R v Kaye

[2010] QCA 192

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kaye [2010] QCA 192

PARTIES:

R
v
KAYE, Christian William Thomas
(appellant)

FILE NO/S:

CA No 302 of 2009
DC No 1 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Maryborough

DELIVERED ON:

30 July 2010

DELIVERED AT:

Brisbane

HEARING DATE:

22 July 2010

JUDGES:

Chief Justice, Muir and Fraser JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – OTHER MATTERS – where appellant convicted of four counts of sodomitical rape committed on a fellow inmate at Maryborough Correctional Centre – where appellant sentenced to eight years imprisonment with a declaration that he was convicted of serious violent offences – where appellant submitted that a number of circumstances combined to undermine the complainant’s credibility to the point where the convictions should be regarded as unreasonable and unsafe – whether verdict was unreasonable in the circumstances

Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, applied
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied
The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13, applied
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, applied

COUNSEL:

C W Heaton for the appellant
M J Copley SC for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

CHIEF JUSTICE:

Introduction

1. The appellant was convicted on four counts of sodomitical rape, committed on a fellow male inmate at the Maryborough Correctional Centre.  The appellant was sentenced to eight years imprisonment, with a declaration that he was convicted of serious violent offences.  He contends that the convictions are unreasonable and should be quashed.

1. The appellant was granted an extension of time within which to appeal on 10 February 2010, and his application for an extension of time asserted that he was denied a fair trial because his legal representatives had inadequate time to prepare.  That contention was not pursued on the hearing of the appeal.  Although the notice of appeal does not itself specify a ground of appeal, the appeal was argued on the basis that the convictions are unreasonable and unsafe.

1. The four rapes were respectively committed between 1 and 25 December 2007, on 22 December 2007, on 6 January 2008, and on 10 January 2008.  At the time of the offences, the appellant was aged 32 years and the complainant was aged 39 years.

The circumstances of the offences

1. The appellant and the complainant resided in different cells although within the same cell block.  The complainant was in the habit of leaving the key in the door of his cell even when absent from it, although he locked the door when retiring to sleep at night time.  This was advanced as explaining how the appellant may have come to gain access to the complainant’s cell on the first occasion, when the complainant inferentially had on retiring locked his door from the inside by turning the latch.

1. On the occasion of the first rape, the complainant was in his cell asleep after 9.30 pm, and had locked the door.  The appellant entered the cell (inferentially using the key removed during the day) and closed and locked the door.  Then the appellant covered a window with a towel which he had brought with him.  The appellant threatened the complainant, saying in effect that unless the complainant cooperated he would never see his little girl again.  The appellant was holding a sharpened toothbrush.  Fearing for his life, the complainant submitted to an act of anal intercourse, while saying:  “I don’t want to do this.”  The appellant’s penetration of the complainant was facilitated by the appellant’s application of Vaseline Intensive Care Lotion.  After the event, the complainant went to the shower.  While he was having a shower, a hand came under the shower room door and removed the complainant’s soiled clothes.  The complainant then heard a washing machine commence its cycle.  The complainant heard the appellant’s voice saying:  “[a specified address].  That’s where your wife lives, isn’t it?”  The appellant said that the complainant’s family would be hurt if the complainant told anyone about the events.  When the complainant returned to his cell, the bed linen was missing.  The appellant then entered the cell, giving the complainant a sheet, saying:  “Yours are in the wash.”  The complainant’s evidence was that he had not disclosed his address to the appellant.

1. The other three rapes followed a similar pattern, but occurred prior to the complainant’s locking his door and going to sleep.  Another special feature is that on the evening of 10 January, the appellant said: “I would have come in last night but it was your wife’s birthday.” The complainant’s wife’s birthday was in fact 9 January.

1. While a medical examination of the complainant’s anal area on 19 February 2008 revealed no abnormality or sign of trauma, that would on the medical evidence be consistent with the lapse of time since the last instance of penetration and the body’s capacity for self-repair.

1. The complainant wrote to his wife on 31 January 2008.  His wife did not read that letter, but a friend of the wife read it and then told the wife that the complainant had been raped and was in fear for his life and for the lives of his family members.  The complainant’s wife said that the complainant telephoned her, and that she then telephoned the prison and informed a senior officer that the complainant was being raped.

1. Evidence from a male prison officer was that on 14 February when questioned, the complainant denied having been raped.  A female officer was also present on that occasion.  The complainant subsequently asked to speak with the same male officer again, and told him that he could not disclose the rapes before a female officer.  When the male officer asked who the offender was, the complainant said:  “You know I can’t tell you that.”  After the prison officer arranged for the complainant to telephone his wife and mother to make sure they were alright, the complainant named the appellant as the offender, the following day 15 February.

1. A search of the appellant’s cell was conducted on 18 February 2008.  An address book containing the addresses of the complainant’s wife and mother was located.  Those entries were in the appellant’s handwriting.  Also found were two bottles of Vaseline Intensive Care Lotion (not uncommon in the jail, where there is a limited available range of skin lotions).  The appellant’s explanation for the entries of the addresses was that the complainant had given him the addresses to facilitate contact after their release.  The complainant denied having given the appellant the addresses, although he withdrew from that to an extent in re-examination, a matter to which I will come.

The challenge to the convictions

1. Counsel for the appellant submitted that a number of circumstances combined to undermine the complainant’s credibility to the point where the convictions should be regarded as unsafe.  Those features, and some discussion, follow.

1.          The CCTV footage within the cell block, at the time of and about the commission of the fourth instance of rape, shows a person said to be the appellant entering the complainant’s cell, and later, the complainant and the appellant leaving the cell, with the complainant going to the shower facility and the appellant returning to his own cell. The appellant was not seen leaving his cell after that. This would be inconsistent with the complainant’s evidence that on this occasion, as with the others, while he was showering, a hand removed his soiled clothing from under the shower door, and that that person (the appellant) then activated the washing machine.

This amounted to what could be regarded as a significant discrepancy in the complainant’s evidence.  The Crown Prosecutor specifically drew it to the jury’s attention in his closing address, effectively leaving, for the jury, whether or not to regard the complainant as having been mistaken in his recollection on that aspect of what was involved in the fourth instance of rape.

The Prosecutor said this:

“Now of course on this occasion, to be fair, it would seem as though the accused has not gone into the bathroom to have the opportunity to start the washing machine, as the complainant alleges he did when he was in there. It’s a minor matter, you might think, in all the circumstances, but one the Crown should raise out of fairness in all these circumstances. When you’re assessing the weight that you’ll attach to that, you’ll of course make allowances for the fact that the incident’s now over 18 months’ old and [the complainant] had just been raped at the time that he’s attempting to recall the details.”

Especially bearing in mind that the fourth rape occurred in January 2008, with the trial in September 2009, it would have been open to the jury to find that the complainant’s recollection was unreliable in that particular respect, but that that error need not and should not be regarded as casting a doubt upon his recollection generally.

2.          The complainant knew that he could seek to be transferred to another cell. After some of the rapes, he sought a transfer to the cell next to the appellant’s.

That was not however so.  The complainant was transferred from cell one to cell five.  The appellant occupied cell two.

3.          The complainant justified his failure to complain to someone in authority, as the rapes were occurring, by reference to the prison culture of not complaining about a fellow prisoner.  Yet the complainant did once complain about the threatening conduct of another inmate.

There was evidence from a prison officer with 13 years experience that it was “a huge step” for a prisoner to make a complaint about a fellow inmate.  The jury were entitled to conclude that the complainant took the appellant’s threats seriously, and that the complainant believed that he had no realistic option other than to acquiesce in the commission of the rapes.

4.          Prior to the first rape, the appellant had, on the complainant’s evidence, attempted to enter his cell unsuccessfully, and had then uttered a threat.  Yet the complainant still took no precaution to secure his cell.

The complainant explained that he was careful to maintain a façade of a friendly relationship with the appellant in order to avoid any difficulty.  There was some albeit limited evidence from the complainant that when he first moved into his cell he would lock his door at night time about which he was subject to some teasing comment from his fellow prisoners.  In fact, it was Defence Counsel who put to the complainant that he had early on been ribbed for locking his cell door.

5.          The complainant’s position was that on the occasion he was first raped, the appellant at least implicitly threatened him with the sharpened toothbrush.  No sharpened toothbrush was located in the appellant’s cell.

Obviously however the appellant could have hidden or disposed of such a thing.  It was also pointed out that cutlery was available nearby, basing a query why the appellant would have resorted to displaying a sharpened toothbrush.  It was up to the appellant to choose his weapon.

6.          Though acquiescing in the anal intercourse on his evidence, the complainant declined to perform oral sex on the appellant or to fondle his genitals when requested, and that reflected on the seriousness of the appellant’s threats as the complainant perceived them.

This was a matter of detail quintessentially for the jury’s consideration.

7.          It is implausible that the complainant would not have uttered some substantial sound when enduring a presumably painful first experience of anal intercourse, sounds which would have attracted the attention of nearby inmates.

The medical evidence was that the use of the lubricant would have facilitated penetration.  The complainant’s failure to resist was explicable on the basis he feared for himself and others.  The absence of evidence of concern by other prisoners is explained by the complainant’s in fact not calling for help or creating any disturbance.

8.          There could be no explanation for the appellant’s having the addresses of the complainant’s wife and mother save that the complainant had given the appellant that information.

The complainant gave evidence, while under re-examination, that the appellant forced him to reveal his and his wife’s mother’s address.  The appellant’s position was that the complainant volunteered the addresses, with a view to a post-release reunion.  The jury may have considered that unlikely.  These events occurred in 2008, and the complainant’s full-time release date was not until 2012.  Further, the complainant’s mother lived in Mackay.

It is also of some (if limited) potential significance that when questioned by the police, the appellant initially denied knowing the address of the complainant’s wife.

Overall, the jury may well have regarded the appellant’s having these addresses as providing substantial support for the complainant’s account.

What if anything was to be made of this was, again, quintessentially for the jury.  The jury were entitled to consider it significant that the appellant’s retention of this information, in written form, was consistent with his having used it as he did when threatening the complainant.

9.          Reference was made to the content of the complainant’s letter to his wife of 31 January 2008 and in particular the complainant’s statement in that letter:  “[Y]ou’ll probably think… I’m just telling lies and making this up.”

The complainant could not say why he had expressed that concern.  His marriage was then in trouble.  The complainant’s wife gave evidence that she did not read the letter.  The letter was read by a friend, who later told the wife about it.  The jury may have accepted that the complainant’s apprehension was justified in circumstances where the complainant’s wife did not even take the trouble to read his letter.

10.       When spoken to by the male prison officer on 15 February 2008, the complainant said that the last rape occurred “last Sunday”, which would have been 10 February.  That was the evidence of the prison officer.  On the complainant’s account the last rape occurred on 10 January 2008, and that was the date he specified to the prison officer.

The jury could have found the prison officer’s recollection was simply erroneous in that respect.

11.       The complainant’s evidence had a “hollow and rehearsed” character, supported by the similarity and sequence ascribed to the acts and consequences involved in each of the four instances of rape.

It suffices to observe that the jury enjoyed the unique advantage, not available to this court, of seeing and hearing the complainant give his evidence.  That comparative advantage was substantial in the context of criticism of that nature.

Conclusion

1. When the features advanced for the appellant are carefully examined, one sees that none of them, nor their aggregation, should inject any serious doubt into the reasonableness or validity of these convictions.  The evidence of the complainant as to the rapes must realistically be assessed with recognition of the particular features of prison life and culture to which he and the prison officer referred, especially of course the fear of retribution both in relation to him and also his family members.

1. I have carried out the exercise required by M v The Queen (1994) 181 CLR 487, 494-5. See also Weiss v The Queen (2005) 224 CLR 300, 316; The Queen v Hillier (2007) 228 CLR 618, 630, 635; Libke v The Queen (2007) 230 CLR 559, 581. My independent review of the evidence leads me to the conclusion that it was open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt of the guilt of the appellant.

1. The appeal should be dismissed.

1. MUIR JA: I agree that the appeal should be dismissed for the reasons given by the Chief Justice.

1. FRASER JA: I have had the advantage of reading the reasons for judgment of the Chief Justice.  I agree with those reasons and with the order proposed by his Honour.