Gurpreet Singh v The Queen - [2015] HCASL 96

GURPREET SINGH
v
THE QUEEN
[2015] HCASL 96
B43/2014

Following a trial in the District Court of Queensland, the applicant was found guilty of one count of rape and one count of sexual assault of a female passenger in the taxi of which he was the driver.
In brief substance, the facts of which evidence was given at trial were that the complainant was a 24‑year‑old university student who had consumed too much alcohol and felt like she was going to be sick. She decided to leave the place at which she was with friends and to look for a cab to go home. She caught one outside a hotel about a kilometre from where she started the search. She recalled giving the driver the name of the street and suburb in which she lived and then falling asleep, drunk, in the cab. She remembered being woken a short time later by the driver, seeking directions as to whether to turn left or right, and she remembered giving those directions. But after that she did not recall anything until waking up being raped.
She stated that she was on her back in the back of the cab, which had stopped. There were no lights on inside the cab and she could not see any street lights. The back passenger side door was open and the driver was on top of her with his penis in her vagina. She did not know how far she was from being able to run to someone for help and so she pretended still to be unconscious. She did not scream or push the driver off. She just froze until she could feel him pulling her underwear back up and trying to wake her up. He then started to tell her that her bank card had been declined, although she did not recall having given him the card and she knew that she had money in her account. At about that point, she realised that the cab was parked in her street a couple of houses from her home.
When told that the bank card had been declined, she said that she would go inside and get the money. She wanted to get out of the situation and run home. The driver replied, however: "No. Don't go inside the house and get cash. Just give me your phone number". She gave him a false phone number and, as soon as he had driven away, she went inside and woke her brother who called the police.
The appellant did not make a record of interview and did not give evidence. He admitted that intercourse had occurred but he denied that it was non-consensual.
Before summing up, the trial judge consulted with counsel as to whether there was evidence to be left to the jury of mistake of fact within the meaning of s 24 of the Criminal Code 1899 (Q). The Crown submitted and defence counsel agreed that there was not.
Following conviction, the applicant appealed to the Court of Appeal of the Supreme Court of Queensland on the ground that the trial judge had erred in failing to direct the jury in terms of the excuse of mistake of fact in s 24 of the Code, and that had resulted in a miscarriage of justice.
On 22 May 2012, the Court of Appeal (McMurdo P, Muir JA and Ann Lyons J) unanimously rejected the appeal. The judgment of the Court was delivered by Ann Lyons J. In her reasons for judgment, her Honour noted that defence counsel had not at any stage put to the complainant that she agreed to have intercourse with the applicant. The applicant had not given evidence, there was no record of interview and the applicant did not give a version of events at any stage. The only evidence concerning the cab trip, which took some 44 minutes, was the complainant's testimony and some five minutes of video footage taken by the taxi's security camera. The footage disclosed a sustained period between 1:53:15 am and 1:57:24 am where the applicant could be seen touching the complainant's upper torso and her breasts. It also showed that, at that time, the complainant was wholly unresponsive to the applicant's touch and that she had her eyes closed at both the beginning and end of that period. She did not react in any way despite the sustained touching. Her actions were like those of a "rag doll".
The video footage possibly showed both the complainant and the applicant at the rear door on the passenger side and that the complainant may have stood up or even exited the cab. The footage then showed the applicant with the complainant's bank card and the complainant seated at the rear passenger door. At that point, the applicant could be seen holding the bank card up to the security camera and then possibly trying to swipe it. After that, however, he could be seen to return to the back rear passenger door with the card in his hand and almost straight away to propel the complainant backwards onto the seat by the force of his body.
Ann Lyons J concluded and McMurdo P and Muir JA agreed that there was not in that or otherwise any evidence before the Court which could give rise to a reasonable inference that there was a mistake of fact on the applicant's part that the complainant consented to sex.
This is an application for special leave to appeal from that judgment. It requires a very substantial extension of time. It is contended in the applicant's written summary of argument that defence counsel's cross-examination of the complainant went far enough to suggest that the complainant consented to intercourse and, in view of the complainant's response that she did not recall sitting or standing or being conscious, there was sufficient evidence to raise to the reasonable possibility that the applicant mistakenly believed that the complainant consented to intercourse or at least acquiesced in intercourse. It is also contended that the Court of Appeal erred in finding that the evidential onus had not been displaced. There is no other attack made on the Court of Appeal's reasons.
There is no reason to doubt the correctness of the Court of Appeal's judgment. It is clear that, in the absence of evidence by the applicant, the objective evidence did not permit of a reasonable possibility of mistake of fact. Nor did the Court of Appeal reverse the evidential onus. Ann Lyons J's reasons show that the Court well understood that where there is evidence capable of supporting a reasonable possibility of mistake of fact it must be left to the jury and it is for the Crown to rebut it.
The application does not raise any question of principle that would warrant this Court's consideration. Nor would it be in the interests of the administration of justice either generally or in this case to grant special leave to appeal. Consequently, an extension of time within which to seek special leave would be futile.
Pursuant to r 41.11.1, we direct the Registrar to draw up, sign and seal an order dismissing the application.

K.M. Hayne
13 May 2015 G.A.A. Nettle