R v Fyduniw

[1996] QCA 322

IN THE COURT OF APPEAL	[1996] QCA 322
SUPREME COURT OF QUEENSLAND

C.A. No. 165 of 1996

Brisbane

[R. v. Fyduniw]

THE QUEEN

v.

ZENEK PETER FYDUNIW

Appellant

Fitzgerald P.
Pincus J.A.

Williams J.

Judgment delivered 3 September 1996

Further Order delivered 20 December 1996

Further Order of the Court

IT IS FURTHER ORDERED THAT NO CONVICTION BE RECORDED.

Judgment delivered 03/09/1996

Separate Reasons for Judgment of each member of the Court; the President and
Pincus JA concurring as to orders to be made; Williams J dissenting.
_____________________________________________________________________

1.          APPEAL AGAINST CONVICTION FOR RAPE ALLOWED; VERDICT OF RAPE SET ASIDE; VERDICT OF ACQUITTAL ENTERED.

2.          APPEAL AGAINST CONVICTION FOR STALKING ALLOWED ONLY TO THE EXTENT OF DELETING THE ELEMENT OF VIOLENCE ALLEGED AS A CIRCUMSTANCE OF AGGRAVATION.

3.          APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE FOR STALKING GRANTED; APPEAL ALLOWED; SENTENCE IMPOSED BELOW SET ASIDE AND A SENTENCE OF 3 YEARS PROBATION (SUBJECT TO THE APPLICANT’S CONSENT) SUBSTITUTED.

_____________________________________________________________________

CATCHWORDS: RAPE AND UNLAWFUL STALKING - unsafe and unsatisfactory -

verdict unsafe - inconsistencies in evidence relating to time -

improbability of circumstances - M (1994) 181 C.L.R. 487.

Counsel:	Mr A. Rafter for the appellant. Mr M. Byrne Q.C. with him Mr A.W. Moynihan for the respondent.
Solicitors:	Legal Aid Office for the appellant. Queensland Director of Public Prosecutions for the respondent.
Hearing Date:	18 July 1996

REASONS FOR JUDGMENT - FITZGERALD P.
Judgment delivered 03/09/1996

The circumstances giving rise to this appeal and application for leave to appeal against sentence are set out in the reasons for judgment of the other members of the Court.

I agree with the orders proposed by Pincus J.A. and substantially with his reasons, save that I do not wish to add to observations which I have previously made concerning M. (1994) 181 C.L.R. 487. For the reasons given by his Honour, I am of opinion that there is a significant possibility that the jury wrongly convicted the appellant of rape, and that his conviction of that offence is unsafe.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 03/09/1996

I have read in draft the reasons of Williams J.; as his Honour explains, the convictions were on counts of rape and unlawful stalking. I shall deal with the rape conviction first.

The High Court last dealt in a comprehensive way with the functions of an appellate court, in dealing with this sort of appeal, in M (1994) 181 C.L.R. 487. The principal judgment is authority for the propositions that -

1. The question is whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

2. In most cases a doubt experienced by an appellate court will be one which the

jury ought also to have experienced; the exception is where the jury’s advantage in
seeing and hearing the evidence is capable of resolving the appellate court’s doubt.

3. If the evidence is such as to lead the appellate court to conclude, making full

allowance for the jury’s advantages, that there is a significant possibility of a wrong
conviction, the verdict must be set aside.

I have had difficulty in reconciling the first proposition, as a practical matter, with the second, and further difficulty in fully appreciating the force of the expression "significant possibility". In a case in which the problem the jury has to solve is essentially whether a complainant is to be believed, there must commonly be a possibility that the jury has made an error in thinking the complainant has told them the substantial truth; at least there may seem to be a possibility that, in accepting the complainant’s account, the jury has not given enough thought to the requirement that their conclusion be one unaccompanied by any reasonable doubt about the matter. By what process this possibility becomes a "significant" one is not very clear.

There was ample evidence supporting the stalking case, although as I shall illustrate it was oddly inconsistent in some respects, and some of the supporting evidence was not very strong. An example of this is the evidence of J, a friend of the complainant, who had told the Court that there was an occasion, she was inclined to "guess" about mid-1994, when the complainant and the appellant came to her house together in the appellant’s car; if this occurred, it would be difficult to reconcile with the Crown case.

The appellant gave no evidence, so that the account the complainant gave of the rape was uncontradicted. The practice is to treat a sworn contradiction of the Crown case as adding strength to a contention that the verdict was unsafe; this occurred in M (500). In this sense the absence of evidence from the appellant is a weakness, but despite that I have, in the end, reached the conclusion that the verdict is unsafe.

According to the complainant, she had gone to a party at R's house in December 1993 and on that evening she got into the appellant’s car and there was a discussion during which the appellant got mad and was swearing and hitting the steering wheel; after that he leant over to pull the complainant towards him and she pulled away and in the process her dress was torn. She was next in the appellant’s car "probably a week" later. She was walking home from work during the afternoon when the appellant offered her a lift in his car and she accepted; in view of her most recent experience as an occupant of the appellant’s car this is surprising. The car was driven for 10 or 15 minutes; when it stopped the appellant opened the boot and "someone" got out. That person was introduced as "Paul" and the complainant said "Hello" to him. Subsequent questions and answers in chief in her evidence at the trial were as follows:

" . . . then they both walked off towards the river and they sat there, sat
down.

W, at any time from the time you got picked up to getting to where you ended up, were you aware that there was a person in the boot of the car?- - No.

You said that the accused and this fellow Paul went down and sat down?-

- Yes.

Where were they sitting?-- Just on the edge of the river, the river bank.

How far away from where you were?-- Probably about 5 metres.

And what happened after they went and sat on the bank?-- I stayed in the car and I just saw them sitting there and they were just talking to each other.

Could you hear what was being said?-- No.
What happened after that?-- A few minutes later they walked over to the
car and Zenek said to me, ‘Get out of the car’, and I said, ‘What for?’ and
he just said, ‘Get out of the car.’ So I hopped out of the car and I heard
the door being shut, and seen him do it, and Paul grabbed me from
behind. "

It will be noted that on this version, after the introduction, Paul and the appellant walked away and conversed with each other out of the hearing of the complainant. At the committal the complainant had said that the car was driven for about 5 or 10 minutes - that is consistent - and "he pulled up in an industrial area and we were facing towards the Brisbane River and we sat talking for a while". She claimed at committal to have no recollection of what the conversation was or what it was about other than to say "we were just talking about - in general about day-to-day things" and said that the conversation in the car occurred "probably for only a few minutes". This is an inconsistency, for the version given at the trial had the appellant opening the boot and Paul emerging immediately after the car was stopped; one would be inclined to expect the complainant to remember whether that was the course of events or whether, on the other hand, there was a substantial interval for conversation between the car being pulled up in this remote spot and the emergence of Paul from the boot.

There followed, as Williams J. has explained, a forcible rape, in which the participants were the appellant and Paul. If these events occurred, Paul would have been likely to be a close friend or associate of the appellant; yet although the complainant and people she knew had a deal of communication with the appellant there was no independent evidence that Paul existed - i.e. evidence other than that of the complainant, describing the rape.

It was suggested during the hearing before us that the appellant’s conviction cannot be set aside merely on the basis that the rape was alleged to have occurred in most unusual circumstances: the rape has been allegedly committed by a person well known to the victim, with the assistance of another person apparently unknown to anyone (other than the appellant) connected with the case, that person having been induced or decided to conceal himself in the boot of the appellant’s car, presumably on the off-chance that the complainant might be persuaded to enter the car and be driven in it. On reflection, it appears to me that these circumstances are so unusual as to merit the description a little improbable; this certainly could not vitiate the verdict, but if there are other significant improbabilities it can help.

To my mind the most worrying aspect of the complainant’s evidence is not that just referred to - namely the circumstances of the rape itself - but her inability to place the rape in time.

She first complained of it a year after it is said to have occurred. We are familiar with cases in which young girls who have been subjected to a course of sexual abuse find it difficult, and commonly impossible, to say when particular acts were done to them. Mr Byrne Q.C. argued for the Crown that the criticism of the complainant’s evidence relied on discrepancies about parts of the complainant’s testimony about events stretching over a period in excess of a year. Here, there is only one act of any real significance, a rape committed on a person who, so far as one can judge from the record, seems articulate enough to be thought reasonably intelligent. According to the Crown prosecutor she was at the time of this rape a virgin. She was nearly 16 years of age at the date of the alleged rape.

Unless the complainant had led an unusually eventful life, this rape must surely have been a most memorable event. If it occurred in December but before Christmas 1993 one would expect her to recall that this then recent and appalling experience would have overshadowed what might otherwise have been pleasant Christmas celebrations; the same would apply to New Year. Yet the complainant was not able to say in what year the rape took place. She was at one stage of opinion that it occurred in 1994; the indictment alleges a date between 22 January 1994 and 1 February 1994 and that is consistent with evidence that she told the police that it took place in the last week of January 1994. The complainant went back to school in 1994 and she said that she saw the appellant there about a week and a half after the rape.

On the other hand, some of the evidence she gave was to the effect that she was raped before Christmas in December 1993. She thought R's party, referred to above, was probably in the first or second week in December 1993, and placed the rape as being "probably a week after the party". When asked "What time of year are we talking about now?" she answered "End of December, early January".

There were two versions inconsistent in substance, of the approximate date of the rape, one that it happened early in the long school holidays and the second that it happened about the end of those holidays. But if the beginning and the end of school holidays were not events which made an impression on the complainant one would expect, as I have suggested, that at least festive dates such as Christmas and New Year would do so. I have found it puzzling that, considering her age and apparent level of intelligence, the complainant could not, it appears, remember whether she was raped before or after Christmas or before or after New Year. This is not to say that her evidence of having been raped must be untrue, but is a circumstance which makes her account of the matter seem less credible than it would otherwise be.

Constable K G Fanning gave evidence that a complaint of harassment was made on 23 January 1995 and he went to see the complainant. His evidence includes this passage:

" When you went out and spoke to her she gave you this history of being
harassed by this man?-- Yes, she did.

She told you that she had some trouble with him last year but she had not seen him for ages until the Saturday?-- Words to that effect, yes.

"That is she hadn’t seen him for ages until Saturday the 21st?-- That’s

correct.

"And that she was concerned about him contacting her again; is that

right?-- That’s correct.

And she told you that he had turned up at the newsagency on the
Saturday the 21st?-- That’s right.

And she thought this harassment would start again and that is why she had got in contact with the police?-- That was the indication given, yes. "

Unless Fanning completely misunderstood the complainant’s concerns, she was anxious about a recurrence of previous harassment manifested by the appellant having come to see her two days previously. In her evidence she said she thought that it was at the end of January that the appellant came to the newsagency and that was consistent with what she told Fanning. But she made a statement to the police to the effect that the appellant came to the newsagency in the week beginning 8 January 1995. The puzzling aspect of this discrepancy is that she spoke to the police, it seems to be accepted, on 23 January 1995 and one would expect her to be able to say whether it was only two days earlier or weeks earlier that the visit to the newsagency took place. There was evidence, which was not challenged, that the appellant was out of the State from 19 December 1994 to 18 January 1995, so that there are two substantial reasons for thinking that the statement that the appellant had come to see the complainant about 8 January 1994 is incorrect - the evidence of his absence from the State at that time, and also the evidence of what the complainant told Constable Fanning. And on the day after she spoke to Fanning she told another police officer that she had seen the appellant only once since July 1994. On 20 February 1995 she said she had encountered the appellant on 20 January 1995, the night of J’s party, when he attempted to engage her attention; she had not previously mentioned this to police. One would have expected this to be recounted to Fanning on 23 January 1995.

In her evidence in chief the complainant said that from July 1994 to February 1995 she did not see the appellant at the newsagency; she said that she saw him in early February after she had complained to the police. However, in considering this area of the evidence, one should not take too much from difficulty in recalling, in April 1996, dates of events at the beginning of 1995. The appellant’s contention that this part of the Crown case throws doubts on the complainant’s credit does not depend on testing her recollection over a period of more than a year; the respondent’s difficulty is that the statements that the complainant made to the police in January 1995 about her contacts with the appellant in that very month are inconsistent to a surprising extent.

In her evidence at the trial the complainant said as I have mentioned that she did not see the appellant at the newsagency until after she made the complaint to the police, she thought in early February. The complainant’s account of the appellant having come to the newsagency in February was supported by a co-worker there, M; that witness’ evidence of what happened on the occasion in question is irreconcilable with the complainant’s version, but that does not seem to me to be a matter of great consequence.

In my opinion the differences between the complainant’s various accounts of her then recent contact or lack of contact with the appellant, given to the police at the end of January 1995, are difficult to explain on the basis that the complainant’s memory was faulty. If her statements to the police at the end of January 1995 recorded with substantial accuracy what she had to say, one must consider the possibility that what she said about seeing the appellant at the newsagency in January 1995 was simply untrue.

Other criticisms of the complainant’s evidence were made, but the only additional point I think it necessary to mention is the complainant’s reason for late complaint. Complaint was made to the police on 23 January 1995, about a year after the alleged rape. When asked why she did not earlier tell her parents about the rape she first said "I didn’t want to upset them. I was embarrassed about it". When questioned further she said that she thought her parents would be mad at the appellant; the latter explanation is implausible, for she had it appears complained to her parents about harassment by the appellant, to such effect as to induce them to change their phone number and place of residence.

I have found the case a difficult one and have considered the respondent’s contention that the matters to which I have referred are no more than one might routinely encounter in cases of alleged sexual offences against young girls. But I have found myself unable to conclude that the matter is free from a risk that the account of the rape given by the complainant is in substance untrue, or that such risk is not a real one. I have been particularly concerned about what I regard as the strange difficulty the complainant (aged 18 at trial) had in locating the rape in time, by reference to what should have been significant events: the beginning and end of the school holidays, Christmas Day and New Year’s Day. And for reasons I have attempted to explain, I have regarded the inconsistencies between the accounts given of contacts between the appellant and complainant in January 1995, in statements given in that month, as bearing on the complainant’s credit.

It will be understood that the function of this Court is in this case limited to determining whether the verdict is safe in the sense discussed above.

I would allow the appeal against conviction for rape, set aside the verdict and sentence, and enter a verdict of acquittal on that count. The rape was relied on as the circumstance of aggravation, on the stalking charge; plainly that cannot stand.

Sentence

There is an application for leave to appeal against sentence in respect of the other offence of unlawful stalking with a circumstance of aggravation. For this the appellant was sentenced to 18 months imprisonment. The period of stalking charged began when the appellant was 18 years of age. He has no previous convictions and a report which has been obtained shows him to be "severely learning disabled" with an I.Q. in the bottom 10% of the population. It is not easy to set out precisely what was done by way of stalking because some of it, dealt with above, has been the subject of quite inconsistent evidence and statements from the complainant. But it is unnecessary to go into detail to justify the conclusion that, absent the conviction for rape, it is quite unlikely that a young offender with no previous convictions would have been given a custodial sentence for such stalking as one can reasonably assume to have occurred. As I have mentioned, the circumstance of aggravation, the rape, must be deleted.

I would set aside the term of imprisonment imposed in respect of the stalking offence and replace it, subject to the appellant’s consent, by a sentence of 3 years probation.

The orders I make are:

1.         Appeal against conviction for rape allowed; verdict of rape set aside; verdict of

acquittal entered.

2. Appeal against conviction for stalking allowed only to the extent of deleting the element of violence alleged as a circumstance of aggravation.

3.         Application for leave to appeal against sentence for stalking granted; appeal allowed; sentence imposed below set aside and a sentence of 3 years probation (subject to the applicant’s consent) substituted.

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered the 3rd day of September 1996

The appellant was convicted in the District Court at Brisbane of raping a girl W between 22 January and 1 February 1994. He was also found guilty of the following offence:

"That between the 30th day of November 1993 and the 12th day of February 1995 at Brisbane in the State of Queensland you are unlawfully stalked another person ... W and further that one of the concerning acts constituting the offence involved you using violence against the said ... W."

At the trial the prosecution provided particulars of the circumstance of aggravation involving the use of violence, and it was in broad terms the rape, subject of the first count, that constituted that violence. It will be necessary to say more about that later.

At the trial defence counsel challenged the joinder of the two counts but the learned trial judge ruled that the joinder was permissible. Particularly as the alleged rape was relevant to the stalking charge the joinder was clearly permissible under s.567(2) of the Criminal Code. One of the grounds of appeal challenged the correctness of the ruling on that point, but it was not pressed by counsel. Subject to what is said later, there can be no doubt but that the ruling by the learned judge was right.

It should also be recorded at the outset that counsel for the appellant conceded that the summing up was unobjectionable. There was no corroboration of the complainant girl's evidence, and no recent complaint. Appropriate warnings and directions were given with respect to those matters. It was also conceded that there was evidence before the jury sufficient to sustain a verdict of guilty. The principal, if not sole, argument against conviction addressed to this court was that upon making an independent assessment of the complainant's evidence this court should come to the conclusion that the verdict on the count of rape was unsafe and unsatisfactory. This court is therefore required to perform the task described by the High Court in Morris v. The Queen (1987) 163 CLR 455 and M v. The Queen (1994) 181 CLR 487. In a case such as this, as was pointed out in M, this court must also pay full regard to the fact that the jury was the body entrusted with the primary responsibility of determining guilt or innocence and had the benefit of seeing and hearing the witnesses, in particular the complainant girl.

So far as is revealed by the record book the complainant girl has told a consistent story since the allegations first came to light. There are no apparent inconsistencies between her sworn evidence at trial and other statements made as to the relevant events. Further, there are no inherent inconsistencies in her evidence at trial; there is consistency between her evidence in chief and that given under cross-examination. It will be necessary to outline the facts briefly but it also should be stated at this stage that there was nothing inherently improbable about the complainant girl's evidence.

In those circumstances it really has to be said that the absence of any recent complaint affords the major, if not sole, support for the argument that the verdict is unsafe and unsatisfactory.

It should also be recorded that the appellant did not give evidence and the complainant girl's evidence on the incidents giving rise to the charge was therefore uncontradicted.

The complainant girl was born on 24 February 1978, and was thus nearly 16 at the time the critical events allegedly occurred. At the time she was working as a casual employee at a delicatessen in a shopping centre. The appellant was then working as a trolley boy for Franklins in the same centre. Words, in the nature of short casual exchanges, passed between them at the shopping centre from time to time.

In about December 1993 the appellant began driving past the complainant's house two or three times a day; he would usually pull up at the front of the house and blow the horn on his car. Sometimes the complainant would go and speak to him.

About that time an incident occurred where the complainant was sitting in the front seat of the appellant's car when the latter grabbed her wallet. He declined to give it back to her on that occasion. Subsequently in December 1993 the complainant was at a party at the home of a friend. The appellant drove past the house slowly two or three times, and eventually the complainant spoke to him and asked for her wallet back. The appellant replied by saying words to the effect, "Come with me, I will get it for you". The complainant and another young male person then got in the car. The appellant drove for some distance before stopping. He then asked the other male to get out of the car and sit on the footpath; that person did so. In the course of the ensuing conversation the appellant asked the complainant why she didn't love him any more. She responded by saying that she had never been interested in him. The appellant then questioned her about her seeing another young man. He asked her to break off with that person and to go out with him. She again said she wasn't interested in him. There upon the appellant began swearing and he also started hitting the steering wheel. He was asking questions such as, "Why don't you like me?". He lent over in an endeavour to pull the girl towards him but she pulled away; in the process her dress got caught on something in the car and was torn. The appellant then drove the complainant and the other young male back to the party. She did not get her wallet on that occasion.

There followed further instances of the appellant driving to or past the complainant's house. Apparently there was some intermittent conversation, but the complainant could not remember detail. About four or five days after the party incident the appellant commenced phoning the complainant's house. He asked questions, for example, as to where she had been.

Next in point of time on the complainant's evidence came the rape. She placed this at the "end of December, early January". She was walking home from work when the appellant stopped his vehicle and offered her a lift home. She initially declined, but then accepted and entered the vehicle. Instead of driving to her home the appellant drove to a grassed area near the banks of the Brisbane River somewhere past Kingsford Smith Drive. When the vehicle came to a halt the appellant opened the boot and another male person, whom the appellant introduced as Paul, got out. The complainant had not seen him prior to that occasion. There was some conversation between the appellant and Paul outside of the car, and then Paul walked to the car and told the complainant to "get out of the car". When she did so Paul grabbed her from behind but she elbowed him away and ran off. Paul caught her, grabbed her shoulders, and pushed her onto the ground. He told her to relax. Paul then carried her around to the front of the car towards the passenger side where the complainant saw a blanket on the ground. Paul placed her on the blanket. The appellant then removed her shorts and underpants despite her telling him to stop it and let her go. The appellant then proceeded to have intercourse with her. Apparently Paul was holding the complainant throughout most, if not all, of the incident. When the appellant had completed his act of intercourse he said to Paul, "It's your turn now, mate", but Paul declined the invitation. The appellant then told the complainant to get dressed and that they would take her home. She was crying at that stage and said she wanted to go home. She got into the back seat of the vehicle and was driven home.

On arriving at her home her parents were there. She said in evidence she did not tell them what had happened because she didn't want to upset them and she was embarrassed. During cross-examination she said she didn't tell her parents because she thought her parents would be mad at the appellant.

A few days after the rape incident the appellant telephoned the complainant and asked why she didn't want to see him any more. She told him she didn't want anything to do with him and to stop ringing her place. Around that time the appellant would drive past the house two or three times a day.

After finishing work at the delicatessen in about July 1994 the complainant got a job at a Newsagency. Evidence was given of an incident there at about the end of January 1995 when the appellant came to the front door of the store. There was some evidence also of phone calls in about January 1995. There was another incident in January 1995 when the appellant spoke to the complainant whilst she was walking to the home of a friend for a party.

That is a brief, but sufficient, outline of the relevant evidence. This court is called upon to make an independent assessment of the reliability of the complainant's evidence. Whilst there was no corroboration of the allegation of rape there was other independent evidence tending to support the complainant's evidence as to the other incidents of stalking. A jury could well, in those circumstances, have formed generally a favourable view of the complainant's credibility. The evidence, so far as is revealed by a reading of the record, does not (apart from the possible consideration of the failure to make a recent complaint) indicate any reason why it would be particularly dangerous to accept the complainant's evidence. Her account of Paul emerging from the boot is a little unusual, but (given one's experience of young people's behaviour established by evidence in this court) it is not so improbable as to create doubts about the complainant's credibility. The journey in the car took 10-15 minutes (about 7 kms).

The complainant was a young girl aged 16 when the incidents in question occurred and 18 years old when she was giving evidence. A jury's assessment of her maturity and personality, as well as her demeanour whilst in the witness box, would have been of critical importance. That is particularly so when it comes to a consideration of the absence of recent complaint. Gaudron J in M., particularly at 513-515, discussed the law relating to the absence of recent complaint in a modern context. There have in recent times been numerous cases involving sexual offences particularly committed on young girls. In a large number of those cases there was no recent complaint and that alone would afford a basis for reviewing the approach adopted in bygone centuries, namely that absence of complaint was a telling factor against the credibility of the woman. It is now recognised that there are many reasons, some simple some complex, why a woman, particularly a young girl, would not make a complaint consequent upon sexual interference without her consent. It is no longer possible, as Gaudron J has indicated, to apply general assumptions in considering the relevance of the fact that there was no complaint. The fact that there was no complaint will always be a relevant matter, and a factor to be considered by the jury, but it will seldom, if ever, alone be decisive of the outcome. The position was, in my view, accurately summarised by Gaudron J at 515:

"However, circumstances vary greatly and there may be different views as to what is normal and, also, as to what constitutes reasonable opportunity. So much so, in my view, that there is much to be said for the proposition that the interests of justice are better served if each case is approached in the light of its own facts with directions to the jury being fashioned to take account of the assumption, if any, to which those facts might give rise, rather than by reference to an assumption expressed in general terms but which, clearly, cannot hold good in all cases."

I would add that in considering the relevant facts of each particular case the jury would ordinarily have regard to factors such as the personality and maturity of the complainant girl, and her relationship with her parents.

Having regard to all of those matters I am not persuaded that the evidence of the complainant girl here was so unreliable that it was unsafe for a jury to act upon it. As already noted she gave a consistent account of events and there was nothing improbable in her story. My independent assessment of her evidence does not cause me to conclude that it was unsafe for the jury to act upon it.

No other basis was advanced during argument for setting aside the conviction on the count of rape. The conviction should stand.

Though in the notice of appeal some questions were raised with respect to the conviction for stalking. No submission was made on the hearing of the appeal that the basic conviction for stalking should be set aside. It is true that there were some discrepancies in the evidence given by the complainant girl with respect to some of the concerning acts, but those discrepancies were understandable given the lapse of time between the events occurring and the trial.

The only substantive point left for consideration relates to the conviction on the stalking offence with the circumstance of aggravation.

Early in his summing up the learned trial judge said:

"So, it is said that he stalked ... W and as well there is something that made it worse, that as well, he used violence against her and the violence is said to be the act of rape."

As previously noted, in broad terms the act of rape, count one on the indictment, constituted the circumstance of aggravation. In consequence, later in his summing up, the learned trial judge correctly directed the jury as follows:

"... if you find him not guilty of stalking, that is the end of the matter. If you find him guilty of stalking then you have to face up to a further question, you will be asked: Do you find the accused guilty or not guilty of stalking, with an act of violence? Now, that is the act of rape. If you found him not guilty of rape you cannot find him guilty of that act of violence."

Once the members of the jury were satisfied that the basic stalking charge had been established beyond reasonable doubt they were, given their guilty verdict on count one, obliged to return a verdict of guilty of stalking with a circumstance of aggravation. Nothing was raised before the learned trial judge as to the propriety of that course and no specific ground relating thereto was raised by the notice of appeal. However doubts as to the procedure followed at trial emerged during submissions from counsel for the appellant. When the point was raised with senior counsel for the Crown he responded by saying:

"I accept what's been discussed this morning, there was nothing wrong with the joinder, in our submission, that is it was as valid joinder, but on the conviction, once a conviction of rape was recorded, then perhaps a different course should have been taken in respect of the second charge."

Certainly an offender cannot be punished twice for the same offence: S.16 of the Criminal Code. The application of that provision has been discussed in R v. Elhusseini (1988) 2 Qd. R. 442 at 454-5, and R v. Kiripatea (1991) 2 Qd. R. 686 at 701-2. In the first of those cases the accused was charged with carrying on the business of unlawfully trafficking in heroin and with four counts of supplying heroin. The four supply counts were relied on by the prosecution as the particulars of the carrying on of the business of unlawfully trafficking in heroin. Convictions were recorded on all counts, but it was pointed out that in those circumstances s.16 would apply so that the accused should only be punished with respect to the major offence. Convictions at trial, as was there pointed out, should be recorded so that if there was a successful appeal with respect to the major charge punishment could be imposed with respect to the lesser charges. Kiripatea gave rise to similar considerations. He was charged with mutiny with a circumstance of aggravation namely he escaped from lawful custody, and also with the offence of escaping from lawful custody. He was convicted of both. In those circumstances no separate punishment should be recorded on the lesser count.

What in essence differentiates the present situation is that the circumstance of aggravation here, the rape, constitutes the more serious offence. Rape carries life imprisonment as the maximum penalty, whereas stalking with a circumstance of aggravation carries only a maximum penalty of five years. Whilst there was a sound practical reason for drafting the indictments in Elhusseini and Kiripatea as they were, there is little or no justification for laying charges in the form used here. If the accused was found guilty of the rape he would be punished for it, and the circumstance of aggravation would have no relevance when it came to imposing penalty on the stalking charge. If he was found not guilty of the rape (even say because no penetration was established) he would have to be found not guilty of the circumstance of aggravation (even though some physical violence may have been established at the time of the alleged rape). In practical terms nothing was to be gained by alleging rape as the circumstance of aggravation here.

The possible relevance of the matters discussed in R v. Merriman (1973) A.C. 584 - as considered in R v. Baynes (1989) 2 Qd. R. 431, R v. Morrow & Flynn (1991) 2 Qd. R. 309, R v. D (unreported, C.A. No 32 of 1995 judgment 4 August 1995) and other reported and unreported cases referred to in those decisions - was not argued on the hearing of the appeal it is neither desirable nor necessary for this court to analyse the charges laid against the appellant in the light thereof. Prima facie the offences charged were different and the issues debated in those cases would not be relevant.

The critical question is whether or not a conviction should be recorded with respect to the circumstance of aggravation in the light of what has arisen here. In practical terms, if the penalty imposed with respect to the stalking disregarded the circumstance of aggravation, the appellant would not be punished twice for the same offence. Thus there is no practical consequence of recording a conviction of the circumstance of aggravation seeing there was already a conviction for rape. Given the concession made by counsel for the prosecution it would, in the particular circumstances of this case, be preferable to record, with respect to the second count on the indictment, only a conviction for stalking. Clearly the jury was satisfied beyond reasonable doubt that the basic offence had been committed; that was implicit in the guilty verdict on count two.

The appeal against conviction on the count of stalking with a circumstance of aggravation should be allowed to the extent that the conviction recorded should be set aside and a conviction for stalking substituted.

The appellant was originally sentenced to 6 years' imprisonment for the rape and 18 months' imprisonment for stalking with a circumstance of aggravation. He seeks leave to appeal against each of those sentences on the ground that it was manifestly excessive. As this court has determined that a conviction for stalking alone should be substituted for the conviction for stalking with a circumstance of aggravation it is necessary for this court to impose sentence for that offence.

After the jury verdicts were returned counsel for the appellant sought an adjournment to obtain a pre-sentence report from a psychologist. There was material then before the judge indicating that the appellant had been educated at special schools, and that should have alerted him to the desirability of there being such a report before sentence. However, the learned trial judge adopted the attitude that such a report could have been, and should have been, obtained before trial. Because of that he refused an adjournment and proceeded to impose sentence forthwith. At least in circumstances where there is some reason to believe that an accused may be intellectually impaired it is an improper exercise of discretion to refuse an adjournment for a reasonable time in order to obtain such a report. Given the appellant's age and circumstances as known to the learned trial judge he should have adjourned the sentence until a report from a psychologist was available.

Before this court both counsel were in agreement that such a report should be obtained and the court adjourned the hearing to enable a report to be obtained. Mr P Perros, a psychologist, furnished a report dated 30 July 1996 and both counsel indicated that no further argument to the court was necessary. This court has taken that report into account in determining the appeal with respect to sentence.

The appellant was aged 17½ years at the date of the offence, and was aged 20 years when sentenced. He had no previous convictions.

It is true, as pointed out by the learned sentencing judge, that there was a degree of premeditation involved in the commission of the offence of rape and it was facilitated by the acts of a second male person. It is also true that the appellant has shown no remorse; he still maintains his innocence. The matter went to trial and the girl was cross-examined. The appellant's overall conduct affected the complainant girl emotionally, and that impacted on her family; ultimately the family moved from Brisbane to Western Australia.

However it also must be recorded that there was no significant physical violence involved; there is no suggestion that the girl suffered any physical injury at the time. Clearly the appellant was a young male who was infatuated with a young girl who did not respond to his advances.

The report from the psychologist clearly establishes that the appellant has had significant learning problems from an early age. Predominantly he was educated at special schools. He has a reading age of about 7½ years. He also has a visual attention disorder. Despite those problems he has always been eager to lend a hand around the family home, and has assisted in painting the house and in carrying repairs on motor vehicles. Through various courses he had successfully completed training for a front-end loader licence, and at the time of his arrest was undertaking training on a Bobcat. The finding by the psychologist that despite learning and attentional problems the appellant has a strong desire to be successful appears to be justified.

There is no doubt that because of his below-level intellectual functioning (he is in the bottom 10% of the population) imprisonment will be difficult for him. He will be more vulnerable to domination by hardened criminals. Given his previous desire to overcome his disabilities and become successful there is a reasonable prospect of successful rehabilitation.

In the light of the report from the psychologist there is at least a basis for thinking that his inappropriate behaviour towards the complainant girl was at least in part due to a lack of appreciation of the effect of his conduct on her and her family.

When all of those factors are brought into account a head sentence of 6 years' imprisonment is in my view manifestly excessive. The circumstances of this case called for a sentence at the bottom end of the range for an offence of this type. Given all that I have said the sentence imposed should be set aside and in lieu thereof it should be ordered that the appellant be imprisoned for a period of 4½ years with a recommendation that he be eligible to apply for parole after serving 18 months of that sentence.

With respect to the conviction for stalking a sentence of imprisonment for a period of 9 months to be served concurrently with the other term of imprisonment is appropriate and should be imposed.

The sentences should date from the date of the original sentence namely 19 April The orders should therefore be as follows. Allow the appeal against conviction to the extent of setting aside the conviction on the count of stalking with a circumstance of aggravation and recording in lieu thereof a conviction for stalking. Grant leave to appeal against sentence, allow the appeal, set aside the sentences imposed on each of the counts of rape and stalking with a circumstance of aggravation and in lieu impose a sentence of 4½ years with a recommendation for eligibility to apply for parole after serving 18 months on the count of rape, and 9 months concurrent on the count of stalking. Sentences to date from 19 April 1996.

1996.