R v B

[1996] QCA 68

[1996] QCA 068

COURT OF APPEAL

FITZGERALD P
PINCUS JA
HELMAN J

CA No 481 of 1995

THE QUEEN

v.

B  Appellant

BRISBANE

DATE 27/02/96

JUDGMENT

THE PRESIDENT:  The appellant has appealed against his conviction in the Innisfail District Court of the offence of rape.  He was sentenced to seven years imprisonment.  In the outline of submissions placed before the Court on behalf of the appellant, which counsel has not sought to elaborate upon by oral submissions, the appellant accepts as accurate the summary of the facts contained in the respondent's outline of submissions, and I will deal with those briefly.

The complainant was a 16-year-old girl and the appellant a 65- year-old male.  He was a family friend and a father figure to the girl.  They both lived in the home of the girl's married sister.  On 17 October 1994 the girl's married sister and her husband and perhaps other members of their family went camping leaving the girl baby-sitting the children.  The name of the married sister was Barber, baby-sitting the Barber children.  The appellant was also at home at the time drinking beer.

The only direct evidence of the offence came from the complainant.  Her account was that the appellant came into her room at midnight when she was in bed and she told him to leave.  He grabbed her and said he was going to rape her.  She struggled and yelled.  He held her throat and put his hand over her mouth.  He pulled her back on the bed and pulled her pyjama pants down.  He forced himself between her legs and had intercourse with her and then left.  She said that she felt wet at the back of her legs and was distressed.  She put her clothes on, went to the toilet, cleaned herself, and urinated.

Evidence was also given by her married sister, Mrs Barber, who said that she arrived home about 7.30 the following morning when the appellant was in the kitchen and the complainant was in her bedroom.  The three Barber children were with the complainant who was huddled and crying.  She told Mrs Barber the appellant had raped her.  Dr Birchley examined the girl at about 11.50 a.m. that morning.  She complained of tenderness to her throat, upper arms and chest, but the doctor's evidence did not mention any other injuries.

Swabs were taken by the doctor but Mr Cox, the forensic scientist, found no evidence of ejaculate in the complainant's swabs or on the complainant's underpants.  He did, however, find that there was blood on the complainant's bed clothes and pyjama shirt and bedroom wall consistent with the blood of the appellant or approximately 1.25 per cent of the population.  Such blood did not come from the complainant.

Sergeant Braysher approached the appellant in town on the morning after the offence, introduced himself as a police officer and the following exchange took place.

"I think you know what I want to talk to you about?-- Yeah, I know I made a big mistake, but leave the girl out of it.

What do you mean?-- Don't bother her.  Whatever she says then I did.

All right Keith, can I get you to come back to the police station so I can talk to you?-- Yeah, I know, I made a mistake."

At the police station the appellant said:

"I was just going to have a beer, get a pack of cigarettes, and hand myself in."

Presumably referring to the time at which he had been approached by Sergeant Braysher a tape-recorded interview was conducted at the police station and, amongst other things, it shows that although the appellant claimed to have no memory of events, he said:,

"I must have done it.  I am not going to say anything that will go against what she said because she wouldn't tell a lie.  I know that.  I don't think she would have consented because of my age and hers."

The appellant failed to appear in the Magistrates Court on 13 April 1995 on the date due for his appearance and was subsequently apprehended by Sergeant Linton in Whyalla, South Australia, on 9 August 1995.  Sergeant Linton testified that the following exchange took place:

"They told me that the charges were going to be dropped.

Who said the charges would be dropped?-- Her family, her father, he said it wouldn't get to Court."

Linton later recorded an interview with the appellant who claimed that the girl had sought him out for intercourse and had tried to rape him on this and other occasions.  When the appellant was brought back to Innisfail he agreed to be questioned on 21 August 1995 by Sergeant Kelly in the presence of his solicitor, Michael Cooper.  The first question put by Sergeant Kelly was as follows:

"Michael, I don't know if Norm has told you yet, but he was interviewed by detectives in Whyalla and he stated in that interview that he had consensual sex with the girl on a number of occasions prior to the thing in question.  In fairness to Norm, I intend to interview the girl and put those allegations to her and see what she has to say?-- There is no need.  It is bullshit what I told them in Whyalla.

Are you sure?  I don't mind.  It is up to you?-- It is bullshit what I told them in Whyalla."

The appellant also said, "I never had sex with her."  The complainant's father testified to deny that any intimation had been given to the appellant that the prosecution would be discontinued.  The appellant did not give or call evidence.  The defence case as put to the complainant was that it was she who had tried to rape the appellant, the incident was in the lounge room, moved to the bedroom, and the appellant then left the house.  The complainant denied these allegations and there was no sworn evidence to support it.

The notice of appeal asserts in a number of different ways that the verdict of the jury was unsafe and unsatisfactory.  Shortly stated, the matters relied upon in support of these assertions are as follows: (1) The complainant said in evidence that it "felt like" the appellant had ejaculated inside her during the act of rape.  The evidence of Mr Cox, the forensic scientist, was that no sperm or seminal fluid was found on the complainant's underwear or on the swabs taken in the course of the medical examination of the complainant.  The appellant, however, acknowledges that the complainant did describe fluid being on the outside of her body and suggested that that was the reason she "felt" that he had ejaculated.

The appellant also accepts that Mr Cox said that he did not examine the bed sheets for seminal stains and that ejaculation could occur with a reduced sperm count or nil sperm count for various reasons.  The prosecution has pointed out the fact that the trial Judge gave a thorough direction in regard to the significance of the absence of ejaculate on the swabs.  The appellant's next point is that the complainant said in evidence that the appellant had grabbed her and threatened to rape her after she had showered, whereas her statement to police said this happened before she had her shower.  Such minor discrepancies are commonplace in all litigation, especially perhaps in criminal litigation.

The appellant also complained that the complainant said in evidence that her dressing gown had a hole in the arm, whereas she conceded in her evidence that she had not told police this in her statement.  The comment I made in relation to the previous point applies with even more force to this matter.  The complainant said in evidence that she was yelling out loudly and banging the wall during the attack on her and the evidence was that a neighbour's house was reasonably close, however there was no evidence called to show whether or not the neighbours were home and it would be of little significance if they had been home.

It would not necessarily have followed, by any means, that they would have heard or, if they had heard, apprehended that the complainant needed their assistance against the appellant's attack.  The appellant also said that the complainant said in evidence that the appellant had touched her breasts by putting his hand under her top from the bottom of the top.  She conceded in her evidence that this was the first time that she had said this to anyone.  She could have been mistaken or she could have been elaborating.  It would make no difference at all to her overall credibility so far as the jury was concerned, or perhaps put more accurately, was certainly not a matter which required the jury to have a reasonable doubt about the reliability and accuracy of the evidence.

The appellant also said that the complainant said in evidence about the attack, that she had gone to the toilet and the appellant was later in the house "acting as if nothing had happened", whereas in her statement to the police she said that after coming out of the toilet she did not see the appellant and did not know where he was.  This is still just another minor discrepancy, so minuscule one might say that it is surprising even to see it raised.

The appellant acknowledged that the jury were entitled to find that the complainant's evidence was corroborated as set out in the respondent's outline, but there is a complaint in the notice of appeal about the Judge's directions concerning the use which could be made of the appellant's "failure" to give evidence.  It was acknowledged by the appellant that while that word was used by His Honour, it could not be argued that there was any overall error in the directions which he gave.

In the circumstances, I do not think it is necessary to go seriatim through the various answers which were made by the prosecution to the specific grounds for appeal which are set out over a number of pages of written submissions.  There is not the slightest possibility in my mind that there is a real or significant possibility that an innocent person has been convicted and I can discern no error in the conduct of the trial.  The appeal should be dismissed.

PINCUS JA:  I agree.

HELMAN J:  I agree.