R v B
[1992] QCA 128
•3 June 1992
IN THE COURT OF APPEAL [1992] QCA 128
SUPREME COURT OF QUEENSLAND
C.A. No. 14 of 1992
THE QUEEN
v.
B
(Appellant)
JUDGMENT - THE COURT
Delivered the Third day of June 1992
This is an appeal against conviction. The appellant was charged with and convicted on three counts, the first two of which were that he unlawfully and indecently dealt with a girl under the age of 14 years and the third that he raped that girl. The convictions were recorded on 19 December 1991, whereas the offences were committed many years ago.
On the hearing of the appeal, counsel for the appellant raised a question as to the operation of s.20 of the Acts Interpretation Act 1954 with respect to counts 1 and 2. However, on its being pointed out that the section in question had been repealed and replaced on 12 June 1991, counsel, having examined the new provision, abandoned his submission. In the result, the only conviction challenged was that on count 3.
The ground of appeal was that the conviction was unsafe and unsatisfactory. In support of that ground, counsel for the appellant relied upon what he asserted to be weaknesses in the Crown case and also argued that the appellant derived some help from the judge's not having given a direction as to the absence of fresh complaint. It should be said at the outset that there was ample evidence of sexual intercourse, although the appellant denied it; the only real question was consent.
In deciding whether a conviction should be set aside as unsafe or unsatisfactory this Court must decide whether, on the relevant evidence, it was open to the jury to be satisfied beyond reasonable doubt of the accused's guilt: Chidiac (1991) 171 C.L.R. 432. In applying this test it is the duty of the court to make an independent assessment of the evidence: Chidiac; Palmer (unreported, High Court, 9 April 1992). The Court must not too readily, in making that assessment, substitute its view of the credibility of the witnesses for that of the jury: Chidiac at 452, 453, 458, 462.
In outline, the Crown case was as follows. In 1969 the appellant, the complainant's stepfather, began to interfere with her sexually and continued to do so for some years. In late 1973 or early 1974, when she was 13 years old, the appellant put a pillow over her head and had intercourse with her without her consent; that was the event which led to the conviction for rape. Subsequently, the sexual dealings between the two continued and in 1976 the complainant, then aged 15, had a child by the appellant, which child subsequently died. The Crown contended, and it seems plainly correct, that there was ample evidence that the appellant was the father of that child: he admitted as much to a number of the witnesses.
The complainant's evidence was to the following effect. In 1969, her mother formed a relationship with the appellant. Soon thereafter, he put his hands on her in a sexual way and continued to do so on numerous other occasions. The appellant threatened her and warned her not to tell anybody. In 1970, the appellant, the complainant, her mother and other children moved between various cities and suburbs in south-east Queensland; in March 1970, they moved to North Ipswich. Shortly thereafter, the sexual interference resumed. The appellant would play with the complainant's private parts and sometimes tried to insert his penis into her. He again threatened her and warned her not to tell anybody. When these incidents occurred, the complainant was sleeping in a room with her sister. She was subsequently moved to her own room and the appellant's activities became "a little bit worse" in ways which the complainant described in detail. When she first menstruated, the appellant told her that she was old enough to have proper sex and to have a baby. About that time, her mother went to hospital for surgery and there was a change in sleeping arrangements during her absence. The complainant "had to sleep in my mother's bed with my stepfather". On at least one occasion he attempted to have sexual intercourse with her but could not achieve that, so he made her perform oral sex on him. After that incident the appellant told the complainant that if she "told anybody mum wouldn't come out of hospital and she would die and he would have to look after us forever". On some nights she evaded him by hiding up a tree or in the boot of his car until he went to sleep. In late 1973, when the complainant was 13 years old and the appellant was in his mid-forties, the appellant came to her and said "Today's the day". They went into his bedroom, he undressed her and lay her on his bed, put a pillow over her head and had sexual intercourse with her. She said that she cried and called out but no-one could hear her because the pillow was over her head. In response to a question from counsel for the Crown the complainant stated that she did not consent to having sexual intercourse with him on that occasion. A couple of days later the appellant told the complainant that he wanted to have sex with her, but she said no because "it really hurt" and the appellant went back to his room. The complainant gave evidence that after this rebuff the appellant made use of drugs to put her into a deep sleep, and would have sexual intercourse with her while she slept. After the complainant became aware of the fact that a drug was being administered and avoided consuming it, "he just came in and just had intercourse and he just left". This occurred at least three times per week and continued until, then 15 years old, the complainant became pregnant. During her pregnancy the appellant continually referred to the complainant's unborn child as "my baby". On one occasion during her pregnancy the appellant asked the complainant to have sex with him, she refused and he did not persist. The complainant's baby, S, was born on 6 April 1976. Six weeks after the birth of the child the appellant again asked the complainant to have sex with him, but she refused. In 1977 the complainant met a man, whom she later married, and moved out of her family's home. After the complainant had married and had other children she allowed her two young female children to go to live with the appellant and her mother, thinking that her mother could protect them. Until the year before the trial the complainant continued to associate with her mother and the appellant, on some occasions going mowing with the appellant to raise extra money.
Three of the complainant's sisters gave evidence of sexual activity on various dates in the 1970's between the complainant and the appellant. One of these witnesses claimed to have seen the complainant and the appellant engaged in sexual intercourse. Some of that evidence was potentially of assistance to the appellant, as being consistent with the complainant's consenting to sexual activity with the appellant.
The appellant's evidence was that at no stage had he interfered with the complainant sexually or had sexual intercourse with her and that he had not been able to have a penile erection since about 1971.
The complainant's mother - the appellant's wife - gave evidence which contradicted much of the evidence of the complainant and her sisters. The witness stated that she never left her children in the care of the appellant, there were never any occasions when the appellant could have spent time alone with the complainant, and neither the complainant nor any of her sisters ever said anything to her about her husband sexually interfering with the complainant. The witness suggested that the complainant might have invented her story because she attempted to gain custody of the complainant's children in 1989.
The appellant's evidence, with respect to his impotence, was inconsistent with: the evidence of a number of witnesses who said that he had admitted to, and indeed boasted of, having fathered the complainant's child; his wife's evidence that she had intercourse with the appellant well after the alleged date of onset of his impotence; and the evidence of one of the complainant's sisters that, between 1974 and 1977, she had seen his erect penis.
In these circumstances, there was plainly evidence upon which a jury could have been satisfied that the appellant had sexual intercourse with the complainant when she was 13 years old. The question remains whether the jury was entitled to find, as it did, that he had such intercourse with her without her consent.
As has been explained, counsel for the appellant relied, although not as a point sufficient in itself to justify allowing the appeal, on the judge's alleged failure to give a proper direction about fresh complaint. The judge mentioned, in the course of summing up, that then counsel for the accused raised the absence of a complaint, in particular lack of complaint to the girl's mother. It does not appear to us that the judge was obliged to say any more than that; considering the girl's age at the time and the sequence of events she recounted, the jury could reasonably have thought that, if what she said was true, it was not surprising that she made no very specific complaint to her mother. Moreover, the complainant gave evidence that at some time between March 1970 and late 1973, speaking of her sisters and their boyfriends:
"I said to my mother, you know, 'how come they do that?'. I couldn't understand why they liked kissing and cuddling, and she said 'why?', and I said, 'because father's been trying to do it to me.', and she said, 'Oh, you are hanging around the wrong crowd at school.'"
The complainant made no other mention of the incidents to anyone, giving reasons such as "If my mother didn't believe me, who was going to believe me?", and that her sisters and aunts "were too busy with their own lives". It seems likely that the complaint to the mother, such as it was, was made with respect to prior acts of sexual interference and not the alleged rape. However, as counsel for the Crown, Mr. Byrne, submitted, it is in light of the pre-existing sexual relationship that the absence of fresh complaint with respect to the alleged rape should be viewed.
In the end, such strength as the appeal has seems to lie in the absence of complaint, not fresh complaint but any complaint during the period of about 16 years between the alleged rape and the matter being raised with the police. Human behaviour is variable and to a degree unpredictable, but we see nothing remarkable in the complainant's keeping what she no doubt regarded as a shameful matter to herself.
Even if a girl 13 years of age can properly consent to sexual intercourse (cf. R. v. Harling [1938] 1 All E.R. 307), one can understand a jury's readiness to be convinced that a girl of that age did not consent to intercourse with her stepfather; cf. the remarks of Lord Brandon of Oakbrook in Regina v. D. [1984] 1 A.C. 778 at 806 as to the proposition that a child under 14 might consent to abduction. Here, there was practically unchallengeable evidence of sexual intercourse, countered by the appellant's story that he not only did not, but could not, have engaged in it. Given those circumstances, the jury's conclusion appears to us to have been a safe one.
The appeal must be dismissed.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
C.A. No. 14 of 1992
Before the Court of Appeal
The President
Mr. Justice Pincus
Mr. Justice MacKenzie
THE QUEEN
v.
B
(Appellant)
JUDGMENT - THE COURT
Delivered the Third day of June 1992
MINUTE OF ORDER: The appeal against conviction is dismissed.
CATCHWORDS: CRIMINAL LAW - RAPE - Appellant claimed conviction was unsafe - whether on the evidence it was open to jury to convict - whether Court ought make an independent assessment of evidence - whether any evidence of fresh complaint or any complaint in the 16 year period.
Counsel:M. Byrne for the Crown
W. McMillan for the appellant
Solicitors:Director of Prosecutions for the Crown
Legal Aid Office for the appellant
Hearing Date(s): 30 April 1992
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
C.A. No. 14 of 1992
THE QUEEN
v.
B
(Appellant)
_______________________________________________
The President
Mr. Justice Pincus
Mr. Justice MacKenzie
_______________________________________________
Judgment of the Court delivered on the 3rd day of June 1992.
_______________________________________________
APPEAL AGAINST CONVICTION DISMISSED.
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