R v Dargin[2013] QCA 20

SUPREME COURT OF QUEENSLAND

[1] CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of Holmes JA.  I agree with the orders proposed by Her Honour, and with her reasons.

[2] HOLMES JA: The appellant was convicted of two counts of rape of a complainant, B, on 30 November 2006, and six counts of rape of a second complainant, D, on 19 November 2009.  The two complainants were not known to each other.  The issue in the trial was identification, rather than there being any dispute as to the complainants’ respective accounts.  In respect of each of the two counts involving the rape of B (counts 1 and 2) the appellant was sentenced to imprisonment for 14 years; in respect of four of the counts of rape against D (counts 5-8) he was sentenced to imprisonment for 18 years; and in respect of the remaining two counts of rape against D (counts 3 and 4) he was sentenced to imprisonment for 10 years. 

[3] The appellant appeals against conviction on the grounds that the trial judge erred in refusing an application for separate trials in respect of the two complainants; that the two complainants should not have been treated as special witnesses; and that his counsel did not cross-examine the complainants with sufficient rigour.  His contention is, one infers, that each and all of those matters resulted in a miscarriage of justice.  He appeals against his sentence in respect of counts 3 and 4 on the grounds that the 10 year sentences imposed were manifestly excessive.

The evidence in relation to the 2006 offences

[4] [4] The first complainant, B, was 15 years old when she was raped. She was attacked mid-morning on 30 November 2006 while walking across a pedestrian bridge over the freeway at Beenleigh. She was listening to music on her iPod and did not hear or see the attacker’s approach. He grabbed her around the neck from behind and held a knife to her face. He walked her into some nearby bushes, made her lie on her stomach and pulled down her jeans and underwear to below her knees. As she was lying face down, with her head pushed into the dirt, he lay on her back and buttocks and tried, unsuccessfully, to put his penis into her vagina. He made B spit on his hand, which he wiped against her vagina, and was then able to penetrate her. He next penetrated her anus; she felt the sensation of his ejaculating. During the rapes he was still holding the knife close to her face.

[5] In the course of the episode, the rapist told B a number of times that if she yelled he would hurt her, and he threatened to follow her to make sure she did not tell anyone what had happened.  At its close, he told her to lie still, threatening her with harm if she did not, while he moved away briefly.  He said he was “going to look for people”, apparently checking whether anyone was about.  On his return, he instructed her to count to 200.  When she next looked up he was gone.

[6] B said that her assailant was wearing a blue flannel shirt and something that looked like a mask, possibly of silver duct tape.  The knife was the size of a fishing knife or kitchen knife.  It had a black handle with grooves in it.  He spoke with an Australian accent and sounded like a man in his late 20’s or early 30’s.

[7] Swabs were taken from B’s genitals and underwear and a DNA profile established from spermatozoa.  No match was made until a DNA sample was taken from the appellant on his arrest for the rape of D, three years later.  On the analysis then performed, the probability of the spermatozoa originating from a man other than and unrelated to the appellant was one in 240 billion, if data for Queensland Caucasians were used, or one in 22 billion using Queensland Aboriginal data.  (The appellant is Aboriginal.)

The evidence in relation to the 2009 offences

[8] D was a 19 year old woman who, on 19 November 2009, had caught a train to Beenleigh with the intention of walking to her boyfriend’s house, which was about a kilometre from the station.  She arrived at Beenleigh at about 11.30 pm, used the station lavatory, and then began to walk to her destination.  As she was nearing it, she descended a set of stairs leading to a street below.  A man approached her from the footpath, moving up the stairs.  He was wearing a hooded sweater and a bandanna tied over his nose.  He hit her with a fist, knocking her down, and then gagged her before making her stand holding the banister of the stairs.  He then took down her underpants and put his fingers into her vagina. 

[9] A car went by on the street below them and the man led D further up the stairs, threatening that if she screamed he would push her down them.  Once the car had passed, D’s attacker took her across the road, pulling her by the hair and the gag, and under a railway bridge to another area, away from the footpath.  There he again penetrated her, first digitally and then by inserting his penis into her vagina from behind.  Her mobile phone rang.  The assailant told her to answer it and say that she was fine and that she had just left the train station (indicating that he knew where she had come from), but the phone stopped ringing before she was able to do so.  The man lay on his back and made her sit on him, again penetrating her vagina with his penis.  Next he made her roll on to her back and once more inserted his penis into her vagina.  He concluded his attack by twice penetrating her anus with his penis.  He told her to stay where she was and that he would be back, before walking away.  He returned and said that there were people walking around.  He told her to count to 200 and left her. 

[10] In the course of the attack, D had made these observations of her assailant:  he was wearing light blue denim jeans and white trainers; he had small feet and thin ankles; his hands were thin and dark like those of an Aboriginal man; and his hair was coarse and thick.  She herself was wearing a black t-shirt and a long dark purple skirt with a coloured cardigan and had on her head a black akubra.

[11] D was able to make her way to her boyfriend’s house and was taken to hospital.  An analysis of the samples taken from D’s vagina, vulva and perianal area showed that they contained spermatozoa likely to have come from the appellant.  The probabilities, for the various samples, of these originating from another man or a man unrelated to the appellant lay between, at one extreme, one in 43 million if Aboriginal data were used, and, at the other extreme, one in 240 billion based on Caucasian data.

[12] The appellant was interviewed about the attack on D on the following day, 20 November 2009.  The interviewing officer explained that the appellant and his car had been seen at the station on CCTV footage.  The appellant said he had been playing poker at the Windaroo Tavern but had gone to the station at about 11.30 pm to pick up a friend named Hill.  When Hill did not arrive, he got back in his car and went home.  He had been wearing a green shirt, blue jeans and white shoes.

[13] Questioned further, the appellant changed his account:  he said that he had intended to get the train into Brisbane to play poker at the casino, where he was to meet Hill.  He went to the station and enquired of a railway official when the last train was due.  Told that it was 10 or 12 minutes away, he sat in his car for a short period before walking back to the platform when the train arrived.  He changed his mind about catching it because of the lateness of the hour, and left the station.  As he did so he saw a girl wearing a dress and what he described as a cowboy hat walking out of the station.  He was not sure if the dress was plain black or multi-coloured.  The girl walked past him.  (The CCTV tape, which became an exhibit, showed the appellant and D passing each other, and the appellant twice looking back at D.)  The appellant said he left the station and drove home.  When he was asked why he had originally given a different version of his reason for being at the station, the appellant said that he was nervous because he thought he had committed a traffic offence.

[14] The appellant was interviewed again about a fortnight later after the results of the DNA analysis had been received and was told that the spermatozoa taken from D matched his DNA profile.  He maintained that he had glimpsed the girl at the train station but had not touched her; and that he had walked away from the station, gotten into his car and driven home. 

The approach taken by the appellant’s counsel

[15] The appellant’s contention that his counsel failed to cross-examine the two complainants with sufficient rigour can be shortly dealt with.  Counsel did not challenge the substance of their accounts, unsurprisingly, since the only issue was identification, and neither complainant purported to identify the appellant.  Instead, he elicited some details which might have been of assistance in that regard:  that immediately after B’s rape she saw a man in a vehicle pulled up nearby who did not resemble the appellant; that D thought the voice of her attacker was of a man in his 20s (the appellant was 41 when D was raped); and that D had only caught glimpses of her assailant’s hands (although she was adamant that the hand she saw was “quite dark”). 

[16] Given that the appellant’s position was that he was not present at either set of rapes, there was simply no basis on which his counsel could have challenged the account of either victim.  Asked what questions his counsel had failed to put, the appellant simply pointed to something the latter said in mitigatory submissions for the purposes of sentence: that the cross-examination of the complainants “was mild, that it was not strenuous, nor was it aggressive”.  But the good sense of that approach, which avoided protracting or exacerbating the complainants’ ordeal, is plain.  Badgering the young women for the sake of doing so would have been not only improper but, to say the least, a most unwise forensic move, apt to rebound on the appellant when it came to sentence.

[17] In his oral submissions, the appellant raised another matter: that although he had given his legal representatives unspecified details going to his whereabouts at the times of the offences, counsel had not drawn those features out.  (The appellant’s trial counsel, it should be said, was not served with any of the material in the appeal or called upon to provide any affidavit.)  But an examination of the transcript of the appellant’s examination-in-chief yields nothing which suggests he might have given further evidence.  His account of his whereabouts on 30 November 2006 was sketchy.  It was that he “most probably would have been at home” at Eagleby; he had never walked across the overpass on which B was attacked.  It was not surprising, after a lapse of three years between the offences and his being charged, that he could not give better details of his whereabouts; and the judge duly gave a Longman[1] direction.  But nothing suggests that there was some greater detail that his counsel could have elicited or otherwise led as to his whereabouts at that time. 

[18] As to the 2009 events, the appellant gave a detailed account of having been at the Windaroo Tavern, travelling to the Beenleigh Railway Station and then driving home to Eagleby.  His movements at the train station were captured on CCTV footage and, on his own account, his drive home was made alone.  He provided precise details (down to the state of traffic lights) as to what that trip entailed.  Nothing in his evidence, or in his account to the police in November 2009, provided any indication that there was any more that could have been said about his movements that night or that there was any other individual who might have confirmed them.

[19] There is nothing in the appellant’s complaints about his counsel’s approach to his defence.

The treatment of the complainants as special witnesses

[20] Nor is there any substance to the appellant’s submission that the two complainants should not have been treated as special witnesses.  Both had indicated in conference with the prosecutor that they were fearful of giving evidence in the appellant’s presence and did not feel they could do so properly in that circumstance.  The appellant’s representative raised no objection to the two young women being treated as special witnesses.  The trial judge made a finding, which was entirely unremarkable given the complainants’ intimations and the circumstances in which the offences were committed, that they would be likely to be so intimidated as to be disadvantaged as witnesses, thus meeting the terms of one of the definitions of special witness in s 21A of the Evidence Act 1977.  The result was that neither complainant was required to give testimony before the jury; the evidence of each was instead recorded in advance and the video-tape played to the jury.

[21] The appellant contended, without offering any basis for the contention, that the witnesses did not meet any of the definitions in s 21A.  That is plainly wrong.  His further complaint was that his counsel had not informed him of the criteria in the section; if he had been so informed, he would have insisted on an objection being raised.  In the absence of any identified basis for such an objection, it can hardly be said that counsel should or could successfully have taken it, whatever his client’s view on the matter.  In any event, the submission depended on the accuracy of the appellant’s further assertion that it was a disadvantage to him to have the complainants treated as special witnesses and that the result would have been different if they had had to take the witness stand before the jury.  That seems very improbable indeed, given that there was no question that each of the young women had indeed undergone the experiences they described.  Having them questioned in person before the jury was most unlikely to have created an impression more beneficial to the appellant.  It was a sound forensic choice by counsel not to raise any difficulty about their evidence being given in recorded form.

The joinder of the counts and the refusal of separate trials

[22] Section 567(2) of the Criminal Code permits the joinder of charges for more than one indictable offence in the same indictment against an individual where those charges, inter alia, “form part of, a series of offences of… similar character”.  Section 597A(1) of the Criminal Code enables the court to order separate trials where it forms the opinion

“…that the accused person may be prejudiced or embarrassed in the person’s defence by reason of the person’s being charged with more than 1 offence in the same indictment or that for any other reason it is desirable to direct that the person should be tried separately for any 1 or more than 1 offence…”

[23] At the outset of the trial, the appellant sought the quashing of the indictment[2] or an order for separate trials.  The argument for the first was that there was not a sufficient nexus between the two sets of rapes to meet the threshold requirement under s 567 for their joinder.  Underlying the second application was the contention that the evidence on counts 1 and 2 was not admissible in proof of counts 3 to 8 (and vice versa) because it was not similar fact evidence; it did not meet the Pfennig[3] test.  It was submitted that the appellant would be prejudiced if the counts were tried together: the allegations in each case were extremely distasteful, and there was a risk that the jury would impermissibly conclude that the evidence of one complainant made that of the other more likely to be true. 

[24] The Crown responded by pointing to the similarities in the way in which the two sets of offending were carried out, arguing that a pattern was demonstrated.  It was submitted that the appellant’s defence would inevitably involve an attack on the reliability of the DNA evidence.  The similar fact evidence was probative in identifying the appellant as the culprit and met the Pfennig test: for each set of offences, the evidence of the other group of offences would leave no rational view of the evidence as a whole which was consistent with the innocence of the appellant.

[25] The trial judge recorded the allegations underlying each set of counts and identified a number of “strikingly similar” features.  He concluded that there was “the clearest possible ‘pattern or underlying unity’ between the two sets of offences, and ... that ‘in the context of the Prosecution case, there [was] no reasonable view of the evidence that is consistent with innocence’”.  His Honour declined to quash the indictment or to sever the counts on it.

[26] The questions of whether the counts were properly joined under s 567(2) and, if so, whether they should have nonetheless have been severed because of prospective prejudice or embarrassment, turn in the circumstances of this case on whether the evidence in respect of each set of rapes was admissible in proof of the other.  That is because the nexus requisite to establish a “series of offences of … [a] similar character” may be constituted by the cross‑admissibility of evidence,[4] and the question of whether separate trials should be ordered similarly requires the determination of whether the evidence on one set of charges is admissible on the other.[5]  If the evidence of one set of counts was able to be adduced in proof of the other irrespective of whether the counts were heard together, there could be no prejudice to the appellant in dealing with them all at a single trial.

[27] The appellant argued that the similarities between the two sets of rapes in the present case were not out of the usual for sexual offences.  There were differences: the 2006 attack occurred in broad daylight, a weapon was used, and the victim was attacked from behind and taken into bushland.  In 2009, the attack was at night‑time, the attacker approached his victim from the front, no weapon was used and a gag was applied.  The rapist in that case was wearing a bandanna and a hooded jumper, clothing dissimilar to that of the attacker in the first offence, and he took his victim to a recreational area and not bushland.

[28] Notwithstanding the differences pointed to by the appellant, the trial judge in this case correctly found that there was a pattern common to the two sets of offences.  Both involved the abduction of a young woman walking alone in the Beenleigh vicinity by a disguised attacker who in the course of the incident made threats of harm.  Each was made to accompany the attacker to a secluded area.  In each case, the rapist penetrated the complainant vaginally from behind and anally.  In each instance, once the attack was concluded, the rapist removed himself briefly to see if there were anyone about before returning and telling the complainant to count to 200.  The most compelling feature of the common pattern is that on both occasions the offender ejaculated and left spermatozoa from which were extracted DNA correlating strongly with the appellant’s DNA profile.

[29] The probative value of the similar fact evidence, plainly enough, lies in identifying the appellant as the attacker.  Taking first the issue of the admissibility of the evidence concerning D on the counts involving B, one begins, for the purposes of applying the test in Pfennig v The Queen, with the assumption that the evidence identifying the appellant as B’s attacker (the DNA evidence) was not sufficient to establish his guilt beyond a reasonable doubt.  The similar fact evidence in relation to D, if accepted, was that an attack with the similarities described had been carried out on D in the same vicinity and that the DNA samples taken from D were a compelling match for the appellant’s DNA profile.  When one puts that evidence with the features of the attack on B and the finding of DNA on her pointing to the appellant, there is no reasonable view of it consistent with the appellant’s innocence.  Similarly, the evidence of the assault on B in a context in which DNA unlikely to come from any person other than the appellant was found on her body and clothing would meet the same test of admissibility on the counts concerning D. 

[30] The evidence in respect of each set of charges was admissible in proof of the other.  There was, it follows, a sufficient nexus to make the joinder of the counts proper, and the trial of them together entailed no prejudice to the appellant.  I would dismiss the appeal against conviction.

Application for leave to appeal against sentence

[31] At sentence, the appellant’s counsel submitted that a sentence of 18 years was appropriate for counts 5 to 8 and one of 14 years for counts 1 and 2.  Those sentences were in fact imposed.  In respect of counts 3 and 4, he submitted that a sentence of seven years should be imposed; but the trial judge instead imposed the concurrent sentences of ten years on each count which have given rise to the application for leave to appeal against sentence.

[32] The appellant was 38 years old when he raped B; 41 years old when he raped D; and 43 at sentence.  He was married with four children and had worked in manual jobs.  In 1994, he was convicted of aggravated indecent assault and assault of a person between 10 and 16 years of age with intent to have sexual intercourse, as well as a further charge of maliciously inflicting grievous bodily harm, receiving a minimum term of 24 months imprisonment.  The facts underlying those charges were that he had forced his 14 year old niece onto a bed and, when she resisted him, squeezed her throat and put his hand over her mouth and nose to stop her screaming.  He put his hand down her shorts and felt her buttock.  After a struggle, she managed to escape.  The infliction of grievous bodily harm occurred when a neighbour to whose house the girl had fled accosted the appellant, and was punched and kicked by him. 

[33] The attacks in the present case, not surprisingly, had a profound effect on their victims.  B, the younger complainant, was unable to complete her schooling or to continue her part-time work in a fast-food outlet.  She developed an eating disorder, anxiety and depression, and it took some years before she was able to function independently.  D suffered from anxiety which, on occasion, took the form of panic attacks, and found it difficult to work or maintain relationships.  She had been diagnosed as suffering from post traumatic stress disorder.

[34] The Crown here pointed to four cases as supporting the sentences imposed on counts 3 and 4:  R v Colless;[6] R v Wark;[7] R v Robinson;[8] and R v Hussein & Hussein.[9]  In Hussein and Robinson, the applicants had committed different forms of rape on their victims including digital rape.  In Robinson, the applicant was sentenced to six years imprisonment on each of three rape counts; in Hussein, one of the defendants was sentenced to 11 years imprisonment on a number of counts including digital anal rape and digital vaginal rape.  Although in both cases the application for leave to appeal was based on the severity of the sentences generally, counsel for the Crown here pointed out that the court, in each case refusing the application, found it unnecessary to draw a distinction between the charges of digital rape and the other rape charges.

[35] In Wark, Cullinane J made this observation:

“I think that it can be accepted that as a general proposition... rape constituted by penile–vaginal or anal penetration will attract a higher sentence than rape cases involving digital or oral penetration.  However there may be cases not involving penile penetration which because of their associated circumstances call for punishment which may be as great as or exceed cases involving penile penetration.”[10]

In the same case McMurdo P identified exacerbating factors as including whether violence had been used, the physical and psychological effect of the offence on the victim and whether the offender had previous relevant history.  In Colless, this court observed that the task of the judge was “to assess the gravity of the aggregation of the applicant’s conduct”.[11]  In that case, the fact that the rapes were digital rather than penile became much less significant because of the repetitive nature of the offending.

[36] In most circumstances, a sentence of 10 years imprisonment for digital rape would be plainly excessive.  But the brutality surrounding the infliction of the offences on D is significant.  She had been punched and gagged and effectively abducted by the appellant, and these rapes were the beginning of a sustained and terrifying attack.  The appellant had previously committed a violent sexual offence, and the gravity of his conduct must be seen in the further context of the rapes of B for which he was also being sentenced.  In both cases, the rapes had catastrophic effects for the complainants’ ability to lead normal lives.  In those circumstances, the sentences of 10 years imprisonment imposed in respect of each of counts 3 and 4 were not manifestly excessive.  I would refuse the application for leave to appeal against sentence.

Orders

[37] I would make the following orders:

1.Appeal against conviction dismissed.

2.Application for leave to appeal against sentence refused.

[38] GOTTERSON JA: I agree with the orders proposed by Holmes JA and with the reasons given by her Honour.