R v Hoy

[1992] QCA 57

IN THE COURT OF APPEAL [1992] QCA 057

SUPREME COURT OF QUEENSLAND	No. 308 of 1991
Before the Court of Appeal The President Mr Justice Pincus Mr Justice Shepherdson

T H E Q U E E N

v.

STEPHEN WILLIAM HOY

(Appellant)

JUDGMENT OF THE COURT

Delivered the 10th day of April, 1992

On 18th October 1991, the appellant was convicted of rape

in the District Court at Cairns and sentenced to imprisonment
for 8 years. He has appealed against his conviction on two
grounds, both of which are related to rulings made by the
Judge of District Courts at the trial.
Sexual intercourse occurred between the complainant and
the appellant in a cubicle of the women's toilets at a hotel
in Cairns at around midnight on the night of 14 September,
1990. The appellant admitted during the trial that sexual
intercourse had taken place, but asserted that it was
consensual. The evidence, including medical evidence,
concerning the condition of the complainant after the incident
indicated that she was distressed, had a contusion to her
upper lip, an abrasion and extreme tenderness under the lip
and right cheek, a small haematoma at the back of her head,
tenderness and soreness of her neck muscles, deep tenderness
of the muscles of her buttocks, and extreme tenderness around
her vagina. Immediately after the encounter with the
appellant, the complainant went to a nearby police station to
complain of what the appellant had done.

The appellant's evidence was that he had met the

complainant in the beer garden of the hotel and, after cramped conditions of the toilet, a physical chemistry took hold ... ", leading to the sexual activity which occurred.
discussion, they went to the toilet cubicle to determine
whether the appellant could spare some marijuana; thereupon,
according to paragraph 5 of the appellant's Amended Outline of

The complainant's evidence was that she went to the

toilet cubicle on her own, the appellant appeared at the door,
pushed her back in, punched her twice and then forced her to

engage in sexual intercourse.

The appellant sought to raise a doubt concerning the

complainant's assertion that she did not consent to character of the hotel; he described it as "a bit of a bloodhouse" and suggested in effect that it was a resort of criminals. The judge sent the jury out and inquired as to the relevance of the hotel's being a bloodhouse. Counsel argued that he was entitled to raise the question why the complainant would wish to be in a place like that unless she were "out for a bit of adventure", and that she had placed herself "in a situation where ... she was prepared to succumb to a bit of adventure".

intercourse by reference to the circumstances surrounding her
presence at the hotel. She had gone there accompanied not by
her de facto husband but by two female friends. The
appellant's complaint was that he was not permitted to seek
to demonstrate, by cross-examination, that, to the
complainant's knowledge, the premises were "... of an
unsavoury character ...". The appellant's submission was that
that circumstance "... was, by a chain of reasoning, a fact
relevant to a fact in issue", because it tended "... to make
it more likely that the applicant would engage in an unusually
casual act of consensual intercourse than someone who did not
visit premises that were of such unsavoury character.":
(Outline of Argument, para.13).
It is not easy to summarise the main points of the rather
lengthy discussion in which the judge's error is alleged to be
discernible.

The judge told counsel that he was concerned that matters

were being put about which the witness, who had very little
knowledge of the hotel, could give no worthwhile evidence.
The judge said, amongst other things:

"Well, you can ask her about her
observations and her experience and I
don't want to stand in any way in the face
of that, but we don't seem to be

concentrating on that".

. . .

"I have told Mr. Sumner-Potts [counsel for
the accused] that I can see no objection
at all about him asking her as to what her
observations were of the place or of the

clientele ...".

There was an adjournment for lunch and the discussion

resumed. At that stage, Mr. Sumner-Potts said in effect that

he hoped to get evidence that the place was one known to be

frequented by people involved with drugs. The judge said that as to the overall character of this hotel" should not be put to the witness.

the witness could only "give evidence of things that are
within her own knowledge or experience". The judge said, and

A medical witness was then interposed, to give evidence

about the complainant's injuries. The cross-examination of the complainant resumed and some of the questions concerned the character of the hotel, but nothing further was put to the

witness to suggest that she knew of the hotel's having any

undesirable characteristics or patrons.

The judge did not prevent the asking of questions "as to

the complainant's knowledge and assessment of the type of unfortunate, in the end it became reasonably clear that the judge was not ruling inadmissible questions directed to

establishment in which she found herself on the night of the
alleged offence", as the notice of appeal contends. It
appears that the reason for the judge's intervention in the
cross-examination was that he was concerned that allegations
might be put in cross-examination with a view to influencing
the jury, counsel not having any reason to think that the
witness had sufficient knowledge to affirm or deny them.
ascertaining the state of the complainant's knowledge of the

character of the premises.

It is puzzling that after the judge's intervention,

counsel did not continue to cross-examine on the subject which discouraged too ready an intervention by trial judges to establish cut off lines of cross examination: see p.325 first column D-E to second column C-D. Such restrictions are particularly to be avoided when, as here, the intervention was not directly occasioned by an objection from opposing counsel but occurred on the trial judge's own motion.

In any event, it is, to say the least doubtful whether

It was accepted in Wakeley that limits upon permissible

had been discussed with the judge for a considerable time.
But for all one knows, counsel might have simply changed his
mind about the merit of the approach he had previously taken.
In short, no specific question in cross-examination was
disallowed, nor did the judge rule that cross-examination on
the subject counsel said he wished to pursue would not be
permitted.
the ruling attributed to the trial judge by the appellant
would have produced injustice in the present case.
cross examination may be reached. While a trial judge must
allow full opportunity for relevant facts to be elicited,
there must ultimately be at least a prospect of a logical
connection between a fact sought to be elicited and a fact in

issue which is not "so slight that the fact is treated as too

remote and evidence of it as inadmissible": Wakeley at p.325
2nd column G - p.326 first column A-B, citing R. v. Stephenson
(1976) VR 376 at 380.

The wide latitude permitted in cross examination does not

extend to attempts to establish facts which, in common human
experience, are unrelated to any fact in issue in order to
provide a foundation for an attempt to persuade a jury that,
since relevance has been accepted, a logical connection may be
found to exist. It is questionable whether the jury could
legitimately find a logical connection between the

complainant's presence at premises of an unsavoury character,
or her presence there with female friends rather than her de
facto husband, and her willingness to engage casually in
sexual intercourse with a stranger in a toilet cubicle. There
is no obvious basis for an assertion that women who go to

hotels of an "unsavoury character" are more ready than other

women to engage in casual sexual intercourse and a jury cannot
properly be asked merely to speculate that that is or may be
so.

An absence of relevance is even more clearly demonstrated by the appellant's second point, which related to certain

photographs which the trial judge ruled inadmissible. The
photographs depicted one of the females with whom the
appellant went to the hotel who was also a witness at the
trial. The photographs, which were of the witness on another
occasion at which the appellant was not present, supposedly
showed the witness with marijuana. There was no evidence that
the photographs showed marijuana, and the witness denied that

they did.

The argument that the photographs were relevant and

should have been admitted was stated in paragraph 21 of the

appellant's Amended Outline of Argument, which is in the

following terms (with some typographical corrections): "21. By a chain of reasoning, the photographs are real

evidence tending to establish an evidentiary fact

relevant to a fact in issue:

Real evidence (photograph) tends to establish:

Previous drug experience on the part of [name of witness]

which makes it more likely than otherwise:-

That the complainant knew that [name of witness] would like

marijuana which makes it more likely than

otherwise:-

That the complainant went to the toilets in the manner

described by the appellant which makes it more
likely than otherwise:-

Fact in issue that the complainant consented to

intercourse."

There is little which can be said other than that the

absence of any logical connection between the photographs and

the issue of the complainant's consent is self evident.

In the circumstances, the appeal should be dismissed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND No. 308 of 1991

T H E Q U E E N

v.

STEPHEN WILLIAM HOY

(Appellant)

The President
Mr Justice Pincus

Mr Justice Shepherdson

Judgment of the Court delivered the 10th day of April,

1992

APPEAL DISMISSED

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	No. 308 of 1991
Before the Court of Appeal The President Mr Justice Pincus Mr Justice Shepherdson

T H E Q U E E N

v.

STEPHEN WILLIAM HOY

(Appellant)

JUDGMENT OF THE COURT

Delivered the 10th day of April, 1992

MINUTE OF ORDER:	APPEAL DISMISSED
CATCHWORDS:
Counsel:	Mr S. Keim for the Appellant

Mr M. Byrne for the Respondent

Solicitors:  Legal Aid Office (Queensland) for the Appellant
Director of Prosecutions for the Respondent

Hearing Date: 24th March, 1992