R v. Macpherson

[2007] QCA 236

SUPREME COURT OF QUEENSLAND

CITATION:

R v Macpherson [2007] QCA 236

PARTIES:

R
v
MACPHERSON, Gary Duncan
(appellant)

FILE NO/S:

CA No 335 of 2006
DC No 3231 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

24 July 2007

DELIVERED AT:

Brisbane

HEARING DATE:

17 April 2007

JUDGES:

McMurdo P, Holmes JA and Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where the appellant claimed the complainant's evidence was unreliable – whether the jury was able to be satisfied of the appellant's guilt beyond reasonable doubt

Criminal Code 1899 (Qld), s 668E(1)

MFA v The Queen (2002) 213 CLR 606, applied

COUNSEL:

B W Walker SC, with G M McGuire, for the appellant
M J Copley for the respondent

SOLICITORS:

Ryan & Bosscher for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. McMURDO P:  The appellant was convicted in the Brisbane District Court on 1 December 2006 after an eight day jury trial of one count of rape on 14 June 2004.  He appeals against his conviction contending that the guilty verdict amounts to a miscarriage of justice in that it was unsafe and unsatisfactory, that is, "it is unreasonable or cannot be supported having regard to the evidence" (Criminal Code s 668E(1)).

The evidence at trial

1. A consideration of that ground of appeal requires a review of the whole of the evidence.

(a)The complainant's evidence in chief         

1. The prosecution case turned primarily on the following evidence of the complainant.  She was almost 21 at the time of trial and 18 at the time of the alleged offence.  In late 2003 she was an external university student and worked part-time both at a Brisbane saddlery and at a suburban gift shop.  She was then living with her mother and sister near the appellant's home.  She was a horse enthusiast and kept her own horse at a suburban pony club.  She became friendly with the 46 year old appellant, his wife and their daughter who was then about ten years old.  In describing her relationship with the appellant, she gave evidence of the appellant's commission of a series of uncharged and unwelcome sexual acts on her. 

1. She first met the appellant at her mother's 2003 Halloween party.  He asked her when she would teach his daughter how to ride a horse.  He then leant over her to whisper in her ear, commented that her skirt could not get any shorter, and "grabbed [her] arse". 

1. She had regular contact with the appellant's daughter.  She sometimes invited the child to the pony club to feed, groom and play with the horses.  The girl gradually began to ride the complainant's horse.  In early 2004 the appellant and his wife decided to buy a horse for their daughter.  They discussed the prospective purchase with the complainant who suggested that her horse may be suitable.  At this time she saw the appellant most days to discuss the arrangements to be made in respect of the horse with the Equestrian Federation of Australia. 

1. On 6 March 2004 she accepted his invitation to his home for a drink, expecting to continue their equine discussions.  The appellant's daughter was home but his wife was overseas.  The complainant and the appellant had a glass of wine near the pool while the daughter ate dinner inside.  He gave the complainant a shoulder massage.  She told him to sit down and not touch her.  She was not very forceful in this request.  He did as she asked.  They continued talking.  He was sitting opposite her. He began rubbing his legs up and down her legs.  He told her she had nice legs and that he found her very attractive.  He got himself another glass of wine.  When he came back he walked behind her and put his hands down the front of her shirt under her bra, touching her breasts.  She pushed him away.  She said, "get off me" and "just leave me alone, go sit down".  He did leave her alone for a time.  He went inside to fetch another glass of wine.  When he returned he again fondled her breasts.  She again pushed him off and left the house.  She was by this time quite abrupt in repelling his advances.  She returned to her mother's house where she met up with her 45 year old male friend, Wayne, her employer at the gift shop where she sometimes worked.  She and Wayne returned together to the appellant's house.  The appellant gave her a "Baileys".  After a couple of sips she did not feel well.  She went in to check on the appellant's daughter.  She felt ill and vomited in the bathroom.  The appellant came to her assistance.  She asked him to get Wayne.  They both assisted her.  The appellant wanted her to change her clothes which had vomit on them.  Wayne said to leave her in her own clothes.    She continued vomiting and eventually an ambulance was called.  She was admitted to hospital overnight and discharged the next morning. 

1. She slept at her mother's house most of the next day (7 March 2004) before visiting the appellant at about 5.00 or 5.30 pm to apologise for the mess she had made the previous night.  His daughter was home but in another room.  He grabbed both the complainant's arms, pulled her from the kitchen into a bedroom and closed the door.  He pushed her down on the bed.  He undid his pants and exposed his penis saying, "Suck it."  She said, "Get off me.  Don't touch me; fuck off."  She pushed past him, walked out the door and left.  She did not give and had not given him any reason to think that she had a sexual interest in him. 

1. Sometimes the appellant would visit her at her mother's house when she was home alone during the day.  On one occasion he discussed horse feed with her at the door, told her she was rude not to ask him in and pushed his way inside.  He tried to kiss her.  She pulled away, saying, "What are you doing?"  He grabbed her around the waist from behind and "basically carried" her to the living room couch.  He put her on the couch and lay on top of her.  She said, "Get the fuck off me."  He sat up and so did she.  When she tried to get up he pushed her back down with his forearm.  She said, "Get off me.  Get off me."  He told her to be quiet and not to be silly.  She again told him to get off her.  He said, "I just want to taste you."  She again told him to get off her, hit him, threatened to tell his wife about his behaviour and hit him again.  He then got up and left.

1. On another occasion, she was asleep in her bedroom after her mother and sister had left for work.  The door was unlocked.  She awoke mid-morning to find the appellant sitting on the edge of her bed trying to take off her pants.  She said, "What the hell are you doing.  Get out of my house."  He said, "Oh, I wanted to surprise you."  She again told him to get out of the house and threatened to call the police.  She could not remember details because it was a long time ago but she "awoke from someone pulling on [her] pants".  The appellant left as requested.

1. He returned about half an hour later and knocked on the front door.  He asked her to babysit his daughter that evening.  She agreed.  He said he would have dinner for her at his place.  She said she would only babysit the child at the home of the complainant's mother.  He accepted this.

1. These incidents all occurred prior to the purchase of a horse for the appellant's daughter.  Her memory of events in this time period were "sort of blurred" but she was adamant that at no time did she do anything to encourage the appellant to make sexual advances to her or to lead him to think that she had a romantic or sexual interest in him.  His wife had cancer and was often in hospital; she was receiving chemotherapy.  The complainant often chatted with the appellant's wife who was very friendly with the complainant's mother.  The complainant described her as "like a second mother"; she was always giving the complainant advice.  The complainant spent a good deal of time with the appellant's daughter whom she treated like a little sister.

1. The complainant continued to repulse all the appellant's advances.  She threatened to discontinue her involvement in purchasing a horse for the daughter if his behaviour continued.  He apologised and agreed that "it would kill [his wife] if she found out".  He said it would never happen again.  On that basis she continued to assist in the purchase of a horse for his daughter.  The appellant bought a horse for his daughter about Easter 2004.  The next night the complainant visited the appellant, his wife and daughter to discuss the new horse.  The child was already in bed and his wife was about to go to sleep.  The appellant insisted on driving the complainant to the pony club to check the horse.  After satisfying herself that the horse was doing well she asked the appellant to take her home.  As he walked through the barn area towards the car, he stopped and told her to come to him.  She again asked him to drive her home.  He grabbed her arm and pulled her towards him putting her hand on his penis.  He said, "I'm horny.  Will you hold my balls while I masturbate?"  She pulled her hand away and told him he was disgusting.  He continued to masturbate in the middle of the barn.  She stood at the gate waiting until he adjusted his clothing and drove her home.  From what she could remember, his penis was exposed.  She saw him masturbating but she did not choose to look and turned her back.  He was completely clothed. 

1. On another occasion when she was at her mother's home she noticed that the appellant had visitors.  She went over to his home.  When she entered he went to hug her and kiss her on the neck.  She pulled away.  He introduced her to one of the visitors, a trainee from the appellant's business, and she left. 

1. On another afternoon the appellant's daughter came to the complainant's home and asked for help with violin practice and her homework.  She went with the girl to the girl's bedroom where she helped her with her homework and music practice.  The complainant went to the kitchen to get a drink.  The appellant came into the kitchen and told her to "come over here".  She refused.  He said, "Look, you know, I'm horny.  Will you hold my balls while I masturbate?"  The complainant responded, "You are being disgusting.  Your daughter's in the next room."  He said, "Well, I will just have to do it myself."  He then exposed his penis saying, "It would be quicker if you helped."  She thought he grabbed her arm to touch him but she pulled away and left.  She saw him masturbating over the kitchen sink.  She returned to the girl's bedroom to assist with the homework.  About 10 or 15 minutes later he came to the bedroom.  The complainant said she had to go and left.

1. On 4 June 2005 she went to the appellant's home to collect some documents and a cheque relating to the entry of the horse in the Royal Brisbane Show.  She sat in a chair in his office and asked him for the required documentation.  He sat in a chair facing her.  He pulled her chair towards his.  He put his hands on her inner thighs.  She hit his hands away and told him not to touch her.  He exposed his penis and said, "Will you hold my balls while I masturbate?"  She refused and told him not to touch her.  She stood up to leave but he blocked the doorway.  She sat down and turned her back on him.  When she heard him move she again stood up to leave.  He told her to watch her step.  She looked down and saw a patch of semen on the carpet.  She pushed past him and left.  She re-emphasised that she had done nothing to encourage him to think that she was interested in his sexual advances.  In the meantime, she saw a lot of the appellant's ill wife and young daughter and her relationship with them developed positively. 

1. She moved into a nearby townhouse with Wayne who was by now not a mere friend but her boyfriend and partner.  On 14 June 2004, the date of the alleged offence, she telephoned the appellant on his mobile to discuss his daughter's saddle.  He said he was about to phone her because his daughter wanted to see the horse.  It was arranged that, as he was on his way home from a restaurant with his wife, he would collect the complainant on the way home.  He picked up the complainant and returned to his home where he dropped off his wife.  The complainant and the appellant then collected his daughter from a friend's nearby house.  They returned to his home for his daughter to change clothes.  The complainant, the appellant and his daughter then went to see the horse. 

1. The three returned to the complainant's townhouse at about 2.00 or 2.30 pm.  His daughter played with the complainant's cats and then visited a friend who lived nearby.  The complainant and the appellant were alone in the townhouse.  They sat on the back patio and smoked a cigarette.  The appellant asked for a tour of the townhouse.  She showed him around.  She did not take him into the bedroom but the door was open and she pointed to it.  His daughter returned with her girlfriend and the two girls left again after a short time. 

1. The appellant beckoned the complainant over to him.  She refused.  He grabbed her arms and pulled her across the tiled kitchen floor onto the carpeted area and through to the bedroom.  She resisted and threw up her arms.  She tried to kick him and to stand on his feet.  She was barefoot.  She thought he was wearing brown loafers.  He pushed her down on the bed.  She told him to get off her, to stop it and that he was hurting her.  He told her to be quiet.    He took his hands off her and undid his pants.  She got up and pushed past him and ran out the door to the kitchen.  She was not particularly concerned about his behaviour because he did not follow her.  She resumed her previous activities in the kitchen. 

1. About a minute later he returned to stand near her but on the carpeted area.  He was  naked from the waist down and masturbating.  He asked her to come to him.  She refused, told him to leave her alone and to go away.  She said he "was being gross".  He moved towards her into the kitchen and grabbed her by both arms.  This time he was more forceful and he really did hurt her.  He pulled her across the carpeted area again.  She managed to free one arm but he grabbed her again.  She told him to stop and to get off her.  He kept pulling her towards and then into the bedroom.  He put her down on the bed on her back with her hands above her head.  His arms were on her shoulders.  Her legs were off the bed from about the mid-calf down.  He was kneeling on the bed.  She told him to stop and to get off her.  She was swearing profusely at him.  He told her to be quiet.  She was trying to sit up but could not because he was leaning over the top of her with his hands on her hands.  She found it hard to describe their respective positions.  Her feet were not touching the ground.  Her legs were together.  His legs were on either side of hers.  He held her hands together with one hand over her head.  With his free hand he tried to take off her polo-style shirt.  He put her wrists under her neck on her chest and put his forearm under her throat and with his other free hand he undid the button on her skirt and grabbed each side of it until it was loose.  He then reached behind his back and pulled the skirt out from underneath his legs.  She said it was hard to explain.  With the same free hand he then inserted his penis into her vagina.  His other hand and forearm remained on her chest, holding her hands down under her throat.  She was swearing at him, telling him he was hurting her and to get off and to stop.  She was struggling.  He continued to have sex with her.  He told her to be quiet.  It was hurting so she lay still.  He continued to have sex.  She was "pretty sure" he ejaculated.  He then got up and began to dress. 

1. She heard the sliding door in the living room open and close and the daughter call out, "Dad".  He said something like, "She had to come back just as I came."  He put his head out the door and told the girl he was in the bathroom.  The child responded, "OK."  Meanwhile, the complainant got up off the bed and locked herself in the en suite.  When she saw he had left the bedroom she returned to the bedroom, dressed and composed herself.  She then went into the lounge room where the appellant was with his daughter and her young girlfriend.  The complainant said she had "somewhere to be" and so did they.  She went outside and gave the saddle to the appellant. 

1. The appellant did not wear a condom during the sexual intercourse.  At this time she was in a monogamous relationship with Wayne and they always used condoms when having sex.

1. After the appellant and the daughter left, the complainant returned to her townhouse.  She telephoned Wayne and asked him to meet her at her mother's house.  The appellant then returned to the complainant's townhouse and asked her what she was doing for the rest of the afternoon as his daughter was staying with her friend.  She falsely told him she was meeting an electrician at her mother's because she felt uncomfortable and wanted to leave the townhouse.  After he finally departed, she went to the bathroom and wiped her genital area with toilet paper which she put into the bathroom bin.  She then changed her pants, locked the townhouse and drove off in her car.  She stopped at a grocery store to purchase a drink.  She felt someone grab her "on the arse".  She saw it was the appellant.  He winked at her.  She did not respond.  She then drove to her mother's house.  As she arrived the appellant drove into his driveway and yelled out something like, "No electrician, hey?"  She responded, "They must be late."  She went into her mother's house and locked the door.

1. Sometime later Wayne arrived.  She told him that the appellant had raped her that afternoon at their townhouse.  She said she wanted to see her friend, Annie.  They then drove off to see Annie.  Wayne spoke to Annie whilst the complainant waited in the car.  Wayne drove her back to their townhouse.  Annie visited her there later that afternoon.  She told Annie that the appellant had raped her in the bedroom of the townhouse earlier that day.  After discussing events with Annie the complainant requested that the police be contacted.  Police attended at her home later that evening. 

1. The court has looked at photographs of the townhouse and the actual shirt, skirt and bra the complainant was wearing which were all tendered at trial.  

(b)Pretext telephone conversations between the complainant and the appellant         

1. The following day, 15 June 2004, she telephoned the appellant with the knowledge of police.  The pretext telephone conversation was recorded and the transcript was tendered at trial.  The complainant said she rang to have a chat about yesterday and asked, "What the hell went on?"  He said, "I thought it was great."  She said, "Are you serious?"  He seemed surprised at her reaction and said, "We'll make sure it never happens again."  He asked her what she wanted.  She said she wished it had never happened in the first place; she had told him this on numerous occasions and he had agreed to this a month ago.  She continued:

"And the fucken shit has still continued and you still pushed me and pushed me, and now it's come to this stage and yep, I'm very upset about it.
… and then that everything that's been going on and all the shit I've been going through and [indistinct] put me through this as well.
…
So what sort of – what sort of person are you, like why would you honestly do that?
APPELLANT:  Well, I – I just don't know, just obviously got out of hand. 
COMPLAINANT:  Yep, it obviously did.  Did you not think it did?
APPPELLANT:  Yeah, it got out of hand."

They agreed to speak further the next day.

1. On 16 June 2004 the complainant again telephoned the appellant.  The appellant said:

" – If [his wife] had found out it'd probably kill her.  So I'm just - … I'm just being very stupid what I want to do somehow is to – to get back to a situation where we're just friends.
…
COMPLAINANT:  Yeah, well, I mean, okay, last night and the night before, I sat up all night [indistinct]. Honest to God, I really absolutely really disgusted in the whole thing [indistinct]. Anyway, you turn around and say that it was great, but how can you possibly think that sleeping with a person [indistinct] all the time could possibly be appropriate anyway, let alone great, as you say. I mean, did I not say that I [indistinct].

APPELLANT:  Yep.

COMPLAINANT: I did?

APPELLANT: Yeah. I was - I’m totally in the wrong there.

COMPLAINANT: And did you pay any attentions to my feelings or how it might have affected me?

APPELLANT: Well,obviously not, no.

COMPLAINANT: Well, obviously not. And two days ago when, you know, you pretty much forced me to have sex with you, what - did you think that was consensual?

APPELLANT: At that point, yes.

COMPLAINANT: You did? You honestly did?

APPELLANT: I did. So, I mean, yeah. -----

COMPLAINANT: And do you not remember the other times when I’ve come over and I’ve sat there and you have tried everything [indistinct] possible and I have said no constantly and you have completely ignored me and just continued.

APPELLANT:  Yes, and I apologise for that.  I apologise profusely.  I really do.
COMPLAINANT: And even times when [the daughter] was sitting in the house in the bedroom next door and you’ve dragged me into your bedroom and expected me to have sex with you on the bed when your nine year old daughter is mucking around next door.
APPELLANT: I told you there’s the - I agree with you.

It’s - I acted incredibly -----

COMPLAINANT: What, you’re agreeing that you’re wrong?
APPELLANT: Yep.
COMPLAINANT: You’re agreeing that I said no and that you’ve gone ahead and you’ve done it anyway.
APPELLANT: I didn’t know - yes, well, in previous times - the other day, you know, I - I thought that was consensual, yes.
COMPLAINANT: You honestly believed that that was consensual?
APPELLANT: Mmm-hmm.
COMPLAINANT: After I said no repeatedly. Do you admit that - do you admit that?
APPELLANT: Um, you didn’t say no, um, the other day.
COMPLAINANT: Yes, I did, repeatedly. Oh, so you’re going to deny that [Indistinct]?
APPELLANT: I - I - it’s - I thought -----
COMPLAINANT: All I’m asking is you to admit it, that is all.
That is all I’m asking, is for you just to admit it to me.
APPELLANT: . See -----
COMPLAINANT: That you’ve been wrong and that when I said no, you continued and you had sex with me is all I’m asking.
APPELLANT: Well -----
COMPLAINANT: Is that true or not?
APPELLANT: The other day -----
COMPLAINANT: No, is that - is that true or not?
APPELLANT: No, the other day -----
COMPLAINANT: Yes, that is true.
APPELLANT: You’re - you - you - you were the one that
[indistinct] this is why we have a bedroom, why do you like - why do you like doing it in corridors, that’s why we have a bedroom.
COMPLAINANT: What? That is absolute bullshit.
APPELLANT: That- that - no case. That’s what you said.
COMPLAINANT: What is your fucking problem? Honest to God, do you no - can you just admit to me that the amount of times I said no and you still had sex with me. Just admit it.
APPELLANT: The -----
COMPLAINANT: No, just - ….. just admit it.
APPELLANT: But, … the ------
COMPLAINANT: The amount of times that I have said no and you’ve still continued and you’ve still continued with this for months and months and months and it led to you having sex with me against my will two days ago. Just say -----
APPELLANT: Well, that’s what I’m saying -----
COMPLAINANT:  Just be a man and admit it. That’s all I’m asking.
APPELLANT:  Well, okay, … , if that’s what you want, fine.
COMPLAINANT: I - I just want you to accept it and be a man and admit that you’ve done the wrong thing and admit that two days ago when you had sex with me, it was against my will, and on numerous occasions previous to that and then I said no.
APPELLANT: The -----
COMPLAINANT: No, will you just admit it?
APPELLANT: But, no, well, … I [indistinct] you’ve said no [indistinct] occasions and I should’ve carried that forward to - to yesterday or the day before yesterday, and -----
COMPLAINANT: So - yeah, exactly, and you still continued and you still forced me to have sex with you two days ago. Just admit it.
APPELLANT: Well, if you like, but see
COMPLAINANT: Well, no, just say it, just admit it. Don’t say if I would like. You have no idea how this is affecting me and I'd just like you to be a man and just admit it, and just admit that what you did was wrong and that you did that against my will and that you have constantly been doing these sort of things for nearly six months now when I’ve been saying no. Just admit it. That is all I want.
APPELLANT: Well, and, I, yes, I said that, I said what I’ve done up to this point was inappropriate, but [Indistinct]
COMPLAINANT: No, I’m talking about the other day - okay - I’m talking about the end to this whole thing, which -----
APPELLANT: Yep.
COMPLAINANT: ----- obviously was Thursday - okay - not Thursday, whenever it was, two days ago.
APPELLANT: Yep, yeah.
COMPLAINANT: Yeah?
APPELLANT: Now – but -----
COMPLAINANT: Will you just admit that you were wrong?
APPELLANT: I was wrong.
COMPLAINANT: And that I said no and you still proceeded?
APPELLANT: Um, what - what happened two days ago was -----
COMPLAINANT: Yes?
APPELLANT: Was, you know, what - I acted inappropriately, yes, I -----
COMPLAINANT: Did you -----
APPELLANT: Should I have done it? No.
COMPLAINANT: That I had - had I previously said no and did you continue anyway?
APPELLANT: But, see -----
COMPLAINANT: No, is that - is that yes or no?
APPELLANT: No, two days ago you didn’t say no.
COMPLAINANT: Two days ago I did and for six months I have been saying no.
APPELLANT: That’s right. For six months you have. I’m
saying absolutely true -----
COMPLAINANT: And you continued to pester me, you have tried things on with me onto me on numerous occasions, you – in front of your daughter, when your daughter’s in there, when your wife was out of town. All I’m asking is that up till now you admit that the other day when we had sex, I did not consent to it and that you were wrong. That is all. I’m asking from you. That is all.

…

You’ve been an arsehole - you’ve been an arsehole for six months, so why can’t you just admit this one thing to me? That’s all I want, is for you to stand up and be a man and accept it and just admit that you were wrong. That is all.
APPELLANT: I am wrong there’s no doubt about that.
COMPLAINANT: You were wrong and you were wrong - were you wrong two days ago?
APPELLANT: I was wrong two days ago, I was wrong two
months ago. I was wrong six months ago
COMPLAINANT: And that - did I say no continuously?
APPELLANT: Yes, but two days ago, no. You – that - that’s why it went so far, it was just -----
COMPLAINANT: That’s why it went so far, because I allegedly did not say no? What part of 'no' do you not understand? How many times do I honestly have to say it to you before it really sinks in? Honestly?
APPELLANT: Well, I mean -----
COMPLAINANT: No, honestly, I’m asking that question. How many times do I have to say no and push you away and leave before you really get the message?
APPELLANT: Well, not any more.
COMPLAINANT: Well, how can you honestly have thought that after six months of me saying that all the time, you could honestly try and pull something like this on me? Honestly, seriously, what was going through your mind?
APPELLANT: I don’t know.
COMPLAINANT: You don’t know?
APPELLANT: I don’t know. But obviously [Indistinct] -
you know, I’m very wrong and I’m very, very, very sorry. You have no idea how sorry I am.
COMPLAINANT: And you have no idea how this has been affecting me for the past six months. I love your family, I love your wife, I love [your daughter], and you’ve, put me in the most awkward position ever and you have taken something from me that I’ll never be able to get back, and all I want you to do is to admit to me that you were wrong.
APPELLANT: I am wrong. I admit to that.
COMPLAINANT: And you just admit to me
APPELLANT: [Indistinct].
COMPLAINANT: ----- two days ago, after I constantly said no, you still continued to have sex with me. That is what I want you to admit. It’s a really big deal to me - okay - and I would just like you to admit that.
APPELLANT: All right, … fine. [Indistinct] what I did was wrong, absolutely. How can we get past it?
COMPLAINANT: Was the sex two days ago consensual, to your mind of thinking? Was it consensual? Up until this stage -----
APPELLANT: Yep.
COMPLAINANT: ----- was it consensual?
APPELLANT: Yep.
COMPLAINANT: You honestly believe [indistinct].
APPELLANT: That -----
COMPLAINANT: What indication have I ever given you to think that that is all right? What - what indications have I ever given you that you forcing sex on me is all right?
APPELLANT: Well, obviously - no, this – I -----
COMPLAINANT: No, you tell me how -----
APPELLANT:  I’m only talking about two days ago -----
COMPLAINANT: … what I’ve done wrong and what I’ve done to -----
APPELLANT: You haven’t done -----
COMPLAINANT:  ----- try and make you think that it’s okay.
APPELLANT: No, you haven’t done anything wrong. You haven’t given me any - any reason to think it was okay.
COMPLAINANT: Have I led you on?
APPELLANT: No.
COMPLAINANT: So what in your mind makes you think that it was all right?
APPELLANT: I don’t know.
COMPLAINANT: You don’t know? All I want you to do is to admit to me that prior to the past six months, when I’ve constantly said no to you, that I have said no and that you have still had sex with me.
APPELLANT: Yes, I admit that.
COMPLAINANT: That is all I wanted you to say. Okay? That is all I wanted to say.
…"

1. On 29 June 2004, the appellant telephoned her.  Wayne was home.  The appellant asked her if she wanted him to go to the police station and do an interview because he would have to tell them everything about money coming in and out of her bank accounts and that she was a prostitute and a drug dealer to fund her drug habit.  She had never been involved in prostitution nor drug dealing and had never told the appellant that she had been so involved.  After a friend committed suicide she obtained professional medical assistance and took prescribed anti-hypertension medication to help with sleep.

1. She did not consent either to sexual intercourse with the appellant on 14 June 2004 or to any sexual conduct with him at any time. 

The complainant's evidence in cross-examination

1. The appellant emphasises the following matters that arose in the complainant's lengthy cross-examination over three days.  She agreed that her father was a wealthy businessman and that her parents had divorced acrimoniously.  When she was at high school she visited a psychologist to discuss family and parental problems and to talk about her studies at school and her vocational aims.  In 2000 she refused to take part in further counselling.  That year she was involved in a serious horse-riding accident and fractured some vertebra.  This required her to be absent from school for three or four weeks.  In August 2000 she was horse-riding with a girlfriend who was thrown from her horse and suffered serious and ultimately fatal injuries.  The complainant received grief counselling from a school psychologist.  She did not do well at school in Year 12 and her parents were disappointed with her results.  After leaving school, she studied externally, worked at different jobs and followed her passion for horse-riding. 

1. At the committal proceedings, in the context of her dealings with the appellant on Halloween 2003, she was asked, "What if anything did he physically do?" She replied, "Nothing.  I think he was – I think he had his hand on my back.  I don't – nothing that was of any sexual nature."  She accepted this contrasted with her evidence at trial which she agreed was that she understood his actions to have been a "sleazy sexual act".  She said she made a mistake in her evidence at the committal proceeding.

1. At the time of the incidents of 6 and 7 March 2004 the complainant kept a diary or journal.  Her entries suggested that she was quite despondent at this time.  The journal did not refer to the events she described in her evidence of 6 and 7 March 2004.  Her best friend had committed suicide about six weeks earlier by taking a drug overdose.  She agreed her diagnosis on discharge from hospital on 7 March was "alcohol consumption on an empty stomach causing nausea and vomiting". 

1. She agreed she began to visit a psychiatrist on 18 March 2004 when she was prescribed a very low dose of anti-depressant drugs.  She told her doctor she had been unwell for six months. 

1. On the next occasion when she said the appellant acted in a sexually inappropriate and unwelcome manner towards her, she agreed that, after she told him that if he continued she would tell his wife, he immediately desisted.  She maintained regular contact with him for the sake of his daughter and wife and for her love of horses, a passion she shared with his daughter.  She thought she had the situation with the appellant under control and she was willing "to put her personal safety on the line for others".

1. On the next such occasion, when the complainant said the appellant acted inappropriately towards her in the bedroom in her mother's house, the complainant agreed that he ceased immediately she threatened to call the police if he did not leave.

1. When cross-examined about the incident at the stables, she said she both saw his penis and he grabbed her hand and put it on his penis before she dragged her hand away.  At the committal proceeding, she said she could not say she actually saw him masturbating; she made no mention of touching his penis.  She had given evidence "four times now" and was doing her "very best to remember every detail" but she felt the cross-examiner was attacking her.  As to her evidence at committal, she explained that by saying she saw him unzip his pants she understood she was implying that she saw his penis without having to state that detail to an entire court room.

1. When cross-examined about the incident when she was helping the daughter with homework and violin practice, she said she saw his exposed penis and he was still clothed when he forced her hand onto his penis.  At the committal proceedings she did not say he forced her hand onto his penis.  She said this was probably because she was embarrassed. 

1. The townhouse into which she and Wayne moved was in a complex of about 60 and had on-site managers.  She agreed that, from her previous experience with the appellant, his words "Come here.  Come here," should have caused her to be on her guard and realise that he may make sexual advances.  She said her response to his statement was "what for?".  This contrasted with her evidence-in-chief where she said in no uncertain terms that she was not interested.  She maintained that she expressed to him in clear and unequivocal language her lack of consent to any sexual contact.  She agreed that at the committal proceedings she said she did not respond to his request because she was busy in the kitchen and "why couldn't he come over and talk to" her.  She agreed that at this stage she did not defuse the situation by attempting to leave her home, by calling out or by threatening to tell his wife or to call the police. 

1. The appellant used a great deal of force on her forearms to drag her into the bedroom.  It was not excruciating pain but it hurt.  She was fighting with all her might to avoid being dragged into the bedroom.  She could not remember if the "tempo" of her demands that he leave her alone and leave the house became louder as she neared the bedroom.  She agreed that at the committal proceedings she said that the "tempo" of her use of the word "fuck" and her physical resistance increased as he dragged her towards the bedroom.  She told the police on 14 June 2004 that the appellant pulled her into the bedroom, closed the curtains, locked the front door and undressed himself.  She now said that when he first dragged her into the bedroom, the curtains were already closed. She agreed that, when she escaped from the bedroom and returned to the kitchen, the front door of her townhouse was not deadlocked so she could have left but did not.    She could not remember whether the front door and the screen door of the townhouse were open or closed.  At the committal proceedings she said the front door was always open and the screen door was also usually open. 

1. She was cross-examined in detail as to how, on her version of events, the appellant could have removed her clothes.  The clothes were shown to her and she demonstrated how she was wearing them.  The skirt had three buttons and a zip which could be undone.  He pushed the skirt down with his hand on one side and then the other side and pulled it straight off.  Her underpants came off at the same time as the skirt.  She could not remember whether she was wearing a bra.  Her standard polo-style shirt had three buttons which she always wore undone.  She told police that both her shirt and bra were removed during the incident and that she and the appellant were completely naked.  The bra had two clips at the back.  When she dressed after sexual intercourse she did not put on her bra.  She did not describe how the appellant came to remove his upper clothing which he was still wearing when he threw her on the bed the second time, immediately prior to the forced removal of her clothes and forced sexual intercourse.  In the incident the complainant's clothing was not damaged and the contents of the bedroom were not disturbed.

1. When the appellant penetrated her vagina with his penis, she was clenching her vagina and her thighs and struggling and trying to push him off; her hands were still being held down.  The door to the bedroom was closed but unlatched; she thought the appellant closed it with his feet prior to intercourse but she could not remember. She denied that Wayne was very keen for her to proceed with the charge against the appellant; he said it was her decision.   

1. About five months later on 11 November 2004 she became aware that she was about eight weeks pregnant.  She denied that she was again pregnant on 25 October 2005.  She nevertheless maintained that she and Wayne always had sex using a condom. 

1. She denied telephoning the appellant after the pretext telephone calls on 15 and 16 June 2004.

1. The prosecution admitted that a telephone call was made from a pay phone service located at Level 3, Indooroopilly Shoppingtown, to the appellant's mobile phone number at 12.06 pm on Monday 21 February 2005 and that an SMS text message was sent to the appellant's mobile phone at 12.20 am on Sunday, 21 March 2005 from a mobile phone number belonging to a friend of the complainant and that a call was made from that mobile phone number to the appellant at 10.11 am on Monday, 14 March 2005.

The complainant's re-examination

1. The complainant said that she had felt depressed at times during the period to which her evidence related.  Subsequent to these events she had an alcohol problem.  Otherwise, she had not been diagnosed with any mental illness.  She was not delusional and had never told anybody she was delusional.  The diary or journal she kept in 2004 was a book that she wrote in on occasions, often in rhyme.  It was not intended to be a true and complete record of her life.  Some of her journal writings dealt with depression; others concerned happy times. 

1. She agreed that at one stage she told the investigating police officer she did not want to proceed with the prosecution of this matter because it had consumed her life for so long and she had "had enough".  She was distressed at having her personal writings and her mobile phone taken from her by police.  When she gave her initial statement to police on 14 June 2004 she was flustered and upset.

1. She did not take the Halloween incident seriously at the time because she thought the appellant was drunk.  She was concerned about his subsequent conduct but on each occasion she felt she could handle it.  On all occasions prior to 14 June 2004 he had stopped when she told him to stop.  She maintained that her testimony was truthful.

Evidence of preliminary complaint

1. Wayne gave evidence about the complainant being ill at the appellant's residence on 6 March 2004.  The complainant did not appear to be intoxicated when she was vomiting at the appellant's home.  He was concerned about her health and suggested they get her medical attention.  She was very anxious that he not leave her alone with the appellant.  On numerous occasions the appellant rubbed her shoulders or touched her arms.  She told him not to touch her and continually said, "Wayne's the only one to help me."

1. On 14 June 2004 Wayne received a phone call from the complainant who was quite distressed.  She said she needed to talk to him urgently and it was not something she could discuss on the phone.  They arranged to meet at her mother's house.  When he arrived he phoned her from his mobile phone because the front door was locked and he could not get in.  The complainant opened the door.  She said she had been sexually assaulted by the appellant.  Wayne was unsure what this entailed and said, "Do you mean that he raped you?"  She said, "Yes."  She asked Wayne to take her to see Annie.  He drove her to see Annie.  He spoke to Annie and he and the complainant returned to their townhouse.  The complainant gave him a more detailed account of the appellant's conduct which Wayne repeated in his evidence.  This account was broadly consistent with the complainant's evidence.  It included the following:

"I said, 'You're a fighter.'  … 'Why didn't you scream?', and she said that she was really just in a state of shock and that when he had forced himself in her that even though she kept on saying, 'No.', and that he told her to be quiet, that he – she said he was too strong for her and she said she just wanted it all to end." 

1. When he and the complainant had sexual intercourse he always wore a condom.

1. Annie gave evidence that after Wayne visited her on 14 June 2004 she went to the complainant's townhouse at about 5.45 pm.  The complainant was in a deep sleep.  When she woke up she was quite shaky.  She became a bit teary on and off during their later conversation. She asked the complainant what had happened.  The complainant said that the appellant had forced himself on her that afternoon.  Annie asked what she meant.  The complainant did not respond.  Annie said, "Do you mean he raped you?"  The complainant said, "Yes".  The complainant then gave a brief account of the history of his behaviour towards her before 14 June 2004 which was broadly comparable with her evidence in court.  

Medical evidence

1. Dr Leadbetter, from the Royal Women's Hospital Sexual Assault Service, examined the complainant at 9.00 pm on 14 June 2004.  She found no bruising or marks on the complainant's body and her genital examination was normal.  Such an examination would not indicate whether sexual intercourse had occurred six hours earlier.  The absence of injury did not exclude non-consensual sexual activity.  The prosecution briefly put the complainant's account to the doctor.  The doctor considered the account was consistent with her examination of the complainant.

1. The cross-examining barrister gave more details to the doctor of the complainant's account as it emerged in cross-examination.  Dr Leadbetter considered that on that account she would expect to find some marks on the complainant but added that did not mean the events did not unfold as the complainant described.  The doctor agreed that, with the degree of struggling described, she would expect to find some physical signs of injury.  Similarly, on the account given by the complainant, some reddening or scratching in the genital area may well have resulted.  She was not, however, necessarily surprised by the absence of any such finding.

1. In re-examination, Dr Leadbetter said that on the account given by defence counsel to her in cross-examination she would expect to find some sort of mark or redness but this was not necessarily so.  If, for example, after forced penetration the woman ceased to struggle and "froze", the likelihood of redness or other marks on the genitalia would be reduced.

The appellant's interview with police

1. On 29 June 2004 the appellant took part in a lengthy video-recorded interview.  He gave the following account.  The complainant was always flirting with him and he found her amorous advances flattering.  He claimed she was a heavy drinker, a drug dealer, and a troubled young woman with an expensive drug habit who had sex with hundreds of "guys" for free drugs and money.  On 14 June 2004 he did not have sexual intercourse with her.  He admitted being in the complainant's townhouse at the time of the alleged rape.  She was flirting with him and grabbed his penis.  He resisted her amorous advances.  He repeatedly denied having sexual intercourse with her, either against her will or consensually, either on 14 June 2004 or at any other time. 

The defence case

1. The appellant did not give or call evidence.

The appellant's contentions

1. The appellant contends that the credit of the complainant was so compromised that no jury could have accepted her account of the alleged rape beyond reasonable doubt.  First, her account was inconsistent with the absence of any injury to or mark on her.  The medical evidence throws a significant doubt on the complainant's reliability. 

1. Second, had the clothes been removed forcibly in the way the complainant claimed, it can be expected that they would have been torn or damaged.  They were not.

1. Third, her account was inherently implausible.  She could easily have left the townhouse and yelled out and got help.  On previous occasions the appellant had desisted when the complainant threatened to tell his wife or to call the police.  The complainant made no such threats on this occasion.  She gave different accounts as to whether the curtains in the bedroom were drawn.  The combination of all these matters required a reasonable jury to have a reasonable doubt about the accuracy of her evidence of non-consent. 

1. The appellant further contends that a reasonable jury could not reasonably have drawn any support for the complainant's evidence from the appellant's own record of interview with police.  Whilst his account was unattractive and portrayed him as an unlikeable and irresponsible human being, he gave the interview in circumstances where he had had sexual intercourse with a much younger woman who was a mentor of his daughter and a friend of his wife.  His wife was then terminally ill and he had major parenting responsibilities for his young daughter.  There were many reasons for the appellant's lies to police other than that he raped the complainant.

1. Similarly, the pretext telephone conversations were consistent with statements from a husband of a terminally ill woman regretting having had consensual sex with the 18 year old family friend.

Conclusion

1. I have comprehensively canvassed all the relevant evidence earlier in these reasons.  The complainant was cross-examined over three days by an experienced criminal barrister.  The issues relied upon in this appeal to demonstrate the unreasonableness of the jury's guilty verdict were explored thoroughly in cross-examination and in the addresses of counsel at trial.  They were all matters solely for resolution by the jury.

1. Whilst the complainant's version of events, especially in cross-examination, does make it surprising that there were not some physical injuries to or marks on her, the prosecution did not have to establish physical injury to establish the offence of rape.  The jury was entitled to conclude that she exaggerated in cross-examination the extent of her struggling but nevertheless did not consent to sexual intercourse with the appellant and made this clear to him.  Her clothing, which we have examined, was not of a type which would be particularly difficult to remove in the manner she described.  The shirt is of a stretch knit material and appears loose fitting.  The small skirt the complainant was wearing on her hips was made of stretchy denim and a lycra-type fabric.  It would be slim-fitting but it would not apparently be difficult to remove because it stretched freely.  It was plausible that when it was removed the panties were also removed.

1. In the pretext telephone calls with the complainant, the appellant did not make any unequivocal admissions to the offence of rape.  A jury could have considered some of his statements were a denial of non-consensual sexual intercourse with the complainant.  The jury could, however, equally have considered those claims of consensual sexual intercourse with the complainant to have been a false attempt to justify the unjustifiable and that his many apologies and admissions that he behaved inappropriately on 14 June 2004 and beforehand were admissions against his interest and broadly supportive of the complainant's account. 

1. The appellant's lies to police in his record of interview in which he denied having sexual intercourse with the complainant and unfairly and wrongly assassinated her character were not left to the jury as lies showing a consciousness of guilt.  The jury would, however, almost certainly have considered his account to police lacked all credibility and that it also tainted his credibility in the pretext telephone call. 

1. The jury were also entitled to consider that the complainant's account that she was raped by the appellant was consistent with her timely preliminary complaint to her boyfriend, Wayne, and her friend, Annie, and to police.  Her reasons for wishing at one time to withdraw her complaint were not implausible and did not require rejection of her evidence. 

1. The appellant does not contend that the directions given by the learned primary judge in his summing-up to the jury were in any way unfair to the appellant.  His Honour directed the jury to disregard feelings of sympathy they may have for the complainant because of her unfortunate background.  He reminded them of her history of psychological difficulty and the series of tragic life events which the jury should take into account in deciding whether her evidence was reliable.    The judge warned the jury of the central importance of the complainant's credibility and that in the past some people have made false complaints of rape.  As there was no independent supporting evidence for her account, they must scrutinise her evidence with great care and, keeping in mind the incidence of false complaints generally, only convict if they were satisfied beyond reasonable doubt of the reliability of her account.  The judge placed some emphasis on Dr Leadbetter's examination and that there were no marks or injuries on the complainant as would be expected from her version.  His Honour fully and generously placed the defence case before the jury. 

1. The complainant's evidence did not impress me as so inherently unreliable that the jury could not reasonably act upon it and return a guilty verdict.  Her evidence at trial was broadly consistent with her preliminary complaints, her statements to police and her evidence at committal.  The inconsistencies that did arise were canvassed fully before the jury and, in all the circumstances, were not such as to require the rejection of her evidence.  The jury may well have thought that she exaggerated in cross-examination the extent of her struggles.  Even so, neither this, nor her failure to call for help, to leave the townhouse nor to threaten to tell his wife or call the police required the jury to reject her evidence that she was not consenting and that she made her lack of consent very plain to the appellant when he had sex with her.  This part of her account was entirely plausible: she was an 18 year old who thought from her past experience with the appellant that she could control his sexual advances but on 14 June 2004 she was unable to persuade him to desist and he had sexual intercourse with her without her consent and knowing she was not consenting.  The complainant's account was capable of receiving support in a general way from the appellant's apologies and admissions of inappropriate behaviour in the recorded pretext telephone calls.  The jury were entitled to accept the complainant's evidence as to the elements of the offence of rape committed by the appellant on her on 14 June 2004 in her townhouse.  Once the jury accepted that evidence as honest and reliable beyond reasonable doubt, in the absence of any competing evidence (and there was none), the jury was well able to be satisfied on the whole of the evidence beyond reasonable doubt of the appellant's guilt: MFA v The Queen.[1]

   [1](2002) 213 CLR 606.

1. The appeal should be dismissed.

ORDER:  Appeal against conviction dismissed.

1. HOLMES JA:  I have read the judgment of the President. I agree with her reasons and the orders she proposed.

1. LYONS J:  I have had the advantage of reading the reasons for judgment of McMurdo P. I agree with the reasons and the orders proposed by McMurdo P.