R v Angelic

[1996] QCA 512

IN THE COURT OF APPEAL	[1996] QCA 512
SUPREME COURT OF QUEENSLAND

C.A. No. 268 of 1996.

Brisbane

[R v. Angelic]

T H E Q U E E N

v.

CEDO DAVID ANGELIC

(Applicant) Appellant

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Pincus J.A.
Derrington J.

Ambrose J.

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Judgment delivered 13 December 1996

Judgment of the Court

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APPEAL AGAINST CONVICTION DISMISSED.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

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CATCHWORDS: Criminal Law - unlawful and indecent assault - s. 337(1)(a) of

the Criminal Code.

Counsel:	The applicant/appellant appeared on his own behalf. Mrs L Clare for the respondent.
Solicitors:	The applicant/appellant appeared on his own behalf. Queensland Director of Public Prosecutions for the respondent.
Hearing date:	1 November 1996.
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 13 December 1996

The appellant was convicted in the District Court of an unlawful and indecent assault, the statutory offence created by s. 337(1)(a) of the Code. It was charged that the indecent assault consisted wholly or in part of bringing into contact the mouth of the appellant and the genitalia of the complainant: see s. 337(2)(b). The consequence of the inclusion of that circumstance of aggravation was that the appellant was liable to imprisonment for 14 years; the sentence imposed was 18 months imprisonment. The appellant, who appeared for himself before this Court, appeals against the conviction and seeks leave to appeal against sentence.

The complainant, it appears, has some command of spoken English, but gave evidence at the trial through an interpreter; there must have been a risk of some misunderstandings at the trial. On the hearing of the appeal the appellant provided us with a quantity of written material which appears comprehensively to set out all the causes of his dissatisfaction with the outcome below; much of it is quite inconsequential. The appellant told us that his language was "not really perfect to argue the case" and he wished to have an interpreter. That was refused. The appellant then made some oral observations, apparently intended to emphasise some of the written material with which he supplied the Court.

It was common ground that on 25 August 1995 the complainant, then a 20 year old African student at a local TAFE college, and the appellant, a man of 66 years who came to this country from Yugoslavia, had never met before the day of the alleged offence. It was also common ground that on that day the two of them had a conversation in the street, following which they walked together to the appellant’s flat and entered it. There the appellant took a number of photographs of the complainant on the balcony of the flat; in those photographs she can be seen to be dressed in street- wear. Subsequently, in circumstances which are disputed, the appellant took further photographs of the complainant dressed in red underwear, in a bedroom of the flat. There followed some sexual contact between the parties, the complainant’s account being that she was assaulted by the appellant. The complainant gave evidence that the appellant, while she was standing in front of a bed, wanted to kiss her but she refused. He then pushed her onto the bed and held her down; he then pulled her underpants sideways and performed cunnilingus on her; she felt some pain. One might suspect that the attention to the complainant’s vagina included something more forceful than licking.

According to police evidence, when spoken to about the matter on the day of the alleged offence, the appellant said, "She want it. She hot for me. She want donkey." In a subsequent conversation three days later, he told the police he had done nothing wrong and that the complainant wanted him. He also said, according to the police, "I touch her. Of course I touch her. She want me . . . I kiss and lick her all over the body". He added, "I do nothing wrong. I sleep with 3,000 women, not force them. They want me. That girl she hot African chilli. I lick her. She come three times". In his evidence at the trial the appellant admitted part of this conversation; he said he had told the police that the complainant wanted him and that she was an African chilli, but denied the rest. As is unfortunately very common, the police did not bother to record these conversations properly - i.e. electronically. In a properly recorded conversation, on 28 August 1995, the appellant told the police that he did not remember having previously said that the complainant "wanted it", that she was "hot for him", or that she "wanted donkey".

The evidence the appellant gave at the trial had the complainant making strong sexual advances to him after the photographs were taken, "rubbing her body on my leg with her leg". He said this went on for 3 or 4 minutes. In his written argument in this Court, the appellant said the complainant was rubbing her vagina against his leg, i.e. masturbating against his leg. One clear point of difference between the two versions is that the complainant said, and the appellant denied, that he had performed cunnilingus on her; according to the complainant’s evidence this caused her some pain. In resolving this critical aspect of the matter, the jury would in our view have been assisted by the medical evidence given by Dr Whelan, an obstetrician and gynaecologist. She examined the complainant at a hospital the day after the alleged offence; she noticed a tiny area of skin missing on the inner aspect of one thigh. The lips at the entrance to the vagina appeared to be very tender and there were three areas of redness there. The doctor said in effect that the findings were consistent with the history given by the complainant.

A member of the Police Service, Const. K L Martin, was spoken to by the complainant in the afternoon of 25 August (the day of the alleged offence). She appeared to Const. Martin to be in a very distressed state and pointed to a male person nearby, who was identified as the appellant. When Const. Martin spoke to the appellant, he said among other things that he had not attempted to have sex with the complainant and that "she wanted to have sex with me and then changed her mind"; this is inconsistent with the version the appellant gave at the trial. There was evidence of fresh complaint to two other witnesses, one a sister of the complainant and the other her father; the latter’s evidence was unusually detailed, as to the content of the complaint.

There was a degree of improbability about the appellant’s version; depending on the jury’s impression of the complainant, they might have found it odd that this young woman would, with no encouragement, give in to sudden passion for an elderly stranger. Then the jury would have been likely, in our view, to be encouraged to convict by the medical evidence, clearly indicative of recent interference with the complainant’s vagina, by the evidence of fresh complaint and by the evidence of her apparently distressed state shortly after the incident in question.

But the appellant has argued that the verdict should be set aside, principally it appears on the basis that there were inconsistencies in the evidence given by the complainant at the committal and at trial; other points taken are mentioned below. Counsel for the appellant who appeared below cross-examined on some inconsistencies; in addition to the points which appear in the record the appellant’s written material sets out other alleged inconsistencies, relying on what was said at the committal. As was pointed out at the hearing, consideration of these matters would involve admission of fresh evidence. This Court does not insist on compliance with the classical tests for admission of fresh evidence, in every case. But such evidence - for example, evidence of allegedly inconsistent statements not put forward at the trial - will not be routinely admitted; very special circumstances are required.

Here, in our opinion, they are absent. The additional pieces of evidence, with respect to allegedly inconsistent statements, do not appear to us particularly weighty. An example is in the evidence of the doctor, referred to above. We have been supplied by the appellant with a statement taken by the police from the doctor, which includes an assertion that there were two patches of erythema - i.e. redness - in the region of the complainant’s vagina. There is a figure 3 written above the word "two", presumably indicating an inconsistency. Reference to the doctor’s evidence at the trial shows that she spoke of three areas of redness and also of two such areas; there does not seem to be anything in this point. As another example, the point is made a number of times in the appellant’s material that the complainant’s initial account was that she had been raped. Not all these instances were referred to by counsel for the appellant below, but he cross-examined on the matter, receiving in the end the answer that the complainant understood what had happened to her was a rape.

The principal topic relating to inconsistency which was cross-examined on below was the clothing the appellant was wearing during the incident complained of. It appears that in the Magistrates Court the complainant said that when the appellant was lying on her he was wearing underwear or underpants and a type of shirt and that at the time when he was photographing her he was wearing "knickers", by which she apparently meant short trousers. At the trial the complainant said in effect that when she was pushed on to the bed the appellant had taken his shirt off and that he was then wearing short pants which he later took off. As interpreted, she said that:

" . . . by the time she was on the bed and the man came on the bed she wasn’t wearing anything, he had taken his clothes off. He only had his underpants on then."

It is difficult to be certain what is intended to be conveyed; all one can say is that there may well be some inconsistency there.

An area of dispute between the parties at the trial consisted in the circumstances in which the complainant came to be in the appellant’s flat and those in which she had taken the photographs which were in evidence. To put the matter generally, the complainant’s version was that she was enticed to the flat, being initially unwilling to go, to have photographs taken and that she came to be in the bedroom, being photographed in underwear, partly because force was used on her and partly because of fear. The appellant’s evidence was in important respects very different. He admitted that the question of photographing the complainant was raised by him but said in effect that she was willing to be photographed in underwear, with no pressure from him. The photographs which were in evidence might have assisted the prosecution case; those depicting the complainant fully clothed on the balcony appear to show her in a friendly or enthusiastic mood, a quality not discernible in the bedroom photographs. Further, the jury might have thought it odd that the appellant, supposedly a very experienced photographer, who represented himself to the complainant as a professional, produced photographs some of which are badly composed and out of focus.

But the events leading up to the complainant going to the flat to be photographed are relatively peripheral, as are the circumstances which led to the complainant and appellant being in each other’s company for some time after the sexual incident in the flat. The dispute relating to these topics would not in our view have been seen by the jury as of central importance, as compared with the critical question which was whether as the complainant said, she was sexually assaulted on the bed in the flat or, on the other hand, as the appellant said, she initiated and continued sexual activity in which he took no active part.

The notice of appeal includes grounds other than one relating to the safety of the verdict. It is said that the judge erred in law in failing to admit evidence of photographs of the complainant; this is incorrect, as the photographs were admitted and marked as exhibits. Then it is said that the judge should not have held the complainant was corroborated. The jury was directed that there was evidence capable of constituting corroboration and that was plainly right. A third point raised in the notice of appeal is that the judge, in effect, gave an unbalanced summing-up. All one can say is that this is not so; contentions in favour of the appellant’s case were adequately put before the jury.

It is our view that, as counsel for the respondent argued, the jury’s verdict was hardly surprising; nor does any reason appear for questioning the correctness of the verdict.

We would dismiss the appeal against conviction.

As we have mentioned, there is also an application for leave to appeal against sentence. The assault was a fairly serious one of the kind which would ordinarily attract a substantial prison sentence. The appellant is 66 years of age and has a very minor criminal history, including only one offence of any relevance, namely exhibiting an obscene publication. But there is no basis upon which one could rationally contend that the sentence is too high; as was argued on behalf of the respondent, it seemed, on the contrary, to be lenient.

The appeal against conviction must be dismissed and the application for leave to appeal against sentence refused.