R v Haar

[1992] QCA 164

IN THE COURT OF APPEAL	[1992] QCA 164
SUPREME COURT OF QUEENSLAND	Appeal No.351 of 1991

T H E Q U E E N

v.

JOHN ALBERT HAAR

Appellant

MINUTE OF ORDER:Appeal against conviction dismissed

Application for leave to appeal against sentence granted and

appeal allowed. Sentence of imprisonment
for 10 years set aside and a sentence of

imprisonment for 7½ years substituted.

CATCHWORDS:Criminal law - Sentence - Applicant sentenced to

ten years for rape of 12 year old girl
following eight and a half months in
custody - whether manifestly excessive in
view of youth of applicant and fact that
complainant went voluntarily to
applicant's flat following minor sexual
incident - reduced to seven and a half

years

Counsel: Mr P. Nase for the Appellant

Mr Rutledge for the Respondent

Solicitors:Legal Aid Office (Queensland) for the Appellant
Director of Prosecutions for the Respondent
Hearing Date: 6 and 7/05/92
____________________________________________________
Separate reasons for judgment of The President, Mr Justice

Davies and Mr Justice Mackenzie delivered on the 24th day of June, 1992. The President and Mr Justice Mackenzie agree with respect to the appeal against conviction, Mr Justice Davies dissenting. All concur as to the application for leave to appeal against sentence.

JUDGMENT OF FITZGERALD P.

Delivered the 24th day of June, 1992

On 10 December 1991, the appellant was convicted of rape and, on 11 December, he was sentenced to imprisonment for ten years. He has appealed to this court against his conviction

and, in the alternative, seeks leave to appeal against the

sentence imposed.

The offence of which the appellant was convicted arose

out of activities at the Gold Coast on 20 and 21 December and various matters were referred to in the submissions made on behalf of the appellant, although it did not really emerge what, if any, significance it was submitted should be attributed to some of these matters. The fundamental proposition was that the conviction was unsafe and unsatisfactory because it was based only upon the uncorroborated admissions of the appellant which were not supported by the testimony of the girl whom he was convicted of raping and because it was inconsistent with his acquittal on the other charges, especially the other alleged rape. Reference was also made to the absence of any rupture in the girl's hymen but there was no basis for a conclusion that that was inconsistent with the degree of penetration necessary for rape or with an offence of rape as described by the appellant in his admissions. Reference was also made to aspects of the summing-up which were unnecessary and unhelpful but did not cause the trial to miscarry.

1990, when the appellant was twenty years of age and the girl
whom he was convicted of raping was twelve years old. The
indictment against the appellant included four charges, one of
indecently assaulting the girl on 20 December 1990, and three
charges which related to 21 December 1990, one of
administering alcohol to her with intent to stupefy so as to
have sexual intercourse with her and two offences of rape,
including the offence of rape of which the appellant was
convicted.

The attack made upon the confessional evidence,

substantially on the basis that the appellant's admissions what he said was taken down in writing by a Victorian police officer and the appellant signed each page. On the second occasion, an interview with the appellant was recorded by an audio tape. The transcript of that recording reveals no basis for any suggestion that the appellant merely affirmed what was put to him but, on the contrary, shows that the appellant gave a very detailed account of events upon which the charges against him were based. Neither the circumstances in which the admissions were made nor the material parts of the summing-up provide a basis for interference by this Court.
followed a period of bullying by the police which induced the
appellant to adopt an incorrect version of events which had
been created and put to him by the police. The appellant's
admissions were made on two occasions at the police station at

Nonetheless, the appellant's version of events was not

corroborated and, in particular, was not supported by the respect of a particular offence if it considered a conviction on that offence unwarranted in all the circumstances, including the role played by the girl.

evidence of the girl. There may be a number of explanations
for this, including the amount of alcohol consumed by both
parties and the girl's youthfulness and, perhaps, shame or
concern at parental disapproval. The absence of corroboration
and the inconsistencies between the girl's account of events
and the appellant's admissions (and a verdict of guilt) are
matters which the appellant is entitled to have brought to
account, particularly when attention is focused upon the
different conclusions arrived at by the jury in relation to
the various charges, all of which were based on the
appellant's admissions to the police.
In the circumstances of this case, the description of the
jury's different verdicts as inconsistent necessarily involves
a contention that the jury could only have decided as it did
if it believed part and disbelieved part of the appellant's
admissions. It is unnecessary to consider whether that course
would have been open because the contention is fallacious and
seeks to take an illegitimate advantage of the appellant's
quite proper requirement of the jury that it acquit him of any
charge in respect of which it had a reasonable doubt. That
requirement was emphasised in this matter by the need for the
jury to recognize that the admissions, the sole evidence of
guilt, were inconsistent with the girl's evidence and
uncorroborated and had to be closely scrutinized. If the jury
had any doubt that a material part of the appellant's
description of events disclosed the particular offence with
which he was charged, whether for reasons of inaccuracy or
for any other reason including its perception of the
surrounding circumstances, he was entitled to be acquitted.

It is against this background that the jury's different

verdicts on the two charges of rape, each based on the
appellant's admissions, fall to be considered. To discharge
its function properly, the jury was entitled, if not
required, to differentiate between the reliability of the
admissions with respect to the two charges in addition, of
course, to any difference in the circumstances. There is
ample scope in the latter aspect, without more, to explain the

jury's verdicts of acquittal.

The jury acquitted the appellant of raping the girl on

the second occasion on which, on his admissions, he effected
partial penetration. She had remained with him in the flat and
continued to consume alcohol and act towards him in a
friendly manner despite his earlier doubt. Further, both were
affected by alcohol when the events which gave rise to the
second rape charge occurred, as is reflected in a degree of
confusion in the material portion of the appellant's
admissions. There is nothing surprising in the jury's
verdict.

By way of contrast, the rape of which the jury convicted

the appellant had occurred earlier in circumstances in which the jury could easily have been satisfied beyond reasonable conduct that the girl did not consent to the appellant's

conduct. On the appellant's admissions, the partial
penetration occurred while he was on top of the girl, she was
struggling and another male held her arms. The jury was
entitled to accept the accuracy of the appellant's description
of events and, if it did so, to be satisfied beyond reasonable

doubt of his guilt.

In any event, the discussions were not such that similar

verdicts must have been reached on both charges of rape to
avoid the finding that they were inconsistent. The evidence
of the appellant with respect to the first and second charges
of rape was sufficiently different to justify a reasonable
jury in finding him guilty of rape on the first count but not
on the second. I adopt the reasons of Mr Justice MacKenzie on

this point.

The jury had the heavy responsibility of searching for

the truth of what occurred on the basis of evidence which
possessed contradictions and other deficiencies. No doubt its
task was difficult, as is not uncommon. Neither the was
presented nor the circumstance that it was not satisfied of
the appellant's guilt beyond a reasonable doubt in respect of
related offences means that its guilty verdict on the material

rape count was unsafe or unsatisfactory.

The appeal against conviction should be dismissed.

I have had the advantage of reading Mr Justice

MacKenzie's reasons for judgment on the application for leave to appeal against sentence, and I agree with both the reasons and the orders proposed.

REASONS FOR JUDGMENT - DAVIES J.A.

Delivered the 24th day of June 1992

The appellant was convicted on 10 December 1991 of rape of a 12 year old girl ("the complainant") on 21 December 1990, and on 11 December 1991 he was sentenced to a term of imprisonment of ten years. He now appeals against that conviction and, in the alternative, seeks leave to appeal against that sentence. He was twenty years of age at the date of the offence.

The appellant had been tried on an indictment which contained four charges. The first was of indecently assaulting the

complainant on 20 December 1990, the second was of administering alcohol to her on 21 December 1990 with intent to stupefy her so as to have sexual intercourse with her, and the third and fourth were of raping her on 21 December 1990. He was convicted on only the third of those charges.

The notice of appeal against conviction contained five grounds of appeal. At the commencement of argument we were informed by Mr Nase for the appellant that the third of those grounds, particularising an alleged error of the trial judge, would not be argued and that grounds 2, 4 and 5 would be argued only to

the extent that they particularised ground 1. Ground 1 was that the verdict of the jury was unsafe, unsatisfactory and dangerous. Ground 2 was that the guilty verdict on the third

charge was inconsistent with the not guilty verdicts on the first, second and fourth charges. In oral argument Mr Nase

refined that argument to one of a substantial inconsistency only
between the third and fourth charges.

Grounds 4 and 5 particularised alleged errors of the trial judge, the first in failing to adequately warn the jury of the

dangers of acting upon confessional evidence without reliable

corroboration and the second in failing to inform the jury of the provisions of s. 464H of the Victorian Crimes Act 1958. The second of these was not specifically mentioned in the oral argument of the appellant and the first was mentioned only briefly. Neither was the subject of an application for redirection or of any complaint made at the trial. It was conceded that for this reason they could be relevant only to ground 1. They were relied on in support of an argument that the appellant's two alleged confessions, to which I shall refer later, were unsafe.

At first sight the jury's verdict on the third charge seems difficult to reconcile with their verdict on the fourth charge.

The only evidence against the appellant on either the third or fourth charge was his own confessions. If the jury had accepted the confessions, it was argued, they should have convicted on both the third and fourth charges. If they rejected them they should have acquitted on both. However, a closer examination of the confessions and of the events on 21 December, to which I shall refer later, reveal some basis for reconciling the two verdicts.

The indecent assault allegedly occurred shortly after the complainant and the appellant met in the mall at Surfers Paradise when, after some teasing of the complainant by the appellant in which the appellant took the complainant's hat and ran away and she chased him, he pulled down the strap of her swimsuit top and started kissing her breasts. She gave evidence of this and that she started screaming and told him to stop. This evidence accords generally with the confessions. In his evidence at the trial, however, the appellant denied pulling down her swimsuit top and kissing her breasts. In view of the

coincidence between the complainant's version and the appellant's confessions, it may be that the jury accepted that the appellant did pull down the complainant's swimsuit top and kiss her breasts but that, in view of an arrangement which the

complainant made shortly after this to meet the appellant again the following day, the jury had a reasonable doubt as to whether the complainant consented to what the appellant had done, notwithstanding that the appellant did not put consent in issue at the trial. The only other rational explanation for the verdict on this charge can be that the jury rejected the complainant's evidence and the appellant's two confessions. However if that were so the appellant should also have been acquitted on the third charge.

On the following day the complainant met the appellant again and, after spending part of the day in his company, decided to go to the appellant's flat rather than to her own home. Although at the appellant's flat the complainant consumed a substantial quantity of alcohol, the second charge was a rather ambitious one and no point is taken of inconsistency between the not guilty verdict on this and the guilty verdict on the third charge.

The complainant did not complain or give evidence that the appellant had or had attempted to have intercourse with her at any time on 21 December. However, there may be a number of reasonable explanations for this. She had consumed a substantial quantity of alcohol during the period immediately before the alleged rapes. On her own estimate she had five or

six drinks, which appeared to be cans, of beer. She also said that she drank some scotch whisky and coke. Her recollection of events for a large part of that evening was very hazy and she seems to have fallen into a drunken sleep. Furthermore, the jury may have thought that she was not telling the whole truth.

The medical evidence was that her hymen was intact after 21 December and that penetration to a depth of more than 4 cm would have ruptured it. In the second confession referred to below

the appellant said that he had on each of the two occasions referred to in charges three and four penetrated about the length of half his penis. Though there was no evidence of what

that distance was, it seems likely that if on either occasion his penis had penetrated to that depth, the complainant's hymen would have ruptured.

The only evidence against the appellant on the third and fourth charges was, as I have said, the confessions. I turn now to the attack made on those confessions. Both were taken at the Ballarat police station on 28 March 1991, the first being taken down in writing by a police officer, each page being signed by

the appellant; the second being tape recorded by an audio tape.
It was not, and could not have been, asserted that these did
not take place. What was said at the trial and persisted in on
appeal was that these confessions followed a period of bullying
by the police which induced the appellant to give a false

account of events implicating him. It was also said that discrepancies between these confessions and the account of

events given by the complainant supported the argument that the
confessions were unreliable.

The first of these contentions, which amounts to an assertion that, in giving the account which he gave of events on 20 and 21 December the appellant was reproducing what the police had told him to say, is inherently incredible when regard is had to the

transcript of the audio tape in which, in answer to non-leading questions, the appellant gave a very detailed account of events which occurred over those two days.

As to the second, it is not surprising that there are inconsistencies, even as to quite substantial matters, between the complainant and the appellant as to the events which occurred over those two days, particularly when regard is had, in both cases, to the time which elapsed between those events

and the attempt to recollect them and to the quantity of alcohol
which each had consumed.

I am therefore not persuaded that there was a reasonable possibility that the appellant's confessions were affected by any inducement by the police, by bullying or otherwise.

There were two arguable bases for reconciling the verdicts on charges three and four. Both raise a doubt about whether the appellant effected penetration on the occasion to which the fourth charge relates. One involves an examination of the terms

of the tape recorded confession; the other involves an
examination of the events on 21 December.

The first points to inconsistencies or equivocations in the answers bearing on the question whether, on the occasion to which the fourth charge relates, the appellant effected penetration. When asked in the taped interview whether he managed "proper penetration", he answered "no". In answer to the next question "How far did you get it in?", he answered "oh, about the same as before, half way ...", by which, he explained, he meant half way inside her vagina. The answers to these

questions are arguably inconsistent . I am inclined to think that the second of these answers indicates that, by his earlier answer "no", he interpreted "proper penetration" to mean penetration to the full length of his penis. Nevertheless there remains some doubt about this.

An examination of the transcript of the confession with respect to the occasion to which the third charge relates gives rise to similar doubt. After having said that on this occasion he got his penis half way inside her, when asked was he moving his

penis in and out of her he answered, "trying to" which appears to be a reference to difficulties involved in penetration given his statements in that confession that the complainant was

rolling from side to side in order to prevent entry and that she
had her swimsuit on.

The difficulty with this argument therefore is that a similar doubt whether the appellant effected penetration arises with

respect to each occasion.

As to the second argument, the appellant consumed a large quantity of alcohol during the evening of 21 December (though how much is by no means clear), including a substantial quantity between the first occasion and the second. It seems likely that

he would have been more affected by alcohol at the time when he

attempted to have intercourse on the second occasion than on the first and that consequently his recollection of precisely what

occurred on the second occasion is likely to be less reliable that on the first. Furthermore, his description of the relative positions of the complainant and himself on the occasion to which the fourth charge relates left a greater margin for error, both in execution and recollection, than that on the occasion to

which the third charge relates, particularly having regard to
his state of intoxication.

This then remains an arguable basis for reconciling the verdicts. However the overall impression which I have of this confession is that the differences between the facts on the first occasion, and those on the second, upon the critical

question of penetration are slight. Moreover, the appellant's assertion that on each occasion his penis penetrated the complainant's vagina to half the length of his penis seems clearly to be inconsistent with the uncontradicted medical evidence referred to above. If he did effect penetration on either occasion it could not have been to that extent.

Another question of concern about the verdict on the third charge arises from the way in which the trial judge summed up with respect to the veracity of the police. He said:

"You are asked to consider whether you think it likely that senior, experienced police officers would risk their careers and reputations by lying about what happened or just perhaps to get a free trip to Queensland. The Crown suggests no police officer would behave in that way. It would not be worth his while."

His Honour did not say, in stating what appears to have been the Crown's contention, that it raised a false issue, which it did.

He left it as a relevant question for the jury to consider. The only relevant question was whether there was a reasonable possibility that the police were lying about the circumstances in which the confession was made. To direct a jury, as his Honour impliedly did, that it was relevant to determine whether it was likely that the police officers had perjured themselves

was wrong: McKinney v. The Queen (1991) 65 A.L.J.R. 241 at 244.
But because the argument that the confessions were unsafe

because of any conduct on the part of the police was otherwise

untenable, I would not be prepared to say that this misdirection
rendered them or the verdict unsafe.

Nevertheless, as I have said, the differences between the critical evidence against the appellant on the third charge and that against him on the fourth charge are slight. I do not think that they would justify a reasonable jury in safely concluding beyond reasonable doubt that the appellant had effected penetration on the occasion to which the third charge relates whilst not being so satisfied with respect to the occasion to which the fourth charge relates. Consequently, because the appellant has been acquitted on the fourth charge I

think that the verdict of guilty on the third charge is unsafe
and ought to be set aside.

I would therefore allow the appeal and set aside the verdict of guilty on the third charge.

If, contrary to my view expressed above, the verdict on the third charge is to stand, I would grant the application for leave to appeal against sentence and substitute a period of

seven and a half years imprisonment for the reasons given by

Mackenzie J.

____________________________________________________

APPEAL AGAINST CONVICTION DISMISSED.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED AND

APPEAL ALLOWED. SENTENCE OF IMPRISONMENT FOR 10 YEARS
SET ASIDE AND A SENTENCE OF IMPRISONMENT FOR 7½ YEARS
SUBSTITUTED.