R v Butts

[1996] QCA 293

IN THE COURT OF APPEAL	[1996] QCA 293
SUPREME COURT OF QUEENSLAND

C.A. No. 201 of 1996.

Brisbane

[R v. Butts]

T H E Q U E E N

v.

MATTHEW MICHAEL BUTTS

Appellant

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Fitzgerald P.
Pincus J.A.

White J.

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Judgment delivered 27/08/1996

Separate Reasons for Judgment of each member of the Court, Pincus J.A. and White J.
concurring as to the order made; Fitzgerald P. dissenting.

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APPEAL DISMISSED

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CATCHWORDS: CRIMINAL LAW - s. 337 Criminal Code - unlawful and indecent

assault - inconsistency in evidence - physical impossibility.

Counsel:	Mr P Goodwin for the appellant. Mr P F Rutledge on behalf of the respondent.
Solicitors:	Legal Aid Office for the appellant. Queensland Director of Public Prosecutions for the respondent.
Hearing date:	8 August 1996.

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 27/08/1996

The circumstances giving rise to this appeal are substantially set out in the reasons for judgment of Pincus J.A. The prosecution case was solely based upon s. 337 of the Criminal Code, alleging an unlawful and indecent assault by anal intercourse, and that the substitution of a conviction, or an order for a retrial, in respect of a lesser offence, e.g., under s. 208, was expressly disavowed. Undoubtedly, homosexual activity took place between the appellant and the complainant on the night in question, as must have been obvious to the jury; it is possible that the fact that such activity occurred explains why the appellant lied to the police, as must also have been obvious to the jury, and why he did not give evidence.

In many respects, this is a typical case in which a conviction of a sexual offence is asserted to be unsafe and unsatisfactory; late complaint, no corroboration, evidence from the complainant which is susceptible of criticism because of some implausibility (the sexual activity in a lighted room without a door), some internal inconsistencies in the complainant’s evidence, and some conflict with the only other possible eyewitness, C. It is usually not possible in such cases to articulate a logical reasoning process which demonstrates guilt or innocence, or the necessary existence of a reasonable doubt; it is a question of degree, and a matter of judicial impression, whether the flaws in the prosecution case create such a sense of disquiet that an appellate court considers that the decision of the jury should be rejected despite its special role, functions and advantages.

However, there is an additional factor in this case of some importance; namely, the anatomical improbability of an act of anal intercourse in the circumstances described by the complainant as I understand his evidence. It is not a proper exercise of this Court’s function to determine whether a conviction is unsafe and unsatisfactory in the administration of justice to say that such a matter is one for the jury; that deprives this Court’s material function of real content. The Court must form its own view and, in my opinion, the appellant’s conviction cannot be safely founded on the complainant’s description of the physical acts which he said took place.

Accordingly, I would allow the appeal. The prosecution accepted that, in such circumstances, the conviction should be quashed and a verdict of acquittal entered.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 27/08/1996

The appellant (aged 20 or 21 at the time of the offence) was convicted in the District Court on a charge of having unlawfully and indecently assaulted one P (aged 16 at the time), the assault consisting in anal intercourse. The appeal is based on the ground that the verdict was unsafe and unsatisfactory.

The Crown case was that the complainant was sodomitically raped by the appellant in 1991 while the two of them were staying at a hostel at Ipswich run by a religious group. At the relevant time there were, it appears, three occupants of the hostel: the complainant, a man C and the appellant. There is evidence that there was another resident, but he was said not to have been present on the relevant night. The complainant’s account of what was done to him was criticised on a number of bases and that subject is discussed below; but the principal reason, as it seems to me, for any doubt about the verdict which one might entertain, is that there is some inconsistency between the evidence of C and that of the complainant.

The complainant gave evidence that on the night of the offence he went to bed and was woken by noises made by the appellant who had arrived home late and wished to gain entry. Although there is some difference between the complainant’s version at this point and that given by the appellant, in an electronically recorded interview, to the police, the appellant accepted that there was a night when he arrived home late, after having been out drinking beer at a nightclub, and was let in by the complainant. From that point on, the complainant’s evidence and the account given to the police by the appellant diverge sharply. The complainant said that he let the appellant in and then went to the toilet; as he came back from the toilet, apparently towards his own room, the complainant was grabbed by the appellant and induced by a combination of force and threats to come into the appellant’s room, where the offence occurred. The appellant, on the other hand, told the police in effect that nothing of significance happened after he was let in, except that he got up to get a glass of water and the complainant, apparently wakened by this, came to the kitchen. One puzzling aspect of the appellant’s account of the matter, as given to the police, was that he evinced no doubt about the identity of the night which was being discussed with them, although according to his version nothing at all memorable then happened.

The evidence of C is of importance as to events which followed the commission of the offence of which the appellant was convicted. There were three versions before the jury, on this aspect.

On the complainant’s account, after he was sodomised in the appellant’s room the appellant got him onto his (the appellant’s) bed and was lying partly across him; at that stage the appellant massaged the complainant’s testicles and asked if he wanted to "wrestle now". The complainant then said, according to his evidence, "No, I’ve had enough" and stood up. The appellant was then, the complainant said, "sort of standing facing" the complainant. Then, the complainant said, C walked to the door and asked what was going on, the light being on in the room, as it had been throughout the incident. The complainant gave evidence that he said in response to C's question, "Nothing, don’t worry about it" and then pushed his way past C and went to his room. He said that a few minutes later C came to the complainant’s room to inquire again what was going on and was given the same response.

C's evidence was that he heard some noise at the front door, the door was opened and the person at the door came in - one presumes that this activity was heard, but not seen. Shortly after that, C said he heard noises from the appellant’s room, he went there and was "pretty sure" the light was on. He saw the appellant and another male on the bed together and added "from what I can remember the sheets were drawn up over them". He recognised the appellant as one of the persons in bed, but said he could not remember who the other one was. He asked what was going on and was told that nothing was going on. He said he was "pretty sure" he remembered going within an hour to the complainant’s room and knocking on his door; he asked what was going on or whether the complainant was all right. Assuming that C was speaking of events on the relevant night, he had a surprisingly poor recollection of them. One would hardly expect it to be an everyday event that two of the occupants of the hostel were in or on a bed together at night, yet C did not know who was the person, other than the appellant, who was present. The jury might possibly have treated C's evidence as of no assistance. If they took it into account, then it would have been partly helpful to and partly damaging to the Crown case. C's evidence supported the notion that, on a night when the appellant came home late and had to be let in, he had some sexual encounter in his room with another male; on the other hand, C's claimed recollection that the two persons he saw were on the bed under a sheet is inconsistent with the complainant’s version.

Lastly, the appellant’s version, given to the police but not in Court, was that C took no part in events on the night in question.

It does not appear to me that C's evidence, by itself, could be held to vitiate the verdict. The jury might rationally have treated C's evidence about the sheet as simply an error of recollection; he said "from what I can remember the sheets were drawn up over them". On that basis, C's evidence was capable of giving some support to the complainant’s account and being treated as inconsistent with the appellant’s version, given to the police. Alternatively, as I have suggested, the jury might have treated C's evidence as too vague to be worth serious consideration.

In a number of respects there was inconsistency in the complainant’s versions of events; none of them is, in my opinion, critical. That is, the jury was entitled to act on the basis that, on the different occasions on which he had given versions to police, the complainant’s claimed recollections were reasonably consistent. Perhaps the clearest inconsistency is that, in a statement which was put to the complainant, he had said that when C came to the doorway he got up off the bed, whereas in evidence he said that when C came to the door he, the complainant, was already standing. In that statement, it appears that he said he saw the appellant the day after the alleged offence for about an hour, whereas in evidence he said, in effect, that the next time he saw the appellant was at the committal hearing.

The only other factual point taken on behalf of the appellant which requires mention is that it was suggested that the complainant’s description of the position of his body and limbs at the time of the alleged rape made penetration an impossibility; it is enough to say that if the complainant was in fact raped, one would be surprised if his body was precisely as, under cross-examination, he explained it to be. But it is my view that there is not a great deal of weight in this argument.

In the end the Court is faced with what might be described as a case of sexual assault in which, on the record, no compelling reason appears for either accepting or rejecting the complainant’s uncontradicted account. There is, to my mind, no discrepancy or inconsistency in the complainant’s version of a particularly suspicious character, nor does the version of events given by the complainant seem, on a careful reading and re-reading, to be implausible. I have listened to the audio tapes of the police interview with the appellant; the appellant said in effect that he regularly went out drinking, once a week; somewhat oddly, he seemed to have no difficulty in identifying or recalling the particular night spoken of, that being one in which, on his version, nothing unusual occurred. But apart from that I should not have thought that the content of the interview would have helped the jury much.

It was suggested during the hearing that the jury might well have taken into account, against the appellant, the circumstance that he did not give evidence before them denying the allegation made; the trial judge told the jury not to draw any adverse inference against the appellant because he had chosen not to give evidence. In appeals of this sort this Court’s reasons sometimes mention the absence of any evidence from the appellant contradicting the Crown case as a matter relevant to the safety of the verdict; but in the present case I prefer not to place any reliance on that.

It appears to me that this is not a case in which the Court should have any such doubt about the correctness of the verdict as to justify setting it aside. It is true, as the appellant’s counsel emphasised, that there was held to be no corroboration of the complainant’s account and that view of the matter is not challenged. It is also true that complaint about the offence was made very late. But keeping in mind the advantage which, according to the orthodox view, the jury possesses by virtue of having seen and heard the witnesses and in particular the complainant, it seems to me clear enough that the appeal must fail.

I would dismiss the appeal.

REASONS FOR JUDGMENT - WHITE J

Judgment delivered the 27th day of August 1996

Pincus JA has set out the evidence which gives rise to the appeal. The sole ground

of appeal is based s.668E(1) of the Criminal Code that the verdict
"... is unreasonable, or cannot be supported having regard to the evidence, ... or

that ... there was a miscarriage of justice ..."

There is no criticism of any aspect of the procedure of the trial including the learned trial judge's summing up to the jury. The features of the Prosecution evidence which called for particular care before reaching a guilty verdict in this case are typical of many sexual offences cases, namely a late complaint, no corroboration, inconsistencies in the complainant's evidence and conflict with aspects of the evidence of an independent witness.

It is settled that a verdict may be set aside as unsafe or unsatisfactory even if as a matter of law there was evidence upon which the appellant could have been convicted, Whitehorn v. The Queen (1983) 152 CLR 657 at p. 685; Chamberlain v. The Queen (No 2) (1984) 153 CLR 521 at p. 531; Morris v. The Queen (1987) 163 CLR 454 at p. 461; Chidiac v. The Queen (1991) 171 CLR 432 at p. 443. In deciding whether a verdict should be set aside as unsafe or unsatisfactory the question for the appellate court to determine is whether upon the whole of the evidence a jury, acting reasonably, was bound to have a reasonable doubt about the appellant's guilt, Chidiac at p. 451. As Mason CJ observed in Chidiac at p. 443 the constitutional responsibility of the jury to decide upon the verdict and the advantages which the jury enjoys in deciding questions of credibility by virtue of seeing and hearing the witnesses imposes some restraints upon the exercise of an appellate court's power to pronounce that a verdict is unsafe or unsatisfactory. As was stressed in Whitehorn at p. 689

"Wide as the powers of an Australian Court of Criminal Appeal are, they do not, under the legislation which prevails in this country, empower a court to set aside a verdict upon any speculative or intuitive basis."

Dawson J was responding to observations of Widgery LJ in Reg v. Cooper (Sean) [1969] 1 QB 267 at p. 271 where his Lordship had said in respect of an appeal against conviction on the ground that the verdict was unsafe and unsatisfactory,

"That means that in cases of this kind the court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the court experiences it."

The test then is not whether the appellate court itself entertains a reasonable doubt, but whether a reasonable jury would be bound to do so. As Dawson J in Chidiac observed at p. 452

"The difference is significant, because a Court of Criminal Appeal must act upon that view of the facts which the jury was entitled to take, having seen and heard the witnesses."

See also Carr v. The Queen (1988) 165 CLR 314 per Brennan J at 332.

In acquitting its function an appellate court must examine for itself the evidence upon which the prosecution relied in order to determine whether it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of the accused Chamberlain at p. 534; Morris at p. 462; Carr at p. 333. An appellate court will infrequently set aside a conviction as being unsafe or unsatisfactory because the evidence of the prosecution witnesses lacked reliability or credibility, Chidiac p. 444. Mason CJ pointed out that occasions do arise where a jury convicts when the prosecution case rests upon oral testimony which is so unreliable or wanting in credibility that no jury acting reasonably could be satisfied of the accused's guilt to the requisite standard. This sometimes occurs where there has been unsatisfactory evidence of identification or the case against the accused has rested on the uncorroborated evidence of a sexual complainant or accomplice notwithstanding an appropriate direction to the jury about the risk of acting on such evidence.

Morris was a case in which the prosecution case against the accused was dependent upon the confession of the accused man to murder. He was a chronic alcoholic who suffered from brain damage and there was a real possibility that his confession was untrue. The majority of the court concluded that a reasonable jury must have doubted the reliability of the confession and thereby the guilt of the accused man. In Ralph and George (1988) 37 A Crim R 302 the evidence against the accused rested upon the testimony of an accomplice. He was a man described as a clever and bold liar capable of deception who had deceived. Yeldham and Allen JJ observed at p. 210

"But there are cases, no doubt rare (and this is one of them) where the credibility of the accomplice whose evidence is uncorroborated is such that, even though it was in theory open to the jury to accept it, to allow a verdict based solely upon it to stand would be unsafe or unsatisfactory and may well lead to a miscarriage of justice."

That observation was approved by Mason CJ in Chidiac at p. 446.

In R v. Charles [1994] 1 Qd R 597 Fitzgerald P and Lee J observed after identifying the categories of cases where the oral evidence is subjected to special scrutiny, namely, identification and accomplice evidence and sexual cases, that it is less clear "how it is to be determined whether the risk of fabrication is so high in a particular case that a conviction is unsafe and unsatisfactory." Their Honours noted at pp. 600-1.

"There are many circumstances in which, for one reason or other, the credibility of a witness is susceptible of attack and criticism; for example, a witness's general credibility may be in question by reason of past conduct, or his or her credibility in relation to a particular issue may be in question because of the nature of the witness's association with the material events or demonstrated lies on the subject outside the trial. It would only be in exceptional circumstances that a conviction would be held to be unsafe and unsatisfactory because such background circumstances made the risk of fabrication so high that testimony vital to the conviction could not reasonably be believed. Numerous serious offences, such as violence in prisons, many sexual offences, including those involving the molestation of children within the family, and official corruption will often be based on evidence which has a higher than usual risk of fabrication. Victims of such offences are not, for that reason, placed outside the protection of the law. Rather, the correct approach seems to be that risks associated with demonstrated background circumstances, such as an absence of corroboration or a general doubt concerning a witness's credibility, perhaps because of previous criminal offences, are additional factors to be weighed when considering the nature and quality of the material evidence at the trial.

Other than in exceptional circumstances to which reference has been made in which background circumstances are sufficient in themselves to disqualify testimony from being a satisfactory basis for conviction, the ultimate focus must be on the evidence given by the critical witness at the trial. Any inherent improbabilities, contradictions, inconsistencies or lack of detail in evidence may be given added significance by the general background of the witness. It is deficiencies in the nature and quality of the evidence given at the trial, set in the context of the background circumstances, which must ordinarily provide the justification if an appellate court is to interfere."

In Charles the only evidence against the appellant was the testimony of an accomplice who had pleaded guilty to the same charges. Her evidence against the appellant was wholly uncorroborated. She was clearly a witness whose credibility called for close scrutiny. She had changed her version of events implicating the appellant on several occasions and had told other lies to the police, she had a conviction for dishonesty and some comment was made about her demeanour as a witness. Nonetheless after examining the evidence the court did not regard it as a case where it ought to interfere with the verdict.

Turning to the facts of this appeal, the late complaint, some four years after the alleged assault, is a matter for concern. A somewhat unusual feature for a non family based sexual misconduct allegation is that shortly after the alleged assault had taken place the complainant left the premises, had no further contact with the appellant and returned to his mother in Victoria. He was aged 16 years at the time of the alleged assault and the appellant 20 or 21 years. The appellant was interviewed by the police in Ipswich in respect of the allegations which had been made by the complainant to Victorian police which was recorded by audio-video tapes. I have listened to the audio tapes. The appellant flatly denied that an assault or any sexual encounter occurred between himself and the complainant on the night in question. Nonetheless he had a clear recollection of quite minute details of the evening which, on his account, had no remarkable features about it and which had occurred many years previously. For example, he remembered "that night" when he returned to the house after drinking at a club and needed to be let in; he recalled that the complainant was wearing only white underpants when he let him in the front door; that he got up and had a glass of water and that he was wearing sandshoes not lace-up shoes. He was adamant that C, the supervisor at the home, had not left his bedroom that night which was contrary to C's evidence which has been set out in the judgment of Pincus JA. He did not give evidence at the trial and called no evidence. A reasonable jury could well have concluded that the appellant was lying and that there had been a sexual encounter of some kind between the appellant and the complainant. The jury was then in the position of weighing up the evidence of the complainant particularly where it conflicted with that of C to see if they could be satisfied beyond reasonable doubt of the appellant's guilt. As Pincus JA has pointed out those differences included that C said he saw the appellant and another male on the bed together with the sheets drawn up over them. He qualified that evidence by saying "from what I can remember". He said he could not remember "100 per cent" if the other male on the bed was the complainant although he recognised the appellant. The complainant had said in his statement to the police that when C came to the doorway he got up off the bed while at the trial he said that he was already standing when he came to the door. His evidence was that they were lying on top of the bed after the assault had occurred not under the sheet. On reading the whole of C's evidence one is left with the impression that he was not entirely clear about the details of the night but recalled well enough being disturbed about the activity that he thought was going on.

The inconsistencies in the complainant's versions of events apart from the ones to which I have referred were not very great and were generally consistent with his account of how things occurred. He explained to the jury when challenged with those inconsistencies that he was very confused when he gave his statement to the police in Victoria and that there were "a lot of emotions involved". He added that he had had time to re-think and to clarify certain aspects of what had occurred.

The other ground of appeal which was relied upon as showing that the jury ought to have entertained a reasonable doubt about the truth of complainant's evidence was his description of his position when the appellant penetrated him. His description is set out in cross-examination at pp. 26-27. Essentially he had been forced to his knees and was then crouched down with his thighs against his calves, his head was down with his arms crossed in front of him and the top of his body was virtually on the floor with his back bent. It was put to him that in that position it was a physical impossibility for the appellant to have entered him to which the complainant replied "obviously it wasn't". I think it would be dangerous to conclude that such entry was physically impossible and therefore to have a reasonable doubt about the whole of the complainant's evidence implicating the appellant against the background of the myriad of sexual experiences which no doubt would make up the composition of a reasonable jury.

It has been suggested that it was unlikely that the light would have been on in a room without a door while such activity was engaged in. Nonetheless C's recollection was, as best he could recall, that the light was on. He may have had some difficulty in seeing what he said he did had that not been the case. The appellant on his own admission to the police had been drinking that night. According to the complainant he was drunk so that niceties of the kind that might inhibit an entirely sober person from conducting himself in the way alleged by the complainant in the view of any who might happen to pass may not have impacted upon him.

There were other features of the complainant's evidence about the relative sizes and ages of himself and the appellant which may have assisted the jury in their evaluation of his evidence compared with what they heard the appellant tell the police in his record of interview about those matters. They had the advantage of seeing C in the witness box and may have been assisted in his demeanour in evaluating just how good his recollection was of the night in question.

Accepting all the inherent weaknesses in a sexual assault case where the evidence of the complainant is uncorroborated there are inconsistencies in the complainant's evidence and any other aspects of the case which might have called for careful scrutiny they were not of the kind which must have caused a reasonable jury to doubt the truth of the complainant's evidence and thus lead to the conclusion that the jury reached its decision unreasonably.

I would dismiss the appeal.