about the complainant’s partner, A.  The appellant told her to take a coin from her bag.  He said that the different sides of the coin represented the complainant and A and that, whilst the complainant and the appellant were soul mates, the complainant and A were not.  He said that A and the appellant’s daughter, T, were soul mates.  The complainant became upset. 

[7] They returned to the shopping centre so that the complainant could go to the toilet.  In the shopping centre car park, the appellant told her to pick five smooth stones from a garden bed.  He chose a smooth stone for himself.  They then went to a nearby abandoned house where there was a mattress on the floor.  He said he wanted to do a good luck spell for the complainant’s father.  The appellant asked her to put one stone under each corner of the mattress and to keep the last one for herself.  He told her to hold this stone in her hand, hold his hands, feel the vibrations of the stone and then to release the stone and feel the energy. 

[8] He asked her how she would feel standing in the middle of the road naked.  She replied that she would feel embarrassed.  He told her that she would feel fear, embarrassment and sadness.  He gestured to her to take off her clothes.  She began to panic and cry.  He told her that once a ritual was started it could not be ended or something bad would happen.  She lay down on the mattress naked.  He put his hand on her breast and then her stomach and then on the outside of her vagina and told her to think of A (count 1).

[9] He next put his fingers into her vagina and moved them backwards and forwards.  He told her that she had had two miscarriages and that what he was doing would help her fall pregnant (count 2).

[10]  He collected some of the stones she had placed under the mattress and put one on her chest, one on her stomach and one on her vagina.  He told her that each stone represented different things.  He felt around her groin and told her that she had a "cat claw" there.  He claimed that her step-mother had used an old witch’s trick and put the cat claw there when the complainant was small because she was jealous and did not want the complainant to have children.  The cat claw had closed the tubes to her uterus but he was going to try to remove it.  The complainant asked if it would hurt.  He put his fingers into her vagina and started to “peck” at her, trying to remove the cat claw.  She told him it was hurting and she did not like it.  He replied that once a ritual was started it could not be stopped and to think of A.  He took his fingers out after a little while and said he would blow smoke on her.  He lit a cigarette and blew smoke over her body.  He put his fingers into her vagina again and tried to pull something out.  He lent over her.  This made her scared because she thought he was going to try to have sex with her.  She asked him if it was still his fingers and he responded "yes".  He told her he would kiss her on the lips.  His fingers were grazing and hurting her and she told him to stop as she was in pain.  He removed his fingers and the complainant held her vagina.  He told her to come into the next room and look at the stars.  She went to fetch her clothes but he told her to leave them.  She walked into the next room and he told her to look at the moon.  He asked her what she thought was wrong with her body.  She responded, "Nothing".  He told her that she should not hate her body as it was perfect.  He then told her to put her clothes on and she quickly got dressed (count 3). 

[11]  They returned to the shopping centre.  The complainant saw that she had several missed calls from F on her mobile phone.  F phoned her again.  The complainant told F that she and the appellant had been at the shopping centre and gone for a walk.  She lied to F because she did not want to tell her what had happened.  The appellant left the shopping centre in a taxi.  The complainant telephoned A and arranged for him to collect her.

[12]  During the commission of the offences the appellant’s face changed from happy and bright to scary and dark, like someone sucked all the life out of his face.  She saw an image over his face as if he had three or four horns on his head; he looked demonic.  She saw this image for only a second; when she blinked it went away, although his face was still dark and disturbing.  Earlier at the hotel the appellant told her that he had dark powers and he could hurt people without even touching them.  She had not been drinking.  The prosecutor asked her if she had taken any other substances.  The judge warned her that she was not required to answer incriminatory questions and she declined to answer. 

[13]  During cross-examination, the complainant denied that she had taken any hallucinogens on the day of the alleged offending.  She claimed privilege in not answering a question as to whether she had been experimenting with hallucinogens a couple of nights earlier.  She agreed that on that earlier occasion she had experienced hallucinations: she saw grass which appeared to come alive.  On another occasion she saw changing images and colours on a piece of paper.  She had felt slight vibration of energy from the stone she held in her hand prior to the alleged offences occurring.  She was then at "a time and place that once was and that isn't in the present".  She could see changing dimensions.  She could see a mother, father and children sitting on a lounge suite in a house where she once lived when her frequency was aligned with theirs.  She did not know what a cat claw was and she still did not know whether, on 5 June 2009 or now, there was a cat claw inside her vagina. 

[14]  The appellant’s counsel suggested to the complainant that her allegations against the appellant were hallucinations, fantasy and delusion.  The complainant denied this and maintained her account that the appellant had committed the offences as she alleged.

[15]  A taxi-driver gave evidence that he picked up an older man named Bruce and a younger female from the hotel at 3.10 pm on 5 June 2009 and delivered them to the shopping centre 10 or 15 minutes later.

[16]  The complainant’s step-mother, the appellant’s sister, gave evidence that on Tuesday, 9 June 2009 the complainant phoned her at about lunch time.  She was upset, distraught and crying and said she did not want to lose A.  The step-mother asked the complainant to explain what was wrong and who had hurt her.  She would not respond and continued to cry.  After a while, she said the appellant was responsible.  The step mother asked the complainant if the appellant had hit her and she answered, "No."  The complainant said that he had "touched her up".  She did not give details but was stressed out.  She said that A did not know about it. 

[17]  A female co-worker of the complainant gave evidence that on 9 June 2009 at about lunch time, the complainant was upset and crying in the staff room and asked to speak to her.  The complainant said that she had been raped and sexually assaulted by her step-uncle on the weekend.  She had not told anybody earlier because she wanted to speak to this woman.  The witness arranged for the company’s expert in sexual harassment matters to speak to the complainant.  The complainant told the witness that her step-uncle had taken her to an abandoned building and made her take off her clothes.  He put something inside her; she could feel him digging inside her; she did not want to do it and was really scared.  The complainant told her that the appellant was "into spirits, some sort of spirits" and "kept rambling about spirits".

[18]  On 10 June 2009, police attended an abandoned premises near the shopping centre and found a mattress with three stones on top of it and one stone under each of two corners of the mattress.

[19]  The appellant did not give or call evidence.

Counsel's closing jury addresses

[20]  During the course of the prosecutor's address to the jury, the prosecutor stated:

"I told you in my opening address that the main issues … of which you would have to be satisfied were did the incident happened at all, and if it did happen is there any defence for the [appellant], being did [the complainant] consent freely and voluntarily, or did the [appellant] have an honest and reasonable belief that she was consenting.  However, it would appear from the case put to the witnesses that the defence case is simply that the entire incident was an hallucination.  Therefore the crux – crux of your decision should be did the incident happen at all?  If you’re satisfied beyond reasonable doubt that the incident did happen as described by [the complainant] then you would be satisfied of her evidence relating to her not consenting to the acts." 

[21]  The essence of the prosecutor's address was that the jury would be satisfied beyond reasonable doubt that she was not hallucinating and that the appellant did in fact commit all three offences as she described them.  He added:

"Ladies and gentleman, this isn't a love story or even a casual sex story where two people get together for mutual need.  The complainant considered the [appellant] her uncle and in the Crown case the ritual was not a good luck spell to help her father, but a concoction to get her into a place where she was out of her comfort zone, out of her depth and out of range of help.  The [appellant] did not have and nor did he honestly and reasonably believe that he had [the complainant's] consent when he sexually assaulted and raped her.  And honest and reasonable belief is just that, it must be honest and it must be reasonably held.  You are the arbiters of what is honest and what is reasonable, but any such belief held by the [appellant] here simply can't be honest or reasonable."

[22]  Defence counsel, as the prosecutor predicted, addressed the jury on the unreliability of the complainant's evidence because of her visions and hallucinations and urged the jury to conclude that they could not be satisfied beyond reasonable doubt of the accuracy of her testimony.  As to the defence of honest and reasonable mistake, he said:

"The onus of proof is on the prosecution and the prosecution mentioned, for example, honest and reasonable mistake.  Our law has principles dealing with that.  The reason that my learned friend will have mentioned honest and reasonable mistake is because you will have perceived from his … own case that that arises.  When that arises the onus is on the prosecution to rebut that defence beyond reasonable doubt.  The defence don't have to establish it.  The prosecution must rebut it."

The judge's pertinent directions to the jury on the elements of the offence of rape

[23]  Before the judge commenced his final directions to the jury, he invited submissions from counsel in the absence of the jury on the question whether honest and reasonable mistake (s 24 Crminal Code 1899 (Qld)) was raised on the evidence.  Defence counsel stated that he was inviting the judge to direct the jury as to this issue.  The prosecutor explained that he had mentioned the matter because he thought it was possible the jury may have been concerned that consent was in issue because, on the complainant's version, she may have appeared to the appellant to be consenting.  The judge noted that on the complainant's evidence she was crying at all times and saying that she did not want to be part of this.  The judge did not consider the defence was raised on the evidence. 

[24]  As to honest and reasonable mistake, the judge told the jury:

“… both counsel mentioned the matter of… an honest and reasonable but mistaken belief in consent when addressing you.

I tell you as a matter of law, there just is no material upon which an honest and reasonable but mistaken belief in a state of facts could arise. So that the choice for you is really between the complainant's evidence and nothing. You have to consider whether you accept her because it's only by accepting her that the accused man could be convicted.

There is no basis on which to consider whether perhaps these things occurred, but there was some mistaken belief in consent. It could not be the case on the evidence that you have heard, and I direct you that as a matter of law. So mistake is not a relevant matter for you as you go to consider your verdict."  (my emphasis)

[25]  The judge's directions included the following:

"Matters which will concern you in this case are the credibility of the complainant and the reliability of her evidence. …

… Does the evidence of a witness seem reliable when compared with other evidence you accept?"

[26]  As to the elements of the offences, the judge gave the following directions:

"We come now to the charges. The first count of unlawful and indecent assault, our Code makes this behaviour a crime. A person who unlawfully and indecently assaults another person is guilty of a crime. It's expressed that simply.

Now an assault consists in any striking, touching, moving or otherwise applying force of any kind to a person, directly or indirectly, without their consent. “Consent” means consent freely and voluntarily given by a person with the ability to know and understand what he or she is doing. The assault will be unlawful if it is not authorised or justified or excused by law. “Indecent”, when we talk about his offence, bears its ordinary, everyday meaning. It is what the community would regard as indecent.

Now you'll remember in respect of the unlawful and indecent assault, it's suggested that when the complainant was lying naked on the mattress, that the accused touched her breasts and touched her stomach and touched her vagina. That, you might think, is the sort of conduct which would generally be regarded as indecent; an indecent touching of her. But it's a matter for you whether you accept that that happened.

The second and third counts charge rape. A person who rapes another, our Code tells us, is guilty of a crime. Rape is committed by one who penetrates the vagina of another to any extent with a thing or part of the person's body that is not a penis without the other's consent.

So that if you accepted that the penetration with the finger or fingers, which was said to have occurred twice during the course of this event in the abandoned house occurred, you would be satisfied that there was a penetration of the vagina with a thing, part of the body other than a penis, and that would - if you accept the evidence, constitute the crime of rape.”  (my emphasis)

[27]  Later, the judge told the jury that there was no evidence in this case capable of amounting to corroboration, adding:

“In addition, you have heard and you've been reminded of them several times, of some very curious evidence that came from the complainant about her perception of events and time and space and hallucinations and all that sort of thing. Those things together will cause you to consider the evidence that she gave very carefully. I direct you that you should consider it very carefully because it stands alone. There is nothing to corroborate it and she has, as you've been told, said some odd things on other occasions.

You consider all of that material with great care. If you - if at the end of the day you are left with a reasonable doubt about her truthfulness, then you would acquit the accused of all of the charges. If, having given that very careful consideration to her evidence, you are satisfied that it is true, and you're satisfied of that beyond a reasonable doubt, then you would convict the [appellant]. That's really the choice that you have to make.”  (my emphasis)

[28]  After summarising the competing defence and prosecution contentions and commenting favourably on the prosecution contentions, the judge added:

"At the end of the day, it's a matter for you.  I tell you again that if you are left in a state of reasonable doubt about these events, then you should acquit the [appellant].  If after proper consideration of all of the material, you are satisfied beyond a reasonable doubt that the complainant was telling the truth, then you should convict him."

[29]  The judge declined to give a re-direction requested by defence counsel to distinguish between the concepts of "truth" and "reliability".  Counsel submitted that the complainant could be telling the truth but not be reliable.  The judge stated that an honest but unreliable witness would not be truthful and declined to give that re-direction as it would be likely at that stage of the trial to confuse the jury.

[30]  The judge gave no directions whatsoever to the jury as to the effect of the appellant's exercise of his right not to give or call evidence.  Neither counsel asked for a re-direction on this important issue.

The judge's directions on the elements of the offence of rape

[31]  The appellant does not contend the judge should have left for the jury the defence of honest and reasonable but mistaken belief (s 24 Criminal Code).  His counsel submits, however, that those directions (set out at [24] of these reasons) may have compounded the judge's failure to give a complete direction on consent as an element of rape.  The impugned directions as to the element of consent in the offence of rape are set out at [25] of these reasons. 

[32]  The question of whether the complainant may have consented to the three sexual acts she described in evidence was not a live issue in this trial.  The defence case was that the three acts did not or may not have occurred and that the complainant was an unreliable witness who may have imagined the offending whilst experiencing hallucinations.  Nevertheless, the judge was required to explain to the jury all elements of the offence of rape, one of which was that the complainant did not consent.

[33]  An orthodox jury direction as to the elements of the offence of rape would include a full explanation of the term "consent" as explained in s 348 Criminal Code.  But his Honour did tell the jury that the offence of rape required the absence of the victim's consent.  Immediately beforehand, the judge explained consent as an element of count 1 (sexual assault).  This explanation of consent was consistent with s 348(1) and was also applicable to consent as an element of rape.  The jury would have understood that the explanation of consent as an element of sexual assault also applied to consent as an element of the offence of rape.  It is true that the judge did not give a more detailed direction as to the meaning of consent in terms of s 348(2), but this was not required on the evidence in this case.  Indeed, such a direction would have been unhelpful to the appellant (see especially s 348(2)(e)).

[34]  The judge's jury directions as to the element of consent in the offence of rape was not a model direction but it did not amount to an error of law or cause a miscarriage of justice: see s 668E(1) Criminal Code.  It follows that this ground of appeal is not made out.

The directions about the need to scrutinise the complainant’s evidence

[35]  The appellant contends that in this case the interests of justice required the judge to warn the jury of the need to scrutinise the evidence of the complainant with particular care: see Robinson v The Queen.[1]  The appellant emphasises the critical nature of the credibility and reliability of the complainant’s evidence in establishing the prosecution case, and her extraordinary account of hallucinatory experiences contemporaneous with the alleged offences.  The judge should have warned the jury to scrutinise the complainant’s evidence with great care before accepting it and that they should act on her evidence only if, after considering the warning, they were convinced of its truthfulness and reliability.

[36] The relevant directions are set out in [27] of these reasons.  The judge's reference to corroboration was an unnecessary complication for the jury (see s 632 Criminal Code) but in context it favoured and certainly did not disadvantage the appellant.  The judge reminded the jury about the curious aspects of the complainant's evidence including hallucinations.  His Honour told the jury to consider "that material with great care". 

[37] The appellant emphasised that the judge used the concept of "truth" in these directions and contended that the jury may not have appreciated the difference between an honest complainant and an unreliable complainant. 

[38] It may have been more helpful to the jury had the judge at this point emphasised the difference between an honest witness and an unreliable witness.  But in context, the judge's use of the words "truthfulness" and "true" in this part of his direction could only have been understood by the jury as including the concept of reliability. 

[39] It is true that the judge's direction did not repeat verbatim that suggested in the Supreme and District Court Judges' Bench Book.[2]  The judge’s direction, however, did clearly and fairly alert the jury to the concerning aspects of the complainant's evidence, including that she had experienced hallucinations and that her evidence was unsupported by other evidence, and that, for these reasons, the jury must look at it carefully before accepting it.  These directions were appropriate and adequately protected the appellant's interests, consistent with Robinson, Tully v The Queen,[3] and s 632(3) Criminal Code.  This ground of appeal is without substance.

The omission to direct as to the appellant's not giving evidence

[40]  The judge gave no directions to the jury as to how they should treat the fact that the appellant did not give or call evidence.  Indeed, when telling them that honest and reasonable mistake of fact was not an issue for their consideration, his Honour highlighted the fact that the appellant had not given evidence: see the italicised portion of those directions set out in [24] of these reasons. 

[41]  In Azzopardi v The Queen[4] Gaudron, Gummow, Kirby and Hayne JJ stated:

“… if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused’s silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt.”[5]

[42]  That statement of principle has been embraced in Queensland: see, for example, R v DAH;[6] R v Bevin[7] and the Supreme and District Court Judges' Bench Book.[8]  Whilst no precise form of words is necessary, the failure to give directions covering these matters ordinarily constitutes a fundamental irregularity in a trial requiring appellate courts to set aside resulting convictions and order a retrial.

[43]  Counsel for the respondent submitted, albeit tentatively, that the omission of the Azzopardi direction did not warrant the allowing of the appeal, relying on two New South Wales decisions, R v Richards[9] and R v Graham.[10]  In both those cases, unlike in the present case, there was evidence before the jury in the form of records of interview to police which contained each defendant's version of the alleged offence.  The New South Wales Court of Criminal Appeal considered that the absence of a direction to the jury as to how to treat the accused person's exercise of the right to silence was, in those circumstances, not a fundamental irregularity.[11]Richards and Graham also turned on r 4 of the Criminal Appeal Rules 1952 (NSW) which did not allow a ground of appeal on a judge's misdirection or non-direction to the jury, without leave, unless objection was taken at the trial.[12]  The respondent also emphasised that this Court's reasoning in Bevin relied on the New South Wales Court of Criminal Appeal decision in R v Macris[13] which has since been overturned in R v Wilson:[14] see Graham.[15]

[44]  Despite the approach of the New South Wales Court of Criminal Appeal in Richards and Graham, there can be no doubt that the judge's failure to give a direction of the kind discussed in Azzopardi[16] was, in the circumstances of this case, a fundamental irregularity.  Richards and Graham can be distinguished from the present case for two reasons.  First, there is no comparable procedural rule in Queensland to r 4 Criminal Appeal Rules 1952 (NSW).  In the present case, the jury may well have concluded that the appellant's failure to give or call evidence made it easier for them to accept the complainant's account.  This was especially so when the judge instructed them that their choice was "really between the complainant's evidence and nothing".  True it is that this Court in Bevin in allowing the appeal against conviction because of the judge's failure to give an Azzopardi-type direction relied on the New South Wales case of Macris which has now been overruled by the New South Wales Court of Criminal Appeal.[17]  But this Court's reasoning in Bevin did not rely solely on Macris.  It turned principally on the High Court's decision in Azzopardi and the Queensland Court of Appeal's decision in DAH.  There is no reason to doubt the correctness of this Court's decision in Bevin.

[45]  The judge's omission to give the Azzopardi-type direction, at least in the circumstances of this case, amounted to a fundamental irregularity.  It was therefore necessary to allow the appeal, set aside the convictions and order a new trial.

[46]  It is regrettable for the complainant and for the community that, there already having been one trial, there must now be another.  But the paramount community interest is that every accused person in Queensland has a right to a trial according to law.  Some responsibility for this unfortunate turn of events lies with the failure of both counsel at trial to notice the omission of this basic and fundamental judicial direction to the jury.  Counsel's duty to the court encompasses a duty to listen carefully to a judge's directions to the jury and to inform the judge of relevant misdirections and omissions.

[47]  For these reasons, I joined in the orders made by this Court on 25 May 2011 allowing the appeal against conviction, setting aside the convictions at first instance and ordering a retrial.

[48]  FRASER JA:  I agree with the President’s reasons for the orders made on 25 May 2011.

[49]  JONES J: I agree with the reasons expressed by the President.