R v KAO & TAF[2016] QCA 283

SUPREME COURT OF QUEENSLAND

1. FRASER JA:  I agree with the reasons for judgment of Boddice J and the orders proposed by his Honour.
2. PHILIP McMURDO JA:  I agree with Boddice J.
3. BODDICE J:  On 19 April 2016, a jury found KAO and TAF guilty of two counts of rape.  Each was sentenced the following day to imprisonment for three years on the first count and seven years on the second count.
4. The sentences were ordered to be served concurrently with parole being in accordance with the statutory entitlements.  TAF was also ordered to serve activated suspended sentences of imprisonment.  His sentences of imprisonment for the rapes were ordered to be served cumulatively on those activated suspended sentences.
5. KAO and TAF appeal those convictions.  The only ground of appeal in the Notices of Appeal is that the verdict in each case was unsafe and unsatisfactory having full regard to the evidence.  However, their Outlines of Submissions further contend there was a miscarriage of justice by reason of the conduct of the case.  Matters raised include competency of counsel, failure to call evidence and the conduct of the trial generally.
6. KAO and TAF also seek leave to appeal their sentences.  The only ground for those appeals is that the sentences are manifestly excessive in all the circumstances.

Background

7. The offences of rape occurred during one incident late on the evening of 30 April 2014.  Both offences concerned the same female complainant.  She is KAO’s natural daughter.  The complainant was aged 14 years at the time of the offences.  KAO was aged 34 years and TAF 22 years.  KAO and TAF were in a relationship and residing at a residence in Rockhampton with TAF’s parents and sister.

Evidence

8. The complainant was born on 1 May 1999.  Prior to Christmas 2013, she was residing at Noosa with her aunty.  At Christmas time that year, the complainant travelled to Rockhampton to visit her siblings.  She stayed at the residence at which KAO and TAF were residing at the time of the offences.  She remained in Rockhampton until August 2014.  The complainant said KAO would not send her back to her aunty in Noosa.
9. The complainant said when she first came down at Christmas time, she shared a room with her siblings.  Soon after arriving, the living arrangements changed and she commenced sharing a bedroom with KAO and TAF.^[1]  Those sleeping arrangements continued after the incident, up until she left in August 2014.
10. At the time of the offences the bedroom the complainant was sharing with KAO and TAF contained two beds.  KAO and TAF slept in a large bed.  The complainant slept in a smaller bed on one side of the bedroom.  The night of the incident was the only time anything of a sexual nature happened to her in that house.^[2]
11. On 30 April 2014, the night before her 15th birthday, the complainant watched television in the lounge room with KAO, TAF and TAF’s mother and father.  It was a school night.  The complainant was wearing a pair of shorts and top.  She also had on a bra and underpants.  At about 9.30 pm, KAO told the complainant to go to bed.  The complainant lay down on the single bed in the room she was sharing with KAO and TAF.  The complainant believed she fell asleep by 10 o’clock.
12. The complainant said KAO woke her around 11.30 pm.  KAO said it was almost her birthday.  KAO said “come down here, I want to know what you want for your birthday”.  The complainant left her bed and lay on KAO and TAF’s bed.  She told KAO she wanted a telephone for her birthday.
13. Initially, the complainant lay on one side of the bed, with KAO beside her and TAF on the other side of KAO.  KAO told her to move to her other side.  When the complainant moved to that position, TAF lent over and kissed the complainant on the side of the face.  At that point, KAO whispered in the complainant’s ear “TAF wants to fuck you”.  KAO and TAF then pulled down her pants and underpants.  The complainant was kicking her legs and pushing away.  The complainant said no.
14. The complainant said KAO held her down by her arms and belly.  KAO had her arm over the complainant’s body and was pressing her weight on her to keep her pinned to the mattress.  Whilst doing so, KAO and TAF pulled down her pants and underpants.  KAO grabbed her by one arm and used the other arm over to pull down her pants with TAF.  The complainant could not use her arms to push away as her arms were underneath KAO’s arms.
15. The complainant said she used her legs to kick out but was unsuccessful in preventing her pants and underpants from being removed completely.^[3]  Her pants and underpants were pulled down at the same time, whilst she was struggling.  The complainant said “I don’t want to do this”.
16. The complainant said TAF commenced touching her body.  The complainant agreed that during the incident her top and bra were never removed or pulled aside.  TAF touched her breasts over her top and bra.  His hands touched her vagina.  TAF put a finger inside her vagina.  He was moving his finger in and out.  The complainant said she was crying.  It was painful.  KAO also squeezed her breast.  It was deliberate.^[4]
17. The complainant said she kept struggling and after about 15 seconds TAF removed his finger from her vagina and put his penis in her vagina.  KAO was still over the top of her pinning her down.  The complainant said it took a while for TAF to put his penis in her vagina.
18. In evidence, the complainant said TAF’s penis remained in her vagina for about three minutes.  She denied saying previously it was for about 15 seconds.  In evidence, the complainant also said TAF ejaculated inside her.  She accepted she had not previously told police he had ejaculated inside her.
19. The complainant agreed she told police that the incident ended when KAO let her go and she pushed them away.  She agreed that her evidence now was that TAF actually finished having intercourse, go off her which allowed her to get up and walk away.^[5]  The complainant said she knew TAF ejaculated because she felt it running down her leg when she stood up.  She said she cleaned herself up before going downstairs.
20. The complainant said TAF was drunk.  TAF was wearing only his underwear.  The complainant said TAF did not use protection but could not say how she knew he was not wearing protection as she did not look down.
21. The complainant said she was struggling the whole time of the incident.  The complainant said she did not scream out because KAO had her mouth covered.  The complainant said she told TAF to get off her.  When KAO let her go the complainant put her pants back on and lay on the bed and cried.
22. The complainant agreed that when TAF finished he sat on the bed for a time which left her free to move.  KAO and TAF were not saying anything at all when he had his penis in her vagina.  The complainant said she told TAF to get off her and that she repeated this many times.  She did not call out loudly because she couldn’t breathe properly with KAO on her stomach.
23. The complainant said after she pushed TAF off, put on her clothes and cried, KAO and TAF went downstairs.  KAO told the complainant to go downstairs with her.  When the complainant went downstairs, TAF pulled her to him and kissed her on the said the face and said “sorry but it’s going to happen again, and happy birthday”.  The complainant then went and sat underneath the house before going back upstairs and going to bed.  She went to school the next morning.
24. The complainant agreed that it was soon after midnight that she went downstairs.  In evidence, she said remained under the house until around 7 o’clock in the morning when she went back upstairs to get dressed for school.  She said she didn’t want to go back to sleep because she was afraid of it happening again.^[6]  The complainant said she went under the house with them because if she did not do what she was told she would “get flogged … get abused”.^[7]
25. The complainant said KAO had told her not to tell anyone and TAF told her not to tell anyone on the night.  They said they would get into trouble.  The complainant said she was scared to talk to police.  She was scared they were going to hurt her.
26. The complainant said on the day of her birthday she went to school.  She was returning home at about 5 o’clock when she met KAO.  They had an argument because the complainant was late home from school.  When they reached home KAO grabbed a belt and flogged the complainant against the back of her legs.  TAF also abused the complainant.  The complainant said she cried, sat down and watched TV.
27. The complainant said she left TAF’s parents’ house in August 2014.  She initially stayed with a cousin.  After a few weeks, she went to stay at LR’s house.  She first told somebody of the incident in February 2015.  This was an occasion when LR, HB and the complainant’s brother KM were present at LR’s residence.
28. The complainant said she had been fighting with her brother and HB came over to “sort things out”.  During the conversation, the topic of sexual assault was discussed and HB said she did not want it to happen to the complainant.  The complainant said it was too late, “it’s already happened to me”.^[8]  The complainant ran into her room and cried.  HB came in and asked her who did it.  The complainant told her it was KAO.  She said KAO had held her down and TAE raped her.
29. HB said on 13 February 2015 she attended LR’s residence in Rockhampton with the complainant’s brother.  The complainant and LR were already present at the residence.  The purpose of the meeting was to discuss a dispute between the complainant and her brother.  During a conversation in the kitchen, HB said “I don’t want what happened to me to happen to you”.  The complainant responded “It’s too late.  It’s already happened”.^[9]
30. HB said she cuddled the complainant and asked “who done it to you”.  The complainant replied “TAF and KAO had done it” on her 15th birthday in 2014 at TAF’s parents’ residence.  KAO had held her down while TAF pulled her pants off and raped her.  After that conversation, the complainant left and went to the bedroom.  LR and HB followed the complainant.  HB and LR told the complainant they had to deal with it the right way.
31. KM, the complainant’s brother, said in conversation in the kitchen of LR’s home in February 2015, the complainant said she was molested on her 15th birthday by KAO and TAF.  The complainant said KAO held her on a mattress while TAF molested her.  The complainant did not explain what the molesting consisted of.  Prior to that conversation, HB said to the complainant something along the lines of “you should be happy and not worry about what people think of you”.  HB also said “at least you didn’t get raped like I did when I was a child by my stepfather”.  It was after that comment the complainant said she had been molested on her 15th birthday.
32. LR said she had a conversation with the complainant in the kitchen of her home on 13 February 2015.  HB and the complainant’s brother were present at that time.  LR was speaking to the complainant about fighting with her brother at school.  LR explained to the complainant that she did not want the complainant to get hurt.  The complainant burst into tears and said “it’s too late”.  LR asked what she meant by it was too late.  The complainant said KAO held her down and TAF raped her on her 15th birthday in a bedroom.^[10]
33. LR said after that conversation the complainant went to her bedroom.  LR asked the complainant, who had been living with LR at that stage since June 2014, although it could have been as late as August 2014, why she had not told LR before.  The complainant said she was too scared because TAF and KAO threatened to kill her if she told anybody.

KAO’s submissions

34. KAO submits the verdicts were unreasonable because there was no evidence of any medical examination being undertaken of the complainant, no photographic evidence of the alleged scene of the rapes and a conspiracy between the witnesses to give evidence against her.  Her counsel also failed to ask for the appropriate Longman direction, having regard to the fact the complainant did not go to police until almost 12 months after the alleged rape.
35. KAO submitted the sentences were excessive having regard to there being no proper evidence to support the conviction.

TAF’s submissions

36. TAF submits the verdicts were unreasonable as there was no DNA or medical evidence produced at trial to support findings of guilt.  His counsel failed to question certain aspects of the trial and TAF was not given the opportunity to give his version of events.  His counsel also failed to call character evidence on his behalf in relation to the alleged offences and his general behaviour.  The Court did not have before it all relevant events that occurred in the week of the rape.
37. TAF submits the sentences were excessive having regard to all of the circumstances, including his past criminal history.  He submits an effective head sentence of five years imprisonment was appropriate.

Crown’s submissions

38. The Crown submits a consideration of the evidence as a whole supports a conclusion that it was reasonably open to a jury to find each count of rape against each appellant proven beyond reasonable doubt.  The trial, which was of short duration, turned solely on the evidence of the complainant.  Areas of inconsistency in her evidence were identified and the subject of closing addresses.
39. The Crown submits issues of inconsistency, delay and motive to lie were ultimately questions for the jury.  The complainant’s account was not implausible and was not eroded by cross-examination.  The jury was specifically instructed on the need to examine the complainant’s evidence with great care.  The verdict was in accordance with the evidence and not unreasonable.
40. The Crown further submits there is no basis to find the conduct of the trial resulted in a miscarriage of justice.  The trial transcript does not reveal any patent incompetence by counsel.  Both counsel conducted cross-examinations highlighting inconsistencies and challenging the credit of the complainant.  The decisions not to call evidence had sound forensic bases.  There was little utility in calling character evidence having regard to the issues in dispute and the nature of the alleged offences.
41. The Crown submits the sentences were not manifestly excessive in the circumstances.  The offences involved serious breaches of trust by the complainant’s natural mother and her then partner.  The offences were committed with actual force and despite active resistance by the complainant.  The sentencing judge took into account the relevant principles, including any relevant mitigating circumstances.
42. The Crown submits the absence of an earlier parole eligibility date was a proper exercise of the sentencing discretion, having regard to the fact the convictions occurred after a trial.  It was also an appropriate exercise of the sentencing discretion to activate the suspended sentence TAF was subject to at the time of the commission of these offences.

Discussion

Conviction

43. In considering whether a verdict is unreasonable, this Court must ask itself whether it considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellants were guilty.^[11]  If this Court is left with a reasonable doubt as to the appellant’s guilt, the verdicts are to be set aside.  As the plurality in M v The Queen observed:^[12]

“… If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.”

44. In undertaking this task, due regard must be given to the role of the jury.^[13]  As was observed by the High Court in The Queen v Baden-Clay:^[14]

“[65]… [T]he setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.  Further, the boundaries of reasonableness within which the jury’s function is to be performed should not be narrowed in a hard and fast way …

[66]With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury.  Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court ‘must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’.”  (footnotes omitted)

45. In the instant case, there was clear, specific evidence from the complainant of two acts of rape committed upon her by TAF while she was being held down by KAO late in the evening of 30 April 2014.  That evidence amply supported conclusions beyond reasonable doubt that TAF had first raped the complainant by digital penetration of her vagina and subsequently by penal penetration of her vagina.
46. KAO’s stated words prior to those events, and her actions of holding the complainant down during those events also amply supported conclusions beyond reasonable doubt that KAO aided TAF in each rape and was therefore guilty of each rape.
47. Whilst the complainant’s version had inconsistencies as to aspects of those offences, including their duration and whether TAF ejaculated in the course of the second offence, these inconsistencies did not undermine the essential aspects of each offence.  The evidence and earlier version given by the complainant contained the same core allegations as to TAF’s acts of rape and as to KAO’s involvement in those acts.  Any inconsistencies were matters a jury was “well able to evaluate” as conflicts and imperfections of evidence.^[15]  The inconsistencies are not of a nature that give rise to a reasonable doubt or to a significant possibility an innocent person had been convicted of the offences.
48. Similarly, matters such as the delay in complaint and the lack of medical evidence were matters properly for consideration by the jury.  The complainant provided an explanation for the delay in the complaint.  That delay rendered any medical evidence no longer available.  The jury was properly and appropriately directed as to the significance of those matters.  They were ultimately matters for the jury to consider in determining whether they were satisfied beyond reasonable doubt as to the truth of the complainant’s allegations.
49. An assessment of the evidence as a whole supports a conclusion that the evidence was sufficient and of credible quality such as to support the jury’s conclusion that it was satisfied beyond reasonable doubt as to the guilt of each appellant in respect of each rape.  A consideration of the evidence as a whole does not give rise to a reasonable doubt as to either appellant’s guilt.  The verdicts of guilty of each rape in respect of each appellant were not unreasonable or against the weight of the evidence.
50. The appellants’ contentions in their submissions that there was a miscarriage of justice in the conduct of their cases was not the subject of a formal ground of appeal.  As a consequence, neither appellant’s counsel was heard in relation to their complaints as to the conduct of the case and the failure to call evidence, including character evidence.
51. However, a consideration of the transcript does not support any basis for such contentions.  Each counsel cross-examined the witnesses, including the complainant.  Relevant matters of inconsistency were canvassed in those cross-examinations.  It is evident from the summing up that each counsel addressed the jury in relation to those relevant inconsistencies.  Whilst neither appellant gave evidence, each was present when their counsel responded on their behalf that they would neither give nor call evidence.  There was a good forensic reason for such a decision.  The right of last address is particularly important in a case where the complainant’s credit is central to a determination of guilt.  There is no basis to conclude either counsel was incompetent or that a miscarriage of justice has occurred as a consequence of their conduct of either appellants’ case.
52. There is also no basis to conclude that a miscarriage of justice has arisen as a consequence of a failure to call character evidence.  The evidence said to have been relevant would have added nothing to a consideration of the jury’s deliberations, having regard to the nature of the allegations.
53. Finally, there is no basis to conclude there has been a miscarriage of justice due to a failure to give an appropriate direction as to the relevance of delay between the offending and the first complaint.  The jury were given a proper and thorough Longman direction identifying the salient consequences of the delay on the available evidence and its relevance to an assessment of the complainant’s evidence.^[16]

Sentence

54. Both applicants’ counsel properly conceded the offences of rape constituted significant breaches of trust by each appellant.  Further, there was no point of distinction between the applicants’ criminal responsibility although there were distinctions in respect of their criminal histories including the fact that TAF had breached a suspended sentence.
55. A consideration of the comparable sentences placed before this Court^[17] support overall effective head sentences of seven years imprisonment for offences of rape by digital and then penile penetration.  The offences of rape were committed on a teenage complainant, in breach of trust, with the clear motivation of sexual gratification.  The fact of ejaculation whilst having unprotected sexual intercourse was a particular aggravating feature.  These factors justified the sentencing judge’s conclusion that deterrence and community denunciation were major considerations in the exercise of the sentencing discretion.
56. A consideration of the sentencing remarks reveals the sentencing judge did not act upon any wrong principle.  The sentencing judge also did not fail to have regard to relevant factors.  Further, the fact that no order was made for an earlier parole eligibility date was well within the legitimate exercise of the sentencing discretion.  The sentences were imposed upon convictions after a trial in which the complainant was required to give evidence and subject to cross-examination.
57. As was observed in R v BBP^[18] offences of rape in circumstances of an appalling betrayal of responsibility by adults amount to dreadful conduct deserving severe punishment.  Against that background, an overall effective head sentence in excess of seven years would have been open.  Even allowing for no order for an earlier parole eligibility date, the sentences of imprisonment imposed are not manifestly excessive.
58. Neither applicant has demonstrated any basis to interfere with the exercise of the sentencing discretion in the present case.  No error of principle has been established and the sentences imposed are not otherwise of such a nature as to imply a failure to properly exercise the sentencing discretion.  There is no basis for a grant of leave to appeal the sentences.  Any such appeals would be bound to fail.

Orders

The Queen v KAO

59. I would order:
    1. The appeal against conviction be dismissed.
    2. Leave to appeal against the sentence be refused.

The Queen v TAF

60. I would order:
    1. The appeal against conviction be dismissed.
    2. Leave to appeal against the sentence be refused.