R v King; ex parte

[1992] QCA 466

IN THE COURT OF APPEAL [1992] QCA 466

SUPREME COURT OF QUEENSLAND

C.A. No. 148 of 1992

THE QUEEN

v.

ROY MANSFIELD KING

(Appellant)

C.A. No. 87 of 1992

THE QUEEN

v.

ROY MANSFIELD KING

(Respondent)

ATTORNEY-GENERAL OF QUEENSLAND

(Appellant)

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

The President
Mr. Justice Pincus

Mr. Justice Lee

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

Judgment of the Court delivered on

the Eighteenth day of December 1992

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

MINUTES

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION BY ROY
MANSFIELD KING FOR LEAVE TO APPEAL AGAINST SENTENCES REFUSED.

APPEAL AGAINST SENTENCES BY ATTORNEY-GENERAL ALLOWED. SENTENCES BELOW SET ASIDE. IN LIEU THEREOF, SENTENCES OF 9 YEARS' IMPRISONMENT IMPOSED IN RESPECT OF EACH OFFENCE. SENTENCES TO BE SERVED CONCURRENTLY.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 148 of 1992

Before the Court of Appeal

The President

Mr. Justice Pincus

Mr. Justice Lee

THE QUEEN

v.

ROY MANSFIELD KING

(Appellant)

C.A. No. 87 of 1992

THE QUEEN

v.

ROY MANSFIELD KING

(Respondent)

ATTORNEY-GENERAL OF QUEENSLAND

(Appellant)

Judgment of the Court delivered on

the Eighteenth day of December 1992

CATCHWORDS

CRIMINAL LAW - SENTENCE - Attorney-General appeals against sentences of 4 years for anal intercourse and 6 years for rape - whether distinction in penalty between anal and vaginal rape ought be made in light of new s. 337 - whether manifestly inadequate - 9 years for both substituted.

Counsel:P. Rutledge for the Crown

S. Herbert for the Respondent/Appellant

Solicitors:Director of Prosecutions for the Crown

Legal Aid Office for the Respondent/Appellant

Hearing date:22nd July 1992 for leave to appeal against sentences of six years imposed by JUDGMENT OF THE COURT

Delivered the Eighteenth day of December 1992.

the District Court at Townsville following his trial and conviction on 17th February 1992 of one count of rape, and four years imprisonment imposed in respect of one count of indecent assault being an act of carnal knowledge by anal intercourse. The sentences were ordered to be served concurrently. He did not give or call evidence at the trial.

The Attorney-General has also appealed against the sentence imposed on several grounds, the submission being in substance

that the sentence of six years for rape and four years for the indecent assault were in the circumstances manifestly

inadequate.

In King's notice of appeal, six grounds are set out. At the outset, Mr. Herbert of counsel abandoned grounds 1 and 2 as unarguable. He also stated that he was making no submissions in support of ground 6, viz. that the sentence imposed was manifestly excessive. He asked that the application for leave to appeal against sentence be dismissed. Leave to appeal against sentence was accordingly refused. Grounds 3, 4 and 5 are as follows:

"3.The Learned Trial Judge erred as a matter of law and of fact in failing to exercise his discretion to allow cross-examination of the complainant/witness POWELL as to an act of sexual intercourse with one HARWOOD (aka TEECE).

4.The Learned Trial Judge erred as a matter of law and of fact in failing to exercise his discretion to allow the Accused to introduce evidence of an act of intercourse between the complainant/witness POWELL and one HARWOOD (aka TEECE).

5.The Learned Trial Judge erred as a matter of law and of fact in directing that Counsel for the Accused could not address the jury on the admitted evidence relating to the presence of semen in the complainant/witnesses pants by indicating that an act of intercourse with a person, other than the Accused, had occurred thus explaining the state of forensic and medical evidence."

The complainant was an eighteen year old girl. She and another female and two men, one of whom was the appellant, went by car and boat on a fishing trip to a place known as the Hell

Hole. They occupied a hut for the night at that remote location. Both offences were alleged to have occurred during

that night. The complainant gave evidence of incidents of unwanted intimacy by the appellant during the day and evening, which she constantly rejected. Both the appellant and the other man consumed a considerable quantity of alcohol. At one stage, the other female and male were engaged in sexual intercourse in this small hut in view of both the appellant and the complainant. It appears that the complainant subsequently went to bed beside the other two.

Whilst in bed she felt the mosquito net under her back being moved. She felt a considerable impact on her head and was

stunned. She saw the appellant beside her and was pulled to her feet by him and against her will. She said that by force and

threats against her will he then committed an indecent assault on her by anal intercourse which lasted for some ten to fifteen minutes during which he held his hand over her head to prevent her from screaming. When she screamed he said "Shut up, before

I punch you in the mouth". After this they both went outside. On their return inside the hut the appellant again pulled the complainant onto his bed and again by threats and force against her will, removed her clothing and had carnal knowledge of her.

He forced her to sleep beside him during the remainder of the

night. otherwise occupied, she told the other female what had occurred.

The two females subsequently left and obtained a lift back to the mainland with other fishermen. The other female telephoned the police who arrived shortly after and the complainant was then taken for a medical examination.

It appears that the appellant had persistently made advances to the complainant throughout the evening preceding the two offences and that the complainant constantly and repeatedly repelled his advances and told him to leave her alone. The conduct of the appellant showed that he used threats and some degree of violence in his treatment of the complainant on each

occasion. counsel had put any aspect of the defence case to the complainant, he made an application pursuant to s. 4 of the Criminal Law (Sexual Offences) Act 1978-1990. He indicated that he wished to ask the complainant questions about an alleged act

Dr. Margaret Culpan gave evidence of her examination of the
complainant and of her injuries. She observed a slight raised
tender area over the right back of the complainant's head,
consistent with superficial bruising. She had some bits of dust
and dirt in her groin and over her buttocks. In the vaginal
area she was tender and slightly swollen around the labia, an
opening to the vagina, and there was appearance of brownish
mucus in that area. Around the anus there were bits of dry
grass and dirt particles into the anal canal area. She said
that the grass and dirt was located some two to three
centimetres into the anal canal.

of intercourse between herself and the other male person (Harwood) some hours preceding the time of the offences

involving the appellant, and whilst the complainant and Harwood

were in the boat checking the nets. His Honour indicated that it was not apparent whether the appellant at that stage denied

the intercourse or whether he alleged that intercourse had occurred with consent. His Honour also said that it was difficult for him to determine the relevance of the proposed

evidence without knowing how it was relevant. pp. 144-145 of the record, that counsel for the accused submitted that the defence to the charges could raise several issues. Firstly there could be a denial that acts of anal and

vaginal intercourse had occurred. Secondly, it might be an allegation that the acts occurred but that they occurred with consent and, thirdly if neither of these two were raised, the Crown could nonetheless be put to proof. His Honour said:

"The only basis, as I understand it, upon which it is submitted the evidence could be really relevant is concerned with the findings of Mr. Freney, of the existence of seminal fluid, in the samples taken from the vaginal area of the complainant. What Mr. Frampton submits I think, is that if an act of intercourse with someone other than the accused occurred, within a period of some sixteen hours prior to the samples being taken by the doctor from the complainant, then the jury could not, or might not be satisfied that the seminal fluid found, originated from the accused.

It is, I think, important to appreciate the significance of this particular evidence. It does no more, as I understand it, than establish that an act of intercourse occurred. It does not establish on its face, that the accused was the donor of that seminal fluid. What s. 4 of the Act does is to place in effect a prohibition on the leading of evidence that a complainant has engaged in sexual intercourse, with someone other than the accused. The court then has the discretion to permit the leading of evidence, or the cross-examination of a complainant, to establish such a fact, in a case in which the evidence would have a substantial relevance to a fact in issue at the trial.

I am totally unable to see how such evidence could have any relevance in the circumstances of this case, to the issue of whether there was penetration by the accused of the complainant, either vaginally, or orally. The mere fact that she may have had intercourse with someone else, in the circumstances of this case, does not in my view go anywhere to establish that fact. Similarly, I cannot see in a situation in which the intercourse is said to have occurred some hours before the subject incident, and at a time at which the accused was not present, and in the absence of any further evidence to relate the accused to it, how it can be said to bear upon the issue of consent.

The other matter raised by Mr. Frampton, is that it is relevant to the putting of the Crown to proof. The difficulty it seems to me with that submission, is that, that is a submission which can be made of all criminal trials. In any criminal trial, whether it be a case of rape, or any other offence, the Crown must still achieve its proof, if it is to succeed, and if such evidence were admissible on the simple basis that it is part of putting the Crown to proof, then the prohibition contained in s. 4 would never have any application."

His Honour referred to The Queen v. de Angelis (1979) 20

S.A.S.R. 288 where at 290, King C.J. said:
"... the issue to which the evidence is relevant must be

not merely a formal issue joined by the plea of not guilty, but must be one of 'the practical or live issues which are to be gathered from the Crown opening and the challenges offered to proof during the trial'."

Before us, counsel for the appellant stated that at the trial the Crown principally relied upon the complainant's distressed state after the incidents in question. He could not

say that Crown had advanced the evidence relating to the presence of seminal fluid on any basis other than that it was merely neutral. Counsel conceded that this was the attitude taken by the learned trial Judge and in particular during his summing up as follows:
"Well, now, you've heard evidence from Mr Freney in this case of the findings of spermatozoa in the swabs and slides which were retrieved from the vagina of the complainant by the doctor. This evidence, members of the jury, although it confirms that vaginal intercourse occurred within a certain time frame, does not confirm the complainant's evidence that the accused had intercourse with her without her consent.

In this case, you see, there is no - for example, no admission from the accused as to the act of intercourse, and the only direct evidence of that fact comes from the complainant herself, and there is no evidence to identify the spermatozoa as having come from any particular individual, and more importantly, perhaps, the finding of that spermatozoa does not in any way serve to establish any lack of consent to the act."

Counsel for the appellant conceded that the evidence of Mr. Freney was admissible and that His Honour's direction would have been in precisely the same terms had the complainant been

asked and she had said that she had intercourse with another man at about the time mentioned. It has not been established that the learned trial Judge incorrectly exercised his discretion in the circumstances of this case. This being the only ground of appeal relied upon, the appeal is accordingly dismissed.

During the course of the Attorney-General's appeal against the sentences imposed upon King, the question arose why the non-consensual act of sodomy by King attracted a lighter penalty than his rape of the complainant. While both counsel accepted that this was usual, such an approach pays insufficient regard to the changes made to the law by the Criminal Code, Evidence Act and Other Acts Amendment Act 1989, No. 17 of 1989.

Chapter XXII of the Code, headed "Offences Against
Morality", contains s. 208, side-noted "Unlawful anal

intercourse", which presently deals only with anal intercourse

involving persons other than adults; the former s. 208 was

repealed and replaced by Act No. 93 of 1990. Prior to that statute, s. 208 made having carnal knowledge of any person against the order of nature a crime; it made no reference to the presence or absence of consent. Until the coming into force of Act No. 17 of 1989, the penalty was 14 years imprisonment, but that amendment reduced the penalty to seven years, in general, with higher penalties for offences involving children: see s. 10 of the 1989 Act. But that Act also introduced, by s. 28, an entirely new provision, s. 337, under which the appellant was convicted. The effect of s. 337, as amended by s. 13 of Act No. 93 of 1990, is that an unlawful and indecent assault consisting in an act of carnal knowledge by anal intercourse carries the penalty of life imprisonment. That was the charge made against this appellant and the penalty to which he became liable by conviction is the same penalty as provided by s. 348

in respect of rape, the other offence of which the appellant was

convicted.

Decisions such as R. v. Pforr (CCA No. 271 of 1990, 21st November 1990, unreported) and R. v. Wilson (CCA No. 287 of 1990, 14th December 1990, unreported) concerned sentences imposed for offences against s. 208. A more satisfactory

indication of the penalty which is appropriate in respect of

convictions for offences against s. 337 involving indecent assault by anal intercourse is provided by sentences for rapes committed in sufficiently comparable circumstances.

A schedule was tendered to the court which showed sentences for rape which ranged from seven years' imprisonment to

twenty-one years depending on the circumstances. substantial custodial sentence. He was thirty-seven years of age when the offences were committed, had limited education and was heavily affected by alcohol. He had a bad criminal record extending over fifteen years, including a previous conviction for rape in 1980 for which he was sentenced to seven years'

imprisonment. Apart from the other couple who were present, he

and his victim were in a place of some isolation and he used threats of violence and force. The two acts of intercourse were committed a little time apart, and involved the gross violation and degradation of the complainant. There is no indication of genuine remorse.

In such circumstances, the sentences imposed are manifestly inadequate and should be set aside, with a sentence of nine

years' imprisonment imposed in respect of each offence. Those his application for leave for appeal against sentences is

sentences should be served concurrently.

refused. The appeal against sentence by the Attorney-General is allowed and the sentences below set aside. In lieu thereof, King is sentenced to nine years' imprisonment on each charge, with the sentences to be served concurrently.