R v Artnik

[1996] QCA 9

IN THE COURT OF APPEAL	[1996] QCA 009
SUPREME COURT OF QUEENSLAND
Brisbane	C.A. No.457 of 1995
[R. v. Artnik]

THE QUEEN

v.

RICHARD RUDOLF ARTNIK

Appellant

Fitzgerald P. Pincus J.A. Mackenzie J.

Judgment delivered 16/2/1996

Judgment of the Court

APPEAL AGAINST CONVICTIONS FOR AGGRAVATED INDECENT ASSAULT

AND RAPE DISMISSED.

CATCHWORDS:	CRIMINAL LAW - CORROBORATION - aggravated indecent assault and rape - negative forensic findings in respect of blood and body fluids - complainant's evidence uncorroborated - direction given to jury - whether verdict is unsafe and unsatisfactory.
Counsel:	Appellant appeared in person. Mr J.J. Costanzo for the Respondent.
Solicitors:	Appellant appeared in person. Director of Prosecutions for the Respondent.
Hearing date:	9 February 1996

JUDGMENT OF THE COURT

Judgment Delivered 16 February 1996

This is an appeal against convictions for aggravated indecent assault and rape. The appellant appeared in person having dismissed his legal representation provided by the Legal Aid Office. However he relied on an outline of argument prepared by counsel and supplemented the matters therein with oral submissions. The ground of appeal is that the verdict is unsafe and unsatisfactory in that there was no corroboration of the offences. The appellant, who was 50 at the time of the offences, engaged the complainant who was 53 and her young adult daughters in conversation on a council bus. The complainant had been divorced for a number of years and had been celibate for 14 years. The appellant unsuccessfully attempted to persuade her to go out with him and to get her telephone number. Just before alighting from the bus he wrote his telephone number on the cover of the complainant's cheque book and asked her to call him.

That evening, following persuasion by her daughters, she phoned his number but received no answer. Next evening, following further urging by one of her daughters, she spoke to the appellant by phone and agreed to meet him at basketball courts nearby at 8 o'clock. She went out wearing her jogging clothes of white pedal pushers, a t-shirt and jogging shoes and socks. While she was walking near the basketball courts a vehicle containing the appellant and a female friend of his pulled up and the appellant got out. According to the complainant the appellant asked her for a kiss but she refused. They entered the basketball courts, and sat on a bench close to the road. He passed a number of complimentary remarks about her and told her part of his life story. After some further conversation he leaned forward and kissed her. She became annoyed and pushed him away.

She then said that she had to buy some milk and go home. They walked to a shop where she purchased milk and margarine and she started walking along a major road in the hope that he would not follow her home. When they reached the basketball courts he asked her to come to his house to meet the woman who had been in the vehicle. She agreed to do so. On the way they sat in a field while they had a cigarette and further conversation. The appellant kissed her again and she became furious and walked away. Soon after, he said that they were at his house. She accepted his invitation to come inside and be introduced to the other woman. After some conversation she made a phone call to her daughter to tell her she would be home soon and shortly afterwards went with the appellant in his vehicle for the purpose of being driven home. On the way she realised that they were not heading in the right direction. Upon her complaining he said he wanted to go for "just a little drive". She insisted that she wanted to go home. He then pulled the vehicle on to the grass verge at a roundabout. She undid her seat-belt expecting to get out of the vehicle but he released a seat catch which caused the seat to fall back and propelled her on to her back. She pleaded with him not to do anything to her and referred to her celibacy. He then got into the vehicle on her side, pulled down her knickers and pushed up her blouse and brassiere. He then interfered with her breasts and pushed his finger into her vagina. She pleaded with him not to do it but he persisted, "talking dirty" all the time. Then he withdrew his finger and raped her. When she said that her daughter would call his house and then call the police, he stopped, dressed himself, got back in the driver's seat and drove the car to her home.

The complainant's daughter came to the door but no complaint was made notwithstanding that she noticed blood on the back of the complainant's pants. The complainant explained this failure on the basis that her daughter who was epileptic was to do her senior maths exam the following day and she did not wish to jeopardize her chances by upsetting her. She eventually complained to her other daughter about midnight or a little later two nights after the incident. There was medical evidence consistent with an object penetrating her vagina and consistent with the time frame of the incident. The doctor was unable to differentiate between penile penetration or digital penetration but expressed the view that if penetration was digital it would probably have been with two or more fingers.

The appellant's case was that there had been a course of consensual and mutual sexual activity during which he placed one finger in her vagina. He said that he had declined her invitation to have sexual intercourse because he did not have a condom. In his oral submissions the appellant maintained his innocence and drew attention to the negative forensic findings in respect of blood or other bodily fluids in his vehicle or on his clothes. He conceded, and the summing-up confirms, that this issue was raised by defence counsel in addressing the jury. It is not essential that there be corroboration of the complainant's evidence in cases of this kind. The jury was appropriately directed on the issue of corroboration. The learned trial judge instructed the jury that there was no corroboration. The jury's function was to decide whether they were prepared to accept the complainant's evidence beyond reasonable doubt notwithstanding the absence of corroboration and the other criticisms which the appellant advanced concerning the evidence against him. The jury had the opportunity of seeing the complainant give evidence and of viewing the appellant give his version of events on video tape. The verdicts indicate that the jury must have accepted the complainant's evidence beyond reasonable doubt and once that had occurred there was ample evidence upon which the appellant could be convicted. There are no other features of the case making the verdict unsafe and unsatisfactory. The appeal is dismissed.