R v H

[2002] QCA 171

[2002] QCA 171

COURT OF APPEAL

McMURDO P
  McPHERSON JA
  MACKENZIE J

CA No 49 of 2002

THE QUEEN

v.

H  Applicant

BRISBANE

..DATE 14/05/2002

JUDGMENT

14052002  T19-20/JJD24 M/T COA102/2002

THE PRESIDENT:  Justice Mackenzie will deliver his reasons

first.

MACKENZIE J:  The applicant pleaded guilty on 18th July

1997 to two offences of attempted rape and one of rape.  He

was sentenced on the 8th of August 1997.  The complainant's

mother was the wife of the applicant.

The first attempted rape was committed in 1995 or perhaps

late 1994, before her 10th birthday and the other two

offences occurred while she was 10 years of age.  The matter

had previously gone to trial on three counts of rape, but

the jury failed to reach a unanimous verdict.

The applicant had told the police, when interviewed, that

the complainant was making up the complaints and the defence 
  of the trial was based on a denial that the relevant events

had occurred.  Prior to the commencement of the second

trial, the prosecution offered to substitute charges of

attempted rape for the counts of rape in respect of the

first and second incidents.  The count of rape was to be

maintained in respect of the third incident. 

The facts presented by the prosecution in sentencing

submissions were that the complainant had, in a section 93A

video, described what happened in the following way:

"My dad does this thing and I don't know what it's
      called, you know, how you make babies.  Well, my dad
      does that to me."

The Crown Prosecutor told the sentencing Judge that the

complainant went on to describe how the applicant took her

clothes off, then his, hopped on top of her, then moved up

and down.

On the first occasion, she described in her interview that

what happened hurt her vagina on the inside when he tried to

place his penis inside it.  It was accepted that he did not

achieve actual penetration on this occasion.

On the second occasion, the description was similar and,

once again, it was accepted that he did not penetrate her

vagina.  The Crown Prosecutor told the sentencing Judge that

on the third occasion, four days before the complaint was

made to the authorities, the complainant had no doubt in her

mind that actual penetration occurred.

He said that evidence of spermatozoa consistent with the

applicant's was found on the carpet in the area where this

offence was alleged to have occurred, although the Scenes of

Crime Officer who took the samples was on stress leave and

reluctant to give evidence.

The prosecution also had evidence from the paediatrician who

examined the complainant on the 14th of November 1995.  He

found that there was recent redness and tenderness on the

inner labia, just below the vaginal opening and there were a

few scattered remnants of the hymen present.  He concluded

that this was abnormal and that the findings were consistent

with and supportive of some form of sexual impropriety,

although he could not distinguish, from the evidence,

between interference with the finger, a blunt object or a

penis.

The applicant, who has a criminal record for offences of

dishonesty of almost habitual proportions dating from 1984,

was also sentenced for 19 further offences of various kinds

of dishonesty, including one count of armed robbery in

company with personal violence, with a further 109 charges

being taken into account.

The sentence for the count of rape was fixed at eight years

and nine months, based on an appropriate sentence of nine

years, reduced for "a slight reduction for cooperation  

with the authorities", to use the Judge's words.  He was

sentenced to five years' imprisonment on each of the

attempted rapes, such sentences to be served concurrently

with that for the rape.

All of the sentences for dishonesty, except that for the

armed robbery in company with personal violence, were

ordered to be served concurrently with the other offences. 

The armed robbery sentence was fixed at five years, to be

served cumulatively upon the sentence for rape.

The present application is concerned only with the

convictions for attempted rape and rape.  The applicant has

deposed that before he left the Correctional Centre on the

morning of his second trial, he was told that his

grandfather, to whom he was close, had passed away in the

early hours of the morning.

He says that he was told by his counsel that the Crown was

going to seek about 20 years' imprisonment if he was found

guilty of three charges of rape.  He said that he decided to

accept an offer from the prosecution that they would drop

two of the charges of rape to attempted rape, but would

maintain the third charge of rape.

He said that he was also worried about the health of his

youngest daughter, who had a congenital serious heart

condition.  He said that when he was in Court, he asked his

wife what he should do and she said that he should do

whatever it took to get him home sooner.

He had maintained his denial to his wife that any sexual

misconduct had occurred to that time.  He said that he did

not fully realise the consequences of what he was doing by

pleading guilty.  He was an emotional wreck and wanted to

get away from everything.

He decided to plead guilty, as he saw it was his only way

out.  He says that from the day he received his sentence, he

had regretted pleading guilty.  An application for leave to

appeal against the sentences imposed was dismissed by this

Court on the 18th of November 1997.  No complaints about the

entering of the plea of guilty were made at that time,

although it must be said that he has told us today that his

solicitor said that he could not challenge the conviction in

the absence of additional evidence.

That no doubt is relied on as explaining the delay in making

the application presently before us.  The applicant seeks to

rely on a statement written by the complainant and

affidavits from his wife and other relatives, which are said

to cast doubt on whether the evidence established the

offences to which he pleaded guilty.

Before analysing them it is desirable to refer to other

aspects of the applicant's affidavit.  He deposed that he

did engage in sexual conduct with the complainant, but

denied the allegations initially out of fear that he would

lose his wife and children if he admitted such conduct.

He therefore denied the allegations when interviewed by the

police. 

In his affidavit, he describes an incident where he wanted

to get some skin lotion rubbed on his back because he

suffered from dry skin.  He said that the complainant

offered to do so.  She was dressed in swimming togs and

after anointing him, asked him to rub cream on her back.

He did that and proceeded to put cream on her arms and legs

and became aroused by what he was doing.  He said that he

did not do anything on that day by way of sexual misconduct. 
  He went on to say that around the time of the complainant's

birthday, his wife had gone to bingo.  He was watching a

video when he heard the complainant going to the toilet.

While watching the video, he became sexually aroused and

asked the complainant to rub cream on his back.  When she

had finished, he asked her if she wanted him to do the same

to her.  He initially got her to take her pyjama shirt off,

but later helped her to take off her pyjama pants so that

he could rub her whole body.

He says, to use his words: "For some strange reason doing

this to [her] made me feel very aroused."  He said that he

started to tickle around her vagina area and having asked

her to roll onto her stomach, began to rub his penis

against, as he put it, her bottom.  He denied trying to

penetrate her in any way. 

He also describes an incident on the 9th of November 1995

when his wife had again gone to bingo.  He asked the

complainant to rub cream on his back and once again, when

she had finished, he asked if she wanted him to rub some on

her.

He asked her to take off her nightie and later to take off

her underpants.  She was initially lying on her stomach, but

he asked her to roll over.  He became aroused while rubbing

the cream closer and closer around her vaginal area.  He

rubbed her vaginal area for some time and then began to rub

his penis against the outside of her vaginal area. 

The statement of the complainant, dated the 7th of December

2001, upon which the applicant relies, is to the effect that

when she was of the age between 9 and 10, her mother used to

go to bingo.  While she was away, the applicant would sit

her on his lap and touch her in places that she knew were

not meant to be touched.  She never told him not to do that,

as she was very scared of him and knew that she would get

the belt if she complained.  He would then tell her to take

off her pyjamas and undies and tell her to lie on the floor.

He would then shut all the doors and turn off all the

lights.  All she could see was him moving up and down on top

of her.  She said that she hurt so much on one occasion that

she was nearly going to cry and when she went to the toilet

it was painful.

She said that she could not say whether he put his penis in

or not.  That incident apparently relates to the last

occasion, since she says that it was the occasion when he

gave her $5 and told her not to tell her mother.  There is

also a statutory declaration that states that the applicant

fondled her on the first two occasions and that on the last

occasion, he hurt her so much that she wanted to cry.

With regard to the last incident, the proposed fresh

evidence, in my view, is of no assistance to the applicant. 
  Even taking the evidence at its highest for him, it would,

in my view, almost inevitably lead the jury to conclude

that, on that occasion, he effected a sufficient degree of

penetration when the evidence is taken in conjunction with

the evidence of the paediatrician.

There is reference in the outline of argument to an audio

cassette of conversations between himself, the complainant

and the complainant's mother recorded over the telephone

while he was in prison.  I have listened to the tape.  It

consists of several conversations during the course of one

day with his wife.

The complainant is in the background and, as the tape is

reproduced, it is very difficult, if not impossible, to hear

what the complainant herself is actually saying.  In any

event, it seemed to me that the conversations as relayed to

the applicant by his wife left the matter in an inconclusive

state as to the extent of the recollection of the

complainant of events of the days in question.

An affidavit from the applicant's wife states that the

complainant had said to her that she was confused about

what had happened when she was younger and that now that she

was old enough to understand all about sex, she realised

that the applicant did not do what he had been charged with.

However, she was of the view that he should be in trouble

for touching and fondling her. 

The applicant's wife deposes that the applicant admitted

substantially the version of what he says occurred in his

application to her in this period.  The applicant's mother

said that the complainant told her that the applicant did

not force her and that he only fondled her and that she was

sore when she went to the toilet.

The deponent says that the applicant was asked if it was

rape and she said, "No, it was indecent dealing."  If that

is based on the proposition that penetration of the vagina

itself is necessary to constitute rape, it is based on an

imperfect understanding of the law as it stood at the time

of these events at least.

The slightest penetration of the labia was sufficient to

constitute the element of carnal knowledge (Randall (1991)

53 Australian Criminal Reports 380, where Justice Cox gives

a succinct overview of the common law position, which was

adopted for the purposes of the Code).  Given the age of the

child at the time, the question of actual consent or an

honest and reasonable belief in consent is not a serious

issue. 

The applicant was sentenced on the basis that no violence

beyond what was necessary to commit the offences had been

shown and there were no threats of violence.  However, the

prisoner told the girl to keep silent and gave her money on

the last occasion.  I have gone into the facts of the matter

in some little detail to illustrate what I think is the

essential point in this application.  The evidence as it

stands, in my view, falls far short of a case where an

extension for leave to appeal should be entertained at this

point, or that leave to withdraw a plea of guilty should be

granted.

The Crown Prosecutor reminded the Court that the onus is on

the applicant to show a miscarriage of justice if he wishes

to withdraw his plea and that the Court is entitled to act

on a plea of guilty made on the free choice of a decision to

plead guilty.

The evidence does not establish why the plea of guilty made

on that occasion ought now to be allowed to be withdrawn and

there are no other factors, such as impropriety or improper

pressure imposed upon him to plead guilty, on that occasion.

In all of the circumstances, I am of the opinion that the

application for leave for an extension of time should be

refused.

THE PRESIDENT:  I agree.

McPHERSON JA:  I agree.

THE PRESIDENT:  The order is the application for an

extension of time is refused.

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