Baker v The Queen
[2000] TASSC 66
•15 June 2000
[2000] TASSC 66
CITATION: Baker v R [2000] TASSC 66
PARTIES: BAKER, Warren Wayne
v
R
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 15/2000
DELIVERED ON: 15 June 2000
DELIVERED AT: Hobart
HEARING DATES: 1 June 2000
JUDGMENT OF: Cox CJ, Underwood and Evans JJ
CATCHWORDS:
Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Particular grounds - Unreasonable or insupportable verdict - Where appeal dismissed.
Aust Dig Criminal Law [969]
REPRESENTATION:
Counsel:
Appellant: W T McMillan
Respondent: D G Coates
Solicitors:
Appellant: W T McMillan
Respondent: Director of Public Prosecutions
Judgment Number: [2000] TASSC 66
Number of Paragraphs: 24
Serial No 66/2000
File No CCA 15/2000
WARREN WAYNE BAKER
v
THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
UNDERWOOD J
EVANS J
15 June 2000
Order of the Court
Appeal dismissed.
Serial No 66/2000
File No CCA 15/2000
WARREN WAYNE BAKER v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
15 June 2000
The reasons prepared by Evans J for his joining in the decision to dismiss this appeal in substance represent those which prompted me to do so. There is nothing I can usefully add.
File No CCA 15/2000
WARREN WAYNE BAKER v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD J
15 June 2000
I agree with the reasons for judgment of Evans J.
File No CCA 15/2000
WARREN WAYNE BAKER v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
EVANS J
15 June 2000
On 30 May 2000, the Court dismissed the appellant's appeal against his conviction of rape. These are my reasons for concurring in that dismissal.
The rape was alleged to have occurred on 26 September 1996 in a motel room at Campbell Town where the appellant and the complainant were staying the night. At the time the appellant was 45 years of age and the complainant 17 years of age. They had met for the first time earlier that day when the complainant responded to a job advertisement placed by the appellant.
The sole ground of appeal was that the conviction was unsafe and unsatisfactory.
The prosecution case was that during the night that the appellant and the complainant stayed at the motel, the appellant had vaginal sexual intercourse with the complainant when she was so affected by alcohol and drugs as to be incapable of consenting. The prosecution invited the jury to infer that the appellant had slipped Rivotril tablets into the complainant's drink. The complainant had no recall of having sexual intercourse with the appellant. She suspected that sexual intercourse had occurred from the circumstances she found herself in when she awoke, in particular, her state of dress. When interviewed by police about the events of the night in question, the appellant denied having vaginal sexual intercourse with complainant. He said that consensual sexual activity had occurred but that it had not included his penetration of her vagina with his penis as he suffered from a condition which made him incapable of having an erection. The complainant was medically examined the day following the suspected sexual intercourse. The results of the examination showed her suspicions to be well-founded. Two high vaginal smears, a low vaginal smear and a vulva smear were taken. A microscopic examination of the smears found human spermatozoa on each of them. DNA tests conducted on the smears prompted a formal admission by the appellant on his trial that the spermatozoa was his. When the appellant gave evidence, he acknowledged that sexual intercourse had occurred, although in different circumstances than those asserted by the prosecution. His explanation for his spermatozoa being present in the complainant's vagina was that she had initiated sexual activity which included her getting on top of him and trying to insert his penis into her vagina although he said it kept coming out because his penis was not firm.
On the day of the alleged rape, the complainant and a friend, Nicole, responded to a job advertisement the appellant had placed in The Examiner newspaper. The job involved assisting the appellant with a lucky number stand he conducted at agricultural shows and the like. The appellant agreed to employ the girls. For the purposes of their employment they travelled with the appellant to his residence at Pipers River. That night the appellant decided to drive to Hobart where he had matters to attend to. The complainant agreed to accompany him. The complainant said that in the course of the trip the appellant commented that he was tired so they stopped at Campbell Town to stay the night. The appellant booked them into a hotel. The appellant had previously purchased take away food for their evening meal. He also purchased a bottle of scotch whisky and some Coca Cola. They ate their food in the hotel room and drank the whisky mixed with coke. The complainant said the appellant encouraged her to drink the whisky. The appellant denied this and, in substance, said the complainant needed no urging to drink. The complainant said the appellant offered her some small white tablets from a little round bottle and he told her they would cause her "to feel really stoned". She said that although she told the appellant she did not want the tablets, he handed about six to her. She did not consume them and placed them on a nearby table. She drank two glasses of whisky and coke. Shortly after finishing her second drink she felt intoxicated and horrible. Everything around her appeared to be moving in slow motion. She stood and fell. At the time she was wearing a shawl, jumper, white top, bra, jeans, underpants, and leggings. She had previously removed her shoes and socks. After falling she got onto the bed and lay down. Her next recall was waking the next morning wearing only a jumper and underpants. She felt groggy and horrible. She had a feeling that something had happened to her but had no recall of anything occurring after she fell asleep.
That morning she and the appellant completed their journey to Hobart. She had no recall of what occurred during the day until she woke in the appellant's car in a service station, as a man was washing the car window. She recalled the appellant talking to her as they drove back to his residence at Pipers River. Most of the time she slept.
Nicole said that when the appellant and the complainant arrived at Pipers River she helped the complainant from the car. The complainant appeared to be really drunk or drugged. She was staggering and slurring her words. The complainant told Nicole of her concern about what had happened to her the previous night. They left the appellant's residence and went to the George Town home of the parents of Sarah, another girl that the appellant had employed the previous day. As the complainant was being driven to that residence she vomited. The car was driven by Robert, Sarah's uncle. He and Sarah gave evidence which broadly confirmed Nicole's evidence about the poor state the complainant was in. At George Town the police were contacted and later that night at 11.45, the complainant underwent a medical examination at the Launceston General Hospital. In the course of the examination the vaginal smears referred to were taken.
As mentioned, when the appellant was interviewed the next day by police he said the complainant had initiated sexual activity between them, but that he had not penetrated her vagina with his penis. Throughout this interview, and a subsequent interview with the police on 2 October 1996, the appellant said it was not possible for him to have an erection. On one occasion he said the only way in which he could have an erection was to have a rod inserted in his penis.
When questioned by police and when he gave evidence, the appellant denied encouraging the complainant to take white tablets, as described by her. He acknowledged that when they were at the motel he had Rivotril tablets with him. They were prescribed for his epilepsy. The complainant's description of the white tablets proffered by the appellant broadly matched his description of his Rivotril tablets. He denied showing the Rivotril tablets to the complainant or offering any to her. He denied putting any Rivotril tablets into her drink.
Dr Campbell gave evidence that Rivotril is commonly prescribed for people with epilepsy. It is classed as a depressant or tranquilliser. It acts on the brain to inhibit and depress responses. If taken with other depressing drugs, such as alcohol, the sedating effects are increased. She said that a complaint of passing out and waking the next day, unable to remember what had occurred, was consistent with the effects of Rivotril and whisky on a person who had not developed any tolerance to the side effects of Rivotril. Dependent upon the dosage, and a person’s tolerance to Rivotril, it could make a person feel groggy for a couple of days. It has a strong amnesiac effect. Only a small dose of Rivotril is necessary to induce the effects of amnesia. The extent of the sedation and impact of the hangover caused to a person by Rivotril depends upon the individual's prior experience with the drug and the dose taken. She said that when drugs, such as Rivotril, are taken with alcohol, they can be absorbed very quickly and a response can be felt very quickly.
The complainant's evidence to the effect that she had no knowledge of the appellant having sexual intercourse with her, and that she did not consent to him doing so was central to the prosecution case. Clearly, the jury accepted her evidence and rejected the appellant's evidence to the contrary. On my reading of the evidence there were good reasons for them to do so. The appellant's account of what occurred was implausible and blighted by his demonstrated lack of credibility. He did not recant from his initial denial that his penis had penetrated the complainant's vagina until confronted with scientific evidence to the contrary. He persisted with the assertion that because he could not achieve a proper erection he could not penetrate a woman's vagina with his penis unless she was on top of him and fully willing. He explained the presence of his semen in the complainant on the basis that she got on top of him and kept trying to push his penis into her vagina. His evidence in this regard was substantially contradicted by the admitted fact that two of the smears which contained his spermatozoa were high vaginal smears. More significantly, his evidence was contradicted by that of a former girlfriend who had lived with him for a period of about two years until a week prior to the date of the alleged rape. She said the appellant could achieve what she described as a three-quarter erection. She said that throughout the period they lived together they had vaginal sexual intercourse about once or twice a week in which the appellant's penis penetrated her vagina all the way.
The appellant’s credibility was further damaged by evidence that after he was charged with raping the complainant and bailed to appear in court, he left the State. He did not honour his bail. He changed his name and stayed in New South Wales until he was extradited back to Tasmania to face the charge.
On behalf of the appellant, it was contended that his conviction was unsafe and unsatisfactory because of the following matters.
1Evidence of Dr Fuller as to the condition of the complainant at the time of her examination was to the effect that she made no note as to any unusual aspects of the complainant's demeanour, nor did she note any evidence of drowsiness, incoherence or slurred speech. This contradicted evidence given by the complainant, Nicole, Sarah and Robert.
2The complainant's evidence of her state of undress on the morning after the motel room events was in direct conflict with the evidence of Nicole, Sarah and Robert.
3The complainant's evidence as to the description of the drug in question was at variance with the evidence of Dr Campbell.
4The complainant by her own evidence admitted that she could have retreated from the motel room but made no attempt to do so.
5The evidence of the appellant as to the demeanour of the complainant the day after the motel room events was corroborated in all material respects by the unchallenged evidence of witnesses, Harris, Kennedy and Porter.
6The version of the appellant as to his ability to have sexual intercourse was explicable for reasons other than arising from a consciousness of guilt.
7The forensic evidence led from Dr Campbell indicated that no trace of alcohol or drugs was found in the samples of blood taken from the complainant.
Dr Fuller examined the complainant about three or four hours after she and the appellant returned to Pipers River from Hobart The doctor did not observe the complainant to be suffering from severe drowsiness or find her answers incoherent or slurred. For the appellant, it was submitted that this evidence contradicted evidence of the complainant, Nicole, Sarah and Robert, about the complainant's condition after she returned from Hobart. The complainant said she felt groggy for up to three days after the incident. Nicole and Sarah in substance said that upon the complainant's return she appeared to be really drunk or drugged. She was staggering and slurring her words. About an hour later, at around 9pm, the three girls were collected from Pipers River by Robert, who drove them to George Town. The complainant, Robert, Sarah and Nicole all gave evidence that in the course of that journey the complainant vomited. Generally, Robert confirmed the evidence of Nicole and Sarah as to the complainant's poor condition. At George Town the complainant drank coffee and conversed with Nicole, Sarah, Robert and Robert’s fiancee. Robert had no difficulty understanding what the complainant said. There was no evidence that the complainant was still slurring her words when she was at George Town. The evidence of what was observed of the complainant's condition when she and the appellant returned from Hobart is not contradicted by Dr Fuller’s evidence of her observations when she examined the complainant some three to four hours later. The complainant’s evidence was that she slept for most of the trip from Hobart. It is likely that when she got out of the car she was drowsy. It is to be expected that her condition improved during the three to four hours that elapsed before her examination by Dr Fuller. She may have made an effort to focus herself for the purposes of the examination.
For the appellant it was submitted that variations in the evidence about what the complainant was wearing when she woke on the morning after the incident are significant. The complainant said that when she woke she was only wearing a jumper and underpants. Nicole, Sarah and Robert gave evidence of their recall of what the complainant said to them about her state of dress when she woke. These conversations took place on the night following the incident after the complainant and the appellant had returned to Pipers River from Hobart. Robert's recall of what the complainant told him she was wearing when she woke accords broadly with the complainant's evidence. Nicole said that the complainant told her she woke with no underpants on. Sarah said the complainant told her that when she woke she was only wearing her windcheater. It was contended that these differences show that the complainant has changed her account of what she was wearing. That is not necessarily so. Nicole and Sarah may not have accurately recalled what the complainant said. Assuming that the complainant's account has changed, this does not advance the proposition that the verdict is unsafe and unsatisfactory. When the complainant spoke to Nicole and Sarah, she was groggy and unwell. The gist of what she said was that the bulk of her clothing had been removed. This is what prompted her concern about what had happened that night. There was no reason for her to be careful about precisely specifying to Nicole and Sarah the particular items of clothing she was wearing when she woke.
Nothing flows from any variation between the complainant's description of the white tablets which the accused handed to her and Dr Campbell's description of Rivotril tablets. The appellant's description of the Rivotril tablets he had on the night in question was broadly in accordance with the complainant's description of the tablets she saw.
It is correct that the complainant could have left the motel room and did not do so. She gave evidence that she checked the means of leaving the room against the event that the appellant tried anything. That she did not leave the room is of no consequence. To the point that she fell asleep, on her evidence, the appellant had not done anything to prompt her to try to leave.
For the appellant it was submitted that evidence of what the complainant did on the day following the incident showed that she was not groggy or unwell as she asserted. In addition to that assertion, the complainant gave evidence that on the morning after the incident she could recall getting into the appellant's car to continue the journey to Hobart. She had no further recall of the events of that day until she woke at a service station as a man was washing the car window. She could recall the appellant talking to her during the return journey, although she said she slept for most of the time. The appellant gave evidence to the effect that during that day the complainant was quite normal and showed no signs of grogginess. He said she assisted him with tasks, like measuring and affixing signs, and went to a shop to purchase lunch for him and a work associate, Mr Kennedy. It is apparent from the appellant's evidence that the complainant spent much of the time that day waiting in his car whilst he attended to matters. One of these matters was the repair of the brakes on his car, a job which took about three to four hours. Mr Harris, the proprietor of the service station, where the brakes were repaired, recalled that a young girl accompanying the appellant spent most of the time in the car while the work was carried out and slept in it whilst it was up on a hoist. He saw the young girl out of the car talking to a mechanic. He could not recall her having any difficulty talking or walking. Mr Porter, a business associate of the appellant, recalled the appellant calling at his home with a young girl he identified as the complainant. She stayed in the car when the appellant went inside. Mr Porter went out to the car and invited her in for morning tea. She declined, saying she was reading a book. Mr Porter said her speech was quite clear. He saw her later that day assisting the appellant measure up some signs. He said she seemed to walk without difficulty. Mr Kennedy, another of the appellant's work associates, saw the appellant and the complainant preparing a plan of a sign. He spoke to the complainant when she went for his lunch and saw her walking. He said she seemed normal. This evidence does not require the rejection of the complainant's evidence that she slept a lot and felt groggy and unwell. Insofar as it establishes that for a good part of the day the complainant remained in the appellant's car, and slept in the car, it provides support for her evidence. The evidence is consistent with the complainant having been unwell and periodically harnessing her resources to attend to an activity. Her failure to recall the events of the day is explicable. Dr Campbell said that Rivotril is a strong amnesiac and only a small dose is necessary to induce the effects of amnesia.
When interviewed by police the appellant denied that he had the capacity to achieve an erection. On behalf of the appellant it is submitted that as he had a reduced capacity to achieve an erection, his description of his inability was understandable and did not necessarily indicate a consciousness of guilt. Whilst this may be so, it does not assist the appellant. It provides no basis for doubting the correctness of the verdict.
Forensic evidence was led from Dr Campbell, that as there had been a delay of almost 12 months before blood samples taken from the complainant were tested, it was not possible to determine whether her blood contained alcohol or drugs. This wholly inconclusive evidence does not assist the prosecution or the defence and provides no reason for querying the conviction.
Whether viewed collectively or individually, the matters raised on behalf of the appellant do not discredit the verdict. Nothing arising from my consideration of the material before the jury provides any basis for a finding that the verdict was unsafe and unsatisfactory.
It is for these reasons that I joined in the dismissal of the appeal.
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