R v Bastos de Freitas[2013] QCA 164

SUPREME COURT OF QUEENSLAND

[1] MUIR JA: On 3 December 2012, after a trial in the District Court, the appellant was convicted of common assault (count 3) and rape (counts 2 and 4).  The appellant pleaded guilty to assault occasioning bodily harm (count 1) at the commencement of the trial.  On 13 March 2013, the appellant was sentenced as follows:

• Count 1 – four years imprisonment
• Count 2 – seven years imprisonment
• Count 3 – six months imprisonment
• Count 4 – six years imprisonment

[2] All terms of imprisonment were ordered to be served concurrently.

[3] The appellant appeals against his convictions and applies for leave to appeal against his sentences in respect of counts 1, 2 and 4.

[4] Before considering the grounds of appeal and the arguments advanced in support of them, it is instructive to summarise the evidence before the jury.

The background to the subject incident

[5] The appellant, a Brazilian man in his mid 20s, had been in Australia since April 2009 working as a cook.  The 22 year old complainant had arrived in Australia from Wales in April 2011.  At relevant times, she had been living on the Gold Coast with some Brazilian friends including a Mr Florido-Maia, with whom she had been in a sexual relationship.  She said that that relationship had ended a few days prior to 1 July 2011.  On the evening of 30 June 2011, she left one nightclub in Surfers Paradise at about 11.00 pm or so to go to Vanity, another nightclub.  There she mixed with some friends including Ms Monk.  The complainant and the appellant met at Vanity.  Ms Monk said that she and the complainant “were merry … [and] were walking fine and … weren’t really, really drunk” when they left the first nightclub.  Ms Monk said that, as the evening progressed, she and the complainant “both got more drunk, but [she] didn’t get as drunk” as the complainant.  The evidence does not suggest, however, that the complainant was intoxicated to the point of experiencing difficulty in walking or talking.

[6] Eventually, Ms Monk asked the complainant to leave the nightclub with her and another friend.  The complainant declined.  Ms Monk and her friend departed at about 3.00 am.

[7] The complainant and the appellant left Vanity at about 3.30 am and encountered Mr Florido-Maia outside.  He told the complainant to go home but she said that she wanted to stay where she was.  The complainant did not want to go back to her house because Mr Florido-Maia was resident there.  The appellant told the complainant that they could not go back to his place because “he had too many housemates”.  The appellant’s evidence was that he did not want to go to his accommodation with the complainant because he “didn’t want [his] wife to find out anything”.  The appellant’s wife was in Brazil.

[8] The complainant telephoned Ms Monk to see if they could go to her unit, which was within walking distance.  After arriving at Ms Monk’s unit, the appellant gave her a false name.  He explained in his evidence that he was concerned about another Brazilian realising that he was with another woman and the possibility that his wife might find out.  Ms Monk recalled the complainant telling her that the appellant “had a lot of money, and that he was going to pay for them to have a hotel together”.  Ms Monk also recalled being told by the complainant that she and the appellant were going to go and have sex at a hotel.  The appellant and the complainant left the unit after about 15 minutes and went to the beach which was across the road from the unit.

The complainant’s account of the subject incident

[9] The complainant’s version of what then transpired is as follows.  Asked what the purpose of going to the beach was, the complainant responded, “I’m not naïve, so I understand what he would have wanted from me”.  Minutes after sitting down together, the appellant “all of a sudden … started accusing [her] of stealing his wallet”.  The appellant stood up, checked his pockets, took the complainant’s handbag and tipped its contents on to the sand.  The appellant became aggressive and when the complainant stood up she was pushed to the ground.  He straddled her, held her wrists, brought his face up to hers and asked over and over again, “Where the fuck is my fucking wallet?”  The appellant then repeatedly punched her in the face.  She attempted to block the punches with her arms and was punched in the ribs.

[10] The first punch struck her in the right eye.  At one stage, the appellant put his right hand over her mouth and said that if she screamed or made a noise, “he’d fucking kill” her.  He repeated those words “over and over again”.  The complainant thought that she had been hit 30 or 40 times but that “[m]aybe four [of] five actually landed on [her]”.  The complainant appeared to be indicating that most punches had been blocked from landing on her head, which she was particularly protecting with her arms, but that many others struck her ribs and forearms.

[11] The attack continued for about 20 minutes without letup.  The appellant then “started walking [her] up and down the beach with [her] hair in his hands”.  She “was on all fours … crawling”.  For a brief period, he “rolled [her] over and began to shove [her] face in the sand, suffocating [her]”.  The appellant pushed her over onto her back and pulled her shorts off.  He pulled his own shorts down and had intercourse with her for “[o]nly a few moments”.  The appellant had ceased to be violent and was “[a]lmost gentle with [her]”.  After that, “[h]e just swung a [very hard] punch into [the back of her] head” and then sat back down.  She asked the appellant why he had done that to her over and over again.  The appellant then requested oral sex and the complainant was “too scared to deny it”, although she was in pain from blows to her jaw and mouth.

[12] After a while, the appellant said, “I’m sorry, I was – I was very drunk”.  He asked if he could walk her home and they walked up the beach.  The complainant managed to get slightly ahead of the appellant and walked across the road.  She sought assistance from a jogger but was ignored.  She then met Mr Amoore, the manager of the apartment building in which Ms Monk resided, and asked for his help.  She told him that she had been attacked and raped and requested that he “not … let anyone in, just don’t let anyone in”.

[13] In cross-examination, the complainant rejected the suggestion that she wanted to end the night by having sex with the appellant.  She said, however, that she “knew that’s what he may have wanted from [her]”.  Asked, “And you agreed, didn’t you?” she responded, “Yes”.  She also agreed that she had “spoken about it with the [appellant]”.  In cross-examination, the complainant accepted that there could have been three or four punches only to her ribs.

[14] The complainant accepted that, in an interview with police shortly after the incident, she said of the appellant’s penile penetration, “… he started off slowly, but then after that he gradually got rougher and rougher”.  She also accepted that she had said in the interview, “I hurt when he entered me and it felt like a large penis.  To begin with he was not being rough”.  The complainant explained the discrepancy between this statement and her oral evidence as arising from things being typed in the statement that she “didn’t really want to be typed there” and from her not wanting “to remember it”.  The complainant also accepted that her oral evidence contained two versions of the way in which the oral sex occurred.  She accepted that, in her oral evidence, she had said initially that the oral sex took place immediately after the vaginal intercourse but she had subsequently said that the appellant had let her stand up again, punched her in the head and then asked for her to give him oral sex.  The complainant explained, “it’s the case of flashbacks, things coming to you”.

The appellant’s evidence

[15] The appellant said that after he and the complainant went to the beach, he put his sneakers on the ground and he and the complainant kissed standing up.  The sexual interaction escalated.  The complainant unbuttoned his pants and started to masturbate him.  He then gave a detailed description of the sexual activity.  He said that he was on top of the complainant, who put his penis inside her and they “started having sex”.  That continued for 10 to 15 minutes.  They then changed from a lying position for a few minutes before resuming intercourse with the complainant on top of the appellant.  The position changed again for some minutes and then the complainant, at the appellant’s request, performed oral sex on him as he sat with his back to a fence.  He also described in detail what happened in that regard.

[16] The appellant said that after he ejaculated in the appellant’s mouth, he started looking for his clothes.  He dressed, noticed his wallet was missing and started searching for it.  The complainant told him that perhaps his wallet was at Ms Monk’s place.  He told the complainant that he did not trust her and asked if he could look into her bag.  She gave the bag to him and he “started throwing everything … on the ground”; however, he did not find his wallet.  He thought that the complainant “wasn’t there to have sex with [him], that she had an ulterior motive of wanting to … rob [him], to steal, to use [him]”.  He argued with her and slapped her twice on the face.  They then got to their hands and knees and searched for the wallet in the sand for two to three minutes.  The complainant said again that “the wallet [was] at [Ms Monk’s] place”.  He got angry, pushed her to the ground and held her by the wrists.  He then struck her six or seven times on the face, three times with his open hand and four times with the back of his hand.  One “very strong slap with [his] right hand … hit her eye”.  He also thought that he “gave her about six slaps [on the face] when she was lying down”.  The appellant denied punching the complainant.

[17] After finding his wallet inside one of his shoes, he said he was very sorry and that he did not know why he had done what he had done.  He said to the complainant, “I’m sorry, I found my wallet … I lost my head, I lost my temper for all the situation”.  The complainant “seemed very fearful of [him], very scared”.  She asked him “not to hit her any more (sic)”.  They looked for and found some of the complainant’s possessions but not her mobile phone.  The complainant then said, “No problems, I’m going to go to [Ms Monk’s] place and when daybreak comes I’ll come back”.  The appellant smoked a cigarette and he thought that the complainant also smoked a cigarette.  Asked in cross-examination how he thought the wallet came to be in his shoes, the appellant gave the explanations that he may have put it there when he arrived at the beach or that the complainant, after being assaulted and seeing that he was very upset, “could have, in a hidden way, put the wallet in [his] shoe”.

[18] When the complainant crossed the road and walked towards the building in which Ms Monk resided, the appellant ran.  He “was very remorseful for what [he] had done and [he] thought … she might tell the police”.

The complainant’s injuries

[19] The complainant was examined by a medical practitioner on 1 July 2011 at the Gold Coast hospital emergency department.  The doctor gave evidence of the complaint made to her by the complainant.  She noted, amongst other injuries:

• red blue swelling and bruising of her right cheek;
• a patterned bruise on the right upper cheek consisting of four almost vertical, parallel linear or upright bruises about half a centimetre in height;
• blue discolouration and swelling around her right eye;
• red bruising over the bridge of her nose;
• tender swelling over her forehead;
• red bruising and abrasions to the right side of the forehead;
• blue bruising to the left cheek extending to near the left ear;
• swelling of both cheeks;
• blue red bruising to the right ear;
• red bruising to and behind the left ear;
• tender swelling on the right side of the lower lip;
• multiple red circular bruises on the right outer forearm; and
• similar shaped circular red blue bruises around the left wrist on both the outer and inner aspects which were between half a centimetre and one centimetre in diameter.

[20] Both forearms were tender to touch.  There was also:

• a two centimetre blue bruise on the right upper arm and another on the left upper arm;
• bruising and swelling on top of the right hand;
• faint blue tender areas over the front of both shoulder areas and the collarbone; and
• tenderness over the back of the right thigh.

[21] The doctor did not notice any injuries to the right chest area.  The complainant’s bruising was consistent with being caused by blunt force trauma which could result from closed fist punching or open handed slapping.  There were no linear markings consistent with the marks of fingers left by a slap.

[22] The doctor observed that it would not be out of the ordinary for bruising not to show until a few days after the trauma.

[23] It is now convenient to discuss the grounds of appeal.

Ground 1 – the trial judge erred in directing the jury as to the use that might be made of the appellant’s apology to the complainant

The appellant’s argument

[24] The prosecutor submitted to the jury that the appellant’s apology was “another demonstration of guilt on his part as to what was done and what the [prosecution] say was done is two rapes, as well as the assaults”.

[25] The trial judge, in his summing up, reminded the jury that there were competing arguments by both counsel in respect of the significance of the apology.  He said:

“There are competing arguments by both counsel in respect of the significance of this evidence, members of the jury.  The [prosecution] argues that the [appellant] was apologising for the physical assault and the offences of rape.  The defence argues that the defendant was apologising for the physical assault only.  As with all questions of fact, this is a matter for your evaluation.  You decide how you should approach the defendant’s admissions in which he apologised to the complainant for what he had done.”

[26] The trial judge later reminded the jury that this apology was relied on by the prosecution as “another indication of guilt”.

[27] This direction was inaccurate and inadequate.  The apology was “post offence conduct” which had the capacity to be decisive of the outcome of the trial.  If the appellant was apologising for an act of rape, there was little else to consider after that conclusion had been drawn.  If, on the other hand, he was apologising only for the assault, to which he had pleaded guilty, the evidence added nothing to that plea.

[28] Consistently with Edwards v The Queen,[1] the trial judge should have emphasised to the jury that the apology may have been proffered only in respect of the assault; repetition of counsel’s argument to this effect was insufficient.  More importantly, the jury should have been directed that they could not take the apology into account for the purposes of deciding whether a rape had occurred unless they were satisfied that there was no explanation for the apology other than that it emanated from a consciousness of guilt about the offence(s) of rape.[2]

[29] The harm caused by the misdirection was accentuated because of the directions given about the appellant’s use of a false name and the fact that he “ran away”.  The jury was directed that “[i]f, and only if” they reached the conclusion that there was no other explanation for the appellant giving a false name and running away that they were entitled to use their findings as a circumstance pointing to his guilt.  The misdirection constituted a miscarriage of justice.

Ground 1 - Consideration

[30] The trial judge discussed the proposed directions in relation to the appellant’s apology with counsel prior to closing addresses.  In the course of the discussion, after observing that “a full blown confessional statements direction”, such as the one in the bench book, would not be required because the appellant had admitted apologising to the complainant, the trial judge observed, “Those directions are at bench book 36.1, but I think I can just remind the jury of the evidence and say it’s up to them”.

[31] Counsel for the appellant said, “Yes”.  His Honour had earlier observed:

“There’s no dispute that he said that.  It’s a matter for the jury to say whether he was admitting to all of the [prosecution] allegations or simply the assault that he concedes.”

[32] The prosecutor also agreed with the foreshadowed direction.

[33] In his closing address, the prosecutor made only brief mention of the apology.  After submitting that the use by the appellant of an alias on the beach “just before he ran away” was demonstrative of a consciousness of guilt, he said, “You also have the apology, again another demonstration of guilt on his part as to what was done and what the [prosecution] say was done is two rapes, as well as the assaults”.  All that defence counsel said on this matter was:

“His wallet is discovered by him and he begins to apologise and look for the complainant’s belongings.  He apologises for assaulting her.  He’s not apologising for sexually assaulting her.  He’s apologising to her for the assault that he – that he perpetrated against her and he tries to make amends.  How does he try to make amends?  He starts looking for her belongings which he spilt on to the sand.”

[34] The trial judge dealt with the apology very briefly when summarising the prosecution and defence cases.  In relation to the former, he said, “Also, his apology afterwards for the – was another indication of guilt”.  In respect of the latter, he said:

“… the defendant discovered his missing wallet and that is when the assault occurred, for which the defendant apologised after he found his wallet.  He then assisted the complainant to look for her lost items and offered to walk her home.”

[35] In Dhanhoa v The Queen,[3] McHugh and Gummow JJ observed:

“When no re-direction concerning evidence is sought at a criminal trial, the appellant can only rely on a failure to direct the jury on the evidence if he or she establishes that that failure constituted a miscarriage of justice. No miscarriage of justice will have occurred in such a case unless the appellant demonstrates that the direction should have been given and it is ‘reasonably possible’ that the failure to direct the jury ‘may have affected the verdict’.”

[36] This is not merely a case in which there was a failure to object to a particular direction.  The direction was foreshadowed by the trial judge and accepted as appropriate by both counsel.  That makes it difficult for the appellant to sustain a contention that a miscarriage of justice occurred.[4]  Criminal trials are an adversarial process in which the parties are bound by the conduct of their respective counsel.[5]  In Patel v The Queen,[6] French CJ, Hayne, Kiefel and Bell JJ said:

“Although the law recognises the possibility that justice may demand exceptions, it is a cardinal principle of litigation, including criminal litigation, that parties are bound by the conduct of their counsel.”

[37] I do not accept that there could be no reasonable explanation for defence counsel’s assent to the proposed direction.  The violent assault in itself was extremely serious and obviously called for an apology.  Also, as the trial judge observed in his summing up, “… the [prosecution] case depends substantially on the evidence of the complainant … You should therefore carefully scrutinise her evidence”.

[38] It would have been obvious to members of the jury that whether the appellant’s apology was for the physical assault only or for both the violent assault and the sexual offending, depended on whether non-consensual sex had occurred.  It would have been equally obvious from the way in which the prosecution and defence cases were presented that whether the sexual acts, which both the complainant and the appellant agreed had occurred, were consensual depended on whether the violent assault preceded the sexual acts, as the complainant claimed, or followed them, as the appellant asserted.

[39] It is regrettable that the prosecution referred to the apology in his closing address but it would have been perverse of the jury to accept the complainant’s evidence that the physical attack preceded the sexual conduct by reliance on the apology rather than by assessing the complainant’s evidence, the appellant’s evidence and other evidence which bore on their respective credibility, such as the complaint evidence.  This was recognised implicitly by the lack of emphasis on the apology by the trial judge in his summing up and by prosecution and defence counsel.  Defence counsel, who showed that he was astute to protect his client’s interests throughout the trial, having considered the matter, agreed with the proposed direction and saw no need for a redirection.  It does not appear to me that there was any error of judgment on his part or that there was any unfairness attending the process.[7]  This ground was not made out.

Ground 2 – the trial judge erred when, in directing the jury about inconsistencies between the appellant’s instructions to his lawyers and his evidence, he:

(a)failed to direct the jury that, before they could draw an adverse inference against the appellant by reason of any such difference, they had to be satisfied that there was no reasonable explanation for the difference;

(b)told the jury that they should take the same approach to variations between the appellant’s evidence and the questions put to the complainant in cross-examination that they would take to inconsistencies in the evidence of a witness; and

(c)omitted to tailor the direction to the evidence in the trial

The appellant’s argument

[40] In a lengthy cross-examination, the prosecutor drew attention to differences between factual matters put to the complainant and the evidence given by the appellant in respect of such matters.  There were inconsistencies “although it might be thought that, in the overall scheme of the trial, some were of questionable significance”.  It was put to the complainant that there was, initially, a single slap by the appellant to the complainant’s face, whereas the appellant gave evidence that that were two slaps.  It was put to the complainant that the appellant had subsequently slapped her face with both hands about four or five times, whereas the appellant’s evidence was that there were six or seven slaps at the time in question.  On either version, the appellant was admitting to a serious assault and no unfairness was occasioned to the prosecution by the manner in which the suggestions were put.

[41] The prosecutor made much of the fact that the cross-examination of the complainant omitted any mention of contact between the complainant’s hand and the appellant’s penis.  The prosecutor asserted, during the appellant’s cross-examination, that the “most important part” of the appellant’s instructions would have related to the manner in which his penis actually came into contact with the complainant’s vagina.  The assertion seemed to be underpinned by an expectation that such evidence ought to be given in extraordinarily minute detail.  The appellant was recounting an act of consensual intercourse when giving instructions.  In those circumstances, it is possible that precise recollection of the process by which carnal knowledge was achieved was not something which necessarily had to be the subject of “crystalline exposition”.

[42] That the appellant might have breached some sort of convention was reiterated during the prosecutor’s closing address, in which he asserted that the appellant had acknowledged that “a fact like that would be very important when you’re being charged with rape”.

[43] The failure to detail the method of penetration and put it to the complainant might have raised Browne v Dunn[8] issues.  The trial judge, appropriately, gave a Browne v Dunn direction, up to a point.  His Honour erred in law, however, in not directing that the jury should be satisfied that there was no other reasonable explanation for the inconsistencies or for the omission to cross-examine.[9]  The error was compounded by the trial judge telling the jury that they should take the same approach in this regard as with inconsistencies in a witness’ evidence.  The direction referred the jury back to the directions in which they were told that they should be aware of any discrepancies or inconsistencies in the evidence and, where they found that such things existed, they should carefully evaluate the testimony.  The direction was unduly simplistic as “instructions as articulated by counsel during cross-examination have been interpreted by at least one and usually two other individuals”.  Moreover, defence counsel may have decided for forensic reasons not to put the full detail of his instructions to the complainant.

[44] The approach suggested by the trial judge was particularly unfair in the absence of a direction about the need to be satisfied that there was no reasonable explanation for the inconsistency or omission.  It set too low a threshold for concluding, on the basis of such inconsistency, that there had been an intentional falsehood.  The interests of justice also required the jury be alerted to the reasons which might have explained inconsistencies or omissions.  The appellant’s recollections, as much as the complainant’s, were likely to have been affected by the consumption of alcohol.  The situation on the beach turned dramatic very quickly and perceptions were likely to have been affected by such heightened circumstances.  Also, there are obvious challenges for most witnesses giving evidence in a trial, particularly through an interpreter, conducted in a language other than their first language.  Some of the inconsistencies highlighted by the prosecutor were pedantic, others raised unrealistic expectations about the nature of the evidence to be expected in a trial such as this.  Given the emphasis that was placed on this aspect of the case by the prosecutor, it was necessary, in the interests of justice, for the trial judge to point these things out.

[45] It was incumbent also on the trial judge to deal with the above matters in order to discharge the duty imposed by s 620 of the Criminal Code.

Ground 2 – consideration

[46] The trial judge’s summing up in respect of differences between matters put by defence counsel in cross-examination and the appellant’s own evidence is as follows:

“The next aspect of the evidence that I’ll deal with members of the jury concerns submissions made to you by [the prosecution] that there were a number of instances where the suggestions put to the complainant in the cross-examination, which differed from the [appellant’s] own evidence.  One example was that it was put to the complainant in cross-examination by [defence counsel], that they sat on the beach in a dark area, where no one could see and it was at that point the [appellant] took off his shoes and left them on the sand.

The [appellant’s] evidence was that when they arrived at the beach he took his shoes off and they walked to the position at the fourth and fifth pole.  He had his sneakers in his hands at that stage and then put them on the ground.  That is said by the [prosecution], to be a difference between what was put to the complainant in cross-examination and the [appellant’s] own evidence.  Another example was that the [appellant] said that the complainant guided his penis into her vagina and that was not suggested to the complainant in cross-examination.

As I explained when this issue arose, in preparation for trials, usually Counsel is given his client’s instructions, that is, what his client has to say about the matter in written form taken by the Solicitor and sometimes, also, in oral form about what the client says when there is a conference between Counsel and the client.  Counsel then uses that information from the client to ask questions of the [prosecution’s] witnesses.  However, you need to bear in mind that communication between individuals is seldom perfect and misunderstandings can occur.

The [prosecution] submits that you can infer that the [appellant’s] instructions vary from what he said in evidence in Court, although, as I have said, there is scope for misunderstanding in the taking of instructions.

If you consider that there are variations between the [appellant’s] evidence and the suggestions put to the complainant by [defence counsel], in cross-examination, then you should take the same approach as you do with the inconsistencies in the evidence of a witness.  Remember that people who are asked to give an account of events on a number of occasions might give a slightly different version each time.  Is there a satisfactory explanation for any variations that you consider exist?  Are the variations on significant matters?  As with all questions of fact these are matters for you to take into account in your evaluation of the evidence.”

[47] The direction in the bench book that, before the jury draws an inference that the appellant’s instructions varied from his evidence in court, they “should consider other possible explanations for the failure of counsel to put questions about [the omitted matters] to the complainant” is merely a model to provide guidance to judges.  As such, the bench book directions normally require amendment to address the particular circumstances under consideration.  Failure to direct in terms of the bench book is not, in itself, suggestive of error, just as a direction which slavishly follows the bench book is no guarantee against error.

[48] The trial judge’s directions were fashioned so as not to provide any emphasis to the prosecution case based on inconsistencies between what was put to the complainant and what was said in that regard by the appellant.  The trial judge mentioned the possibilities for error inherent in the way that instructions were taken and matters prepared for trial.  The possibility of misunderstandings was mentioned specifically, as was the fact that it was not necessarily sinister that a witness gave “slightly different” versions each time he or she gave an account of the same event.  The jury were requested to consider whether the variations relied on by the prosecution were significant.  That point was significant in view of the fact that some of the differences relied on by the prosecution were slight or of no particular moment.  The reference to misunderstandings in the taking of instructions had particular relevance as English was not the appellant’s first language and he had an interpreter in Court.

[49] Before the summing up, there was discussion between the trial judge and counsel about a Browne v Dunn direction.  The trial judge observed that he gathered from what defence counsel had said that he was not intending to call any evidence “to explain the [Browne v Dunn] discrepancies”.  Defence counsel told the trial judge where the Browne v Dunn direction might be found in the bench book.  A little later, the trial judge enquired whether there was any “suggestion or hint of confusion or misunderstanding or anything like that”.  He observed that defence counsel “put very positive propositions to the complainant” and that he had “a solicitor who [was] proficient in [the appellant’s] language”.  Defence counsel accepted that there was no such suggestion, confusion or misunderstanding.  In the light of that exchange, the omission of the further direction contended for by the appellant was readily explicable.  But, in any event, the jury were invited to consider whether there was a satisfactory explanation for any relevant discrepancies.  It was not suggested that the jury could look only at the possible explanations advanced by the trial judge.

[50] As no redirection was sought, no miscarriage of justice occurred unless the appellant demonstrated that the direction should have been given and that it was reasonably possible that the failure to direct the jury may have affected the verdict.[10]  The principle that parties are bound by the conduct of their case by counsel is relevant also.

[51] The inconsistencies and their role in the jury’s evaluation of the evidence were peripheral.  The first example given by the trial judge of the evidentiary discrepancies was, in any view of the matter, in the realms of trivia.  The second example was, perhaps, more significant but the fact that the appellant penetrated the complainant’s vagina with his penis was not in issue.  The complainant’s own account was not detailed.  She described the appellant pulling her shorts down and his own, being on top of her, his being “[a]lmost gentle” with her, his being “awfully erect” and her feeling his penis inside her.

[52] The details of how the actual act of intercourse and the act of fellatio were initiated and performed were not significant.  As was explained earlier, the real issue between the parties was whether the physical violence occurred before or after the sexual acts.  If before, there was little prospect that the jury would find that the sexual acts were consensual.  The attack on the appellant’s credibility based on the failure of defence counsel to mention in cross-examination of the complainant a detail of the act of penetration was therefore not particularly compelling.  The attack, however, was not unjustifiable.  Guidance by the complainant of the appellant’s penis into her vagina would be inconsistent with absence of consent and it was legitimate to suggest that this was a detail which would be unlikely to have been forgotten, given the other extensive detail of the sexual activity provided by the appellant.  It was the provision of such detail which exposed the appellant to the prosecutor’s cross-examination on the differences between what was put to the complainant and what was said by the appellant in his evidence-in-chief.

[53] The prosecutor also cross-examined and addressed on perceived inconsistencies between the appellant’s evidence and what was put to the complainant in relation to the number and sequence of the blows struck by the appellant.

[54] Counsel for the respondent argued that the difference between the four or five slaps put to the complainant and the appellant’s evidence of an initial two slaps on the face when the complainant was standing and six or seven times when he had “her down on the ground holding her by the wrist”, three of which were with the palm of the hand and the remainder backhand, gave this discrepancy a “more dubious complexion” when regard was had to the doctor’s evidence.  The doctor, who gave her evidence shortly before the appellant gave his, was of the opinion that the minimum number of blows which could have caused the injuries she noted was 10 to 11, assuming that facial injuries were not caused by the complainant’s arms making contact with her face as a result of blows to her arms which were being used to protect her face and head.  The doctor deemed this possibility unlikely.  However, if facial or head injuries were caused by the complainant’s arms, the doctor thought that the minimum number of injuries would have been six or seven.

[55] Again, it is unlikely that these matters had any material bearing on the jury’s conclusions.  Even on the appellant’s account, he forcefully struck the complainant a considerable number of times.  Moreover, it was hardly to be expected that either the complainant or the appellant would have retained a precise or accurate recollection of blows struck whilst the former was shocked and afraid and the latter was unable to control his rage.  The jury would have understood that both the appellant and the complainant were, in substance, giving estimates of the number of blows struck and that no precision could be expected.

[56] The trial judge’s directions about: the potential for misunderstanding and error in taking instructions; there being nothing sinister in a witness’ version of a particular event varying slightly with repetition; the possibility of other explanations for the differences and the need to determine whether any variations were significant, were quite adequate to deal with any differences between what was put to the complainant and what was said by the appellant in relation to the numbers of blows.

[57] As counsel for the respondent submitted, defence counsel’s failure to seek a redirection was explicable as a rational forensic decision.  Defence counsel would have been aware that the exchange between the trial judge and him, referred to above, imposed restraints on the direction the trial judge could legitimately have given.  A redirection would have given additional emphasis to the differences relied on by the prosecutor, which, as I have explained, were not particularly significant.  Also, it was a reasonable forensic approach to ignore poor prosecution arguments in order to concentrate on matters which were likely to have a greater bearing on the outcome of the jury’s deliberations.  Consequently, the appellant has failed to show a miscarriage of justice in this regard.[11]

Ground 3 – the trial judge erred in allowing the prosecutor to cross-examine the appellant about, and address the jury on, the failure by the appellant during his evidence-in-chief to allow the possibility that he may have put his wallet in his shoes

The appellant’s argument

[58] The appellant’s account was consistent.  He maintained that he found his wallet in his shoe.  He gave no evidence that he saw the complainant place it there and claimed no recollection of placing it there himself.  For the appellant to speak about the possibility that he had put the wallet in his shoe would necessarily have involved speculation or, at most, the expression of a conclusion inferred from the circumstances.  Despite this, the prosecutor pursued a line of cross-examination during which the appellant conceded that, although he did not think he had done so, it was possible that he had placed his wallet in his own shoe when he got to the beach.  This line of cross-examination may have been permissible as testing the appellant’s recollection but the prosecutor went on to draw attention to the fact that this possibility had not been volunteered during the appellant’s evidence-in-chief.  The appellant agreed that he had not mentioned it.  The prosecutor persisted and compelled the appellant to allow that there was a “small possibility” that he had placed the wallet in his shoes himself.

[59] The prosecutor followed this line of questioning with the proposition that the appellant’s evidence about the wallet going into his shoe was a lie.  That assertion was also made in the prosecutor’s closing address.  This aspect of the cross-examination and the address was unfair as it was not open to the appellant to give evidence about the possibility that he had placed his wallet in his own shoes.  Even if such evidence could have been given, it was unfair to expect the appellant to give it if his version was that there was only a “small possibility”.  It was thus specious reasoning to conclude that the failure to mention a small possibility in evidence-in-chief exposed “all of the appellant’s evidence as a lie”.

[60] Although no objection was taken to either the cross-examination or the address, failure to object was not explicable as a forensic decision.  The issue was an artifice contrived by the prosecutor and used unfairly.  The jury were left with the impression that the appellant had been found wanting in a material respect and that this deficit could support a conclusion that his evidence was a lie.  Although no redirections were sought, it is the obligation of the trial judge to know and apply the law.  The appeal is brought under s 668E(1) of the Criminal Code and the appellant demonstrated legal error from which a miscarriage of justice has resulted.  Reliance was placed on KBT v The Queen,[12] in which Kirby J said:

“If a miscarriage of justice is shown, the obligation of the judge who has charge of the trial to ensure that accurate and complete directions of the law are given to the jury is not removed because counsel, appearing for the accused, failed to assist the judge to avoid error.”

Ground 3 – consideration

[61] The cross-examination about the wallet was protracted.  Eventually the prosecutor managed to extract from the appellant the concession that he may have put the wallet in his shoe.  The appellant however maintained his position that he didn’t think that that was the case.

[62] It is puzzling that the prosecutor saw fit to put to the appellant “that all of this evidence about the wallet going into the shoes (sic) is a lie”.  It seems to be common ground that the appellant thought his wallet was missing.  There was a search and the wallet was found.  Why it could not have been found in a shoe rather than somewhere else is far from obvious.  The prosecutor, however, had a theory that the appellant’s evidence that the wallet was found in a shoe was part of a general pattern of fabrication.  In his address he said:

“His story is a lie.  He never said in his evidence-in-chief that he might have put that wallet into his shoes.  You might think a fairly vital piece of information that would have been forthcoming at the very outset, but no, he didn’t come out with that in his evidence-in-chief.”

[63] The prosecutor then made the point that it was not put to the complainant that the appellant asked her after he had found the wallet, “Did you put that in my shoes?”  The prosecutor submitted that this asserted query was fabricated and a “desperate attempt by a desperate man”:

“In fact, she never sees him take a wallet out of his shoes.  It’s just a fabrication this whole wallet in the shoes, you start belting into someone when your shoes are just sitting there and ultimately that’s where you find your wallet.  It’s just rubbish.

In my submission, when you look at her evidence you can safely infer that she didn’t know where his wallet was.  She had no idea and he almost conceded that as a possibility.  He doesn’t want to admit it.  He accepts it as a possibility … His version makes simply no sense.  ‘She wasn’t helping me, so I’ll assault her.  Now, she is helping me, I’ll assault her anyway.’”

[64] It is difficult to see why the appellant could not have given evidence-in-chief to the effect that he had no recollection of putting the wallet in his shoe.  That would not involve speculation.  Evidence may be relevant and admissible if it explains:[13]

“… a statement or an event that would otherwise appear curious or unlikely.  It may cut down, or reinforce, the plausibility of something that a witness has said.  It may provide a context helpful, or even necessary, for an understanding of a narrative.”

[65] However, it does not follow from the fact that particular evidence may be adduced that it is necessarily cause for comment if it is not adduced.  It does not seem to me that the failure of the appellant to give evidence about how the wallet may have ended up in one of his shoes reflected adversely on his credibility.  On his version of events, how the wallet got into the shoe said little, if anything, about the sequence of events on the beach and whether the sexual acts were consensual or otherwise.  Defence counsel may have objected successfully to the cross-examination based on the failure to give evidence about the appellant’s belief concerning how the wallet got into the shoe but he elected not to do so.  It is impossible to say, however, that this choice was not the result of a deliberate forensic decision.  Perusal of the transcript reveals that defence counsel was ready to object in circumstances in which he perceived unfairness to his client or the existence of impermissible questioning.  The experienced trial judge is shown by the record to have maintained his customary fair control over the proceedings and to have been solicitous of the interests of the appellant.

[66] One valid forensic reason for not objecting would have been the desire not to give the jury the impression that the defence were concerned about a general attack on credibility being mounted around the wallet issue.  It was open for a competent advocate in the position of defence counsel to take the view that it was better to leave the prosecutor to pursue a fanciful line of cross-examination than to interrupt it with the result that other more promising, from the prosecution’s perspective, avenues of cross-examination could be explored.

[67] A more obvious attack on credit was made by the prosecutor during final addresses on the basis of the improbability of a violent attack being made on a young woman after “lots of consensual sex in all sorts of different positions” merely because a wallet is missing.  There was also the appellant’s flight from the scene; the implausibility of the shared cigarette after the violent beating; the provision of false names; and the failure of the appellant’s account of the blows (merely slaps) inflicted by him on the complainant to match her injuries.

[68] The fact that an attack on credibility in cross-examination and in final addresses had little substance or merit would not normally be regarded as detracting from the fairness of a trial which had been competently conducted by defence counsel.  The weakness of the attack can be dealt with by defence counsel in address.  Failure of defence counsel in closing address to deal with an ineffectual prosecution attack on an accused’s credibility may be explained by counsel’s desire to concentrate on matters that were more likely to sway the jury, such as a sustained challenge to the complainant’s credibility.  However, in this case defence counsel, no doubt alerted by the cross-examination, addressed on the attack on the appellant’s credit on the finding of the wallet at some length.

[69] It is part of the jury’s role to assess credibility and, in that regard, to consider the merits of competing prosecution and defence arguments.  Moreover, a criminal trial is an adversarial process in which a party is ordinarily bound by the conduct of his or her counsel.[14]  There was “no failure of process that departed from the essential requirements of a fair trial”.[15]  The appellant was not “deprived … of a chance of acquittal that was fairly open”.[16]

Application for leave to appeal against sentence

[70] The appellant was 24 years of age at the time of the offences.  He had no prior criminal history.

[71] The following findings of the trial judge’s were unchallenged:

“You and the complainant then went to the Surfers Paradise Beach.  At the beach, you fairly quickly accused the complainant of taking your wallet.  You repeatedly punched her to the face, grabbed her by the hair, pinned her down by the wrists and you continued punching her in the face.

She screamed.  You put your hand over her mouth and said that if she screamed you would kill her.  You repeatedly said that you would kill her.  She was too scared to move.  You forced her face into the sand.  She was on all fours looking for your wallet.  You pushed her over and lay on top of her, then you pushed her shorts down.  She said that she was worn down and could not fight back.  You pulled your own shorts down and you penetrated her vagina with your penis.

She plainly did not consent to sexual intercourse.  In fact, in evidence she said, ‘who would consent to sex after someone’s just beaten you up in a way like that, made you feel so scared.’  She was clearly terrified.  She kept asking you why you were doing this to her.  You then punched her to the head.  After that, you forced her to suck your penis.  You controlled the movement of your penis into her mouth.  She said that she was in pain and made noises of pain.  She wasn’t consenting to that either.”

[72] The trial judge remarked that the attack was “sustained and brutal” and that the appellant was not remorseful.

[73] The appellant’s arguments were to the following effect.

[74] Having regard to the appellant’s guilty plea to assault occasioning bodily harm (count 1), the remorse expressed to the complainant immediately after the offence, as well as to a psychologist, and the nature and extent of the complainant’s injuries, a four year term of imprisonment for count 1 and the seven and six year terms for counts 2 and 4 respectively were manifestly excessive.  The sentence was not supported by comparable sentences.

[75] In R v Miller,[17] 20 year old Miller and his co-accused assaulted an off-duty police officer in a hotel, punching and kicking him in the head for several minutes.  The victim suffered numerous bruises and abrasions and was left with a scar over one eyebrow, anxiety and depression.  There was also the aggravating circumstance that the motivation for the offending was probably the victim’s status as a serving police officer.  Miller had a prior conviction for serious assault and seven convictions for offences of the nature of breaking and entering.  Miller’s application for leave to appeal against a sentence of two and half years imprisonment was refused; however, Holmes J observed in her reasons that the sentence was, “taken in isolation, high”.[18]

[76] The offender in R v King,[19] who was 25 and 26 at the time of offending was sentenced to two years imprisonment suspended after nine months in respect of two counts of assault occasioning bodily harm and to lesser concurrent terms for other offences.  His criminal history included offences of violence, drugs and dishonesty.  He pleaded guilty to two counts of assault occasioning bodily harm, one count of wilful damage and three counts of unlawful use of a motor vehicle.  Leave to appeal against sentence was refused.

[77] The victim of both assaults was a young woman with whom the offender had been in a de facto relationship.  In committing the first offence, the offender chased the complainant out of her house, grabbed her by the hair and threw her against a fence.  She suffered bruising and lacerations.  The second assault was committed when the offender grabbed the pregnant complainant by the hair as she was walking down the stairs of a dwelling, dragged her across the street and threw her to the ground.  He then punched her repeatedly in the face and on the back and head, screaming repeatedly, “I’m going to kill you, you slut”.

[78] Keane JA observed that the decision of the Court of Appeal in R v Johnson,[20] which concerned two offences of assault occasioning bodily harm and one offence of wilful damage in a domestic context, “confirms that a sentence of two years was comfortably within the appropriate range for multiple assaults of the kind in question”[21] in the instant case, particularly where the offender had a record of violent offending.

[79] In relation to the rape offences, the appellant relied on R v Pickup[22] and R v Stephens.[23]  In the former case, Fraser JA, with whose reasons the other members of the Court agreed, in concluding that the application for leave to appeal against a sentence of five years imprisonment, imposed after pleas of guilty, for each of the three counts of rape should be refused, observed that the sentences were “within the range suggested by decisions of [the Court of Appeal]”.[24]  His Honour referred, in a footnote, to cases including Stephens.  Pickup is of limited use for present purposes as it establishes no more than that the five year sentences were not excessive, let alone manifestly so.  In Stephens, a sentence of three years imprisonment for two counts of rape and one count indecent assault was increased on appeal to five years imprisonment with a parole eligibility recommendation after two years.  Stephens is of limited use for present purposes because of the practice, prior to the decision in Lacey v Attorney-General (Qld),[25] of moderating a sentence increased on an Attorney-General’s appeal.

[80] The appellant argued that if the sentence imposed for count 1 was found to be manifestly excessive, the sentencing for counts 2 and 4 would also be affected by error requiring the resentencing of the appellant.  It was submitted that sentencing for a closely connected series of offences is an integrated process and that each sentence “must be able to withstand scrutiny both in isolation and by reference to other sentences imposed”.  The argument was developed as follows.  Having imposed the four year sentence for assault (count 1), the trial judge effectively precluded himself from visiting either rape with a sentence of five years, for which the appellant contended, as “the relative proximity on the sentencing scale would be too close”.

[81] It was submitted that the following matters were relevant if the sentencing discretion was required to be re-exercised:

1. the complainant chose to interact with the appellant at Vanity;

2. the complainant had been ready to have sex with the appellant;

3. the complainant’s recollection at the time of the trial was that the appellant had been “[a]lmost gentle” with her during the act of intercourse, which was said to have lasted only a short time;

4. the complainant’s recollection of the fellatio was that it did not last for very long and that the appellant did not ejaculate;

5. the appellant’s remorse was practically immediate upon his witnessing the complainant’s injuries; and

6. the medical examination revealed no genital injuries.

[82] Also said to be relevant were the absence of need for community protection and the unusual and highly specific nature of the offending.

Consideration

[83] The respondent relied on to R v Pryor,[26] R v LU[27] and R v Cox[28] to support both the assault and the rape sentences.

[84] The offender in Pryor was sentenced to four years imprisonment for assault occasioning bodily harm and seven years imprisonment for rape.  A serious violent offence declaration was made.  On appeal, the serious violent offence declaration was set aside and the sentences were otherwise confirmed.  The decision is of little, if any, assistance to the respondent in respect of the sentence for count 1.  It is apparent from the reasons that the focus of the appeal, which was against both conviction and sentence, was on the offence of rape.  The reasons do not directly, or indirectly, discuss the sentence imposed for the assault and one may infer that no submissions were made in relation to it.

[85] LU was a very different case to the one under consideration.  LU, the 16 year old complainant’s stepfather, went to the sleeping girl’s room in the middle of the night.  She awoke to found him sitting astride her thighs with his penis out over the front of his shorts.  She was unable to move.  When she opened her mouth to scream, the offender placed his hand over her mouth.  She continued to struggle and the offender placed a pillow over her face holding it down with both hands.  She almost passed out but, continuing her struggle, fell to the floor.  The offender fell off the bed also and forcibly pushed the complainant’s head onto the floor.  She screamed.  He pushed a finger in her mouth which she bit and continued to call out.  He then ran out of the room.  A t-shirt had been rolled up and placed against the door in order to muffle sound and a rope and been tied around the bed, presumably to be used in restraining the complainant.

[86] LU had a conviction for the aggravated assault of a female and for unlawful assault as well as minor drug convictions.  His conduct was said to be “a gross breach of trust in his role as a stepfather”.[29]  The complainant suffered significant psychological harm.  On appeal, the six year term of imprisonment imposed for each offence was reduced to three and a half years.  The offending in LU bears little relationship to that under consideration.

[87] In Cox, the offender, who was 43 at the time of the offences, pleaded guilty to two counts of assault occasioning bodily harm and four counts of rape.  He was sentenced to three years imprisonment for each of the assaults and to seven years imprisonment for each count of rape.  The sentences were ordered to be served concurrently.  These were upheld on appeal.  As with LU and Pryor, the violence was perpetrated in aid of, or in the course of, the commission of, or attempt to commit, a sexual offence.  The arguments advanced on appeal and the discussion of comparable authorities all appeared to relate only to the offence of rape.  Accordingly, this case was also of no assistance to the respondent in relation to the assault offences.

[88] There may have been some unusual circumstances surrounding the rapes but it is clear from the verdicts and the trial judge’s findings that they were perpetrated after “a sustained and brutal assault” after which it was plain that the appellant knew that the complainant was not consenting.  The appellant showed callous disregard for the shock, distress, pain and discomfort of his victim.  He added to her distress between the rapes by punching her in the head.

[89] The sentence of seven years imprisonment for count 2 is supported by the decisions in Pryor and Cox.  It is also supported by R v Dowden,[30] in which a sentence of nine years imprisonment for rape imposed on a 19 year old offender, who appears to have threatened rather than used violence to overcome the resistance of the complainant, was reduced to eight years without a declaration of parole eligibility.

[90] There is no substance in the argument that the sentencing process miscarried if the sentence imposed in respect of count 1 was manifestly excessive.  It is plain from the sentencing remarks that the sentences for the rapes, not surprisingly, were the primary focus of counsel’s submissions and of the sentencing judge’s attention.  The only decisions referred to by the trial judge in his sentencing remarks were ones concerning rape.

[91] For these reasons, I am unable to accept that the exercise of the sentencing discretion miscarried in relation to the rape sentences (counts 2 and 4).

[92] The appellant has established that the sentence imposed for count 1 was manifestly excessive despite its protracted brutality, the making of death threats and the thrusting of the complainant’s face into the sand.  Having regard to the comparable assault sentences discussed earlier, I would substitute a sentence of two years and six months for the four year sentence.  Accordingly, I would order that:

1. The appeal against conviction be dismissed.

2. Leave to appeal against sentence be granted.

3. The sentences imposed on 13 March 2013 be varied but only by substituting a sentence of two years and six months imprisonment for the sentence of four years imposed in respect of count 1.

[93] GOTTERSON JA: I agree with the orders proposed by Muir JA and with the reasons given by his Honour.

[94] MULLINS J: I agree with Muir JA.