R v Stoian[2012] QCA 41

SUPREME COURT OF QUEENSLAND

1. MARGARET McMURDO P: I agree with White JA's reasons for dismissing the appeal against conviction.

2. I am comforted by the following in rejecting the contention that the guilty verdict was unsafe and unsatisfactory (that is, it was unreasonable or not supported having regard to the evidence: s 668E(1) Criminal Code 1899 (Qld)).  Both defence counsel at trial and the appellant's counsel in this appeal contended that the nine year old complainant in her videotaped account to police on the day of the alleged rape said that she did not suck the appellant's penis when he asked her to.  By contrast, the prosecutor at trial and counsel for the respondent in this appeal contended that she said she did suck his penis when he told her to.  In determining this ground of appeal, an appellate court must decide whether, on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty by making its own independent assessment of that evidence: M v The Queen;^[1] MFA v The Queen^[2] and SKA v The Queen.^[3]  In the circumstances of this case, I considered that in undertaking that task it was necessary to view and listen to the disputed portion of the video recording.  I have done so more than once and I heard the following:

"Complainant: Then um, he told me to suck you know."

Police officer: Tell me everything about that?"

Complainant:  And I didn't do it.  I screamed.  He told me to do it and I screamed once and then [undecipherable] and I did it … ."

3. The judge and counsel at trial encouraged the jury to listen to the disputed portion of the video recording.  The jury were entitled to come to the same conclusion as I did as to its effect.  They were then entitled to conclude that the complainant made immediate complaints of sexual assault by the appellant after the event; that she made a complaint of oral penile rape when she was interviewed by police later that day; and that she maintained that complaint in her evidence at trial, including under cross-examination.  Despite the unusual features of her evidence emphasised by counsel for the appellant, I consider the jury were entitled to accept the complainant's evidence, that she was forced at knife point to suck the appellant's penis, as honest and reliable beyond reasonable doubt.
4. I also agree with White JA that the application for leave to appeal against sentence should be dismissed.  The 12 year sentence was, in all the circumstances, a high one.  That is demonstrated by White JA's discussion of the more recent cases relied upon by the parties, namely, R v Bielefeld;^[4] R v D^[5] and R v Daphney.^[6]  But the appellant did not have the benefit of the mitigating features present in those cases of cooperation with the authorities, a timely plea of guilty or remorse.  A timely guilty plea is an especially significant mitigating feature in cases of this kind.  It saves the complainant the trauma of cross-examination and the uncertainties of a prolonged trial process.  Had the appellant entered an early guilty plea, these cases would have supported a sentence in the range of eight to 10 years.  The appellant's offending was grave.  He took the vulnerable nine year old child to his hotel room from a public street event which she was attending with her father.  He then threatened her with a knife and made her suck his penis.  It is true the episode was brief and that he did not prevent her early escape, but his offending has caused long lasting trauma to both the complainant and her father.  The appellant was a mature man with some mostly minor criminal history.  Concerningly, when he was 24 he was placed on probation for 18 months for indecently dealing with another nine year old girl.  A heavy penalty was warranted in the hope that it will deter the appellant and others from such predatory conduct and to make clear that the community, acting through the court, denounces such gravely anti-social behaviour. 
5. I agree with the orders proposed by White JA.

6. WHITE JA: On 18 May 2011 in the District Court at Brisbane the appellant was convicted of one count of rape of a nine year old girl after a trial.  He was sentenced to 12 years imprisonment.  He has appealed against his conviction on various grounds and seeks leave to appeal his sentence on the basis that it is manifestly excessive when compared with other sentences for similar offences. 

7. This was a retrial. The appellant had earlier, on 16 February 2010, been convicted of taking a child under 12 years for immoral purposes pursuant to s 219 of the Criminal Code and rape.  He successfully appealed his convictions.^[7]  A verdict of acquittal was entered in respect of the s 219 offence and a re-trial was ordered on the rape charge because of certain errors discerned in the trial.  The prosecution case of rape consisted of the complainant, at the appellant’s direction, sucking the appellant’s penis, or alternatively, that he attempted to cause her to do so while she was with him in his hotel room.  The appellant was a stranger to the complainant.

Grounds of appeal

8. At the appeal hearing the appellant was given leave without objection to file amended grounds of appeal. In summary the appellant contends that the trial judge erred in failing to give:

• a Robinson direction;

• a Markuleski direction;

and erred in her directions to the jury about the use to which they might put evidence of the appellant’s flight.  The appellant also contends that his counsel at trial failed to seek the exclusion of evidence of:

• his flight and being handcuffed;

• a small abrasion on his penis; and

• scratches on the complainant’s back,

and thus there was a miscarriage of justice.

The appellant contends that, overall, the conviction is unsafe and unsatisfactory and not according to law.

The evidence at trial

9. The prosecution case was largely reliant on the complainant’s evidence which was presented electronically, being her interview with police conducted on the evening of the alleged offending and her pre-recorded evidence taken pursuant to s 93A and s 21AK of the Evidence Act 1977, respectively.

10. On 6 September 2008 the complainant, who was then aged nine, went to the Fortitude Valley markets in the Brunswick Street Mall with her father and her brother to watch and support a friend of the father who was performing in a busking competition at the rotunda in the Mall.  When the friend finished performing he took the complainant and her brother to a nearby Night Owl store to buy a “Slurpee”.  When they returned to the father with their confection the complainant asked her father if she could go back to the store to get another straw, to which he agreed.  She walked the three to five metres from him to the store. 

11. The evidence of events immediately thereafter comes from the complainant’s s 93A interview with police and CC street and hotel video footage.  The interview took place in the Fortitude Valley police station on the same day the offending was alleged to have occurred.  It is useful to give a summary of the effect of the complainant’s interview but it is necessary to have regard to its entirety for an understanding of its effect.  The quality of the tape and the positioning of the child in the interview room are far from ideal.  It is most unfortunate that adequate technical equipment was not made available for this purpose.  As this matter demonstrates, the need for a second trial is, in some measure, due to the inadequacies of the equipment used.  Police, who often have a difficult task interviewing, particularly young children, with open ended questions, do need to keep steadily in mind that the interview will often be the most significant evidence in any subsequent trial.  The court, especially the jury, must be able to hear and see the complainant clearly.  Seating the child with her back to the camera or not seeking answers again if the mouth is covered is far from optimal for conveying that evidence.

12. It does not require any expertise to conclude that the complainant was not comfortable talking about what happened to her that afternoon. Her account is disjointed and not chronological and, although she gives the impression of fluency, she introduces distracting and seemingly bizarre asides from time to time. The complainant described arriving at the Valley and looking at the music then “the man took me”, “put me in a room” and asked if she wanted a milkshake but she said “no”.  She ran out and could not find the entry.  She pressed “B”.  The man told her to press number one.  She did so and then ran out.  She said she was knocking on doors, no one answered, she thought she heard the man so she hid.  She saw “enter” and went down but could not open the door.  She looked under a mat, found a key and opened the door, put the key back and ran out crying.  A woman helped her.

13. The complainant described the man as black-skinned like her mother^[8], brown or blue eyes, brownish hair, wearing a black jacket.  He smoked.  He was drunk.  There was a desk in his room.  He had two knives in the room and another in his pocket.  She sketched the knives.  He picked up the one she sketched with the serrated edge.  The complainant then said when she first saw the man he asked her if she wanted a milkshake but she said no.  When asked what happened next she said she kept forgetting.  She said the man stepped on her foot and it was sore and bled.  She had earlier related hurting her foot so that it bled when she had been about to catch the bus with her father that morning into town.  The complainant said that she “nearly” got her lipstick and put it on.  She mentioned that she had three of them.  She put it back in her pocket because “he was nearly done”.  Asked what happened then the child said, he said to suck him and that was in his room. 

14. The police officer again sought a chronological account of the complainant’s first encounter with the man. After mentioning that he was staring at her and at the money she said she wondered if he was going to steal the money and then after “he stole me” thought “is he … a kid stealer”. The police officer brought the complainant back to what happened in the man’s room. She said he popped the blister on her hand with the knife and showed the police officer. After some avoidance she said, “he told me to suck his noogie” (the word she used for penis) and held his knife to the back of her neck under her hair. He told her to get out when she screamed. He had a glove on one hand.

15. The police officer reverted to the bandstand area. The complainant told him that the man had a knife in his pocket which she described. She said he told her about the knife, she was scared and thought of running away but he grabbed her by her great-grandfather’s military ribbons on her shirt.  She continued describing going up to the man’s room, opening the door and that he told her “to suck you know”.  The following is transcribed:^[9]

“Q.Tell me everything about that?

A.And I didn’t do it.  I screamed.  He told me to do it and I screamed once and then he [INDISTINCT] I was scared and then um he said more.

Q.Yep.

A.And I screamed he said to get out.”^[10]

There was a dispute about whether the child said just prior to the [INDISTINCT] part “I hurt it” and “I did it” or whether she said “I didn’t”.

16. In her pre-recorded evidence the complainant said unequivocally in evidence-in-chief and in cross-examination that she did suck the man’s penis.

17. Towards the conclusion of the interview the complainant said the man told her to take off her clothes and hop on the bed.

18. Some passages from the record of the s 93A interview relative to the grounds of appeal follow.  After a quite lengthy preliminary conversation between the police officer and the complainant, the interviewing police officer turned to the relevant events of the day. 

“Q.Ok.  So what, so you’ve got [to] the Valley and what happened?

A.And I was there and we looked at the music, we had fun, and I that was this afternoon I think, um, the man took me.  And I don’t want to talk about it.  I’ll cry again.

Q.That’s ok.

A.I was just calming down.

Q.That’s ok.  That’s one thing that I would like to talk to you about.  But if you’re not comfortable talking about it, or, talk about the rest of the afternoon and see how we go.  Ok?  Alright, so you’ve told me that the man took you, what’s happened next?

A.He put me in a room and he said do you want a milkshake?

Q.Mm-hmm.

A.And I said no because I already had coke and that and I was so err.

Q.Mm-hmm.

A.And like he said you should have a milkshake and I said no, so, he said if you don’t um, um and then I said no and I was go, trying to get out but he said no, so you know, you know.

…

Q.Mm-hmm.

A.So I went down on B.  I pressed B.  I went down.  He said press number one.  So I pressed some, I pressed one button then ran out.

Q.Mm-hmm.

A.I was knocking on the doors, no-one answered so I.

Q.Yep.

A.I heard him I think.

Q.Mm-hmm.

A.So I went, I hide under the door, I looked in a little space.  So, I look, look, look.  Then I saw enter, so I went down there.

Q.Mm-hmm.

A.And I couldn’t open the door.

Q.Yep.

A.So um, I looked under the matt and like there, there was a key so I opened it.

Q.Mm-hmm.

A.Put it back.  Um, I nearly took it for accident, but I put it un- back under the matt, closed the door and then I ran, I was crying, yeah.

Q.What happened after you started running?

A.I was crying and these ladies helped, um, the lady helped me.  She gave me a drink of water, I couldn’t drink it.  I thought um, I need some asthma.  Because I’m so, I couldn’t breathe properly.  I had a drink.”^[11]

19. The interviewer then discussed other matters. He continued:

“Q.Could you tell me about the man?

A.He was black.

Q.Yep.

A.I think he had brown or blue eyes, I don’t know.

Q.Yep.

A.Or blue or brown.  Um, I think he had a black jacket.

Q.Yep.

A.I think.  I don’t know.  Um, he was like brownish, like your shoes, like that.

Q.Yep.

A.And his hair was like mine.

Q.So it was a, just the same colour as yours.

A.Ah nearly but not blonde.

Q.Ok.  I’m just copying all this down.  Alright so he is, was black skinned was he?

A.Like, like my mother.

Q.Ok.  And he had, you’re not sure, brown or blue eyes?

A.Yep.

Q.And he was wearing a black jacket you think?  And he had browny hair like yours?

A.Yeah, like that.

Q.Ok.

A.I don’t know if it had, or if it was like black or something.

Q.Tell me anything else that you can think of about him.

A.Yeah he smokes.

Q.Smokes?  Ok.

A.There was smoke in his and he has a desk.

Q.Mm-hmm.

A.He has two knifes in his room and one he keeps in his pocket and that stuff.  The one that he picked up and I think it’s brown and it’s got these sharp things.  And at the point I think it’s a little sharper.

Q.Ok.

A.Oh, you have to get both.

Q.Yep.

A.Of the knives.”^[12]

20. The police officer then asked:

“Q.Tell me about when you first saw him.

A.First saw him I saw him um, he said hi, do you want a milkshake?  No.  Do you want a drink?  No.

Q.And then what happened?

A.Oh, I don’t know.  Oh, I keep forgetting.”^[13]

21. After the police officer re-stated the complainant’s answers the child said:

“A.And then he stepped on my foot and it was sore.

Q.He stepped on your foot?

A.He had sharp things, like, I’ll show you, he stepped on my foot and it’s all bleeding when I got it out.

Q.Oh, ok.  Did he say anything when he stepped on your foot?

A.No.

Q.No.  Ok, what’s happened then?

A.Um then I nearly got my lipstick and put it.  I was like, I’ve got three of them.

Q.Mm-hmm.

A.I did that and I was nearly going to do it but ah, he was nearly done so I put it back in my pocket.

Q.Ok.  And what’s happened then?

A.And then he said the, you know, um.

Q.Could you tell me?

A.Suck the him.

Q.Ok.  Where were you when that happened?

A.Ah in the room, in his room.”^[14]

22. The interviewing police officer asked the complainant to relate everything that had happened from when she first saw the man to when she ran away. The child answered:

“A.Um, I saw him, he had his knife, he said press one.  I was like, so I pressed two and I ran out.

17. Ok.

A.And I know, I know what he was gonna do.

Q.Mm-hmm.

A.There’s like up, up, up there’s like a veranda at the very top.

Q.Mm-hmm.

A.And I was scared if he would push me down.

Q.Ok.

A.So I was like, so I ran out.

Q.Mm-hmm.

A.Knocked on the door, knock, knock, I was trying to push the door, push.  And I’ve heard someone so I ran behind the door, it was him I think, no-one was there apart from him.  I wonder why.

Q.I don’t know.

A.Maybe.

Q.[Complainant’s name] can you tell me everything that you can remember about when you first saw him.

A.I first saw him, ah, um, when we got there.

Q.When you got there?  Ok, tell, tell me about that.

…

A.I was like weirdo.  So I stepped around, I was playing with this woman, I put these high shoes on and I went back, he was still there and staring at me where I was.

Q.Ok, tell me everything about where you were.

A.Um I was like this lady she gave me some high shoes, they were like high and they like put you up to knee high like that.”^[15]

23. The investigating officer then asked:

“Q.Can you, can you tell me everything about where he was.

A.He was at the band too.

Q.Ok.  Alright, and so you’ve seen him there and what happened?

A.He, he was staring at me and then he looked at the music.

Q.Mm-hmm.

A.He looked at the money, I was just, hmm, like is he going to steal the money?

Q.Ok, yep.

A.And, when he stole me I was thinking is he, gets every-, um a kid stealer.”^[16]

24. The interviewing police officer brought the complainant back to what had happened in the room as she seemed reluctant to talk about it. He asked her:

“Q.Alright.  So, tell me about what happened before you ran out.

A.Um, he nearly popped by my bottle, bubble.

…

Q.Ok.  Tell me about how he popped your bubble.

A.With the knife.

Q.Ok.

A.It’s like sharp, he did that when I was near him.  And I was too scared.

Q.Ok.

A.I have to cry, I’m going to cry.

…

A.I’m not going to talk with him.

…

A.Popped my bubble.  I was like, like there you can see the bubble where it was popped right there.

Q.Yep, yep.

A.It just hurts it comes up a little more.

Q.Ok, alright.

A.A little about, a little bigger.

Q.Tell me about what happened before that.

A.Um, ran out, I couldn’t find the entrance, so I went down, so I had just down, there was a down part.  Then, what an I re-, yeah that’s all.

Q.You told me earlier that he smokes and that he had a desk and had a desk [sic].

A.Yeah.

Q.And that he had two knives.  Tell me everything about the room.

A.I think he has a couple of clothes on the floor.

Q.Mm-hmm.

A.And I think he has a chair.

Q.Mm-hmm.

A.And, there’s a window with these, like that.

Q.Yep.  Can you tell me anything else about the room?

A.No.

Q.No?  Ok.  How, tell me everything that happened in the room.

A.I, he told me to suck his noogie.

Q.Mm-hmm.

A.He’s like, like a Japane-, like he’s like [INDISTINCT] like that, or a little like that.  He’s like, he’s exactly like that.  Exactly.

Q.Ok.  And what happened then?

A.Um, then he put his knife right there.

Q.So, show me on me where he put it.

A.Like right there, like near it.^[17]

Q.Ok.  Ah tell me, and then what happened?

A.And then he um, he, he said to get out when I screamed.

Q.Mm-hmm.

A.I thought that was a good thing.  So it was.  I ran across the room in case he’ll run to me again.

Q.Ok.

A.Um, I heard a noise.

Q.Yep.

A.That’s all.”^[18]

25. The interviewing officer asked the complainant to tell him about the knife. She said:

“A.The knife.  It was brown, it had dots I think, like, I’ll show you I’ll draw it.

Q.Yeah.  Ok, is that, that what the knife looked like?

A.Yeah, but it’s not really sharp like that.

Q.Yeah.

A.I can’t really draw it.

Q.So it had little jaggy bits on it though?

A.Yeah like that.

Q.Ok.

A.Just [INDISTINCT].

Q.Oh.

A.And the other one I saw looked like this.

Q.Alright, alright.

A.It was big and it had a zig zag and it had dots.

Q.Ok.

A.Ow.  Sorry.  And it had little like that, sharp and like.

Q.Tell me that first time you saw the man with the knife, well you saw the knife?

A.Um.  He, he said he had a knife, he did that and then he tried, he lift my hair up like that.  But he had like one glove on.

Q.Ok.

A.Like he put one glove on here so he through my, like friend does to me like that.

Q.Ok.

A.And he said--

Q.And tell me everything about where, where you were when that happened.

A.Where was it?  In his room.

Q.In his room, ok.

A.Like ah, it’s like ah, a tower, lots of rooms.”^[19]

26. The complainant was asked where she was when the man first spoke with her and asked her if she wanted a milkshake. She was asked to tell the interviewing officer everything about what happened outside. She responded:

“A.He said he had a knife in his pocket.

Q.Right.

A.Like, I think it was, thank you, like that part of blue that was how handle it was.

Q.Mm-hmm.

A.Like and the pink part was just little like, like that, just like, like that.

Q.Ok.

A.It had, oh yeah that’s right, there that, there that and it was like little like that and then.

Q.Alright so, so he told you he had a knife in his pocket and then what happened?

A.I was, I was too scared, um, so I nearly ran away but he grabbed me by the hand.

Q.Mm-hmm.

A.But not the hand, like, I had my shirt on.  And um, he hold on, it was like that, but I fixed up when I got out.”^[20]

27. The child said the man had hold of the ribbons on her shirt. She was asked what happened then. She replied:

“A.And then he, I heard he unlocked the door.

Q.Mm-hmm.

A.And he, he had a alligator that goes up and down.  That goes up and down.  Like that.  I’ll show you.  Like that and he pressed buttons.

Q.Oh, oh, I get you, I get you an, an elevator?

A.Yes.

Q.Ah ok, yeah, yeah.  And then what happened.  So you’re in the, did you go in the elevator?

A.Yes.

Q.Ok, and then what happened?

A.Then he pressed the number[.]

Q.Mm-hmm.

A.He unlocked it and we went up there, he turned the corned [sic] and like opened his door, get in his room, he closed the door, unlocked it, locked it.  Oh, I can’t speak it.

Q.It’s alright.  Hey, it’s alright.  It’s ok.  It’s alright sweetheart.

A.Oh, I remember when I got after and we were sick.

Q.Oh, there’s no doubt you were sweetheart.  I have no doubt at all.  He’s opened his door though, what happened then?

A.Then um, he told me to suck you know.

Q.Tell me everything about that?

A.And I didn’t do it.  I screamed.  He told me to do it and I screamed once and then he [INDISTINCT] I was scared and then um he said more.

Q.Yep.

A.And I screamed he said to get out.”^[21]

28. The interviewing police officer asked the child again to tell him everything that the man had done whilst they were in the room. She answered:

“A.Just stand there.

Q.Ok.  You told me that he unlocked the door.  And he’s walked in the room.  Tell me what he did next?

A.I just told you.

Q.Yep, yeah, I just, I’m trying to, I’m just trying to, because I wasn’t there and I don’t know.  I’m just trying to understand what happened.  That’s all.

A.He told me to suck his noogie.

Q.Ok.  Alright.

A.I’m just going to call it noogie.

Q.Ok, do you know?  Do you know any other names for it?

…

A.Dick.  Penis.  That’s all.

Q.Ok.

A.Because um, mum writes on the um for she has to, because um she does a work about it.  Because she has to because um she does um like a good thing like because she um gets people good and she has to do stuff.  Because she has to do sexable movies and like that.^[22]

Q.Ok.  Alright.

A.And she does good stuff.  But um I don’t watch it when.

Q. No, no.

A.When they do the sexable things.  And he told me to take off my clothes and hop on the bed.

Q.Ok.  Alright.

A.And he’s got these, he had these chains but he maybe put ‘em away because he likes, because he puts um, he took ‘em off and some, and I know people can put in a bin like that.

Q.Ok.

A.I bet you any money he maybe run.

Q.Ok.  Is there anything else you can tell me about what happened in the room?

A.No.”^[23]

The interview lasted about 47 minutes and was played to the jury.^[24]

29. The complainant’s pre-recorded evidence was taken on 5 November 2009, 14 months later when she was aged 10.  She had seen the s 93A video the day before to refresh her memory.  The prosecutor asked her:

“Now, firstly, can you tell us what you mean by "penis"? What's a penis?-- It's a rude part.

And who has a penis?-- Boys.

And whereabouts on boys is it?-- Between their legs.

Okay.  Now, you've talked about this man's rude part, did he say anything about his rude part when he was with you in the room?-- He told me to suck it.

And did you actually suck it?-- Yes.

Did his penis go inside your mouth at any stage?-- Yes.

Okay.  And when was that? That's a bit of a confusing question, how about I ask this, then - where were you when his penis went inside your mouth?-- In his room.”^[25]

30. The prosecutor showed the complainant the sketch she had made on 6 September 2008 at the police station of the three knives which she saw in the appellant’s room, two on the desk and one in his hand.  She confirmed that the middle one was in his hand.  The complainant explained in response to a question from the judge why she went with “the man” from the busking area: 

“He had a knife in his pocket and he said he had a knife in his pocket.  He said if I didn’t go he would hurt me.”^[26]

The complainant said that they went to the hotel and took the lift to his room.  He was holding her arm and opening the door to his room with his other hand, having taken the keys from his pocket.  At that point in her evidence the complainant was distressed and the court took a break.

31. In cross-examination the complainant was asked about “popping a bubble” which she had discussed with the interviewing police officer. She explained that she had a blister on her big toe that was hurting.  She said that “the man” had stood on her foot and it popped.  She could not recall whether that happened in the room or in the street.  The complainant appeared uncertain as to whether the appellant had her arm in the street or whether it was only outside his room.  When given the opportunity to do so she said that she may be confused and did not clearly recall.  She thought he may have let her arm go while he was opening the door.

32. The complainant confirmed that the picture that she had drawn of the knife “in the middle”^[27] was shown to her by the man in the street.  She also referred to the man putting on a black glove “like Michael Jackson’s” but not white, in the room.  In response to defence counsel’s question, “What’s the first thing that happened after he shut the door?” the complainant answered, “He told me to get down on my knees and – stuff – you know.”^[28]

33. She was asked questions about the chains that she told the investigating police officer that she had seen in the room but was unable to be more specific than describing them as “maybe big or small” and “grey” in colour.

34. The complainant was firm in her response to the question, “Was there a knife or was there no knife?” in the street. She said, “There was a knife”.^[29]  She said that the man was drunk but had no difficulty getting into the lift.

35. Defence counsel asked, “[Y]ou’ve said that he showed you his penis and he asked you to suck it, haven’t you? ... That’s [sic] wasn’t true, was it?” to which she answered, “That is true.”

36. Finally, defence counsel asked:

“You were only in the hotel for a very short period of time, weren’t you?-- I don’t remember, I wasn’t counting or nothing.

No, that’s all right.  But you were only there for a very short while?-- I don’t know, maybe one, two, three minutes, I don’t know for sure.

But that was a quick period of time, wasn’t it?-- I think so.

You weren’t in his room for long enough for him to tell you to suck his penis, were you?-- I did - yeah, I actually did suck his you know.”^[30]

37. The street CC video footage outside the Night Owl store showed the complainant following the appellant out of the store, up the Mall towards Ann Street and into the Royal George Hotel, the entry to which was off the Mall.  Towards the top of the Mall and on entering the hotel the complainant was seen to be hurrying to keep up with the appellant.  There was also video footage inside the hotel.  The security officer at the hotel, Mr Hammid, saw the appellant enter the main door with his key, followed behind by the complainant at about 2.15 to 2.20 pm.  He thought she was his daughter.  He described her as “very happy”^[31] and was “having some lollies and dancing, walking happy …”^[32]  He saw the appellant open the door, go in first and hold the door and the girl followed.  They went to the lift.  Mr Hammid next saw the complainant about 20 minutes later with her father whom he recognised as an occasional customer of the hotel.  Mr Hammid gave the following evidence when asked did the “little girl” say anything.  He said:

“She – she pointed to the crotch and she said she [sic] he asked her to suck … [t]hat’s exact words … [t]he man she was with.”

Mr Hammid said that she appeared “extremely very, very upset … and crying.”^[33]  Mr Hammid said that there were no mats at the front of the rooms in the hotel nor mats with keys under them.  He thought it would take a minute to a minute and a half to get from the street to the appellant’s room using the old lift.

38. A female witness who worked at a café next door to the Royal George in the same building was standing outside the café between 2.00 pm and 2.30 pm when a little girl “kind of pretty much ran into me”.^[34]  She described the child as “pretty upset … [h]ysterical I kind of would say”.  She said she was screaming for her parents.  The witness said she could not understand her initially and asked her to calm down,

“… and then she said that a man up there, and she kind of pointed in the direction of the Royal George, so kind of back up to her right and said he had held a knife to her throat and said that if she didn’t suck his thing that he would kill her, yeah.”^[35] 

The child started screaming for her father and the witness offered her a glass of water but the child was unable to have more than a tiny sip.  Eventually she reunited the complainant with her father.

39. The complainant’s father noticed the child had not come back from the Night Owl store and started looking around for her but did not want to go too far in case she returned.  After five or more minutes looking he heard her screaming and crying.  He saw her with the woman from the café who was comforting her.  The child was “quite upset, distraught … and crying quite hard”.^[36]  Initially he could not understand what his daughter was trying to tell him but after about 10 minutes he related that she said:

“… some guy had taken her from the NightOwl and asked her to come with her (sic). … She said something about a knife.  He used a knife or something like that. … [H]e asked her to take her clothes off and also to touch him.”^[37]

Counsel asked whether the complainant said the word “touch”.  He responded that she did not but she pointed holding her hand above her crotch.  The father said that she was told by the man not to scream and described his skin as brown.

40. In cross-examination the father revealed that he rented a room in a house in the suburbs from a man aged about 70.^[38]  From about 2007 the children stayed weekends with their father.  From time to time the complainant slept in this man’s bed.  He gave her gifts.  A complaint was made to police in 2009 that he had performed an indecent act on her.  After the interview and pre-recording of her evidence in this matter, that man was alleged to have raped her in 2010.  The complainant spoke of him in a friendly fashion at the commencement of her police interview.

41. The camera footage played to the jury showed the appellant leaving the hotel at nearly 2.30 pm, three minutes and 26 seconds after his arrival with the complainant.

42. Two police constables went to the appellant’s room at the Royal George Hotel at about 3.30 pm.  They unlocked the door with a spare key (the manager had earlier gone up to the room and opened it immediately the father and child returned to the hotel but it was empty).  The room was still empty.  Just before 7.00 pm one of the constables in uniform was outside the room when he observed the head of the appellant look around the end of the corridor towards him.  He then turned and walked away out of his sight.  The constable called out to him.  The appellant gave his name as requested and his room number.  He was then arrested for the indecent assault of the complainant and a handcuff was placed on his right wrist.  He started to struggle and a handcuff was put on his left wrist.  He was told of his right to remain silent.  He told the police constable that he had been drinking for three days, that he had blackouts and that he could not remember anything.  He appeared to the police constable to be under the influence of alcohol upon arrest because his speech was slightly slurred and liquor could be smelt on his breath.

43. When the appellant’s room was searched a knife was found on the desk but no chains and there was no knife on the appellant’s person.

44. A paediatrician was called to interpret the notes of her work predecessor who had examined the complainant on 6 September 2008 in the early evening. That examining doctor had noted a blister on the child’s right palm, a second lesion on the upper surface of the left second toe, a one centimetre scratch abrasion on her left upper back and a one centimetre scratch abrasion on the right lower back.  She commented that the abrasion on the foot could occur if someone stood on it and moved at the same time and that the scratches on her back could possibly have been caused by a knife.  There was no cross-examination. 

45. The appellant was examined at about 11.30 pm on 6 September 2008 at the Brisbane watchhouse.  The only injury found on him was a tiny abrasion on the head of his penis described as:

“a little superficial abrasion, a few millimetres long and a couple of millimetres wide with just a little heaping of the skin at the end of the abrasion”.^[39]

The doctor was unable to explain the cause except that it would have been caused by a hard object.  He took two swabs from the appellant’s penis which returned a partial DNA from an unknown female (not the complainant).  The doctor said that the appellant smelt “quite offensively”. 

46. The appellant neither gave nor called evidence.

Grounds of appeal

47. The complaint that the verdict is unsafe and unsatisfactory and not according to law will be considered after the particular grounds have been discussed.

1. Failure to give Robinson and Markuleski directions

48. Amendment in 1997 to s 632 of the Criminal Code (Qld) removed the requirement that a jury must be warned of the danger of convicting on the uncorroborated testimony of one witness.  Although retaining a discretion to comment on evidence where it is appropriate, by s 632(3) a judge may not warn or suggest to the jury that any class of persons^[40] is unreliable.  In Robinson v The Queen^[41] the High Court emphasised the general requirement of the law that a jury be given a warning whenever it is necessary to do so in order to avoid the risk of a miscarriage of justice because of the circumstances of the case.^[42]  The court elaborated:

“… [T]here were particular features of the case which demanded a suitable warning. Without seeking to describe these features exhaustively, they included the age of the complainant at the time of the alleged offences, the long period that elapsed before complaint, which in turn meant that it was impossible for a medical examination to verify or falsify the complaint, and the inconsistency in some aspects of the complainant’s evidence as to whether penetration occurred.  A curious feature of the case was the absence of any conversation of any kind, on the evening in question or later, between the complainant and the appellant, about the appellant’s conduct.  There was no threat, and no warning to the complainant not to tell anyone.  The complainant and the appellant maintained a harmonious relationship.  There was no suggestion of any earlier or later misconduct by the appellant towards the complainant. … Finally, some features of the history of complaint may have indicated a degree of suggestibility on the part of the complainant.”^[43]

The court observed that, together with the absence of corroboration, those matters created a perceptible risk of miscarriage of justice which required a warning of a kind which brought home to the jury the need:

“to scrutinise with great care the evidence of the complainant before arriving at a conclusion of guilt.  That warning should have referred to the circumstances set out above, and should have been expressed in terms which made clear the caution to be exercised in the light of those circumstances.”^[44]

49. At this trial after the evidence and prior to the summing up (in the absence of the jury), the prosecutor informed the judge that this court in its reasons for judgment in the appeal from the first trial, considered that a Robinson direction was warranted.  That was not what Holmes JA said.  In the appeal it was held to be an error on the part of the first trial judge to tell the jury that there was nothing about the complainant’s evidence which meant that the jury could not accept it “when there were a number of peculiarities in it which, at least, warranted consideration.”^[45]  The trial judge in the second trial asked the prosecutor to identify the matters which called for a Robinson direction.^[46]  He mentioned the manner of the appellant walking up the Mall.  As Ms S Ryan, for the appellant submitted, this was perhaps a shorthand way of asking the trial judge to identify the inconsistency between the complainant’s description of being compelled under threat to accompany the appellant and what was seen on the video.  Defence counsel mentioned the disjointed nature of the complainant’s evidence to the interviewing police officer, the child’s age^[47] and her “prior sexual experience”.^[48]  No other matters were raised.

50. Defence counsel asked for a Markuleski^[49] direction.  That is, relevantly, that in some circumstances where a jury has found that it has a real doubt about a complainant’s evidence on one charge, it ought to be directed that they might have a similar doubt with respect to any other count.^[50]  As was conceded below, there was only one count – that of rape or, in the alternative, attempted rape.  The appellant was acquitted of the taking charge by this court.^[51]  In fact as Ms Ryan conceded, if the inconsistency in the complainant’s account of a threatened taking with the video evidence were the subject of an appropriate direction, it would encompass a Markuleski type direction.

51. Mr T Fuller SC, for the respondent, submitted that the trial judge’s emphasis and repetition to the jury that they could not convict unless satisfied that the complainant’s evidence was both truthful and reliable^[52] and her elaboration of the important inconsistencies was sufficient to avoid a miscarriage of justice. 

52. It was important for the jury to decide what the complainant said in her s 93A interview about whether she did or did not take the appellant’s penis in her mouth.  The jury had very full directions including the rival contentions on this point.^[53]  Her Honour revisited this matter the following day when she continued her summing up and directed the jury on the elements of rape and attempted rape.  Her Honour said:

“You’ve heard a number of times about the dispute as to what [the complainant] actually said when she was talking to the police, and particularly the dispute about whether she told the police that she did suck it or whether she said that she didn’t.

You could not exclude a reasonable doubt about penetration unless you were satisfied beyond reasonable doubt that she said that she did, in that first interview.  If there was a reasonable possibility that she never told the police that she did suck it, for example if her words were, “I didn’t,” rather than, “I did,” that is something that would have to create a reasonable doubt about whether there had been penetration at all and therefore you would have to find the accused not guilty of rape.

That is so even though on the Court recording [the complainant] did assert that the penis had been in her mouth.  If she had denied sucking it when the police first spoke to her that would create a reasonable doubt about the reliability of an opposite claim that she did suck it made 14 months later and after some pointed questions about it.

So when you are considering this issue of penetration you need to ask yourselves:  firstly, did [the complainant] tell the police that she did, meaning that she did suck it, and if she did say that, are you satisfied beyond reasonable doubt that she is reliable about that?”

This was a strong direction and favourable to the appellant.

53. The jury were directed to consider whether that evidence, as well as the complainant’s pre-recorded evidence, was consistent or inconsistent with what the complainant said happened to her to witnesses immediately following her encounter with the appellant as bearing upon her credibility.^[54]

54. The trial judge drew the jury’s attention to the starkest of the inconsistencies - the complainant’s evidence of her reason for going with the appellant and the evidence contained on the street video:

“Her account of being taken under the threat of a knife … appears to be inconsistent with the other evidence of how she got to the hotel.  There’s the security footage of them in the Mall and in that footage, as the accused and [the complainant] head from the Night Owl up to the Royal George Hotel, you might think that she doesn’t appear to be under any force from the accused.  It’s a matter for you, but you might think, when you look at that video, that she appears to be following behind the accused.  At some stage, she might be behind and to the side, but the accused appears to be ahead of her.  He doesn’t seem to look at her at all, and you might think from that footage that she’s actually trying to keep up with him. 

You’ll remember that the bouncer, Willy Hammid … he said that when they came in to the hotel, he remembered them and that the little girl seemed happy at that stage – that she was sucking a lollie.  He thought that she was the accused’s daughter.”^[55]

55. There followed some general observations about being aware of inconsistencies and whether they might impact upon the complainant’s overall reliability. Her Honour added:

“You need to be aware of inconsistencies and when you find them, you need to carefully evaluate the witness’s testimony in light of the other evidence.  Whether any inconsistency impacts on [the complainant’s] reliability is a matter for you, but the mere existence of some inconsistency doesn’t mean that you have to reject all of her evidence, but you take all of these things into account.”^[56]

56. The trial judge specifically mentioned other inconsistencies and other relevant matters:

• Mr Hammid’s evidence that there was no mat at the door, alternatively, the complainant said she looked under it and picked up a key and again there was no mat;

• inconsistency about the milkshake and other things mentioned by defence counsel;

• whether the appellant had a knife in the Mall as the complainant said in her s 93A interview and her subsequent hesitation whilst giving her pre-recorded evidence;

• the defence did not have to offer any explanation as to why the complainant might have made up a false accusation against the appellant;

• that the complainant may have learnt about oral sex in circumstances not related to the appellant; and

• that the complainant was seen to be upset did not of itself prove anything.  She might have been upset because she had lost her father or because she was in trouble for going off with a stranger.

57. When her Honour continued her summing up on the next day she repeated in emphasis that the evidence of what the appellant did and said in the appellant’s room came only from the complainant and that the jury must be satisfied that she was honest and accurate before they could rely on it. Importantly, her Honour said:

“Being satisfied that he took her to the room for some bad purpose is not enough.”^[57]

58. The trial judge directed the jury that there was evidence to suggest that the complainant may have learnt about oral sex from sources other than a criminal encounter with the appellant. Her Honour said:

“You take into account the possibility that she may have learned about oral sex in another way not related to the accused.  That was an argument raised by defence counsel.  [The complainant] had said that her mother made sexable movies.  That wasn’t explained.

There’s also evidence that before this incident she had slept in the bed of [name], who was the old man who lived with her father, and we know that later a complaint was made against [name] and that complaint was that he had offended against [the complainant] on two occasions:  once in 2009, which was a year after this incident – the complaint was that on that occasion, he’d done an indecent act.  The other complaint was that in 2010, which was after the evidence – all of the evidence was recorded by her for this Court, that in 2010, he had raped her.  So, again, that’s something that you can take into account when you’re assessing her credibility if you think that’s relevant.”^[58]

59. Ms Ryan submitted that notwithstanding those directions there were other features of the complainant’s evidence which needed specifically to be drawn to the jury’s attention. She submitted that her Honour ought to have commented upon the complainant’s presentation in her interview with the police officer as a story teller with a tendency to embellish real events. Of the way in which she recounted the events of the day the trial judge said:

“The way that she described things to the police you might think is also a bit difficult to follow and that might be the result of her age at the time.  It may also be as a result of nerves or stress or whatever.  So, you take that into account, but that jumping back and forwards in that first interview in particular can make it difficult to follow what she’s actually saying.  You need to take care, when you listen to that interview, to satisfy yourself about what she is actually saying on the tape.”^[59]

60. Ms Ryan referred to the implausibility of some of the details of the complainant’s allegation which called for particular mention by the judge, bearing in mind that the whole episode in the hotel room lasted about two and a half minutes. Ms Ryan particularly drew attention to the complainant’s statement that the appellant stepped on her foot with “sharp things” and it was bleeding; she nearly got her lipstick out and put it on but put it back in her pocket; that the appellant popped a blister on her hand with a knife; and that he put a glove on. She also made reference to no chains being found and only one knife rather than three. Mr Fuller submitted that although it is far from clear, there is some possibility that the passage where the complainant says the appellant stepped on her foot and that she nearly got her lipstick out occurred near the entertainment area. The interviewing police officer said:

“So you told me that he said hi and he asked you if you wanted a milkshake and a drink and you’ve said no?”^[60]

After a short exchange he continued:

“So he said hi to you and he, he’s offered to get you a milkshake and what’s happened then?”^[61]

The complainant responded:

“And then he stepped on my foot and it was sore … [h]e had sharp things, like, I’ll show you, he stepped on my foot and it’s all bleeding when I got it out …”^[62]

The police officer asked her whether he said anything when he stepped on her foot and she said he did not.  He then asked her “[W]hat’s happened then?” and she responded:

“Um then I nearly got my lipstick and put it.  I was like, I’ve got three of them … I did that and I was nearly going to do it but ah, he was nearly done so I put it back in my pocket.”^[63]

However when she was asked, “And what’s happened then?” she said to suck him and responded that happened in his room.

61. Ms Ryan submitted her Honour ought to have reminded the jury of the absence of DNA evidence on the knife, if the appellant had pierced her blister. Another omission was any reference by the complainant that the appellant was malodorous and that ought to have been the subject of judicial comment.^[64] 

Conclusion on need for Robinson and Markuleski directions

62. The purpose of the directions identified in Robinson and Markuleski is to ensure, as far as is within the power of the trial judge to do, that the jury’s attention is drawn to features which, if that is not done, may render the trial unfair.  In Tully v The Queen^[65] Crennan J, with whom Heydon J agreed on this point, said:

“Neither Longman nor Robinson is authority for the proposition that it is imperative to give a warning in accordance with Longman when faced with the specific concatenation of circumstances identified by the appellant.  The question is whether all of the circumstances give rise to some forensic disadvantage to the appellant, palpable or obvious to a judge, which may not have been apparent to the jury, thus necessitating a warning so as to avoid a miscarriage of justice.  There is a clear distinction between such a case and a case where all the circumstances can be evaluated by a jury in the light of their own experiences.”^[66]

Hayne J observed:

“It is the interests of justice that dictate whether a warning should be given.”^[67]

63. There were no particular features about the complainant’s evidence which called for a “warning” to be included in the words used by the trial judge to the jury. What was necessary was to remind them of the overall way in which inconsistencies might be considered and how they might impact upon their assessment of the complainant’s credibility and reliability.  The very important inconsistency between the complainant’s account to the interviewing police officer of how she came to be in the appellant’s company and what was apparent on the video evidence was clearly identified for the jury.  Other inconsistencies, as set out above, were referred to by her Honour.  There was no particular need to identify every inconsistency and difficulty with her evidence.  They were plain for the jury to see, hear and appreciate.  There was no issue of delay where the forensic disadvantage to an accused person in being unable to martial his defence might not be apparent to a group of lay men and women constituting the jury.  As for the overall demeanour of the complainant and her, sometimes, seemingly “odd” digressions, that was a matter for the jury to evaluate for themselves.  Each juror would have brought his or her life experiences to that evaluation.  There was no judicial skill or experience which could have properly assisted them further in their task.

64. Notwithstanding Ms Ryan’s thorough and careful analysis of the evidence and her submissions, the circumstances did not call for special warnings as such to the jury. It sufficed that the important inconsistencies and other matters which might affect the jury’s understanding of the circumstances were drawn to their attention.

2. Directions about the appellant’s flight

65. Two different events were left to the jury as possibly being described as flight. The first was the appellant’s departure from the hotel within three and a half minutes of being seen on video arriving at the hotel.  The second occasion was his attempt to leave at about 7.00 pm when he saw police at his room.  Ms Ryan contended that the second event ought to have been excluded (discussed below) but, if it were admitted, it was too equivocal to form a foundation for a consciousness of guilt direction.

66. The trial judge’s directions on flight occurred on the second day of her summing up and after she had directed the jury about the elements of the offence of rape and of attempted rape. In those directions she underscored several times that the evidence of what the appellant did and said in his room came only from the complainant and thus the necessity to be satisfied that the complainant was both honest and accurate before relying on it. Her Honour made clear that being satisfied that the appellant took her into his room for some bad purpose was insufficient. She also made clear that the jury could not convict of rape or attempted rape unless they were satisfied of each of the elements of each of the offences, which she had outlined carefully, and to be satisfied of each beyond reasonable doubt. Her Honour said:

“The Crown Prosecutor argued that aspects of the accused’s conduct showed his awareness of his guilt and therefore supported the Crown case of a sexual assault.  Two matters were raised in that respect.  The first is the way that the accused left the hotel so soon after he had arrived with [the complainant] and the second was his attempt to leave when the police were keeping watch outside of his door.”^[68]

After reminding the jury of some factual matters her Honour said:

“You cannot use the evidence that the accused left soon after getting to the hotel with [the complainant] or the evidence that he later tried to flee when he saw the police, you cannot use that evidence as a form of implied admission against him unless you are satisfied that his conduct was motivated by a consciousness of an offence being committed against [the complainant].

To use either of those incidents against him you must be satisfied that he behaved in that way because he knew that he had sexually assaulted the child and that the truth would get him into trouble with the law.

You must be satisfied that he didn’t just leave for reasons that don’t have anything to do with a sexual offence against [the complainant].  You must be satisfied that his conduct, to use it against him as some kind of admission, you must be satisfied that it discloses knowledge of the offence or of a sexual offence against [the complainant].”^[69]

67. Ms Ryan conceded that the use of the expression “sexual offence” was a satisfactory way of rolling up a reference to the alternative counts. It is awkward to express knowledge of either of two offences in a comprehensible way to a jury, particularly where one is an attempt to do the first. Having just described the elements of rape and attempted rape and having directed the jury that generalised bad purpose or wrongdoing was insufficient, that expression “sexual offence” would have been understood to refer to either of those offences. Her Honour then reminded the jury that people do not always act rationally and act out of fear or panic to avoid being unjustly accused or for some other reason.  Her Honour reminded them that defence counsel had said that even an innocent man might wish to avoid the police when he was drunk and smelly in a Valley hotel.  That reference to defence counsel’s argument did not diminish the force of that argument, it was reminding the jury of another explanation which her Honour clearly accepted as an elaboration of her more general proposition.

68. With respect to the second event at 7.00 pm the trial judge summarised the prosecutor’s argument that the applicant approached his room cautiously and his conduct was not of someone who wished to stay away from the police but of someone who was actually expecting them.  This conduct was said to be only explicable because of his offence against the complainant.  In a passage criticised by Ms Ryan her Honour said:

“Even if you were satisfied that the only explanation for his conduct was a consciousness of the fact that he had committed some offence against [the complainant], it does not assist you in determining what offence had been committed.  For that you would still need to rely upon your assessment of [the complainant’s] evidence.

The prosecution argument is that the way the accused behaved on those two occasions is conduct that tends to confirm [the complainant’s] account.  The defence argument is [that] it doesn’t assist you at all.

If you are satisfied in respect of either of those incidents of his leaving or attempted leaving, that the only explanation was a consciousness of guilt of some offence with [the complainant], that conduct by him is capable of supporting her allegation that he made her suck or tried to make her suck his penis, and if you’re satisfied that consciousness of guilt is the only explanation for it you can take it into account, together with the rest of the evidence that you accept.”^[70]

69. Shortly after giving that direction the trial judge told to the jury that it was common ground that when the police officer stopped the appellant on the second floor of the hotel the appellant said he had been drinking for three days and he could not remember anything. He gave police his true name and his correct room number. Her Honour said if

“… after you’ve considered the whole of the evidence, if you think there is a reasonable possibility that what he said about not being able to remember anything is true, if you think there’s a reasonable possibility that that’s true, then his attempt to leave when the police were there couldn’t be based upon any consciousness of guilt because he didn’t have any memory of anything to be conscious of.

But if you conclude on the whole of the evidence that his statement about not having any memory is untrue then you just put that statement by him to one side.  What you don’t do is say, well, he lied, therefore he must be guilty.  If he told a lie it cannot amount to evidence of guilt and you can’t use it in that way.  The reason for that is that people tell lies for all sorts of reasons, and if you don’t believe him then you simply disregard what he said about not being able to remember anything and focus on the evidence that you do accept.”^[71]

70. The essence of Ms Ryan’s submission is that the trial judge impermissibly referred to “some offence” in the two passages quoted at [66] and [68] above rather than the specific offence with which he had been charged (or in the alternative, attempted rape).

Conclusion on flight directions

71. Post-offence conduct (other than lies) such as flight may be capable of demonstrating consciousness of guilt and will require an Edwards v The Queen^[72] direction.^[73]  Williams JA in R v SBB quoted from the judgment of Charles JA in R v Chang where his Honour, after considering statements in Dhanhoa v The Queen^[74], said:

“It has been recognised, however, particularly in relation to flight, that evidence of post-offence conduct may be highly ambiguous and susceptible to error. … As the court observed in White^[75] (1998) 125 CCC (3rd) 385 at 398-9:

‘The danger exists that a jury may fail to take account of alternative explanations for the accused’s behaviour, and may mistakenly leap from such evidence to a conclusion of guilt.  In particular, a jury might impute a guilty conscience to an accused who has fled or lied for an entirely innocent reason, such as panic, embarrassment or fear of false accusation.  Alternatively, the jury might determine that the conduct of the accused arose from a feeling of guilt, but might fail to consider whether that guilt relates specifically to the crime at issue, rather than to some other culpable act.’”^[76]

72. The prosecution relied upon both “flights” by the appellant as demonstrating consciousness of guilt. As set out above, the trial judge told the jury that they had to be satisfied that the appellant did not leave for reasons that had nothing to do with any sexual offence against the complainant. The second part of an Edwards direction requires, if the conduct is to be used as an implied admission, that the consciousness of guilt must relate to the offence with which an accused has been charged.^[77]  Here there could be no ambiguity in the use of the expression “offence”.  The trial judge had clearly identified the elements of rape and the alternative verdict of attempted rape just prior to this part of the summing up.  When the whole of the charge to the jury is considered there is no sense that the jury would have reasoned impermissibly about what use could be made of the appellant’s flights.  It was clear that the feelings of guilt which prompted the flight had to be guilt about having committed the charged offence or its attempt and no other more general wrongdoing.  It is not to be discounted that counsel sought no redirections.

73. This ground is not made out.

3. Certain evidence ought to have been excluded

74. This ground is directed to the failure by defence counsel to seek the exclusion of three bodies of evidence, namely, the appellant’s flight and of his being handcuffed; the small abrasion on the appellant’s penis; and scratches on the complainant’s back. Ms Ryan contended that each was of limited probative value with a substantial prejudicial impact.  Mr Fuller conceded that evidence of the appellant’s arrest was irrelevant.  While it is correct, as Ms Ryan submitted, that it was only if the jury accepted that the appellant had raped or attempted to rape the complainant that the apparent speed with which he left the hotel might demonstrate guilt, the trial judge gave an appropriate direction to that effect.  The failure to exclude that body of evidence has not led to a miscarriage of justice in light of the directions that were given about the use that could be made of it.

75. Ms Ryan contended that the probative value of the evidence about the abrasion on the appellant’s penis was very slight while its prejudicial value was great. The evidence was consistent with the complainant’s evidence that she had hurt the appellant’s penis if the jury concluded that that is what she said.  The DNA evidence left open another cause for that injury as well as any unidentified explanation.  The fact that the appellant was not a person who cleaned himself was known to the jury.  There was no miscarriage of justice in not excluding it.

76. The evidence of the scratches on the complainant’s back had no probative value. The prosecutor’s suggestion that they were consistent with her allegation that the appellant had used a knife could not be sustained.  The complainant did not at any time say that the appellant had scratched her back with the knife in either places where the scratches were seen on medical examination.  Her clothing was not damaged and the evidence was quite irrelevant to the issues at trial.  The evidence was given in the context of the whole of the complainant’s medical examination.^[78]  Had defence counsel applied to have that evidence excluded on the ground that it was forensically irrelevant, no doubt the witness would have been asked not to relate that evidence, but having done so it could not be said to be prejudicial.

77. While there was no forensic advantage to the defence in failing to object to these pieces of evidence their inclusion did not render the trial unfair. They were not of a quality in a weak prosecution case which might have influenced the jury to a guilty verdict.  It follows that this ground of appeal should be rejected. 

4. Unreasonable verdict

78. Ms Ryan submitted that with proper directions and confining the evidence to admissible evidence it was not open to the jury to be satisfied of the appellant’s guilt of rape beyond reasonable doubt. This was because there were too many inconsistencies in the complainant’s evidence compared with other evidence; there was no forensic support for her allegation; and she was prone to embellishment or exaggeration to such an extent that a verdict could not reasonably be based on her account.

79. Ms Ryan submitted that it was virtually impossible for the jury to differentiate between whether the complainant had actually committed oral sex on the appellant or whether he had demanded her to do so, that she had then screamed and left the room. That submission is based on the indistinct part of the s 93A interview and because the complainant’s preliminary complaint was reported by the witnesses as referring to the demand rather than the doing of the act.  Ms Ryan contended that this lack of firm statement about doing the act should be seen with the complainant’s failure to give context to her allegations in as much as she did not mention the accused exposing his penis, or whether he held it or what state it was in.  Indeed, the complainant spoke distractedly of chains and lipstick and putting on a glove.  The submission is that a reasonable jury would be left with a suspicion that something sexual - either a sexual act or a demand - was made of the complainant but the quality of the evidence was such that the jury could not be satisfied beyond reasonable doubt that rape had been committed.

80. Ms Ryan submitted that the other significant factor which would prevent a conclusion of guilt was the impact of the complainant’s credibility when her misrepresentation about being taken from the Mall was exposed. There was no difference in the quality of that accusation that she had been forced against her will to go with the appellant and that he had demanded that she suck his penis and she did so.

81. The approach of an appellate court to a complainant that a verdict is “unreasonable”; “cannot be supported, having regard to the evidence”; or “unsafe or unsatisfactory” is as set out in MFA v The Queen.^[79]  That decision adopted the approach in M v The Queen^[80] and in particular the passage in the joint judgment of Mason CJ, Deane, Dawson and Toohey JJ:^[81]

“… [W]here the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.  If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. … In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”.

82. More recently in SKA v The Queen^[82] French CJ, Gummow and Kiefel JJ stressed that:

“by applying the test set down in M and restated in MFA, the court is to make ‘an independent assessment of the evidence, both as to its sufficiency and its quality.’”^[83]

Their Honours said that the appellate court

“was required to determine whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the applicant was guilty of the offences with which he was charged”

and that the appellate court’s task “was to make an independent assessment of the whole of the evidence, to determine whether the verdicts of guilty could be supported”.^[84]

83. Much of the evidence has been discussed. Because the credibility and reliability of the complainant were so vital to support the verdict of guilty, the assessment of the complainant was of singular importance. It was open to conclude that the disjointed manner in which the complainant responded to the questions from the interviewing police officer was very much as a consequence of wishing to avoid articulating what had happened in the room. Plainly there were some oddities, particularly the incoherent-seeming account of her attempts to leave the room and the hotel as well as the reference to her lipsticks and to the appellant looking at the money where the busking occurred. Of central significance was her evidence about being forced to go with the appellant which appeared inconsistent with the objective video evidence. It must be remembered that in her pre-recorded evidence the complainant explained that she went with the appellant because he said he had a knife in his pocket and there is some likelihood that she saw a knife. Her evidence was that if she did not go with him he would “hurt me”. She was firm in cross-examination that there was a knife in the street. Listening to the police interview it is possible to hear the complainant say “I hurt it” before either “I did it” or “I didn’t”. In the pre-recorded evidence the complainant was adamant that the appellant actually told her to suck his penis and she took his penis inside her mouth.  The questioning has been criticised as leading but it was not quite of that character.^[85]  In response to defence counsel’s question, “You said that he showed you his penis and he asked you to suck it, haven’t you? … That wasn’t true, was it?” and her answer, “That is true” repeated at the end of cross-examination were unequivocal responses.^[86]  Her immediate complaint to the female witness at the café that the man had held a knife to her throat and said that if she didn’t suck “his thing” he would kill her was not challenged.

84. When regard is had to all of the evidence including that body of evidence to which Ms Ryan has particularly directed attention, and when considered as a whole, it is sufficient as to extent and quality to conclude beyond reasonable doubt that the offence of rape had been committed by the appellant.

85. This ground of appeal is not made out.

Application for leave to appeal against sentence

86. The applicant seeks leave to appeal against his sentence on the ground that it is manifestly excessive.

Facts on sentence

87. Her Honour sentenced the applicant on the basis of the following relevant findings which are not challenged:

“For some reason [the complainant] followed you to your hotel room.  What is clear from the evidence is that she did not go with you under any form of threat.^[87]  There had been a short period when the two of you were in the Night Owl store.  It is likely that she followed you because she thought that you might give her something.  She was seen with a lolly when she entered the hotel.  She also mentioned a milkshake to the police.  You told the psychologist Mr Jordan that she had asked you to buy her a milkshake.

You moved through the mall quite quickly without any obvious sign of checking on the child.  Nonetheless, I find it likely that you knew that she was there because of the contact you’d had with her in the Night Owl and because it appeared to Mr Hammid, the bouncer, that when you entered the hotel, the little girl was with you.  You appeared to be together.  In any event, despite what [the complainant] told police about there being a knife in the mall, it is clear that she wasn’t afraid of you at that stage.  She was simply naive and trusting.”^[88]

Her Honour accepted that the applicant threatened the complainant with a knife in his room; that the complainant said she hurt the applicant and referred to the abrasion noticed on his penis on medical examination; that the incident was over very quickly; and that, although drunk, the applicant knew what he had done was “very wrong”. 

Applicant’s background

88. The applicant was born in July 1958 in Romania.  He was 50 when the offence was committed.  He has a longstanding history of paranoid schizophrenia, the most prominent symptom of which was recurring auditory hallucinations with persecutory themes.  He had a history of self harm.  He has tended to use alcohol to excess, at least, in part, to deal with the “voices”.  The applicant was only intermittently compliant with his medication outside prison.  His mental health problems were not said to be causative of his offending conduct.  He had been employed from time to time as a painter although he had been on a disability support pension for many years.  He lived alone in shared accommodation, although in the past he had been married and has two children with whom he has no apparent contact.

89. At the time of the offence he was infectious with Hepatitis B.

90. The applicant had a limited criminal history mainly for nuisance offences and breach of a domestic violence order. As her Honour noted, the only conviction of any significance was that of indecent dealing which occurred in December 1982 in New South Wales.  The facts as related to the court were that the applicant, intoxicated, entered the nine year old complainant’s bedroom whilst he was an invited guest at a party at her house.  She was in bed.  He put his hand under the sheet and under her pants and touched her genital area.  He was then aged 24 and was sentenced to 18 months probation.

Reports

91. The sentencing judge had the benefit of reports from Mr Peter Jordan, a psychologist^[89] and Dr Prabal Kar, a psychiatrist.^[90]  Both set out further details of the applicant’s history which it is unnecessary to repeat here.  Dr Kar and Mr Jordan reported that the applicant denied committing the offence largely, it would appear, because of perceived gaps in the evidence.  Dr Kar thought the applicant’s history suggested traits of Borderline Personality Disorder and Antisocial Personality Disorder.  In his opinion the applicant’s criminal offending was not related to his schizophrenia but to his significant personality pathology and sexual deviance.  He assessed the applicant’s risk to the community in the future based on the offence and the manner of its commission, as suggesting “high dangerousness”.  Dr Kar did, however, note that the applicant did not display unnecessary or gratuitous violence, that the child was not physically injured and was able to flee from the room even though the applicant had a knife.  Dr Kar concluded that the applicant was not generally an aggressive or dangerous man and that his future management by mental health services would not be challenging.  His personality might make it difficult for him to receive psychiatric care by refusing it or not adhering to treatment.  In doing so he may aggravate his illness symptoms but this would not necessarily increase his risk of committing sex offences.

92. Mr Jordan opined that there was no reliable way to determine the risk of re-offending.  He characterised the earlier conviction for indecent dealing with a child as relatively minor when compared to the present so that the applicant’s past conduct would not be predictive of further serious sexual offending.  He concluded that the best reassurance of the applicant not offending in a similar way in the future would be to ensure that he received appropriate treatment once he was released from prison.  The applicant’s long term mental health, he suggested, may be better served if placed in a forensic mental health facility.

93. It was clear from the reports that the applicant’s mental illness had been managed appropriately during the lengthy period that he had been detained in prison on remand.

94. When sentencing the applicant her Honour noted that, while each case must be viewed on its own facts, oral rape could be as confronting and disturbing for a victim as vaginal rape and for some even more destructive.  From information placed before the court her Honour concluded that both the complainant and her father had been “traumatised” by the offence.  Her Honour noted that the use of the knife was an aggravating feature because of the inherent risks which went with the use of the weapon.  But her Honour noted that the applicant did not persist with the rape when the complainant started screaming.

95. Her Honour observed that young children needed to be protected (from such conduct); that a sentence was required which would mark the community’s abhorrence at the offence; apart from a very limited criminal history there was little in mitigation; there was no remorse; and the applicant was not entitled to any discount for co-operation beyond the admissions that shortened the trial.

Manifest Excess?

96. Ms Ryan submitted that the sentence was manifestly excessive brought about by the judge giving insufficient weight to the brevity of the offence; that the complainant was not physically harmed nor did she have physical pain inflicted upon her; and that the applicant was not in a position of trust. Furthermore, Ms Ryan contended that insufficient weight was given to the applicant’s mental condition and that imprisonment was more of a burden for him than those without his illness. Ms Ryan referred to a number of decisions which, she maintained, demonstrated that overall a sentence of 12 years was manifestly excessive.

97. Mr Fuller supported the sentence imposed, submitting that the range was between 12 and 14 years imprisonment.

98. In R v C^[91] the offender pleaded guilty of the rape of the nine year old daughter of his de facto partner.  He had lived with the child as her father throughout her life.  He held the girl down by holding her arms in order to effect penetration.  There was no other violence.  The child was very distressed.  The offence was an isolated act.  He had made an early plea so that the child did not need to give evidence.  He had demonstrated remorse and had voluntarily moved out of the house, continued making mortgage payments and was in the process of transferring the house to his de facto wife by the time of the trial.  He was sentenced to eight years imprisonment with a recommendation for parole after two years.  The court held that when regard was had to the recommendation for early parole the sentence was not out of line with other sentences.

99. In R v Bielefeld^[92] the offender pleaded guilty to abduction with intent, sodomy and indecent assault.  The complainant girl was aged nine years when the 19 year old offender, who was on a probation order, came upon the complainant near a State forest.  She had injured her foot.  He offered her a lift home on his motor cycle which she accepted.  He rode some distance past her house, stopped and carried her into the bush and assaulted her.  He removed his pants and hers and placed his hand over her mouth, which she found suffocating, to prevent her screaming.  He effected penile penetration of her anus and penetrated her vagina with his finger at the same time.  The girl was pushed to the ground before he made his escape.  He was sentenced to eight years for the sodomy and two years for the other offences.  A declaration that the sodomy was a serious violent offence was made and it was that which was the subject of the unsuccessful appeal.

100. In R v D^[93] the offender, who was aged about 40, pleaded guilty to one count of deprivation of liberty and one count of rape.  He took a five year old girl from her front yard where she was playing with other children while her mother was inside the house.  After about 10 to 15 minutes the mother realised her daughter was missing.  She had earlier noted the offender sitting outside in his backyard drinking and listening to music.  She noticed that he was no longer there, ran to his house and received no answer after knocking.  She entered, saw her daughter’s clothing on the bed in the first bedroom and in the second bedroom  found the child naked on a bed with the applicant leaning over her touching her vaginal area while holding down her legs.  The child’s hymen was found to be bruised and haemorrhage was evident with a suspected possible laceration consistent with digital penetration.  The child refused to discuss what had happened but said that the offender had threatened to punch her if she responded to her mother’s calls.  The offender had a very lengthy criminal history including offences of dishonesty with violence but no previous convictions for sexual offences.  He had pleaded guilty on the morning of trial.  A sentence of 12 years imprisonment was imposed.  This court described the offence as very serious “in the sense that a child was abducted from the yard of her home and taken to another house and there dealt with in the way that has been described”.^[94]  By comparison with other cases, particularly Daphney^[95], the sentence was said to be manifestly excessive and one of 10 years was substituted. 

101. The offender in R v Daphney^[96] pleaded guilty to three counts of rape, taking a child for immoral purposes, deprivation of liberty, indecent treatment and offences of violence.  The complainant, an 11 year old girl, was living with a number of other people in the house in which the offender resided.  She was taken against her will in the evening into bushland and then to a nearby church where the offender molested her.  He inserted his finger into her vagina and anus a number of times and made her perform oral sex on him.  He took the complainant’s clothes off and fondled and kissed her breasts.  He made her fondle his penis.  The complainant was released at dawn, having been held for eight and a half hours.  He was sentenced to 15 years on the rape counts and also in respect of other offences which it is unnecessary to mention.  He was sentenced to lesser terms for some of the other offences.  Muir JA reviewed a number of comparable sentences and concluded that that review supported a head sentence of 10 to 12 years.  The offender had been sentenced previously to 15 years imprisonment for a particularly violent rape in 1988.  He committed his next criminal offence two months later.  The subject offences had been committed within a year of the offender’s release from custody.  The court noted the need for personal deterrence and community protection; that the complainant was only 11 years of age; that the period of detention was protracted and that the conduct to which the complainant was subjected was generally degrading.  The sentences were reduced.  On count 1, taking the child for immoral purposes, was reduced from 15 years to 11 years and the rape and one indecency offence were reduced to four years.  It is clear that the taking of the child for immoral purposes picked up the most egregious aspects of the criminal conduct.

102. The offender in R v MBJ^[97] was aged 21.  He was sentenced after pleading guilty to 13 years imprisonment for the penile anal rape of his three year old nephew.  They resided in the same household.  The offender enjoyed the trust of the child’s parents and often watched television and played with the child.  The child complained in tears of pain to his parents who took him to the hospital where on examination fresh blood was found oozing from four tears in his anal verge.  Although the offender initially denied any wrong doing he later maintained that he was under the influence of drugs and had no or little memory of his conduct.  He was said to have a largely irrelevant criminal history consisting of minor drug offences and obstructing and assaulting police.  There was a hand up committal and what was described as genuine remorse but the likelihood of re-offending was dependent on him receiving treatment.  Muir JA surveyed a number of comparable sentences of sexual offending against young children.  He concluded that the offender’s early plea was insufficiently taken into account and would have reduced the sentence to a term of imprisonment of 11 years.  The Chief Justice and Fraser JA however, did not regard the sentence, whilst severe, as manifestly excessive.  They were particularly influenced by the earlier Daphney decision.^[98]

103. Mr Fuller relied on R v D.^[99]

104. Ms Ryan, while admitting that the offence would have been traumatic for the complainant, noted that she was not physically injured nor was she caused any physical pain; neither did the offence involve a breach of trust which has always been regarded as an exacerbating feature.^[100]

105. While it was an aspect of the application that the applicant would serve his time in prison with some difficulty as a consequence of his paranoid mental illness which meant that he often resisted beneficial treatment, in fact his schizophrenic symptoms have abated while in prison under medication.

106. Once the factual basis of the sentence is appreciated, namely that the applicant was not to be sentenced for having threatened the complainant, the seriousness of his conduct is lessened. Nonetheless, he “took” the complainant to his room purposefully, whether by a trick or a threat, to offend indecently against her. The offence was serious and involved the use of a knife as a threat in the room.  Compared with a number of the other comparable sentences no physical harm was done to the complainant, either by penetration or with the knife.  It was a short encounter and, although it has left the complainant very distressed, it is not in the worst category of cases of offending of this kind.  However, all of the comparable cases to which reference has been made were pleas of guilty.  Some were made late but, nonetheless, were made, and spared the witnesses and saved the expense of a trial.  When a sentence of 10 years or more is imposed with the requirement that 80 per cent must be served before eligibility for release on parole arises, a plea of guilty can only be recognised realistically by a reduction in the head sentence.  Accordingly, the comparable cases which fall into that category such as, D^[101] and MBJ^[102], although factually more serious, must be understood in that light.  In my view the sentence of 12 years is high for this level of offending but the applicant did not have the benefit of being sentenced after a plea of guilty which might have reduced the sentence to one of nine to 10 years.  It is not manifestly excessive.

107. I would refuse the application for leave to appeal against sentence.

108. The orders which I propose are:

1. Appeal dismissed.

2. Application for leave to appeal against sentence refused.

109. DOUGLAS J: I agree with the reasons and orders proposed by the President and Justice White.