R v BD

[1999] QCA 87

[1999] QCA 87

COURT OF APPEAL

McMURDO P
McPHERSON JA
MUIR J

CA No 401 of 1998

THE QUEEN

v.

BD  Appellant

BRISBANE

DATE 23/03/99

JUDGMENT

MUIR J:  The appellant was convicted in the District Court at Southport on 13 October 1998 of committing the following offences on 28 September 1997: (a) rape (b) deprivation of liberty (c) indecent assault (d) indecent assault and (e) assault occasioning bodily harm.  He was sentenced to six years' imprisonment on the count of rape and to lesser sentences for the other offences which arose out of the same incident.

The principal witness for the prosecution was the complainant, who was aged 21 years of age at the time of the trial.  In general terms, her account of relevant events is as follows.

In September 1997 the complainant was a waitress in a restaurant at Palm Beach managed by the appellant.  On 26 September 1997 she started work at around 5 p.m.  After the restaurant closed that day, members of the staff remained and consumed alcoholic drink purchased with moneys obtained from tips which had been pooled for the purpose.

Most staff members left the premises at about midnight and the appellant, the complainant and another female employee remained.  The latter left just before 1 a.m.  Shortly after her departure, the appellant invited the complainant to go into another room at the back of the restaurant in order to smoke marijuana with him.  She did so.  Whilst she was smoking the marijuana, the appellant commenced making sexual advances to her.  She resisted his approaches, attempted to leave the room but was lifted up by the appellant and put on a bench.

She then, as she put it, "grabbed him and tried to strangle him".  She remembered trying to apply some pressure to the appellant's Adam's apple.  He then pushed her down on to her knees on the floor and banged her head on the tiles.  She was crying and calling out as she resisted.  In response, the appellant threatened her with anal intercourse.  He inserted a finger in her rectum and moved it up and down for a short while.

The complainant grabbed the appellant by the testicles and he then banged her head on the ground again.  At this stage, the appellant ceased her act of physical resistance and the appellant, after inserting two fingers into her vagina, had intercourse with her.  She said to him that if he was going to have intercourse with her, he should at least wear a condom.  She was unable to say whether or not one was in fact used.  After the appellant's penis was in her vagina for a couple of minutes, she managed to push him off her and got up and left.

She went to her mother's place on a bicycle where she telephoned a male friend.  After speaking to him she had a shower and changed her clothes.  Her friend arrived in a car at about 2.40 a.m.  After driving with him for a short while, she told him what had happened to her and he took her to the Broadbeach Police Station.  From there she went to the Surfers Paradise Police Station where she was examined by a medical practitioner and photographed.

The examining doctor who gave evidence reported seeing a small abrasion on the outer surface of the complainant's left nostril, a three centimetre by three centimetre bluish swelling on the right upper part of her forehead, a two centimetre by two centimetre faintly red oval-shaped area over the left mid sterno-mastoid muscle in the neck, a round reddish bruise on the back of the left hand, bruising to the right hand and wrist, abrasion at the point of the left elbow, a swollen right knee and red colouration on the left knee, the scraping of skin around the right knee, a superficial abrasion to the inner aspect of the left labia majora and bruising and an abrasion at the edge of the anus.

She reported that the complainant was in a very distressed condition when examined.  The doctor expressed the opinion that the bruising was the result of injuries inflicted in the last 24 hours and was consistent with injuries which had been inflicted between 1 a.m. and 3 a.m.  on the morning of the examination.

A police constable gave evidence of seeing the complainant at about 3.55 a.m. on the morning of 28 February at the Broadbeach Police Station and of observing the complainant to be in a distressed condition.

She noticed that the complainant had red knees and various other marks and bruises on her.  A forensic scientist gave evidence that the complainant's white blouse had faeces stains on it.

The male friend who took the complainant to the police said in the course of his evidence that the complainant sounded very emotionally upset when she telephoned him early in the morning of the 28th and when he picked her up from her mother's place.  He said she was crying and shaking before she told him the appellant had raped her.

One of the complainant's fellow employees gave evidence that the complainant had appeared ill at ease and was not performing her duties as a waitress competently on the evening of the 27th.

Another employee said in cross-examination that after 27 September the complainant had given her three different versions of events on the evening, that is, events which had occurred on the evening of the 27th.  What the versions were was not pursued in cross-examination or re-examination.  The appellant himself did not give evidence.

I turn now to the grounds of appeal.

"1.The conviction is unsafe because the complainant admitted giving evidence under the influence of marijuana; that evidence was allowed to go to the jury;

2.The learned trial Judge erred in not allowing an application by the appellant's counsel that the jury be discharged once the complainant admitted she may have been under the influence of a drug."

In the course of her evidence the complainant said she had taken marijuana that morning for medication.  The trial Judge refused an application by the appellant's counsel to discharge the jury.

In his summing-up the trial Judge said that there were two relevant aspects to the admission by the complainant that she had taken the drug.  The first was that it was something which the jury might think could affect her reliability as a witness.  He said that that was a matter for the jury to decide.

The second aspect was the unlawful smoking of marijuana should not of itself, and apart from the question just adverted to, have any bearing on whether or not her evidence should be accepted.

I can detect no error in those directions.  The jury was in a position to assess what bearing, if any, the complainant's marijuana intake had on her reliability as a witness.  There is no suggestion that the complainant was visibly affected by a drug when giving her evidence and the transcript of her evidence does not disclose the existence of any inappropriate responses or behaviour.

I note that there is no evidence of significant inconsistencies between the complainant's evidence on trial and that given by her at the committal hearing.

"3.There was no forensic evidence to support the fact that the appellant had had sexual contact with the complainant."

In oral submissions the appellant developed the theme that having regard to scientific advances if he had been implicated in the offence then having regard to tests conducted on him and his clothes there would have been scientific evidence that the Crown could have adduced against him.

These submissions indicate a much greater confidence in scientific procedures than was demonstrated by the appellant on the trial where, as I have said, he failed to give evidence.  It is correct that there was no forensic evidence which directly established the subject act of intercourse.

However, the complainant did not know whether or not a condom had been used nor did she give evidence to the effect that the appellant had ejaculated.  The forensic testing of the appellant appears to have been limited to a penile swab.  Forensic evidence though did establish the fact that stains on the complainant's blouse were from faecal matter.  As earlier noted there was evidence from a medical practitioner as to bruising and abrasions in places and to a degree consistent with the complainant's account of events.

I note, although it is not of any particular significance, that semen was also detected on the inside of the appellant's underpants.

"4.The complainant during evidence was unable to say what she had done or whom she had been with in the 24 hours previous to the offences."

The basis of this complainant appears to be that the injuries sustained by the complainant may have been sustained at some other time and place.  It was not suggested to any of the complainant's fellow employees who gave evidence that she bore any marks on her body whilst working on the night of the 27th or prior to the departure of such employees from the restaurant after the after-work drinks.

The complainant was not able to say what she had done before going to work on the 26th but that is readily explicable by the impression which the subject incident must have made on her relative to her other activities at about that time and by her failure of immediate recall through nervousness in the witness box.

"5.The complainant first mentioned her allegations approximately two hours after they occurred in spite of earlier opportunities to do so."

In the light of the facts narrated earlier, this small hiatus hardly casts doubt on the complainant's version of events.

"6.The witness, Mrs Vessey, who testified she heard a scream was unable to identify the scream as a male or a female voice."

Mrs Vessey worked near the restaurant.  She heard intermittent screaming according to her evidence for about 10 minutes between 1 and 2.30 a.m. on the morning of the 28th.  She said that the screams "sounded stressful".  In reporting the incident to the police, she did not identify the screams as being in a male or female voice.  She was not cross-examined on that aspect of her evidence.

One may infer that she was able to distinguish the sex of the person screaming.  That is not particularly surprising.  On the complainant's version of events she was crying out from inside a room in a building and having regard to her stress and position on the floor for much of the time, it is unlikely that sounds made by her would have been heard by Mrs Vessey with particular clarify.

Two further matters were raised by the appellant in a handwritten outline of submissions.  They were:

(a)"The prosecution in his opening statement informed the jury about all the evidence, tests, and conversations without the defence counsel's objections or deniability; putting the jury very much off-side in respect of the accused."

And (b):

"The trial Judge error at not allowing the defence counsel from questioning the complainant's step-father (Mr Sheriff), disabling the defence from showing and proving to the Court and the jury, the motive for the complainant's fabrication.  The trial Judge decided that this is not admissible and it sheds no light on this case (for or against the accused)."

As to (a), the Crown Prosecutor opened the prosecution case in the normal way.  The matter was probably adverted to by the appellant because his counsel from the trial took an objection of sorts to what he submitted was an overly lengthy opening.

At page 8 of the record this exchange occurred:

"HIS HONOUR:  Mr Bryson, is there anything the Crown has said which you say is objectionable?

MR BRYSON:  At this stage no, Your Honour, but what I say is this: the Crown has gone into evidence".

A further exchange then occurred between the appellant's counsel and the trial Judge.  The appellant's counsel said in effect that he would be satisfied with a statement by the prosecutor to the jury that his opening did not constitute evidence and should not be treated as such.

As for (b) in the absence of the jury the prosecutor indicated to the trial Judge that the appellant's counsel wished to lead evidence from the complainant's step-father concerning an alleged conversation between the appellant and the step-father.

The trial Judge ruled that such evidence was inadmissible.  The ruling was correct.  It was not suggested to the complainant in the course of her cross-examination that her step-father approached the appellant at her request or, for that matter, at her knowledge.

In those circumstances any conversation which took place between the appellant and the complainant's step-father could hardly have been admissible.

As will be apparent from the foregoing I do not regard any of the matters raised by the appellant as casting doubt on the jury's verdict or as suggesting that the verdict was unsafe or unsatisfactory.

The prosecution case was a reasonably strong one and the jury was entitled to accept the complainant's evidence.  After all, the appellant's failure to give evidence ensured that the complainant's version was the only version of critical events available to the jury.

I would dismiss the appeal.

THE PRESIDENT:  I agree.

McPHERSON JA:  I also agree.

THE PRESIDENT:  The order is the appeal is dismissed.

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