R v Burton[2014] QCA 37

SUPREME COURT OF QUEENSLAND

[1] GOTTERSON JA:  On 11 July 2013, the appellant, Grant Burton, was found guilty on one count of rape after a trial over three days in the District Court at Brisbane.  The count alleged an offence against s 349 of the Criminal Code (Qld) in that on or about 5 July 2012 at Brisbane, the appellant raped the complainant, K.  Upon conviction, the appellant was sentenced to nine years imprisonment with parole eligibility after serving four years and six months.

[2] The appellant appeals against his conviction and applies for leave to appeal against his sentence.

Amendment of notice of appeal and grounds of appeal

[3] At the hearing of the appeal, counsel for the appellant sought leave to amend the notice of appeal filed on 7 August 2013 in relation to the appeal against conviction.  The amendments sought accorded with paragraphs two and three of the appellant’s outline of submissions filed 17 October 2013 and paragraph two of the appellant’s supplementary outline of submissions filed 6 November 2013.  Leave was granted and an amended notice of appeal incorporating them was subsequently filed with the court on 26 November 2013.

[4] The grounds of appeal against conviction as amended may be summarised briefly as follows.  Firstly, that there was a miscarriage of justice arising from insufficiency in the learned trial judge’s direction as to how the jury might use circumstantial evidence.  Secondly, that there was a miscarriage of justice caused by insufficiency in the learned trial judge’s direction as to the elements of the offence.  The third ground contends there was a miscarriage of justice arising from defence counsel’s failure to cross-examine or lead evidence as to the complainant’s state of composure when she reported the incident to a witness, Mr MJ, and to other matters which in substance related to the complainant’s credit or character.

[5] The appellant applies for leave to appeal against sentence on the ground that the sentence of nine years imprisonment was manifestly excessive.

The circumstances of the offending

[6] The count on which the appellant was convicted was of rape of a young woman committed on Thursday 5 July 2012.  At that time the appellant was 41 years old and the complainant was 19 years old.  The appellant was unknown to her until the night the offence took place.

[7] The complainant had moved in to a second bedroom at a house where her workmate, WL, lived with her boyfriend, MJ.  She had done so on the preceding Monday, planning to stay there for a week.

[8] On the evening of Wednesday, 4 July 2012, the appellant and the complainant were both at the house to watch the State of Origin football match with Ms WL and Mr MJ.  The appellant was a long-time friend of Mr MJ.  They all consumed alcohol during the evening, including vodka shots at the end of the night.  The complainant was on anti-depressant medication at the time.  No medical evidence was led to suggest that the appellant was aware of this or that it had any adverse affect on her state of mind at the time of the offending.

[9] Toward the end of the night the complainant became ill, vomited and went to her bedroom.  After closing the door, she lay on the bed.  She said that Ms WL walked into the room, lay down on the bed with her and they talked.  She said that Ms WL then left and closed the door.  In cross-examination Ms WL denied that she had gone into the bedroom and spoken with the complainant.

[10] The complainant was awoken by a burning sensation in her vagina.  She saw a “big figure” on top of her.  It was a male dressed in a white collared jersey and a beanie as the appellant had been wearing that evening.  She noticed that he had no pants on and that he had an erect penis.  She kicked him off with her knee.  He sat up and fell down beside her on the bed and grunted.  Her pants and underpants had been removed and her bra and shirt were up to her neck.

[11] The complainant grabbed her clothes and went out to Mr MJ who was asleep on a recliner.  She had a brief verbal exchange with Mr MJ at the end of which he suggested that she sleep in the main bedroom with Ms WL.  She went to Ms WL’s bed and texted a friend.

[12] The complainant experienced pain in the vagina for the next couple of days and made a formal complaint to police on Sunday, 8 July 2012.

[13] A medical examination conducted on the same day revealed a tender abrasion from the introitus to about 1 cm inside the vagina and a 3 mm fresh tender tear at the posterior fourchette.

[14] The appellant testified in his own defence.  He admitted that he got into bed with the complainant wearing the jersey and the beanie.  However, he maintained that no sexual activity took place between them.

Appeal against conviction

[15] It is convenient to consider each of the three grounds of appeal against conviction separately.

Ground 1 – Direction concerning the examining doctor’s evidence

[16] This ground relates to the direction given to the jury concerning the examining doctor’s evidence.

[17] In his summing up, the learned trial judge gave the following direction on this topic:

“You also heard in this trial evidence from Dr Mahoney, who gave evidence  both of matters factual and he also gave opinion evidence.  Now, in so far as the giving of that opinion evidence is concerned, he is considered to be what lawyers refer to as an expert witness.  The ordinary rule is that witnesses may only speak as to facts and not express their opinions.  An exception to the general rule is that persons duly qualified to express some opinion in a particular area of expertise are permitted to do so on relevant matters within their field of expertise… As I say, Dr Mahoney gave evidence of both factual matters – for instance, the injuries which were observe (sic) to the complainant’s genital area – and he gave evidence of an opinion.  That is, the injuries could have been caused by, for instance, penile penetration, although other types of vaginal penetration could have caused such injuries.

The fact that we refer to Dr Mahoney as an expert witness, in so far as his opinions are concerned, does not mean that his evidence must be automatically accepted.  You are the sole judges of the facts, and you are entitled to assess, and accept, and reject any such opinion evidence as you see fit.  It is up to you to decide the weight that you give to his opinions as you think they should be given, having regard to his qualifications, and whether you thought him impartial – or partial to either side – and the extent to which his opinion accords with whatever other facts you find proved.  It’s a trial by jury, not a trial by expert.  There is one important qualification to that, however, and that is that you ought not reject his opinion or opinions unless the matters on which they are based have not been proved to your satisfaction.  And, that whilst it’s a question for you, does not really seem to have application in this case.  Or you consider there is other evidence which casts doubt on his view.  And again, whilst it’s a matter for you, it does not seem to have application in this case.  You would bear in mind that his evidence was not challenged in any way.  And that there would seem to be little reason to reject the opinion that he expressed.  But, ultimately, it is a matter for yourselves.”[1]

[18] Immediately prior to giving this direction, his Honour had spoken to the jury about circumstantial evidence and related it to observations that he had previously made about the drawing of inferences.  The nub of this ground of appeal is that it proposes that his Honour “drew the jury’s attention to the doctor’s evidence as a piece of circumstantial evidence”.  It is said that he “elevated the evidence to a piece of circumstantial evidence without the jury being given any directions as to how they should approach such evidence”.

[19] It need be said at once that the appellant’s submission mischaracterises his Honour’s directions.  He accurately described the medical evidence as having aspects of fact and of opinion.  Quite clearly, the evidence was capable of corroborating the complainant’s account that her vaginal area had been injured that evening and of informing the jury how the injuries observed by the doctor might have been caused.  In any event, it would have been obvious to the jury from the description of the injuries that they had been caused by some form of penetrative force, whether by a penis or otherwise.  It is unsurprising then that his Honour did not speak to the jury in terms of this evidence being used alone, or with other evidence, to draw an inference with respect to an element of the offence as might have occurred had absence of consent, for example, been a live issue at the trial.

[20] The mischaracterisation in it deprives this ground of appeal of vigour.  Furthermore, no redirection was sought.  In these circumstances, it is for the appellant to show that it is reasonably possible that the direction now proposed might have affected the verdict.[2]  The appellant has failed to explain how such a possibility would have occurred had the direction suggested in the ground of appeal been given.

[21] This ground of appeal must therefore fail.

Ground 2 – Absence of consent direction

[22] The second ground of appeal against conviction is there was a miscarriage of justice caused by the insufficiency of the learned trial judge’s direction as to the absence of consent element of the offence.

[23] In the written outline of argument, counsel for the appellant submitted that his Honour had failed to direct the jury that they needed to be satisfied beyond reasonable doubt on that element.  The submission was not elaborated in oral submissions.

[24] The appellant gave evidence and was cross-examined.  It is evident that the element of absence of consent was not a live issue at trial.  The appellant’s case was that there was no sexual activity.  He gave evidence that he tapped the complainant on the shoulder when she was asleep and asked her if he could sleep in the bed with her.  On his version of events, she woke up enough to say, what he understood to be, something to the effect that he was allowed to sleep in the bed.  He said he jumped into the bed, got under the doona, went to sleep, and woke up the following morning.[3]

[25] His Honour directed the jury that in order to convict they must “be satisfied beyond reasonable doubt of every element that goes to make up the offence charged”.[4]  As to absence of consent, he said:

“And the second element is that it occurred without her consent.  And consent means freely and voluntarily given by a person with the cognitive capacity to give consent.  Now of course, the issue of consent is not really an issue in this trial.  The issue you’re your determination is whether the act of carnal knowledge took place to your satisfaction, beyond a reasonable doubt.”[5]

[26] Having regard to the appellant’s own evidence to which I have referred, these directions were both appropriate and adequate.  It is unsurprising that no additional direction of the kind referred to in the ground of appeal was sought by defence counsel.  There is no substance in this ground of appeal and it, too, must fail.

Ground 3 – Counsel’s conduct

[27] I now turn to the evidential matters on which, it is claimed, defence counsel failed to cross-examine or lead evidence.  To advance this ground, the appellant seeks leave to adduce evidence on the appeal.  The application for leave is supported by an affidavit of Nicholas Brown sworn on 6 November 2013 to which is exhibited statements made to police by the complainant, Mr MJ, Ms SA and Ms WL together with certain emails sent by or to the complainant.  None of these documents were tendered as evidence in the trial.  I would grant the leave sought for the purpose of argument of this ground.

[28] The first evidentiary matter is evidence from the witness, Mr MJ.  The complaint is that he was not cross-examined to establish that the complainant was not upset at the time she woke him or upon his evidence that she told him that she had woken up with the appellant on top of her.

[29] In his evidence-in-chief, Mr MJ said he had a conversation with the complainant where she “sort of half woke (him) up”.  She told him that she had woken up with someone on top of her to which he responded by asking her if she knew who it was.  She said that it was the appellant or at least that is what he thought she said.  Then he asked her if she was “okay” and she said, “yes”.  At that point she asked him if she could sleep in his bed with Ms WL to which he responded “yes”.  She left and he fell back asleep.[6]

[30] Mr MJ had not said in evidence-in-chief that the complainant was upset when she woke him.  There was an obvious risk for a cross-examiner in putting to him that she was not - a risk avoided by simply relying on the evidence he had given.  Furthermore, to have pressed him on the complainant’s identification of the appellant would have risked re-affirmation of his evidence-in-chief.  There was cross-examination to the effect that she had not complained to him that the appellant had raped her[7] which yielded an affirmative response.  Understandably, that was as far as the cross-examiner was prepared to venture.

[31] In addition, the appellant complains that his counsel did not lead evidence from (or cross-examine) Ms AS to the effect that, in a conversation on the weekend following the incident, the complainant had told her that, after pushing him off, “the man got up and walked out of the room as if nothing had happened”; and from Ms WL, that the complainant had “gone out with friends” on the Friday night following the incident but prior to the medical examination.  The complaint also extended to a failure to cross-examine the complainant about email correspondence engaged in by her at work on the following Thursday and Friday that could be interpreted as contradicting her claim of extreme distress at work.

[32] So far as Ms SA is concerned, the evidentiary matter would have been objectionable as hearsay.  If pressed as a prior inconsistent statement, it would have opened up re-examination on the totality of what the complainant had said to Ms SA.  According to her statement to police, much of it corroborated the complainant’s account.  For Ms WL and the emails in which the complainant speaks of “hoping to meet a hot buff boy” on the weekend, the evidentiary matters appear to be directed to impugning the complainant’s character, arguably going so far as to imply that she might have had vaginal intercourse with a male other than the appellant a day or so before the medical examination.

[33] All these matters bring to mind the caution expressed by Gleeson CJ in TKWJ v The Queen[8] in relation to appeals based upon criticism of decisions made by defence counsel concerning the calling of evidence at trial.  His Honour said:

“ …Decisions by trial counsel as to what evidence to call, or not to call, might later be regretted, but the wisdom of such decisions can rarely be the proper concern of appeal courts.  It is only in exceptional cases that the adversarial system of justice will either require or permit counsel to explain decisions of that kind.  A full explanation will normally involve revelation of matters that are confidential.  A partial explanation will often be misleading.  The appellate court will rarely be in as good a position as counsel to assess the relevant considerations.  And, most importantly, the adversarial system proceeds upon the assumption that parties are bound by the conduct of their legal representatives.”[9]

[34] In considering the attributes of a fair trial, the Chief Justice went on to observe:

“It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial.  But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused.  For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise.  And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. …”[10]

[35] The forensic value of these last two evidentiary matters was problematic.  To have attacked the character of the complainant in this way could have had obvious adverse consequences for the appellant in a case where the defence had put in issue the identity of the offender but not whether she had been violated.  Decisions by counsel not to raise them, or to the extent that leave under s 4(2) of the Criminal Law (Sexual Offences) Act 1978 may have been necessary to raise them, not to seek such leave, are rationally explicable.

[36] For these reasons, this ground of appeal cannot succeed.

Disposition - appeal

[37] Given that all grounds of appeal have failed, the appeal against conviction must be dismissed.  I now turn to the application for leave to appeal against sentence.

The sentence application

[38] The applicant was 41 at the time of offending.  He was 42 years old at the time of sentence.  He had a good work record, having been consistently employed since leaving school.  His criminal history was limited, consisting of one prior offence of committing an indecent act in a public place in 2004, for which he received a sentence of 180 hours of community service.

[39] The offending can properly be described as opportunistic.  Upon being discovered, the applicant desisted immediately.  He had, however, entered the bedroom without the complainant’s permission.  Fortunately, he did not threaten or intimidate the complainant.  No weapon was used.  He took advantage of the circumstances that she was asleep and intoxicated.  Yet his defence of the proceedings indicated that he was in no way remorseful for having done so.

[40] The applicant submits that the criminality of his offending warrants a lower sentence than nine years.  Whether this is so is to be assessed by references to sentences for comparable offending.

[41] In R v Stirling[11] the applicant was sentenced after conviction upon a trial to nine years imprisonment.  On appeal, the sentence was reduced to seven years.  He lived in an adjacent unit to the complainant and was known to her.  He was at a party at the complainant’s unit where they were both consuming alcohol and marijuana.  The complainant woke up at about 2 am to find someone licking her genital area.  She then told the applicant to get out but he held her down on the bed, started licking her face and said he was not leaving until he had finished what he had come for.  He proceeded to tear her underpants and rape her.  At the time of the offending the applicant was on parole for various other offences, including armed robbery.

[42] Thomas J (with whom Fitzgerald P and Davies JA agreed) observed:

“Suffice it to say that a nine-year sentence seems more appropriate for those case where specially serious factors operate such as the infliction of injury or the use of serious threats, possession of a weapon or some factor of a particularly aggravating kind.”[12]

[43] R v Press[13] was a case where the sentence was reduced from nine to seven years imprisonment on a plea of guilty to rape by a 34 year old intruder whom the 17 year old complainant thought was her boyfriend.  Fitzgerald P and McPherson JA referred to these observations stating:

“ …All generalisations in sentencing matters tend in time to be revisited on their authors; but, subject to that perhaps superfluous counsel of caution, his Honour’s observation is a useful starting point for the appropriate sentence in this case.”[14]

[44] In R v Basacar[15] a 42 year old was convicted of rape after a trial.  He entered the room of the complainant and her boyfriend at a backpackers’ establishment at night.  He deceived her into believing he was her boyfriend.  His sentence of eight years was not disturbed on appeal.  Mullins J, with whom Holmes JA agreed, remarked:

“Although there was no additional violence involved in the applicant’s offending in this matter, he committed an offence by entering the complainant’s room uninvited and committed the rapes by allowing the complainant to be deceived that he was her boyfriend.  When the complainant tried to face him in the bunk, he manoeuvred her so that he could continue his touching of her and engage in sexual intercourse, without revealing his identity.  There was thereafter no remorse shown by the applicant for his offending.  Even allowing for the factors which the applicant relies on in his favour, the survey of the authorities supports the conclusion that a sentence of eight years for rape in the circumstance of the applicant’s offence was not outside the exercise of a sound sentencing discretion.”[16]

Disposition – sentence

[45] In written submissions the respondent candidly conceded that the sentence of nine years “does appear to be high”.  Having regard to the circumstances of the offending here and the absence of threats, violence or the use of a weapon, in my view, the sentence of nine years falls beyond what might have reasonably been imposed for it.  It is manifestly excessive.  The authorities to which I have referred indicate that an appropriate sentence for the applicant’s offending coupled with his lack of any remorse is eight years imprisonment with parole eligibility after serving one-half of that term.

Orders

[46] I would propose the following orders:

1.Grant leave to adduce further evidence.

2.Appeal against conviction dismissed.

3.Grant leave to appeal against sentence.

4. Appeal against sentence allowed.

5.Substitute for the sentence imposed on Count 1 on the indictment, a sentence of eight years imprisonment.

6.Order that the appellant be eligible for parole after service of one-half of that term.

[47] MORRISON JA:  I have had the advantage of reading the reasons of Gotterson JA and agree with his Honour and the orders he proposes.

[48] DAUBNEY J:  I agree with the reasons for judgment of Gotterson JA, and with the orders he proposes.