R v Ashwood

[2004] QCA 26

SUPREME COURT OF QUEENSLAND

CITATION:	R v Ashwood [2004] QCA 26
PARTIES:	R v ASHWOOD, Chad Edward (appellant)
FILE NO/S:	CA No 316 of 2003 DC No 170 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	20 February 2004
DELIVERED AT:	Brisbane
HEARING DATE:	10 February 2004
JUDGES:	McMurdo P and McPherson and Williams JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal against conviction dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where appellant convicted of two counts of rape – where case turned primarily on complainant’s evidence – where inconsistencies in complainant’s evidence – where appellant argued complainant’s account highly improbable – whether on the evidence it was open to the jury to convict
COUNSEL:	G P Long for the appellant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent

1. McMURDO P:  On 25 September 2003, the appellant was convicted in the District Court at Maroochydore of two counts of rape on 7 October 2002.  The appellant contends the convictions are unsafe and unsatisfactory, that is, they are unreasonable or cannot be supported having regard to the evidence, or there was a miscarriage of justice.[1]

   [1]Section 668E Criminal Code.

1. A consideration of this ground requires a review of all the evidence, including the portions emphasised by the appellant, to determine whether on the whole of the evidence it was open to the jury to convict.[2]

   [2]MFA v R (2002) 77 ALJR 139.

1. The case turns primarily on the complainant's evidence.  She said that she met the appellant through an acquaintance about two months before 7 October 2002 and she saw him from time to time when she bought illegal drugs from a person she knew as Artie. 

1. At the relevant time she resided with her boyfriend, Adam, at her mother's home.  On one occasion, she and Adam went to Artie's house where they scored some speed.  They wanted more of the drug for a friend but had insufficient cash.  The appellant offered to give them drugs on credit and they accepted.  She did not have the money to repay the appellant on the day agreed; she rang Artie and asked him to inform the appellant.  A couple of days later the appellant came to her mother's home.  He demanded some of Adam's belongings as collateral and said he would return them once he was repaid.  He told Adam to leave the room and became angry until Adam complied.  He said to the complainant, who was then alone in the room with him, "You're lucky that I like you, otherwise I'd bend you over and fuck it out of you."  A few days later she repaid the appellant and she was no longer in debt to him.

1. Three or four days afterwards, on 7 October 2002, she and Adam were watching TV in the lounge room at about lunch time when the appellant arrived.  She met him at the door and told him her car had been stolen but returned.  She wanted to smoke a cigarette and went to the car to get her lighter.  The appellant followed her and asked her for a lift up the street and, in time, she agreed. 

1. The appellant sat in the front passenger seat.  She was wearing a three-quarter V-neck top and black full length stretch pants with an elastic waist.  Her underwear was a bikini top and g-string.  She noted that the appellant was looking at her whilst she was driving and she felt uncomfortable; she could see his penis through his pants and he had an erection.  In cross-examination she said she could tell this by looking at his face.  He directed her to a car park under the Centrelink building in Caloundra.  He alighted and said, "Come with me.  There's something I want to show you."  She declined.  He became a little angry, got back into the car and said,  "Just drive.  I'll tell you." 

1. She followed his directions; he told her to drive into the car park of an apartment block in the Bulcock Beach area where she stopped.  He was looking for his "gear" and offered her a shot of speed but he needed to find a water tap.  Because a workman was in the area, the appellant directed her to leave.  She then drove towards Shelley Beach following his directions to a cul-de-sac.  She left the car engine running and he reached over and turned off the ignition.  They struggled for the keys and the appellant cut his finger which bled.  He said, "You know – you know what I'm here for, and I'm not letting you go until I get it."  She understood that he wanted sex.  She said, "I'm not taking any part in it."  She was yelling at him to get out of the car and said that she just wanted to go home.  She wanted to jump out of the car but she feared that if she did he might grab her.  Two other cars drove past.  She wanted to drive in between these cars but felt unable to.  He was yelling at her, telling her not to drive.  She started the car and drove off after the other two cars and as she got around the bend he screamed, "What the fuck are you doing?"  She repeated that she wanted to go home. 

1. In cross-examination, she agreed that in her statement to police and at committal she said that she ignored the appellant's directions and drove off between the two cars. She did not think she told the police that she drove between the cars; there were a few mistakes in her police statement and although she had signed a declaration saying it was true, she made the statement late on the day of the offences and was still upset.  Her evidence at trial remained that she drove off following the cars, but not between them.

1. She said the appellant then pulled on the park brake and the car skidded towards the kerb.  He screamed at her saying that he was not going until he got what he wanted; that she owed him money.   She said, "If I do owe you money, I'll give you cash, because I'm not willing to have sex."  An elderly lady walked out to put rubbish in a bin.  The complainant started the car again and drove off.  She got to the end of the street.  He told her to turn right but she turned left to go home.  She drove past Artie's house.  She wanted to stop there but the appellant said, "Don't you dare go into Artie's house." 

1. As she drove around the suburb of Shelley Beach the appellant grabbed the steering wheel so that car went into a service road near some water tanks.  There were houses but no people in the vicinity.  He told her to park in the shade, but she parked in the sun.  He asked her to get out of the car and go to a place behind the water tanks.  She refused and repeated that she just wanted to go home.  He said, "I'll knock you" in an angry tone.  She understood he was threatening to hit her.  He said they could do this the hard way or the easy way.  She said, "No, I'm not getting out of the car.  You've asked me to give you a lift.  I've given you a lift.  I want to go home."  She begged him to let her go.  He became angrier, repeatedly threatened to "knock her" and said he would not leave until he got what he wanted.  She cried and begged him not to hurt her.  He told her it wouldn't hurt.  She kept saying, "No.  I want to go home." 

1. He leant across her seat and pulled some levers to move the driver's seat backwards and to recline it from an angle of about 50 degrees to about 80 degrees.  She could not remember whether she was wearing a seat belt.  He placed his hand up her shirt and underneath her bikini top although her upper clothing was not removed.  She was still crying and begging him not to do anything.  He leant across her and started to kiss her on her face and neck.  She said, "No."  He grabbed her pants and underpants and slid them down to floor level around her ankles.  They came off easily.  She kept repeating that she did not want this to happen.  She was really scared and crying.  She thought that if she tried to resist or get away he would hit her.  She thought, " – if I just freeze and put up with it … That I can go home."  She gave him no assistance to remove her clothing but was too scared to struggle to prevent him.  He lifted her legs up so that her left leg was on the raised floor near the park brake and her feet came out of her pants.  He pulled his pants down to his ankles.  He leant across her and started to kiss her neck and breast.  She told him to stop.  He asked her to give him oral sex but she refused.  He turned her body so she was facing sideways in the car.  She was crying and saying, "… please don't."  He said, "Don't worry. It won't hurt."  He put his hands down into her legs and inserted two or three fingers into her vagina.  She gave no permission for him to do this.  (This was the first count of rape.)  He moved his fingers in and out whilst looking at her like she was supposed to be enjoying it.  She said that she thought her pants were completely off at this time but at the committal proceedings she said that her pants fell off her feet after this incident of digital penetration.

1. He moved down as if to give her oral sex and she said, "Don't."  He then stopped and continued to kiss her.  He leant over and lowered his body.  He put his hand on his penis and inserted his penis into her vagina.  She gave him no permission to do this and continually begged him not to.  He moved in and out and kissed her, gave a sigh and then relaxed.  (This was the second count of rape.)

1. She pushed him and told him to get off.  He sat back in the passenger's seat as if nothing had happened and lit a cigarette.  She put her pants back on.  He asked her for a lift back to Artie's because he had to get more speed.  She said, "I'll give you a lift, if I can go home."  He responded, "Yeah, of course."  She drove him to Artie's house.  He said he would phone her later with his phone number.  On the way home she started crying. 

1. Once home, she ran inside.  Adam jumped up and screamed, "What's wrong? What's wrong?"  She ran into the bathroom and locked the door.  Adam banged on the door saying, "What the fuck did he do to you?"  Eventually she opened the door and said, "Yeah, and he got me, he got me good."  The police were called shortly afterwards.

1. Photographs of the interior of the car were tendered.

1. In cross-examination, she said that in the month or so leading up to this incident she used amphetamines on weekends or perhaps every third day.  At the committal proceedings she said that in the two weeks or a month before this incident she was using amphetamines almost every day.  She agreed that she used amphetamines two days before 7 October 2002 and that the drug's effects last for two days.  She had been a user of amphetamines for at least 18 months, she became addicted but she was "clean" at the trial.  She denied having consensual sex with the appellant for drugs or that the incident was in any way consensual.  She admitted that whilst she was on heroin she stole from her father's employer.

1. She denied ever having consensual sex with the appellant.

1. In re-examination, she said that when addicted to heroin she could not live without it, whereas two days after using amphetamine she felt a bit lost and tired but that once she slept she was alright.

1. The complainant's boyfriend, Adam, gave evidence that on 7 October 2002 she left with the appellant in her car and came back alone a couple of hours later.  She drove quickly into the driveway, braked heavily, got out of the car, slammed the car door, and walked inside.  He said, "What's wrong?"  She did not reply.  She was agitated and pretty upset.  She did not reply to his enquiry, walked past him and went into the bathroom.  He continued to ask her what was wrong, but she would not let him into the bathroom.  Eventually she opened the door.  He again asked her what was wrong.  She said, "He got me. He got me."

1. In his statement to police he said that when the complainant pulled up outside the house he met her at the front of the house and asked her what was wrong; the complainant walked past him into the house and into the bathroom.  He followed her and again asked her what was wrong.  She said, "I've been raped." 

1. His evidence at trial was consistent with his evidence at the committal proceedings.  He said he was not aware that his present evidence was closer to the complainant's evidence than the account in his original statement; he had not discussed the case with her.

1. Diane Brown gave evidence that the appellant was staying at her house but was not home in October 2002 when the police came to speak to him.  When he returned he told her that the detectives were looking for him.  She asked what he had done.  He said, "I haven't done anything."  He said, "Well, I've been with [the complainant], I've had sex with [her].  I hope they don't think I raped her."

1. Police officer Brindley spoke to the appellant at about 2pm on 8 October 2002 at Ms Brown's unit.  The appellant was carrying a knife in the band of his underpants.  He conducted a video taped interview with the appellant later that day.  The tape was tendered. 

1. In it, the appellant told police that the complainant drove him around the Caloundra area voluntarily.  They were going to have a "shot" but he lost the "gear".  They had consensual sexual intercourse in the front seat of her car in a quiet place in the Caloundra area but in a different location to that described by the complainant.  He was unsure of all the details of the drive around.  He had had sex with her twice before although he could not remember the exact dates.  He placed his fingers in her vagina consensually in the lead up to consensual sexual intercourse.  He said she voluntarily removed her clothes and fondled his genitals by putting her hand inside his pants.  He said that she pulled the lever to slide the seat back and he pushed it back.  He denied threatening or showing any violence towards her.

1. The appellant did not give or call evidence.

1. The appellant contends that the complainant's version is inherently improbable in that it would have been extremely difficult and unlikely for non-consensual sex to have taken place in the circumstances she describes; intercourse in the vehicle would have required her cooperation and assistance and as the driver of the motor vehicle, she was in control of it.  The appellant also emphasises the discrepancies between her account and that of her boyfriend as to her recent complaint; the inconsistencies in her evidence set out earlier and the complainant's conviction for dishonesty.  The appellant further contends that the evidence of the appellant's conversation with Ms Brown did not support the complainant's evidence; he was aware that the police were looking for him and may well have known that this concerned allegations made by the complainant. 

1. As to this last point, his Honour did not suggest that this statement by the appellant to Ms Brown supported the complainant's evidence.  In summarising the prosecution case, his Honour noted that the prosecutor submitted that it showed a consciousness of guilt on behalf of the appellant; in summarising the defence case, his Honour stated that the defence contention was that, because the appellant had visited his parents, by the time he spoke to Ms Brown he may well have known the reason the police wished to question him.  His Honour fairly placed the evidence and the submissions before the jury and understandably no redirection was sought.

1. In his summing up, his Honour told the jury that they could not convict the appellant unless satisfied beyond reasonable doubt that the complainant was an honest and reliable witness and that if they decided to acquit the appellant on one count they must also acquit him on the other; that allegations of rape are easy to make and difficult to refute; that the complainant's allegations were not supported by independent evidence and that they must scrutinise the complainant's evidence with the utmost care.  His Honour fairly placed the issues before the jury and summarised the defence case in which the matters now raised by the appellant were canvassed.  There is no complaint about the summing up, which was more than fair to the appellant.

1. The resolution of each of the issues raised by the appellant was peculiarly a matter for the jury and turns very much on an assessment of the credibility of the complainant, whom they saw give evidence and, to a lesser extent, the appellant's credibility in his video taped account, which they also viewed.  They were able to observe the comparative physical size of the protagonists, which the appellant does not suggest was a matter which weakened the prosecution case.  The complainant was unshaken in her evidence that she did not consent to the appellant's conduct, that she made very plain to the appellant that she was not consenting and that any compliance on her part was because of his threats to her and her fear of him. 

1. Although there were some unusual features to this case, as indeed there often are in the myriad factual scenarios that come before the criminal courts, the jury were entitled to accept her evidence that she was raped by the appellant whilst she was in the driver's seat of her car in daylight hours.  The appellant admitted that the physical acts occurred; the only issue was consent.  Her evidence was consistent with her distressed condition on her return home shortly after the incident and with the evidence of recent complaint, even on the version first given by her boyfriend, Adam, to police.  On the evidence, it was open to the jury to convict.  I am not persuaded that any miscarriage of justice has occurred here or that the jury verdict was unreasonable. 

1. It follows that the appeal against conviction should be dismissed.

1. McPHERSON JA:  I agree.  I have nothing to add to what McMurdo P has written.

1. WILLIAMS JA:  I agree with the reasons for judgment of the President and with the order proposed.