R v D

[1992] QCA 141

IN THE COURT OF APPEAL  [1992] QCA 141

SUPREME COURT OF QUEENSLAND

C.A. No. 311 of 1991

Before the Court of Appeal

The Chief Justice

Mr. Justice Pincus

Mr. Justice McPherson

THE QUEEN

v.

D

(Appellant)

MINUTE OF ORDER:       The appeal against conviction is dismissed.

CATCHWORDS:               CRIMINAL LAW - CORROBORATION - Appellant claimed a lack of corroboration with respect to charge of indecent assault - whether evidence of doctor that complainant's rectum was tender was corroborative - whether quality of independent testimony - appeal dismissed

Counsel:D. Bullock for the Crown

A. Rafter for the Appellant

Solicitors:The Director of Prosecutions for the Crown

The Legal Aid Office for the Appellant

Hearing Date(s):  8 May 1992

Reasons for judgment delivered on 11th June 1992.

Reasons for judgment of Pincus and McPherson JJ.A. jointly and Macrossan C.J. dissenting.

_______________________________________________

APPEAL AGAINST CONVICTION DISMISSED.

_______________________________________________

JUDGE1: THE CHIEF JUSTICE

The appellant was found guilty after trial on a charge that on or about 9 February, 1991 at Rockhampton he unlawfully and indecently assaulted one W.  The assault specified was an act of carnal knowledge by anal intercourse.  The sentence was that he be fined the sum of $2,000.  He was found not guilty on a further count in the indictment charging that again on or about 9 February, 1991 he unlawfully assaulted the complainant.

The appeal brought against the conviction on the first count was argued on one ground only, namely that the trial judge erred in informing the jury that there was evidence capable of constituting corroboration of the act of anal intercourse alleged.  Other grounds specified in the notice of appeal were not pursued.

The count on which the appellant was convicted was essentially one of non‑consensual sodomy. It was brought under the provisions of s337 of the Criminal Code introduced in 1989 and amended in minor respects in 1990. The relevant wording is:

"337.Indecent assaults. Any person who –

(1)unlawfully and indecently assaults another ... is guilty of a crime ... In the case of an offence defined in para(1) ... if the indecent assault ... consists (wholly or in part) –

(i)in an act of carnal knowledge by anal intercourse, the offender is liable to imprisonment for life ..."

The old offence of sodomy, now called "unlawful anal intercourse" remains in the Code in s208.  It does not depend upon absence of consent, although, following amendments made to the Code in 1990, it now applies only when one of the participants in the intercourse is not an adult.  In other words, sodomy between consenting adults is no longer an offence.

It is a feature of the offence constituted under s337, the relevant words of which have been quoted, that there shall not only be an absence of consent (flowing from the requirement that the offending act shall be an "assault") but also that the act of anal penetration shall be indecent.

The complainant alleged that the count 1 offence occurred in the appellant's residence during the course of an act of vaginal intercourse in which she was engaged with the appellant.  By way of explanation, it may be added that her claim at trial was that the offence charged in count 2 occurred when following the actions involved in count 1 she had left the appellant's house and was walking home with the appellant following her in his car and endeavouring to persuade her to enter it.  In this situation there were arguments and altercations which continued for a time and the complainant said the appellant struck her about the head several times with his open hand.  The appellant did not give evidence at the trial but the version put by the appellant's counsel to the complainant was that the appellant had slapped her once only after she had slapped him.  The learned trial judge instructed the jury that unless it was satisfied that any slap which the appellant gave the complainant did not follow an earlier slap by her, it should acquit him.

After the events of the night of 8 February, 1991 there was undoubtedly a breach in the previously continuing relation between the parties.  The complainant returned to her own home where she lived with her two children and a female friend.  She made a complaint to that friend, the terms of which were admitted in the trial as a fresh complaint.  On the following morning, after some conversation between the complainant and her friend, the friend rang the police who conversed with the complainant on the telephone and then came to the house and took a statement from her.  The investigating police officers subsequently called on the appellant, spoke to him and at the police station video recorded an interview with him.

In the course of investigations which then followed and which seem to have included a thorough forensic examination no independent incriminating features were discovered other than a matter the subject of testimony given by the Government Medical Officer, Dr Cave.  He conducted a physical examination of the complainant at 1.35 pm on 9 February, 1991, the day following the alleged offence.  Part of Dr Cave's evidence was put to the jury in the trial judge's direction as capable of constituting corroboration.  This was objected to at the trial and it now becomes the point taken on appeal.  The question is whether Dr Cave's testimony concerning tenderness in the complainant's perineum, that is, in the area between the vagina and the rectum, was evidence capable of constituting corroboration.  To the details of Dr Cave's evidence, it will be necessary to return.

It is desirable to have some regard to the background circumstances since they are relevant to the judgment called for on the appeal.

Although the appellant gave no evidence at the trial his statement made to investigating police and recorded by them was placed before the jury.  No witnesses were called for the defence but a number of witnesses in addition to the complainant were called as part of the Crown case.

From the complainant's evidence it appeared that she was thirty‑six years of age and believed that the appellant was twenty‑eight.  She may have been wrong on this since he was apparently twenty‑seven.  She had known him for some seven months and they had been engaged in a close sexual relationship.  After some one and a half months or so of their acquaintance they had reached the point where he would stay overnight at her residence.  She described them as engaging frequently in what she described as "normal sex", which included "foreplay".  She said that they had not had anal sex, although they used to talk about it.  She said she could not stand it.  According to her he had tried to have intercourse with her in this fashion twice before 8 February, 1991 but he had been drunk both times and had desisted in his attempts when she told him to.

Not long before 8 February a certain breach occurred in their relationship and the appellant stayed away from her, perhaps for the best part of two weeks.  It seemed obvious from her evidence that she regretted this.  However, they came back together again and over the next three nights before the night of 8 February, their sexual relationship was resumed.

On the night of 8 February they went to a nightclub together, with a plan to return to his house at the end of the evening.  They both drank during the evening and she said that he became drunk.  She said that she had consumed four glasses of rum and coke but he had been drinking three times as much rum and coke and taking some other liquor in addition.  On returning to his house they made up two mattresses on the floor and prepared to spend the night or part of it together.  There followed sexual activity said to include foreplay, touching of genital areas and oral sex and then what she described as "normal vaginal sex" with the appellant's body on top of hers.  During the course of this he attempted to achieve entry into her anus but she said no, pushed him away and he then recommenced vaginal sex.  He then asked her to roll over and guided her movements until she was on her hands and knees in what she called a "doggy position".  They recommenced what she described as normal sex but then while she was still in that position he entered her anus with his penis.  She said that she immediately lunged forward to try and get away but he moved forward with her, remained on top of her and continued moving inside her anus for some time until he climaxed.  She said that she felt pain but could not stop him because his body was on top of hers and she was jammed in a position where she could not move.

When the episode finished she said she went to the toilet and saw spots of blood on the toilet paper after she used it.

She and the appellant both took showers.  There followed some conversation between them in the course of which he said he did not want to continue the relationship.  She responded to this announcement by saying that she would go home, adding that he should go back to another woman whom he had recently met.

She commenced to walk home and there followed a long episode when he pursued her in his car, making a number of stops inviting her in and pushing her in.  It culminated in some slapping, the accounts of this differing as has already been pointed out.  There is no doubt that the relationship between the complainant and the appellant ended on the night of 8 February with the complainant in an upset state as a result of his rejection of her and his expressed decision not to continue the relationship.

The description which the complainant gave of Dr Cave's examination on the following day was that he went to touch her back passage and it hurt.  Since the Court is concerned with the aspect of corroboration, it is Dr Cave's account of his findings which is more important for present purposes.

Dr Cave said that when he conducted his examination of the complainant on 9 February he examined her genital organs and her anus.  He said "she was tender between the vagina and the anus and when I tried to insert a finger into her rectum to examine her she was very ‑ too tender to do that".  He did however take a rectal swab and smear.  When asked where the actual area of the tenderness which he spoke of was located he said "in the perineum.  That's the area between the vagina and the rectum".  He was unable to say what period had elapsed since the episode which caused the tenderness.

In examination‑in‑chief Dr Cave was asked whether the tenderness would "be consistent with a forceful act of anal intercourse, in other words, penis into the anus area?".  To this he answered yes.  It is to be noticed that this last question was put to him in terms of the frequently used weak indicator of "consistency" with which lawyers are familiar and also that in the double‑barrelled aspect put to him he was asked both in terms of a forceful act of anal intercourse and, as though it were equivalent, placing of the penis in the anus area (underlining added).  Dr Cave could undoubtedly have been more clearly asked in terms of insertion of the penis into the anus since this was the central point at issue but it may be that the question was deliberately phrased as it stands.

In cross‑examination Dr Cave said that the complainant was tender on the posterior fourchette, saying that was virtually the same thing that he had already spoken of.  He explained that the fourchette is where the sides of the vulva come together at the back.  He said that the tenderness was attributable "to the use of force, not necessarily a penis, a hand or a fist or fingers or whatever".  He discounted forceful vaginal intercourse as a cause of the tenderness saying that in a woman accustomed to intercourse "it would have to be unbelievably rough to cause any pain to cause that sort of tenderness".  The impression is left by his evidence that the tenderness to which he referred may, in his opinion, have been caused by the application of some force to the perineum, externally as it would seem, but that he considered it was not caused by the action of a penis within the vagina and also that he was not saying it was a manifestation of entry of some object into the anus.

When Dr Cave was asked directly what his finding of tenderness was based on he said it was because "she flinched when I touched her".  He said that he did not see any sign of redness or bruising or tearing or blood in the area of the anus.  It has already been mentioned that the pathological examination did not reveal anything significant.  No seminal fluid was detected within the anus but in view of the passage of time this was not necessarily to be expected even if the complainant's account was correct.  The complainant had been most specific that the appellant had ejaculated inside her anus.  The only bruising which Dr Cave noticed upon the complainant was on the front of her thigh.

Certain particular questions arose for consideration as a result of Dr Cave's evidence.  The finding of tenderness may have been based on a subjective element.  It may have been based upon a reaction which, it might be objected, may have been controllable by the complainant.  Alternatively, if the flinching was involuntary, it might be thought to have been due to something other than an impact injury sustained in the area, eg an ordinary natural reaction to the intimate examination in progress.  As against this, Dr Cave was an experienced medical practitioner and made a finding of tenderness so it may be taken that he was giving his opinion that she was tender in that area.

A further aspect is that Dr Cave did not clearly say that the medical sign he discovered was consistent with entry of a penis into the anus as opposed to the application of force externally to the perineum area.  Giving an answer as he did in terms of mere consistency, he seemed to be expressing no opinion that the sign of tenderness which he discovered pointed to the entry of a penis or any other object into the anus.  It is true that the complainant in her evidence did not speak of any episode involving pressure from the penis or other application of force to the area of the perineum either during vaginal intercourse or the alleged anal intercourse.

Another matter relevant to the jury's consideration of the factual issue was that although it was put in cross‑ examination of the complainant that anal intercourse had not occurred on the night of 8 February, the appellant himself equivocated in his answers to police questioning on this issue.  As the trial judge reminded the jury in his summing‑ up, the appellant had, in his interview, conveyed to the police that he had no recollection of having anal intercourse with the complainant on the night of 9 February, but had added that had it occurred he expected that he would have remembered it.  The judge did not instruct the jury that the appellant's responses to the police, if the jury were satisfied that they were made, could amount to corroboration.

It was put in cross‑examination of the complainant at the trial that the appellant on another occasion had attempted to have anal intercourse with her and to some extent had actually entered her anus.  It might be concluded from this that the appellant through his counsel was putting himself forward as a person not necessarily averse to activity of this kind, although on an occasion, it is to be assumed, when it is consented to or not objected to.  However, the complainant, although she spoke of the appellant's attempts, did not admit the fact of entry.  Again, the trial judge did not put to the jury that there was anything in this aspect which was capable of providing corroboration.  The case went to the jury only on the capacity of the tenderness in the area of the perineum deposed to by Dr Cave to provide corroboration.

Before the summing‑up commenced, counsel for the appellant made the submission that Dr Cave's evidence of physical tenderness was not capable of constituting corroboration.  The trial judge in the absence of the jury ruled that it was, saying in the course of his brief remarks that there were two issues in dispute, one the question of penetration and the second the question of consent.

During his summing‑up, having directed the jury on the necessary element of sexual penetration and the further element of absence of consent, the trial judge discussed the component of indecency involved in offences under s337 of the Code. He told the jury members that this was a matter committed to their judgment as members of the community. He said that they were charged with deciding whether the activity was offensive to common propriety and pointed out that in the course of consensual sexual activity between two persons a wide range of conduct would probably not be judged indecent. He said that if it was not consensual then the jury had a different question to consider. No objection is taken to this direction and therefore nothing on this aspect falls for our consideration on the appeal.

The judge, in his summing‑up, told the jury that there were two issues alive in the trial which the Crown was obliged to prove.  It had to prove that the appellant on the night in question inserted his penis into the complainant's anus without her consent and second that the action constituted an assault of an indecent nature.  This direction was clearly given, although the judge did go on to tell the jury that if it was satisfied that the penetration occurred without the consent of the complainant then it "could hardly be anything other than satisfied that that was unlawful and an indecent assault".  He did not explain to the members of the jury why they might consider it could be regarded as, in effect, an automatic conclusion in the context of the long‑standing intimate relationship between the complainant and the appellant that it was indecent if it was not consensual.  However, no objection was taken to this below and none is raised before us and it, too, does not call for further consideration.

In turning to the aspect of corroboration the trial judge gave a direction which in some respects was very compressed. He briefly explained corroboration as being evidence from a witness other than the accused which tended to connect the accused with the offence charged or confirmed in some material particular the claim of the complainant that the accused committed the offence. He informed the jury that since a sexual allegation was under consideration it was "the practice of the Courts, due to past experience to warn ... that it is always prudent to look for corroboration". However, he did not elaborate on the experience which has given rise to the practice or the considerations which made it prudent to look for corroboration and he gave the jury no instruction, beyond this bare formula, of what its approach should be if it was not satisfied that there was evidence which in its view constituted corroboration of the complainant. A direction in these brief terms without further explanation would give rise to serious concern as to its sufficiency: R v Spencer [1987] 1 AC 128 at 140 and R v Button (CA 292/1990; Court of Criminal Appeal, 5 February, 8 May, 1991, unreported). Further, although the judge told the jury that the evidence of Dr Cave was capable of amounting to corroboration he did not tell it that there was no other evidence which it was entitled to consider as amounting to it.

In dealing with the evidence of Dr Cave the judge said there were two aspects of the complainant's evidence, firstly whether anal intercourse occurred as she claimed and secondly whether it was without her consent.  The judge informed the jury that Dr Cave's evidence was capable of amounting to corroboration that the penetration occurred and, a little later, he told it that there was no evidence which corroborated her claim that the action was without her consent.  The judge did not tell the jury how it should proceed in view of the fact that no evidence was capable of corroborating the complainant on the consent aspect.

Apart from the aspects just referred to where the summing up may have been deficient, the jury might also have been left by the evidence and the form of the summing‑up with the impression that Dr Cave had testified that there were signs of, and that his opinion was, that anal penetration had occurred.  More explanation of the effect of his testimony should have been given.

In this case because of the relationship between the complainant and the appellant and the breach which had occurred on the night of 8 February there were particular reasons why the jury should have been instructed to scrutinise with care the complainant's claim that anal intercourse had occurred and also that it was non‑consensual.  Explanation was called for as well upon the extent to which Dr Cave's evidence could be regarded as pointing to the existence of an episode of anal penetration if it pointed in this direction at all.  These are inadequacies in the direction on corroboration.  It is true that the precise ground argued on appeal was that there was error in instructing the jury that there was evidence capable of constituting corroboration and no point was taken that the evidence such as it was required wider and fuller treatment than the judge gave it or that the form of the direction on corroboration was deficient.  The question might still arise whether it is appropriate to decide the appeal solely in terms of the capacity of Dr Cave's evidence to provide relevant and sufficient corroboration without giving some attention to the adequacy of the direction in respect of it.

Turning back to the capacity of the evidence in this case to constitute corroboration, it may be observed that matters of degree can be involved in decisions upon this question: cf R v Berrill [1982] QdR 508 esp at 527; R v Roissetter [1984] 1 QdR 477 esp at 482; R v McK [1986] 1 QdR 476 esp at 481; and R v Kerim [1988] 1 QdR 426 at 448. The effect of evidence may be so slight in any possible corroborative tendency that it may not properly be left to a jury for consideration on this issue. There is a certain threshold of relevance. While it is true that it is the jury's function to decide whether evidence does have a relevant corroborative effect, it is for the judge to decide whether it is capable of being treated as having that effect. If it is neutral and not capable of being regarded as tending to confirm the guilt of the accused rather than point in another direction it is not capable of amounting to corroboration.

In the present case in view of the relationship between the complainant and the appellant and the features of the sexual activity in particular between the two on the night of 8 February it should be concluded that the evidence of Dr Cave was not capable of constituting corroboration and consequently the direction to the jury was in this respect in error.  This conclusion applies in a context where the terms in which the direction on corroboration was given to the jury on this aspect were in any event inadequate.  The case should be treated as one where there was no evidence capable of being corroborative and the jury was wrongly informed that there was.  In view of the state of the evidence and the inadequacy of the direction on corroboration this is not a case where the proviso could be applied.  The verdict and conviction should be set aside.  Since I have come to a conclusion on the point under appeal which differs from that arrived at by the majority there is no need to go further and make a pronouncement upon the question whether a retrial should be ordered.

JUDGMENT - PINCUS AND McPHERSON JJ.A.

Delivered the Eleventh day of June 1992

We have read the reasons of the Chief Justice and adopt his Honour's explanation of the nature of the case.

As the Chief Justice points out, the only ground of appeal argued was that the judge should not have told the jury that there was evidence capable of constituting corroboration.

The question is a short and, in essence, a factual one.  A doctor examined the complainant, who gave evidence at the trial that the night before that examination the appellant had anal intercourse with her.  It is necessary to quote what appear to be the most relevant parts of the doctor's evidence:

"I don't have a record of complaints, but I examined her genital organs and her anus and she was tender between the vagina and the anus and when I tried to insert a finger into her rectum to examine her she was very - too tender to do that.  Also she was very stiff ... in her lower limbs.

... The rectal examination could not be done because of tenderness.

......

That tenderness that you diagnosed there, or you saw there, would that be consistent with a forceful act of anal intercourse, in other words, penis into the anus area? -- Yes.

Having been carried out the night before you examined her? -- Yes.

......

I also noticed that she was tender on the posterior fourchette? -- Yes, that is the - really it is virtually the same thing.  The fourchette is where the sides of the vulva come together at the back.

What do you think would have caused that?  -- Any sort of forceful injury would cause it.  It can be caused by a physical - or by finger or by penis, anything which was forcefully applied.

......

What other signs did you see besides tenderness?  -- Of her limbs?

No, of her rectal area?  -- Only tenderness.

Did she tell you that she was tender? -- No, she flinched when I touched her".

As we read this, the doctor said not merely that when he tried to insert a finger into the complainant's rectum she appeared to be tender, but also that she was tender in the posterior fourchette - "virtually the same thing".  It appears to us that, whatever relevance it attributed to the evidence about the posterior fourchette, the jury was entitled to accept that the complainant's rectum was too tender for the doctor to examine her there.  He said so distinctly.  A reason for the tenderness may well have been the events of the previous evening, as related by the complainant.

In our respectful opinion, the evidence that the doctor gave as to the apparent condition of the complainant's rectum was plainly capable of corroborating her story that the appellant had anal intercourse with her:  cf. Gallagher (1986) 41 S.A.S.R. 73. Whether it did in fact corroborate it was a matter for the jury. The main argument advanced for the appellant was that flinching "lacks the quality of independent testimony", but the possibility that the apparent tenderness was simulated rather than genuine was, again, a point for the jury's consideration.

It does not appear to us that the doctor's evidence was necessarily neutral, or incapable of supporting the complainant's story that anal penetration occurred.  The judge directed the jury that there was no corroboration of the complainant, as to the issue of consent.

We respectfully agree with the Chief Justice that the trial judge's explanation to the jury of what was involved in corroboration might have been fuller.  However, that point was not taken and, had it been, would not in our opinion justify setting aside the verdict.

We would dismiss the appeal.

ORDER:APPEAL AGAINST CONVICTION DISMISSED.

Representation:

Counsel for the Crown:         D Bullock

Solicitors for the Crown:       The Director of Prosecutions

Counsel for the appellant:     A Rafter

Solicitors for the appellant:    The Legal Aid Office