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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] HCASL 96
Decision Date

CaseChat Overview and Summary

In Gurpreet Singh v The Queen, the applicant was convicted by the District Court of Queensland of one count of rape and one count of sexual assault of a female passenger in the taxi he was driving. The complainant, a 24-year-old university student, had consumed excessive alcohol and fell asleep in the taxi. She awoke to find the applicant raping her. The applicant did not give evidence, and there was no record of an interview. The Court of Appeal of the Supreme Court of Queensland rejected the applicant's appeal, holding that there was no evidence to leave to the jury of mistake of fact regarding the complainant's consent. The applicant sought special leave to appeal to the High Court.

The High Court had to decide whether the Court of Appeal's judgment was correct and if the application for special leave should be granted. The applicant argued that there was sufficient evidence to suggest that he might have mistakenly believed the complainant consented to intercourse. The Court of Appeal had correctly understood that where evidence supports a reasonable possibility of mistake of fact, it must be left to the jury, with the Crown required to rebut it. The High Court found that the Court of Appeal's judgment was correct and that there was no reason to doubt its correctness. The Court also concluded that the application for special leave did not raise any question of principle warranting the High Court's consideration.

The High Court dismissed the application for special leave and directed the Registrar to draw up, sign, and seal an order dismissing the application. The Court found that granting an extension of time to seek special leave would be futile.

Orders