R v Linneman

[1997] QCA 187

IN THE COURT OF APPEAL	[1997] QCA 187
SUPREME COURT OF QUEENSLAND

C.A. No. 108 of 1997

Brisbane

[R. v. Linneman]

T H E Q U E E N

v.

BARRY JOHN LINNEMAN

Appellant

Fitzgerald P
de Jersey J

Dowsett J

Judgment delivered 27 June 1997

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED

CATCHWORDS:CRIMINAL LAW - Appeal against conviction - whether verdict unsafe and unsatisfactory having regard to the inconsistencies in the complainants evidence.

Counsel:	Mr A. Morris QC with him Mr E.M Donnelly for the appellant Mr R.G Martin for the respondent
Solicitors:	Suthers & Taylor for the appellant Queensland Director of Public Prosecutions for the respondent
Hearing date:	2 June 1997

JUDGMENT OF THE COURT

Judgment delivered 27 June 1997

The appellant was convicted in the District Court at Townsville on one count of assault, three counts of indecent assault and one count of rape, all upon the one complainant in one transaction which occurred early on the morning of 19 November 1995.

The appellant and the complainant first met on 8 May 1995 and commenced a sexual relationship some time thereafter. The appellant eventually moved into the maisonette where the complainant was living with the witness Jennifer Solomon, probably in about September 1995. The women each occupied one bedroom and the appellant slept in the carport. After the appellant moved in, the relationship degenerated fairly quickly, allegedly because of his drinking. The complainant asked him to leave quite shortly after he arrived, but he had financial difficulties which prevented him doing so. She offered him financial assistance in order to help him leave. She said that they had discussed the ending of their relationship and that she had made it clear that she did not want him in her bedroom, that there was to be no further sexual relationship between them. She said that the last act of consensual sexual intercourse occurred about a month before the alleged rape, although under cross-examination, she appeared to be somewhat vague on this and other points.

The complainant said that on the night of 18 November, a Saturday, she and Solomon went out for a meal, returning early. They found the appellant dressed and going out. He asked the complainant to go with him, but she declined. The appellant asked Solomon whether she would be home that night, and she said that she would not be. The complainant accompanied Solomon to a nearby address and then returned home. When the complainant returned to the flat, nobody else was there. She retired about 10:00pm. Subsequently, she woke up to hear the shower and assumed that the appellant had returned home. She went back to sleep but was again woken when her door was opened violently. The appellant entered. She formed the opinion that he had been drinking but was not drunk. This seems to have been by comparison to his condition on other occasions and perhaps should not be taken as indicating that he was sober.

He came to the bed and removed the sheet. He was wearing boxer shorts and had an erection. He tried to get into bed with her. She said, "You can't, you can't do this to me". He replied, "I'm a good man. You can't treat me like this", and tore off her nightdress and her pants. He then tried to lie on top of her, but she refused to open her legs. He used his elbows, and then his knees to achieve this result. His erection subsided. He then took her from her room to the carport where he slept. He did this by taking hold of her hair and the side of her arm in a very firm grip. He then said, "I'll just go and check that Jenny's not home". He went through the kitchen and the lounge area to Solomon's room and returned, saying, "Oh dear she's not here to protect you". The complainant must have followed him out of the carport as she said that they then returned to it. She was naked at this stage. He sat her down on the bed and said, "Just lie there on your back with your legs apart". She refused to do this. He hit her on the left side of the face, and she then did as she was told. At some stage, he forced her head back on to the mattress in an "up and down" motion. She asked him not to treat her that way. He lit a candle, smoked a cigarette and asked her how she felt. She said that she was afraid and he said, "Good". She could hardly move as a result of fear. At some stage, he threatened her with his fist, saying, "I feel like killing someone. I feel like killing you". After he finished his cigarette he took her back to her bedroom, saying, "You can't get away. There's no point in running. I'll get you anyway".

He continued to try to get her to agree to intercourse. At this stage, she was sitting on the edge of her bed. He struck her again on the face and repeated that he was a good man and that she should not treat him in this way. He again tried to get her to open her legs. She said something like, "Don't do it". At one point he stood on her stomach. He also took a plastic ruler and told her to lie on her stomach. She refused to do so, saying that he would not hit his children with the ruler so why should he hit her. Apparently she thought that he intended to hit her whilst she lay on her stomach. He told her to lean back on the bed. He then put his hand into her vagina and twisted it. She asked him not to do this because it was painful. At some stage, he put two fingers inside her and pulled them out hard, flicking them. She said, "He actually took the skin off me". We will discuss the significance of this remark at a later stage.

At some stage, he removed his boxer shorts and tried to penetrate her. He threatened to have anal intercourse with her. He forced her to take his penis into her mouth, but her mouth was dry and so she could not give him the stimulation that he apparently required. He tried to have intercourse with her again but failed and instead, rubbed his penis on her body. Eventually, he managed to penetrate her vagina, causing pain. He came to orgasm quickly, climbed off her and smoked another cigarette. At some stage he tried to penetrate her anally but was unable to do so. She got up, went outside and stood in the rain. She then put her dogs in the car and went to the Strand, telling the appellant she was taking the dogs to the beach. When she got to the Strand, she released the dogs and thought about what she should do. She then put the dogs back into the car and drove to the police station. The police officer in charge was speaking to somebody else when she arrived, so she sat down to wait. She subsequently spoke to him but found it very difficult to do so. She told him that she had been assaulted and raped. She said that she had bruising to her legs for weeks afterwards. She also complained of bruising to the inner arms.

The police evidence was that the complainant had told the police that she had been punched rather than slapped. In cross-examination she agreed that in the Magistrates Court she had said that he had not punched her. She denied having alleged punching at the police station. She said that after the incident with the ruler, she concealed it under the top cover on the bed. Prior to the trial, she had not mentioned the conversation between Solomon and the appellant about whether the former would be at home on the night in question. She fixed the last act of consensual intercourse with the appellant as having occurred about two weeks prior to the "margarine incident" which was said to have occurred on 12 November. We will refer to this matter in more detail at a later stage. In her statement to the police, however, she fixed the time as being around 4 or 5 November. She denied ever having had consensual anal sex with anybody.

Solomon said that she had lived in the flat from June 1995 and that a week or two after she moved in, the appellant also moved in. She was aware of the relationship between the appellant and the complainant and that it had broken down. She recalled being present at conversations between them on about six occasions when the question of his moving out was discussed. She also recalled the complainant offering to lend him money to use as a bond in connection with other accommodation. She thought that he was agreeable to the prospect of moving out and that the only obstacle was money. He was unhappy about taking money from the complainant. Solomon said that at some time on the morning of 18 November 1995 she had a conversation with the appellant in which he asked her if she was going to be home that night. She told him that she was not as she proposed to spend that night at her boyfriend's home. She said that as far as she knew, only she and the appellant were present at that conversation.

The witness, Kenneth Richard Eustance was the police officer who first spoke to the complainant at the police station on the morning of 19 November 1995. He said that when she arrived, he was speaking to somebody else and she had to wait for some time. She commenced their conversation by saying:

"I'm afraid I'm like the other one, I haven't much to show."

Apparently the previous complaint had been of assault. When asked "To show for what?" she said, "I've been assaulted but I don't have many injuries to show". Eustance asked, "Who assaulted you?". She replied, "I had better come in and tell you". He said, "You sit there. I'll come out and talk to you". He then went over to where she was sitting and said, "Now tell me who assaulted you?'. She said, "My ex-boyfriend. Well he's been my ex for about two weeks now. I told him it was all over about two weeks ago. I think he's an alcoholic". Eustance asked, "How did he assault you?". She said, "He came into my room. He has his own room - and he started to punch me". The police officer said, "Does he still live with you?". She said, "In the same house but he has his own room. We split up about two weeks ago. He knew we were finished". The officer said, "What time did this assault take place?". She said, "About 4 this morning. He came in and started hitting me and then he raped me". The police officer said, "Look. If you are making a complaint of assault and rape, I had better bring in the CI branch officers for further inquiries". At the time she was shaking and very nervous. She had her hands between her knees and appeared upset. She had been crying.

Dr Ward, a medical practitioner, examined the complainant on the morning of 19 November. He found "friction type" marks to the left loin, 3 inches by 3 millimetres; to the right loin, 3 inches by 3 millimetres; to the left shoulder, 1 centimetre by 1 centimetre; to the right shoulder there were two marks, 4 inches by 3 millimetres and 4 inches by 1 millimetre. He found tenderness to the left cheek but no bruising, an area of redness to the posterior vaginal wall (the back of the vagina), 3/4 inch by 3/4 inch and an area of redness to the left side of the vaginal wall, half an inch by half an inch. He found that the vagina had previously been dilated with posterior scarring from child birth. The various abrasions were consistent with a "friction-like action". There was no bleeding or tearing of the vagina. The injuries inside the vagina were consistent with fairly energetic intercourse. He said that he would expect bruising to appear within four hours of insult, but this was variable. It would be exceptional for bruising to take three weeks to heal.

The appellant did not give evidence, but in his record of interview with the police which took place early in the afternoon of 19 November 1995, he gave his version. He said that he and the complainant had been in a relationship for about six months and that he had moved into the house about five months previously. The relationship was in the process of terminating. He said he had "wanted out of the relationship for some time". He thought that she had been unable to cope with his wishing to terminate the relationship. This seems to be inconsistent with Solomon's evidence that the complainant wanted him to leave. He claimed that they had last had sexual relations less than a week prior to 19 November. He said however:

"... It was only this week that we have had a few problems. That's what stopped the sex.

Before that it was every day."

He recalled an incident about a week previously when he had gone into her room. She had asked him to leave and he had. As she was accompanying him back to his bedroom, she offered to make him something to eat. In the course of this, a carton of margarine was either thrown or dropped. This was the "margarine incident". He agreed that a week or so previously, they had discussed his leaving. He attributed his not leaving to absence of funds. He said that it was his idea to leave and that the complainant was upset as a result.

On the evening of 18 November, he visited different hotels and returned home some time before 2:00am on the following morning, although he agreed that it may have been closer to 4:00am. When he returned home he "checked on Kathleen", saying "Are you OK?". She said, "Yes". He went into her room and they "had words" concerning his leaving. He subsequently went back to his room to change but returned to her room after removing all of his clothes except his boxer shorts because "the conversation hadn't finished". He denied having an erection. He said that she subsequently consented to "an act of love - it was a love-making process". He agreed, however, that he had pushed her shoulders down on the bed as part of this act. He said that she consented to that, although she had not said anything. He was asked, "How did you take it that she had consented to that sort of action?" He replied, "We kissed". He said that when he returned to the room, he had apologised to her and "... things started. Then we felt for each other. I removed my clothing. I removed her clothing". He ripped her pants and shirt. He said, "It was enjoyable and she consented to that". She kissed him. He said that they went to his bedroom and were there for about 15 minutes. They were naked at this stage. He said:

"During the - that loving making there were words said about us leaving each other. We both - it was consenting. She was consenting. But she was upset as well. And I don't know what she said. I don't recall."

He agreed that in the course of the activity, he had taken hold of her by the hair and that he "... was shaking sense into her. I took her by the hair, and I said, 'Darling this is wrong'". He said that he was referring to the problems in their relationship. He agreed that he had taken her to Jenny's room at some stage and said words to the effect of "What a shame. She is not there". He said subsequently that he had not used the words "What a shame that she is not there". He had rather said "Jenny's not here".

They touched, fondled and kissed in his bedroom. He grabbed hold of her wrists nearly every time they made love. She enjoyed that. He denied banging her head on the mattress. He said, "I also grabbed her shoulders. I grabbed her shoulders, and said, 'Darling, wake up to yourself' and she started fighting and carrying on and I grabbed her hair, and I said, 'Stop it' and that was the end of that". When asked why she was fighting, he said, "She's angry about everyone leaving". He recalled telling her that he was a good man. He said that she followed him to her own room, where they had intercourse.

He said that she reached orgasm after masturbating herself with his penis. He admitted asking her if she was afraid. When asked about the context of this question he said, "Not in a - not in a bad way. It wasn't like you're afraid of me. I was afraid to do this - there was consent - she didn't say no". He then said, "I wanted to find out if she was - like - if it was - I had grabbed her hair and I shook her shoulders and things like that. And I asked her what she - was it OK - like, you're not afraid, because she was a little bit uptight". He was asked why he had asked her and said,

"I felt something. I felt I'd either had to stop, if she didn't want this, or I could continue."

He was unable to give clear evidence as to her reply but said that she did not say that she was afraid. Had she said so, he would not have proceeded with intercourse. He said, "She consented to me. She consented. I made sure she was all right. I was looking at her and kissing her and - she was consenting. I think she said, 'Sometimes I'm afraid of you.' She said it like that". He attributed this fear to his drinking and his temper. He said he had ripped her clothes off on other occasions, apparently in consensual situations. He agreed that he had picked up the ruler and said, "I should give you a good smack". She replied, "Don't. My mother did this to me". He said that he knew she was a little upset about that so he put the ruler down. He threatened to smack her because she was being silly and he was also being silly. He agreed that he had said to her that he was only going to hit her once. He left the ruler on a cabinet in the room.

He agreed that he used his fingers to stimulate her vagina and seems to have agreed that he inserted three fingers into her. He said that she sucked his penis. She consented to anal penetration as well as vaginal penetration and then masturbated herself with his penis. He said that she inserted his penis into her anus. They subsequently had vaginal intercourse. After these various acts, he told her, "I don't think I can do this any more" and "I need to go away". He said that the reason he thought she had consented to sexual relations was "the way she held my penis and wanted me. The reasons - because she was wet. The way she moved towards me. All - the signs were there".

She had previously told him that she had been raped on one occasion. For this reason he was always careful with her. He said she was in a bad mood after the incident. They had previously had anal intercourse on many occasions.

The thrust of the appeal is that the conviction is unsafe or unsatisfactory in the administration of justice, having regard to the quality of the evidence led in support of the charge. Counsel for the appellant relied on five main criticisms of the evidence. They were:

1.That there were inconsistencies in the complainant's evidence concerning the duration and conclusion of her relationship with the appellant, these inconsistencies suggesting that the complainant had sought to minimise the duration of the relationship and to maximise the period of time which had expired between the termination of the relationship and the incident in question;

2.That the complainant's evidence was entirely inconsistent in material particulars with

the evidence of the doctor, including:

a)her claim that she lost skin in the region of the vagina;
b)her claim that she had bruising on her legs for three weeks;

c)her claim that she could not see out of one eye because she had been bashed;

3.That the complainant had initially complained to the police of being punched, which

allegation she later abandoned;

4.That the complainant's evidence, that she had been present at the time at which the appellant inquired of Ms Solomon whether she would be home that evening, was inconsistent with the latter's evidence;

5.That the ruler, which the complainant said she concealed under the sheets after the appellant threatened her with it, was found by the police on the cabinet, where the appellant said he had left it.

In M v The Queen (1994) 181 CLR 487 at p.493 the majority (Mason CJ, Deane,

Dawson and Toohey JJ) said:
"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a

court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations."

At p.494-5 their Honours said:

"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."

The issues for the jury were consent and mistake as to consent. Although the complainant made some allegations of violence which the appellant denied, there were significant similarities between the two accounts. The appellant actually admitted to having concerns as to whether or not the complainant was consenting. His case was that her conduct was the conduct of a woman consenting to sexual intercourse and not that of a woman resisting his approaches or submitting out of fear.

As to the alleged inconsistencies in the complainant's evidence concerning the duration and conclusion of the relationship, there can be no doubt that the complainant was somewhat vague with regard to these matters and that she was inconsistent in some aspects. It was submitted that this vagueness was indicative of unreliability in her evidence, hostility towards the appellant and perhaps, of ambivalence in her attitude to the relationship at the time of the incident, possibly leading to the inference that she may have consented because the relationship had not been unequivocally terminated at that time.

The trial took place in February of this year, some 15 months after the incident. It would therefore not be surprising if the complainant's recollections of the actual times of her meeting with the appellant, the formation of the relationship, the decision that he should move in and the decision that he should move out were not clear. She wrote him a card (ex.2) after the "margarine incident" and probably about a week before the alleged rape, which contained terms of endearment. This certainly suggests ambivalence about the relationship. It is, however, clear from his evidence and from that of Solomon that the relationship was at least coming to an end and that he was to move out. He also did not dispute that she had, prior to this incident, asked him not to come into her room. In those circumstances, it is difficult to see that any great significance should be attached to these apparent inconsistencies. They are not critical to the case.

As to the medical evidence, the doctor did not find evidence sufficient to support her allegations that the appellant had broken the skin in her vaginal region, that she had bruising to the legs for weeks thereafter and that she had suffered injury to the left side of her face so that she could not see out of her left eye for three days. On the other hand, photographs tendered at the trial show abrasions to both shoulders and her back. It is possible that she exaggerated her symptoms, and this may well have been motivated by ill-will towards the appellant, but such ill-will would be consistent with a number of causes, including that he had raped her. There may also be other explanations for the inconsistencies. Her reference to his removing skin from the vaginal region may have been based on a misunderstanding of the doctor's findings in that area, although there is no evidence one way or the other on this point. It is possible that she developed bruising after the doctor saw her and that it remained for some time, although one would doubt that it could have been significant. It is also possible that she suffered some slight interference with her vision or imagined that such was the case.

When she complained to the police officer, she alleged that she had been punched and raped. Her complaint of punching became one of slapping. The distinction appears to be between striking with the open hand or with the fist. One must assume for present purposes that the police evidence as to her complaint should be accepted. This was no doubt another basis for trenchant criticism of her evidence, but it is possible that in her upset condition, she may have used the wrong word to describe a very frightening experience. We do not think that any significance can be attached to the fact that she mentioned the assault before mentioning the rape. There is no reason why a woman complaining of rape should automatically refer to the allegation of penetration before referring to the fact that violence had been used against her.

The complainant said that on the evening of 18 November she heard the appellant ask Solomon whether she would be home that night. Solomon's recollection was that the conversation took place on the morning of that day and that only she and the appellant were present. This may well have been an embroidering of the complainant's story. It is also possible that the complainant overheard another conversation to similar effect that evening. She says that she did, and although Solomon says otherwise, it is at least possible that Solomon is mistaken or that there were two such conversations. It seems that the complainant did not tell the police about this, but it would not have seemed to be of any particular significance at that time.

Finally, it is said that independent evidence supports the appellant's version. This is a reference to the ruler being found on the cabinet rather than in the bed. This argument does not address the possibility that the appellant or the complainant may have moved the ruler at some stage and not mentioned that fact.

All of these are valid criticisms of the complainant's evidence, but none of them goes to a crucial aspect of the case. Further, much of the appellant's own statement was consistent with the complainant's evidence. It is not difficult to form the view from it that he did not seriously address the question of consent at the time of the incident, notwithstanding his assertion that he had done so. It was for the jury to assess the criticisms of the complainant's evidence, together with the account of events as given by the appellant and the other evidence. We feel no discomfort about the jury's verdict. The criticisms, whilst not inconsequential, do not go to critical matters, and much would have depended upon the jury's observations of the complainant in the witness box. A degree of inaccuracy or exaggeration is not surprising in the circumstances. We do not feel compelled, or even inclined to an outcome other than that reached by the jury. In those circumstances, the appeal should be dismissed.