R v Kepa; R v Savage; R v Solomon

[1997] QCA 152

[1997] QCA 152

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane

BeforeFitzgerald P.

McPerson J.A.
Lee J.

[R. v.Kepa]

[R. v. Savage]
[R. v. Solomon]

C.A. No. 74 of 1997

THE QUEEN

v.

JOHN FRANCIS DAVID KEPA   Appellant

C.A. No. 75 of 1997

THE QUEEN

v.

SEEKA MILTON SAVAGE          Appellant

C.A. No. 77 of 1997

THE QUEEN

v.

PHILIP JEFFREY SOLOMON     Appellant

Fitzgerald P.

McPherson J.A.

Lee J.

Judgment delivered 13 June 1997

Separate reasons for judgment of each member of the Court; McPherson J.A. and Lee J. concurring as to the orders made, Fitzgerald P. dissenting in part.

APPEALS DISMISSED.

CATCHWORDS:     CRIMINAL LAW - rape - appeals against conviction - first appellant convicted of raping complainant behind building - appellant and complainant had previous sexual relationship - complainant intoxicated - other witnesses saw appellant dragging complainant and heard complainant screaming - parts of complainant’s evidence unreliable - language and cultural barriers encountered by most witnesses - whether on all of the evidence verdict unsafe and unsatisfactory.

Second and third appellants convicted of rape pursuant to s. 7(1)(c) of Criminal Code - appellants drove complainant and principal offender to nearby beach after first rape - particulars provided by prosecution stated that prosecution relied on presence of appellants as providing aid by encouragement and/or by physical assistance to principal offender - evidence that second appellant struck complainant and told others in the vicinity that “she asked for it” - whether prosecution bound by particulars - whether verdicts unsafe and unsatisfactory.

Counsel:Mr B. Butler for the appellants Savage and Solomon.

Mr A. Rafter for the appellant Kepa.
Mr M. Byrne Q.C. for the respondent.

Solicitors:Legal Aid Office for all appellants.

Queensland Director of Public Prosecutions for the respondent.

Hearing Date: 14 May 1997.

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 13 June 1997

On 23 March 1996, D was raped by Jason Solomon, who has since died.  According to D, she was also raped by a number of other men, including the appellant John Francis David Kepa, a man with whom she had on occasions previously engaged in sexual intercourse, and each of the appellants Seeka Milton Savage and Philip Jeffrey Solomon.  Kepa was convicted in respect of an act of sexual intercourse with D which he admitted, and Savage and Philip Solomon were convicted in respect of the rape of D by Jason Solomon on the basis that each aided Jason Solomon to rape D[1] by encouragement and/or physical assistance.  Acquittals were entered in respect of a number of other counts, including charges against a fourth man, Lionel Solomon.  There is a fuller exposition in the detailed and careful reasons for judgment of Lee J.

[1]Sub-s. s. 7(1)(c) of the Criminal Code.

Kepa’s appeal is based solely on the ground that his conviction is unsafe and unsatisfactory.  I will later explain why I am of opinion that that appeal should succeed.  I am absolved from the need to analyse the evidence of the various witnesses who gave evidence relevant to the circumstances in which Kepa and D had sexual intercourse because of Lee J.’s comprehensive discussion.  Such a course is unnecessary to dispose of the appeals by Savage and Philip Solomon.

On the night in question, D, who was drunk at the time, had sexual intercourse with Kepa behind a building.  During that interlude, or shortly afterwards, Savage and Philip Solomon and a number of other men arrived in a vehicle driven by Philip Solomon.  Whatever D’s attitude to sexual intercourse with Kepa prior to the arrival of Savage and Philip Solomon and their companions, she then became upset and, if she had not done so previously, commenced to scream and/or call out to Kepa “Don’t Johnny, don’t”.  Savage struck D, who was then in a state of at least partial undress and was crying.  When confronted by other people in the vicinity, Savage told them to mind their own business and stated “she asked for it, so she get it”.

Philip Solomon then drove the other men and D, who said she went unwillingly, to a nearby beach, where she claimed she was raped by each of the men except one who attempted to do so.  D’s testimony was unsatisfactory and inconsistent with other prosecution witnesses in a number of respects, and the jury’s verdict of acquittal in respect of most of the counts suggests that it had reservations concerning the reliability of some of her evidence.  Broadly, she said that Savage and Philip Solomon were standing nearby, or by Philip Solomon’s vehicle which was about 10-15 metres away, while she was being raped by Jason Solomon.  According to two young men who followed the vehicle driven to the beach by Philip Solomon in another vehicle, while Jason Solomon was raping D, Philip Solomon was at the back of his vehicle and calling out to Jason Solomon to stop (according to one) or to come up from the beach (according to the other).  Neither of the young men from the second vehicle saw Savage at the time when Jason Solomon was raping D.  Later that night, Savage, Philip Solomon and Jason Solomon were seen together in Philip Solomon’s vehicle.

Although a number of grounds were included in the notices of appeal of Savage and Philip Solomon, all matters raised on their behalf were encapsulated in a submission that their convictions were unsafe and unsatisfactory.  That submission was founded on the argument that the prosecution was bound by a particular which it had given by letter prior to trial, stating that it relied on “the presence of [Savage and Philip Solomon] at the scene as providing aid by encouragement and/or by physical assistance to Jason Solomon”.  An associated submission for Savage and Philip Solomon was that only the presence at the scene of Savage and Philip Solomon could be used to decide whether they had aided Jason Solomon to rape D, and other events could be considered by the jury only in deciding whether the presence of Savage and Philip Solomon at the scene was intended to encourage and capable of encouraging Jason Solomon.  In this Court, the prosecution questioned whether the letter providing the particulars bore the restrictive construction sought to be placed on it by counsel for Savage and Philip Solomon, which was dependent upon a specific statement towards the end of a seven page letter providing particulars in respect of all counts and concluding:

“The above is intended as a guideline as to the assertions that shall be made by the prosecution but not as an exhaustive list of the same.  I trust this will be of some assistance to you and satisfy the query you have made at this time.”

It was also submitted by counsel for Savage and Philip Solomon that the trial judge had proceeded on the narrow basis of the prosecution case which they contended for in his rulings and summing up, which proceeded at least in part on a perceived distinction between using other events as instances of aid to Jason Solomon and using those events only in deciding whether the presence of Savage and Philip Solomon was intended to encourage and capable of encouraging Jason Solomon.  However, again that is by no means clear.  At the end of the prosecution case, it was unsuccessfully argued that the accused, including the appellants, had no case to answer.[2]  In the course of his ruling, the trial judge said that the particulars were “not to be looked at in a pedantic fashion” and the prosecutor was not required “to prove the case set out in the particulars provided with pedantic precision”.  His Honour went on:

[2]There was a directed acquittal in respect of one count.

“What is required is that the prosecutor fairly inform the accused of the essence of what is alleged against that accused and prove it.  The fact that in the end the case might not exactly fit the literal interpretation of the particulars, in my view, is not required.  It must be fairly said though that the prosecution has produced evidence to prove what is alleged against an accused person.”

Later, after discussion of authority, his Honour said:

“... Mere presence or presence taken in isolation cannot, of itself, with nothing more in my view, prove encouragement.  But it seems to me ... that a jury is entitled to look at the conduct of an accused person, an alleged aider, both before and after the time of the commission of the offence, that is the time at which he or she might be present at the commission of the offence, and engaging in no other act of aiding.

It seems to me in this case therefore that if a jury were to be satisfied that [one of the other persons] was with the persons who are said at various times to have had carnal knowledge of the complainant without her consent, both before the first act of rape and during subsequent acts of rape, if he has chosen to travel in the car in which the complainant, on one view of the evidence, was abducted and taken to a beach, but if a jury were to accept that whilst at that beach, [the other person] at least attempted to have intercourse with her against her will, then the jury could conclude that there was, if not an express agreement, a tacit agreement by reason of conduct, by reason of keeping together, by reason of non-interference, that these men would take what opportunities might be available for each one of them to have carnal knowledge of the complainant against her will.

It was raised as an objection to such a proposition that there was nothing in the particulars to allege an agreement between the accused or amongst the accused.  That is certainly so.  However, it was never suggested that there was any express agreement, nor did the prosecution have any potential evidence to expressly prove such an agreement.  However, it seems to me that looking at the particulars as a whole as they progressed through each of the counts, and looking at the letter as a whole, that any complaint that any accused is taken by surprise, treated unfairly or has been unfairly tried by reason of the absence of an alleged express agreement in the particulars, is illusory.”

Counsel for Savage and Philip Solomon referred to passages early in the trial judge’s summing-up to the jury in which he referred to presence constituting aiding by encouragement and effectively adopted the language of the section of the letter providing particulars upon which reliance is placed in support of the appeal.  However, the prosecutor drew our attention to the following later passages in the summing-up and pointed out that there was no request for any redirection.

“The evidence appears to be, it does not appear to be in dispute, that Seeka Savage struck her behind the [building].  As I have said, if you take the view that the only possible explanation for him striking her behind the [building] was to overcome any resistance on her part to being placed in the car, then that may be something you can take into account in considering what happened at [the beach] after they got down there.  You may take the view that having overcome her resistance behind the [building] that at least Seeka Savage, by hitting her, and Phillip Solomon by driving the vehicle, if he knew or understood that her resistance was overcome in that way, by driving her down to [the beach], that may be relevant to the guilt or otherwise of Seeka Savage and Phillip Solomon in relation to anything that occurred at [the beach].

...  There is evidence if you accept it from which you are entitled to draw the inference that if [one of the young men from the second vehicle] was right that Jason Solomon was having intercourse with [D] on Gilmus Beach, there is evidence that Seeka Savage was there and that Phillip Solomon was there.  It is a matter for you.  You may look back at this question of how she got there in the first place.

If you are satisfied that Seeka Savage contributed to her getting there by hitting her about the head, if you are satisfied that Phillip Solomon contributed to getting her there by driving the car, if you are satisfied that they knew what was going to go on down there or anticipated what was going to go on down there and that they remained there while Jason Solomon was raping [D], it is a matter for you, you may take the view that they were present, that they were aiding by encouraging Jason Solomon in raping [D], that they intended to aid Jason Solomon in raping [D] by their presence there, and that their presence there amounted to an encouragement to Jason Solomon to rape [D].  Once again all of those things you have to be satisfied beyond a reasonable doubt of each one of them to find Seeka Savage and Phillip Solomon guilty of aiding in respect of [the rape of D by Jason Solomon]. ...”

No complaint was made to this Court concerning those directions, and it was not submitted that the overall involvement of Savage and Philip Solomon did not constitute aiding within the meaning of sub-s. 7(1)(c) of the Code according to the decision of the Court of Criminal Appeal in R. v. Beck.[3]  The proposition was, as I have stated, that the prosecution was limited to the presence of Savage and Philip Solomon at the scene of D’s rape by Jason Solomon, and that the earlier assault and driving was only available “to provide context and to establish the significance of any presence” when Jason Solomon raped D.

[3][1990] 1 Qd.R. 30.

In my opinion, it is appropriate for this Court to take into account not only the letter providing particulars but also the manner in which the trial was conducted.  I am satisfied that the appellants Savage and Philip Solomon were not placed at any disadvantage by the prosecution not adhering strictly to the particulars - assuming that there was some departure - and that there has been no miscarriage of justice.  The issues contested included the whole of the activity from the time when the vehicle driven by Philip Solomon and containing the appellant Savage and others arrived at where the appellant Kepa and D were having intercourse behind the building up to and beyond the point at which Jason Solomon raped D at the beach with Savage and Philip Solomon in the near vicinity.  The jury was obviously satisfied that the activities engaged in by Savage and Philip Solomon encouraged and thereby aided Jason Solomon.  It was not contended that such conclusions were not available on the evidence.

I would therefore dismiss the appeals by Savage and Philip Solomon.

It remains to consider Kepa’s appeal, which, as I have said, should in my opinion succeed.

Kepa and D had been in a relationship in which they periodically engaged in sexual intercourse for about a year prior to their act of sexual intercourse on 23 March 1996.  That fact is important in deciding whether it was open to the jury on the evidence before it to be satisfied beyond reasonable doubt that D did not consent to that act of intercourse and that Kepa did not honestly and reasonably believe that she was consenting.[4]  It is also important that, when the other men arrived and D told Kepa to stop, he did so.

[4]Criminal Code, s. 24. cf. Griffiths v. R. (1994) 125 A.L.R. 545.

The evidence of the other material witnesses does not provide the prosecution with much assistance on the critical issues.  Evidence consistent with non-consent is insufficient.  D’s evidence is vital and, despite her assertions to the contrary, she was very drunk.  While Kepa took advantage of her condition, her drunkenness diminishes the significance of the descriptions of her gait and actions as Kepa took her behind the building where sexual intercourse occurred.  Her evidence was confused and riddled with contradictions, inconsistencies and uncertainty, and her inaccurate claims that she did not walk behind the building with Kepa but was driven there in Philip Solomon’s vehicle and that she first had sexual intercourse there with Savage demonstrate such a mistaken recollection of the events surrounding her sexual intercourse with Kepa that I consider a reasonable jury, acting reasonably, could not have been satisfied beyond reasonable doubt that her assertion that she did not consent to that intercourse was reliable.

In his reasons for judgment, Lee J. has referred to the cultural problems and other difficulties sometimes experienced by indigenous Australians in their contacts with the criminal justice system.  I am entirely sympathetic to those concerns, and agree with his Honour that the problems are compounded by questioning which is imprecise or otherwise inappropriate; for example, leading questions in cross-examination might produce cooperative but inaccurate answers.  The curial process is doubtless often a daunting experience, and one which does not easily and readily accommodate special problems experienced by some groups, including children and those who have difficulties in communicating in the English language, in recollecting and recounting events in chronological sequence or in responding accurately to interrogation, especially by those with power or authority.  However, whatever recognition is given to such difficulties and whatever steps are taken to overcome them, it remains at this time essential to give effect to the cardinal principles that an accused person is presumed to be innocent and can only legitimately be convicted after a fair trial and on evidence which is capable of acceptance which proves his or her guilt beyond reasonable doubt.  That proof cannot be formed by reference to the ambiguous answers and ambivalent attitudes of a witness who, through drunkenness or some other cause, is hopelessly confused or mistaken as to critical events.  The possibility that the witness might have misunderstood questions or given unresponsive answers does not alleviate, but exacerbates concern.  In my opinion, the Court should not uphold a verdict of guilt when, in order to do so, it is necessary to ignore large parts of a witness’s evidence and to interpret other parts in a manner which gives them a meaning which might, but might not, have been intended.

I have carefully read what Lee J. has written but am left with a conviction that, despite the opportunity available to the jury to observe the witnesses and the advantage jurors therefore had over the members of this Court, the evidence against Kepa cannot dispel the possibility that an innocent person might have been convicted.

Accordingly, I would allow his appeal.

In summary, in my opinion, the appeal by Kepa should be allowed and the appeals by Savage and Philip Solomon dismissed.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 13 June 1997

With respect to C.A. No. 74 of 1997, I agree with the reasons of Lee J.  There was evidence on which a reasonable jury could properly reach a verdict of guilty against this appellant.  The appeal should be dismissed.

With respect to C.A. Nos. 75 and 77 of 1997, I have read and agree with the reasons given by the President for holding that these two appeals should be dismissed.

REASONS FOR JUDGMENT - W.C. LEE J.

Judgment delivered 13 June 1997

I agree with the reasons of the President and with the orders proposed that these two appeals be dismissed.