R v Hopper

[1993] QCA 561

IN THE COURT OF APPEAL [1993] QCA 561

SUPREME COURT OF QUEENSLAND

C.A. No. 337 of 1993

Brisbane
[R. v. Hopper]

BETWEEN

T H E Q U E E N
v.

GLENN MARTIN HOPPER

(Appellant)

The Chief Justice
Mr Justice McPherson

Mr Justice Pincus

Judgment delivered on 20/12/93

Reasons for judgment by the Court

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS CRIMINAL LAW - Rape - Section 347 Criminal Code (Qld) - Whether trial judge failed to direct on intoxication and intent - Section 28 Criminal Code (Qld.) - Rape not an offence of specific intent - Whether corroborative evidence of bruising, distress etc. implicated the accused - Whether trial judge's direction on corroboration correct - Consent and interrelationship with mistake of fact - Section 24 Criminal Code (Qld) - Whether a mistaken belief induced by intoxication can be reasonable.

Counsel:	P. Nolan for the appellant P. Callaghan for the respondent
Solicitors:	Gabrielle Ruddy & Garrett, t/a for Allan Dick, Southport, for the appellant
Director of Prosecutions for the respondent
Hearing	Date:  4 November 1993

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 337 of 1993

Brisbane

Before The Chief Justice
Mr Justice McPherson
Mr Justice Pincus

[R. v. Hopper]

BETWEEN

T H E Q U E E N
v.

GLENN MARTIN HOPPER

(Appellant)

REASONS FOR JUDGMENT - THE COURT
Judgment delivered the 20th day of December 1993

This is an appeal by Glenn Martin Hopper against his conviction on a count of rape, another of indecent assault with circumstances of aggravation, and a further count of indecent assault. An application for leave to appeal against sentence was not pursued and was dismissed during the hearing of the appeal.

The events giving rise to the three charges took place at the Gold Coast on 15 January 1993. The appellant was charged with one Scott Allan McLeod, who was referred to throughout the proceedings as "Red". At an early stage, the learned trial judge acceded to an application that McLeod be tried separately from the appellant. The trial then continued against the appellant alone, leading to verdicts of guilty in the case of the three offences mentioned.

At the trial the case for the Crown was that in the course of a night out the complainant, who is a 17 year old woman living on the Gold Coast, accompanied two male friends to a warehouse which apparently serves as a clubhouse for a group known as the Black Uhlans bikies, arriving there at about 4 a.m. on 15 January. While having a drink in the bar downstairs, she struck up a conversation with McLeod on the subject of his tattoos. He asked if she would like to see the "gear" he used for doing tattoos. She said she would, and followed him to a room upstairs.

The room was a living area with a bed of a kind as well as equipment used in the business of tattooing. McLeod pushed her on to the bed and began kissing her. He suppressed her screams and struggles by holding her down and placing his hand over her mouth before tearing her clothing off. He put his fingers in her vagina, and inserted his penis and had sexual intercourse with her. In the proceedings against the appellant, it is accepted that McLeod raped the complainant.

When he stopped, another man came into the room. The complainant later identified him as the appellant Hopper. McLeod put a pillow over the complainant's face holding it at first with a hand at each side and then with only one hand. Meanwhile she was trying to struggle free and in doing so was, from under the pillow, able to see the appellant's face. When he came up to the bed McLeod let go and the appellant took hold of the complainant. According to her evidence, he inserted his penis in her vagina and had sexual intercourse with her. She was screaming, crying and shaking. He asked her why, and she said she was scared and pleaded with him to help her. He got up and was helping her look for her jeans when McLeod came back up the stairs. He told the appellant "Just fuck her", and the appellant took her by the shoulders and pushed her back on to the bed. He then had sexual intercourse with her again.

After that, various other sexual indignities and offences were committed upon her by McLeod and the appellant, who at some stage were assisted by other men who had come upstairs. Eventually they let the complainant go, telling her to collect her clothes, clean up, and leave. She succeeded in obtaining help from two people who drove her to a nearby service station.

By the time she arrived there it was about 9 a.m. Witnesses who saw her at that time attested to her distraught condition, which was also recorded on video tape. At about midday she was examined by a medical practitioner, who found extensive tearing, abrasions and bruising in and around her vagina, surrounding areas and thighs.
The appellant was not located until some weeks later. When first approached by police on the morning of 12 February 1993, he denied being at the clubhouse premises on the day or at the time in question. Later on 12 February he participated in two interviews with police that were video taped. In the course of the interviews he confessed to having had sexual intercourse with the complainant and admitted to a number of matters that tallied with details in the evidence later given by the complainant at the trial.

The notice of appeal contains four grounds. Advice was given of intention to add a fifth ground based on what was said to be inconsistency between the verdicts on the three counts on which the appellant was found guilty, and the verdicts of not guilty returned on some of the other counts against him. However, at the hearing of the appeal the proposed fifth ground was abandoned in view of the decision of this Court in R. v. Bickle (C.A. 346 of 1992).

Of the original four grounds, one (ground 4) complained of the failure of the trial judge to direct the jury on the effect of intoxication and "how it related to the question of intent for the purposes of counts 1 and 2". Count 2 was a charge of attempted rape, which was abandoned in circumstances that will be mentioned. Count 1 was the charge of rape of which the appellant was found guilty. For the present it is enough to say that it was conceded in argument that intoxication, if self-induced as was the case here, did not provide the appellant with a ground of exculpation from criminal responsibility for rape under the provisions of the Criminal Code. It is, however, potentially relevant to ground 1 in the notice of appeal, which relies on mistake under s.24 of the Code. Before turning to that matter, grounds 2 and 3 will be considered.

Those two grounds are concerned with corroboration and the direction given to the jury on that subject. It was acknowledged by counsel that the appellant's original and false account of his movements on the occasion in question was corroborative. What is complained of is the instruction to the jury that the medical evidence about injuries to the complainant and the evidence of her condition of distress at the service station were capable of corroborating her testimony that she was raped by the appellant. Essentially the submission is that, although her injuries and distress after the event might tend to confirm the complainant's evidence that she had been raped by McLeod, they could not corroborate her testimony that the appellant in having sexual intercourse with her had acted without her consent.

The submission is inconsistent not only with much of what was said by the majority of the court in R. v. Berrill [1982] Qd.R. 508, but also with the decision reached in that case, which it was sought to distinguish on the ground that the appellant here was absent when the preceding rape by McLeod was taking place. Without canvassing the judgments in Berrill in any detail, it is sufficient for present purposes to say that we do not accept the suggested distinction in a case like this. Here the offence charged against the appellant formed part of what was essentially a single episode consisting of a continuous series of violent acts alleged to have been committed by the appellant and others upon the same complainant. Of that the complainant's injuries and distress provided ample evidence capable of confirming in material respects that she was the victim of sexual assault that took place without her consent.

This leaves for consideration the first ground of appeal. It is that the trial judge misdirected the jury on the question of consent in relation to the charge of rape in count 1 and its relationship to the defence of mistake of fact raised by the appellant. As originally framed, the indictment contained in count 2 the charge of attempted rape already mentioned. It had evidently been expected that the complainant would say that in one instance the appellant tried but failed to achieve penetration. In fact, in giving her evidence at the trial she testified to two separate acts of complete penetration by him. Rather than amend, the charge in count 2 was it seems not pursued, and the rape charged in count 1 was presented to the jury as the particular act of penetration effected by the appellant before McLeod came back into the room.

Identifying the rape charged in count 1 as the first of the two acts of penetration of which the complainant gave evidence is necessary to enable the defence of mistake raised at the trial to be properly considered. The appellant himself gave no evidence at the trial; but videotapes of police interviews with him were tendered by the Crown and formed part of the material before the jury. One of those interviews contained the following statement by the appellant:

"Then I walked up the stairs up to the top floor and there was a girl there, I didn't know her, but she was laying out. Didn't have anything on. No clothes on. And being how I was, I was pretty well inebriated, I
got on top of her. And she lay there, she didn't struggle, she just lay there and I heard that she started crying. I asked what was wrong and she just shook her head. I said, 'Oh, sorry.', and jumped up.
I said, 'Will you get a taxi out of here if you don't want to be here?' I said, 'I'll ring a taxi.' She just looked at me and then I went downstairs, rang a taxi."

It was on this passage that the defence of mistake was founded.
Strictly speaking, of course, what s.24 of the Code
provides is not a defence but a matter of exculpation from
criminal responsibility that, once fairly raised (as it
admittedly was here) by material at the trial, it is for the
prosecution to exclude beyond reasonable doubt. Experience
suggests that it is not always easy to direct a jury in simple
and comprehensible terms that they must be satisfied to the
requisite standard that the accused did not mistakenly believe
that the complainant consented to the sexual intercourse. It
can, however, in many cases be done by instructing them that
they are bound to find the accused not guilty if they think that
he honestly and reasonably believed the complainant was
consenting to his having sexual intercourse with her, or if they
are left with a reasonable doubt whether or not he did hold such
a belief.
In the present case no point is taken about the instructions relative to this matter that were given in the trial judge's original summing up. However, the redirection concluded with the following instructions:

"Now, you heard her evidence that when the accused came in McLeod was holding her down by pressure on the pillow on both sides of her head so she was not able to get up from the bed, and there is some reference in her evidence - she was asked "Did he let go after that?" - that's McLeod - she said, "The other fellow, he came up and sort of held me there and that's when the other fellow" - McLeod - "let go."; and then the accused proceeded to insert his penis into her.

Now, if you conclude by inference that the complainant, when she lay still, did so because she was afraid to object to what was to be done to her, then there was not real consent and consent is obtained by force or fear and she cannot be held to have consented. If you are satisfied beyond reasonable doubt about that you would then consider the question of the accused's belief or his mistaken belief, as he describes, that she was consenting, and, of course, you may also take into account in that respect the holding down by the ends of the pillow in determining the honesty and reasonableness of his belief.

As I said, if a complainant demonstrates her want of consent or is unable to do so because she is afraid, or because she is being intimidated by force - controlled by force - then it is intercourse without consent and it is rape. As I said, the Crown has the onus of satisfying you of those matters. If it has failed to do so you must find him not guilty. If it has succeeded, you may find him guilty. Yes, could you continue your deliberations, please."

Although ground 1 of the notice of appeal speaks of error in directing the jury on the issue of consent, it is evident from the terms in which the ground is expressed and from the submissions on appeal that the real cause of complaint is the alleged shortcomings of the redirection concerning the appellant's belief that the complainant was consenting. Whether or not she consented to penetration by the appellant was a question of fact which turned on the inferences that the jury were prepared to draw concerning her subjective state of mind at the time. No fault can be found with what the judge said about it in the first sentence of the second paragraph from the redirection set out above. For that purpose it did not matter that the reason why she did not consent was fear of McLeod or some other cause.

This may have been the point his Honour was intending to convey in the third paragraph of the redirection, where he said that it was rape "if a complainant demonstrates her want of consent, or is unable to do so because she is afraid, or she is being intimidated by force - controlled by force". His reference in this passage to her demonstrating her consent was strictly speaking relevant only to the question whether the appellant honestly and reasonably believed she was consenting. The third paragraph of the redirection therefore combines aspects of two different matters that should really have been kept apart; that is, whether or not the complainant gave her consent, and whether or not the appellant was, in terms of s.24, mistaken about it.

The expression used in s.24 of the Code is "honest and reasonable but mistaken belief in the existence of a state of things ...". A condition of inebriation, like that which the appellant claimed to have been in at the time, may help to induce a belief that a woman is consenting to intercourse; to that extent it may tend to show the belief to be genuine or "honest". But it does not touch the question whether in terms of s.24 that belief is reasonable; a mistaken belief that is induced by intoxication is not one that can be considered "reasonable" as distinct from honest. It is because of this that the trial judge's failure to direct the jury on the effect of the appellant's intoxication is only of the slightest relevance here. If the appellant's belief that the complainant was consenting was not capable of being considered "reasonable", then it could not affect the verdict in the case.

The question of the reasonableness of a belief is one of fact for the jury. In this case their response to the question appears from the verdict. Realistically, it would not have been possible for them to entertain a reasonable doubt about the matter after hearing the complainant's uncontradicted evidence that, when the appellant came up to the bed and took over from McLeod, she was being held there by McLeod with a pillow over her face. No one could reasonably believe that a woman being held down with a pillow over her face was consenting to sexual intercourse with the next man who arrived. This was what the judge was explaining at the end of the second paragraph of the redirection. Indeed, if the redirection had stopped there, the appeal would have been quite unarguable. It is only the first sentence of the third paragraph that is confusing.

Confusion is not the same as misdirection, although it may have much the same consequence if there is no other obviously clear and correct direction on the matter in question. That is not the case here. The original direction and the first two paragraphs of the redirection were satisfactory. More likely than not the jury would have found the confusing first sentence in the third paragraph puzzling but would then have simply ignored it. It is noteworthy that, although they returned an hour or so later with a request for directions on a different question, they asked for no further assistance on the issue of mistake. Nor did counsel on either side ask for a further redirection to clear the matter up.

We do not consider that the effect of what was said in the first sentence of the last paragraph of the redirection was sufficient to displace the clear directions on the question of mistake that had already been given by his Honour. That is particularly so in a case like this where the question at issue realistically admitted of only one answer. In these circumstances it is not, we think, necessary to invoke the proviso to s.668E(1) of the Code in order to sustain the conviction. We do not think that a misdirection as alleged in ground 1 of the notice of appeal has been made out.

The appeal against conviction should be dismissed.