R v Francis

[1992] QCA 274

IN THE COURT OF APPEAL  [1992] QCA 274

SUPREME COURT OF QUEENSLAND

C.A. No. 119 of 1992

THE QUEEN

v.

BRUCE CONROY FRANCIS

(Appellant)

JUDGMENT - THE CHIEF JUSTICE

Delivered 28th the day of August, 1992.

I am able to express my general agreement with what Davies J.A. and Demack J. have stated concerning the trial judge's directions on the question of consent and on corroboration.  I agree that the result should be an order that the conviction be set aside.

On the first issue, that of consent, a reading of the direction reveals that there were parts which were misleading.  On the facts proved in this case it was irrelevant to instruct the members of the jury in a way which might lead them to believe that if consent to intercourse was forthcoming due to the effect of drink it would be rape.

On the further aspect of corroboration the reasons prepared by Davies J.A. and Demack J. point to matters referred to in the Crown outline of argument on appeal which were incorrectly advanced as providing corroboration.  In this case the trial judge's summing-up denied the jury assistance in the identification of evidence which was capable of constituting corroboration.  This allowed the possibility that confusion would remain in the minds of the jury and it withheld an instruction which was clearly called for.

Once the conclusion is reached that the conviction must be set aside the next question is whether it should be ordered that there be a new trial on the rape count.  There is no direct evidence of penetration and there is only slight circumstantial evidence that penetration occurred rather than some other episode of a sexual nature involving the complainant.  This circumstantial evidence seems to be restricted to the complainant's own statement referring to the discharge from her person which she said she noticed.  Her words were that "It poured out of me when I stood up".  But in saying this she may have been relying on impression more than observation.  On the Crown case she had at the point when this claimed observation was made just some moments before roused herself from a state of deep unconsciousness induced by intoxication in which she had not detected that the sexual penetration which is alleged had occurred.  The other evidence does not remove the strong doubts which are left on this aspect.  There appears to be no evidence which is capable of corroborating the element of penetration.

The uncertainties in the evidence being as they are there is in my view no safe basis on which a verdict of rape could be reached and accordingly there should be no order for a new trial on that count.

JOINT REASONS FOR JUDGMENT OF DAVIES J.A. AND DEMACK J.

Delivered the 28th day of August 1992

Bruce Conroy Francis was found guilty of the crime of rape and sentenced to imprisonment for five years with a recommendation that he be considered for parole after two years.  He appeals against the conviction and seeks leave to appeal against the sentence.

The witnesses at the trial were Detective Senior Constable Mark Austin, Constable Wendy Wilkings, "K", who was the complainant, "Brett", her defacto husband, and "Simona", who had known K for about five years.  In November 1990, K and Brett lived in a two-storied house in Broadbeach Waters.

At about 2 p.m. on 28 November 1990, K met Simona at Simona's house.  Over the next three hours, they drank a bottle of champagne and a couple of glasses of wine.  They then went to K's place at Broadbeach Waters.  They drank another bottle of wine.  Brett came home from work at about 8 p.m.  Brett phoned the appellant and invited him to join them.  He arrived at Broadbeach Waters about 9 p.m.  The four people then left for a restaurant.  All had cocktails.  K had met the appellant twice before this evening.  Simona had met him previously while in Perth.  He was also known to Brett.  While they were at the restaurant, the appellant remarked to K, Simona and Brett that K had the best set of tits he had ever seen in his life.  At about 11 p.m., the four people left the restaurant and went to a night club.  They remained there till about 3 a.m., when they all left for the house at Broadbeach Waters.

On arrival there, Simona went to sleep on a couch in the lounge.  Brett and K prepared some food.  The appellant, after making a phone call from his car, joined the others in the house.  Before having anything to eat, K went to the bedroom which she and Brett occupied.  She removed her clothes, "fell on the covers and went to sleep".  The appellant and Brett ate some food, and then sat in the lounge near the couch where Simona was asleep.  They talked for a while and Brett fell asleep.

After falling asleep, the next thing K remembered was an unusual weight on her chest above her breasts.  It was distorting her breathing which made her come out of her sleep.  She remembered a colour, heard the front door slam, heard the gate and heard a car start.  She quickly stood up to see which car was starting, and saw it was the appellant's car which was going around the corner "at a huge rate of knots".  She noticed a "flood of fluid" coming out between her legs.  She put a towel around herself.  Her evidence continued -

I ran to find where they were - Brett and Simona - for help, and Simona woke instantly because I was distraught and crying and she got up and came over to me. I was standing over this bar that we had there and I was just howling and it was just all - just all came out.  I just said, "What's this?", and, "He's just left.  He's been on top of me.  He's come inside of me.  I was asleep.   I didn't feel anything.", and I said, "Get Brett.  Get Brett up.", and he was hard to wake and Simona was kicking him and, "Get up Brett.", and he gets up and he came over to me and, "What's wrong, K?" - that's my nickname - and I said, "Bruce's done this to me".

Simona said:-

She was saying it was - "He came inside of me".  "He was on top of me", and I said, "Who?".  She said, "Bruce".  I said, "Are you sure?" And she said, "Yes, I'm sure" and then she was, she was shaking and crying and then I said, "Do you want me to wake Brett up?"

Before that, did she say anything else? -- She said it that fast, and she said, "I remember his shirt". "He's gone in the car".

You mentioned something about Brett? -- I tried to wake Brett up and he was very hard, and I went back to K and she said, "Wake him, wake him".

Where was he? -- He was on the floor near the couch.

When you went to sleep, did you see where Bruce was? --  No.

You kept trying to wake him up? -- Brett?

Yes? -- Yes, I did.  And he woke and he went straight over to K and said, "K, what's up?", "What's wrong?" and K was shaking and saying it was - she said, he's, you know, "He's raped me.  He was on top of me.  He was inside me" and then she started getting hysterical and saying she was feeling dirty and she started to pull away from Brett.  And then she said to me that she - she had her hand and she was all - her hand had - was wet.

Did you notice anything about her legs? -- Her legs?  No.

The upper part of her legs? -- I couldn't see them.  The towel was over.

Did she put her hand anywhere before she showed you? -- Yes, she did.  She put it between her legs.

And she showed you her hand? --  Yes.

Was anything on it? -- Yes, it was wet, secretion, it was all wet.

Then what? -- Then she said that, she said, "He must have pulled my tampon out".  She said, "We've got to find it."

Simona found the tampon under the bed.

Brett said:

What was the first thing she said? -- "I've been raped".

Yes, is that all she said initially? -- It was very broken - the information that I was getting off K - because she wasn't composed enough to string more than two or three words together at that point, but she did say a number of other things.

What else was said by her? -- She said it was Bruce and the two things that she - that she brought out very quickly were that she was obviously in a very deep sleep and that she had some recollection of weight, particularly on her left side, and then had a vision of this multi-coloured shirt, and then as she was just trying to come to she'd seen Bruce flash down the hallway and then as soon as she was - at such a speed - that as soon as she got up his car was started and she physically watched him drive up the road at a rapid speed.

Did she say anything to you after that? -- Yes, she had only a towel robed across her which she had pulled across herself because when she woke she was naked and she had seminal fluid coming down the insides of her thighs and was sobbing and pointing toward it and she didn't at that point - I identified that, yes, it was certainly semen that she had down her legs.

Did she say anything - was anything said about a tampon? -- Yes.

Who said that? -- K mentioned that she was menstruating at the time.  She mentioned that he must have removed her tampon because it, too, had disappeared and she wanted - she seemed in a panic.  She wanted to find that tampon that was missing as well.

Did she get changed? -- Yes.  She - we got some tissues and placed them across her vaginal entrance and then proceeded to go to the Southport Police Station.

The tissue that K placed at the entrance to her vagina was stained with semen.  The cover on the bed had no semen stains, but there were several small semen stains in the centre of the sheet taken from the bed.  At a subsequent medical examination, vaginal, vulval, perianal and urethral swabs were taken.  All showed the presence of semen and in each case the grouping results were consistent with semen from either Brett or the appellant.  K and Brett had intercourse two days previously.

The appellant was interviewed by Detective Senior Constable Austin.  He substantially agreed with the account of the evening and morning which the other witnesses gave, up to the point where they fell asleep.  He contended all four fell asleep in the lounge.  He denied any sexual intercourse.  He was not asked about the remark he is said to have made about K's breasts.  He says he left Broadbeach Waters after five a.m. to go home and have a couple of hours sleep before going to work.

There are only two grounds of substance in this appeal.  The first relates to the adequacy of the direction of the trial judge in relation to consent.  The second relates to the adequacy of his direction on the question of corroboration.  We will deal with these in turn.

The direction in relation to consent

After reading s. 347 of the Criminal Code to the jury and defining "carnal knowledge" his Honour said:-

"Also the carnal knowledge must be without the consent of the complainant.  Now, it does not say that it has to be by force.  It does not even say that it has to be against her will.  It says, 'without consent'.

Now, I can tell you as a question of law that it is rape to have carnal knowledge of a woman who is drunk, who does not resist because her submission is due to the fact that she is drunk.  A person who is insensible is incapable of giving consent.  It is rape for a man to have carnal knowledge of a woman who he knows to be asleep.  If she is asleep she cannot consent, and if he knows she is asleep he knows that she cannot consent.  Now, those are questions of law which you may have regard to and apply to the facts of the case you are considering, if you think they are relevant to the facts which have been established in this case."

His Honour was asked to redirect on this question and did so in the following terms:-

"Ladies and gentlemen, there is some doubt as to whether I may have misled you when directing you as to the law about the possibility of raping a woman who is drunk.  I thought I did correctly, but in case I did not, I am going to state to you again what the law is.  It is rape if there is carnal knowledge of a woman who is rendered insensible through liquor, or where she is so affected that she does not resist, because her submission is due to the fact that she is drunk.  A woman who is insensible is incapable of giving consent.  So really it gets back to the question of consent, and the consent must of course be a true consent.  Clearly a person who is asleep or is so affected by alcohol that she is incapable of consenting cannot consent."

The underlining is each of these passages is ours.  That part of the direction and re-direction which we have underlined in our view constituted a mis-direction.

His Honour's direction and re-direction seem to have been taken, at least indirectly, from the annotations to s. 347 in Carter's Criminal Law of Queensland. Part of the relevant annotation reads:

"It is rape to have carnal knowledge of a woman who has been rendered insensible through liquor even though the accused gave her the liquor only for the purpose of exciting her, or where she does not resist because her submission is due to the fact that she is drunk.  A woman who is insensible is incapable of giving consent.  See R. v. Camplin (1845) 1 C. & K. 746; 1 Cox C.C. 220; R. v. Fletcher (1859) 8 Cox C.C. 131."

The underlining here is also ours.

If the whole of the passage which we have quoted from the annotation is intended to refer to a woman who is insensible through drink we think it is a correct statement of the law. The first part of the first sentence, that is up to the underlined part, and the concluding sentence seem to indicate that that is the intention of the passage. However, the phrase which we have underlined is capable of referring, and perhaps does refer in its natural meaning, to a woman who is conscious. The word "submission" connotes consent albeit reluctant. Carnal knowledge with reluctant consent cannot amount to rape except in the specific cases referred to in s. 347. The underlined phrase in the passage which we have quoted from the annotation is therefore at least confusing. Further the cases cited as authorities were decided upon a materially different definition of rape and can have no relevance to s. 347. Whether in any event they were cited as authorities for the underlined phrase is not clear.

His Honour's first direction on this question was plainly wrong. It is not correct as a matter of law that it is rape to have carnal knowledge of a woman who is drunk who does not resist because her submission is due to the fact that she is drunk. The reason why it is not is that that at least includes the case where the carnal knowledge is consensual notwithstanding that the consent is induced by excessive consumption of alcohol. The critical question in this case was whether the complainant had, by reason of sleep or a drunken stupor, been rendered incapable of deciding whether to consent or not. No question arose of consent obtained in one of the ways specified in s. 347.

His Honour's re-direction, which consisted in substance of quoting the passage from the annotation, did not, for reasons which we have given when criticising that passage, disabuse the jury in respect of his earlier mis-direction.

Consequently, the original mis-direction and the confusing re-direction on this question were sufficient to require that the conviction be set aside and a new trial ordered.

Corroboration

His Honour's direction with respect to corroboration was in the following terms:

"Now, in the case of a sexual offence such as this, the law says that it is highly desirable that there should be some corroboration of the evidence of the complainant.  That is that there should be independent evidence, some evidence from some person other than the complainant which implicates the accused in the commission of the offence of rape.  So, I can indicate to you that it is dangerous to convict a person, in this case the accused, of an offence such as this, rape, unless you have some independent evidence from some person other than the complainant girl which tends to corroborate her evidence and implicate the accused in the commission of the offence.

There is such evidence in this case.  It is a matter for you to decide whether you accept it, and if you do, whether in fact it does corroborate the girl's evidence."

There was nothing wrong with his Honour's definition of corroboration.  However, he then left it to the jury to speculate as to which of the evidence in the case came within that definition.  The difficulty in doing so in this case is illustrated by the Crown's outline of argument in this Court:

"Evidence capable of amounting to corroboration of evidence of appellant as the perpetrator was available in the identification of his vehicle leaving the house, the manner of his leaving (in haste and suddenly), the coloured shirt he was wearing ..."

However, because the complainant was plainly the only person who could give any of that evidence, none of it was capable of amounting to corroboration.  The trial judge should have given some illustrations of the evidence in the case which was capable of amounting to corroboration; for example the semen stained tissue, the discharge of fluid from her vagina observed by others, the distinctive smell of semen smelt by Brett and the observed distress of the complainant.  His Honour's failure to give any such examples could have caused the jury to have been confused, as the Crown obviously was, as to what constituted corroboration in this case.  It is preferable that a trial judge rule upon the evidence capable of amounting to corroboration before counsel address the jury.  In this way the jury is not left with confusing possibilities.

His Honour's failure to direct in this respect was also sufficient to require that the conviction be set aside and a new trial ordered.

The appeal should be allowed, the conviction set aside and a new trial ordered.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND  C.A. No. 119 of 1992

THE QUEEN

v.

BRUCE CONROY FRANCIS

(Appellant)

JOINT REASONS FOR JUDGMENT OF DAVIES J.A. AND DEMACK J.

Delivered the 28th day of August 1992

MINUTES OF ORDER:        Appeal allowed.  Conviction set aside.  New trial ordered.

CATCHWORDS:                  CRIMINAL LAW - RAPE - appellant accused of raping a woman whilst asleep - whether it is rape to have carnal knowledge of a woman who is drunk who does not resist because submission is due to drunken state - whether complainant incapable of consenting - whether any corroboration

CRIMINAL CODE, s. 347

Counsel:P. Ridgway for the Respondent

R. Hanson Q.C. with him A.J. MacSporran for the Appellant

Solicitors:Director of Prosecutions for the Respondent

Robertson O'Gorman for the Appellant

Hearing Date/s: 23 June 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND  C.A. No. 119 of 1992

THE QUEEN

v.

BRUCE CONROY FRANCIS

(Appellant)

____________________________________________________

THE CHIEF JUSTICE

DAVIES JA

DEMACK J

____________________________________________________

Reasons for Judgment of the Chief Justice, dissenting as to the order proposed, and Joint Reasons for Judgment of Davies J.A. and Demack J. delivered the 28th day of August 1992

____________________________________________________

"APPEAL ALLOWED.  CONVICTION SET ASIDE.  NEW TRIAL ORDERED."