R v McKandie

[1994] QCA 223

IN THE COURT OF APPEAL [1994] QCA 223

SUPREME COURT OF QUEENSLAND

C.A. No. 43 of 1994

Brisbane
[R. v. McKandie]

BETWEEN

T H E Q U E E N
v.
AARON JOHN McKANDIE

(Appellant)

Macrossan C.J. McPherson J.A. Pincus J.A.

Judgment delivered 22/06/94

Reasons for judgment by the Court

APPEAL DISMISSED.

CATCHWORDS: CRIMINAL LAW - RAPE - consent - whether s. 24 Criminal Code available - complainant knew appellant - no violent resistance or noisy protest - told appellant to leave her alone - delay in making complaint- whether testimony of complainant's flatmate as to complainant's character admissible to explain delay.

CRIMINAL LAW - SUMMING UP - whether sufficient direction on corroboration - whether misstatement of fact in summing up - whether summing up unbalanced in circumstances where accused called or gave no evidence.
Counsel:Mr R. Morgan for the Appellant

Mr W. Clark for the Respondent

Solicitors:Legal Aid Office for the Appellant

Director of Prosecutions for the Respondent

Hearing Date:19 May 1994

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 22nd day of June 1994

This is an appeal by Aaron McKandie against his conviction at a trial in the District Court at Toowoomba on a charge of rape alleged to have been committed on 1 October 1992. Sexual penetration of the complainant was not in issue at the trial but consent or the lack of it was.

As amended there are five grounds of appeal, of which the first is that the conviction was unsafe and unsatisfactory. The complainant is a music student, who at the time of the offence was 17 years old and living with a friend Joanne Duncan and her family at a house in Toowoomba. By 1992 she had been acquainted with the appellant for some two years, through having travelled on the same school bus from Murphy's Creek, which was where she was then living. She said she had never spoken much to the appellant, and she denied ever having had anything to do with him socially. In the 12 months before the alleged incident, she had seen him only once. It was an occasion when she was walking home one day in Toowoomba, and the appellant stopped his motor vehicle at an intersection and offered her a lift, which she declined.

At 8.30 a.m. on 1 October 1992 the complainant was at the house where she lived in Toowoomba, when there was a knock at the door and she heard a male voice call her name. She changed from her nightie into some clothes and went to the door, which was a sliding screen door. She recognised the person there as the appellant, who said he had tracked her down. He came into the house without being asked. She began to fiddle with some hairclips she was making for friends, and asked him if he liked them. To that he replied, "Yes. They're pretty. Do you want to root me?" She said "No". He was sitting in a lounge chair when he suddenly reached over and kissed her. She stood up and said she was going to have a shower.

She walked into the hallway to her bedroom in order to get her beauty bag for the shower. He followed her and pulled down the shoulder strap of the overall top she was wearing. She reached the bedroom and collected her bag. When she turned round he was standing in the doorway saying "Come on, just root me". She turned away and faced the window, whereupon he said he loved her and came up and cuddled her. She told him to leave her alone, but he put his hands on her shoulders and pushed or pulled her on to the bed. She tried to wriggle away from him but he took her clothes off, and, putting most of his weight on her, he undid his fly. She told him to get off her, and leave her alone, but he put his penis in her vagina, and had sexual intercourse with her. He then tried to put his penis in her mouth, but she pushed it away and he ejaculated. He went out of the house and smoked a cigarette; then came back in; and finally went out again and drove off in his car.

The events set out so far are taken from the complainant's
testimony. The appellant himself gave no evidence at the trial.
She was cross-examined at length and in some detail in an
attempt to highlight inconsistencies between her evidence and
what she had said in her statement and at the committal
proceedings. Going by the printed record, it is a fair comment
that this questioning did little to shake her evidence. Much of
it was directed to details of other occasions or events, which
she said had not taken place. She was asked very few questions
that directly tested her account of what had happened in the
house on the morning of 1 October 1992. The result is that on
critical elements of the prosecution case, the complainant's
evidence was not only uncontradicted but for the most part
unchallenged.

In these circumstances it is not easy to see why the complainant's evidence should not have been accepted by the jury, or why the conviction that followed should be considered unsafe or unsatisfactory. It was argued that the complainant's conduct, when confronted by the appellant on the morning of 1 October 1992, was not that of a woman being raped or threatened with rape. She told him to go away and leave her alone; but she did not scream out, or tell him in strong language to leave the house. She wriggled and tried to push him away; but she did not scratch, punch, kick or bite him. There were other aspects of her behaviour that were said to be surprising. Immediately after it was over she did not telephone the police, or look for help. When her friend Joanne Duncan came home the complainant did not tell her what had happened. When at about 11.30 a.m. the appellant came back to their residence, she did not, even with Joanne there, accuse him of rape. On that occasion he claimed to be working with the police to identify drug dealers in the area. He produced a police contact card which he had in the meantime obtained from a detective at the police station, and he used the telephone at the house ostensibly to speak to someone at the police station. The complainant made no mention in his presence of what had happened earlier.

These were all matters which, one may confidently assume, were stressed by counsel in addressing the jury on behalf of the appellant. It is however not the law that a woman who is forced to submit to sexual intercourse against her will is bound to resist violently or protest noisily. Different individuals respond in different ways to the stress or terror of an experience like that. Here it is evident, both from what the complainant said at the trial and from the way she said it, that she is not an assertive, loquacious or demonstrative person. Having seen and heard the complainant give evidence, the jury would have been able to form a much more accurate impression of her personality and reliability as a witness than ever we could do on appeal. There is no reason to suppose they did not perform their essential function of properly assessing the credibility of the principal witness. They may also have placed an unfavourable interpretation on the appellant's conduct in returning to the house, as he did, in the guise of a police officer or investigator. They may have thought that his motive in doing so might have been to impress upon the complainant that he had connections or influence with the police, so as to deter her from making a complaint of rape to them.

In addition to the issue of her consent, the appellant relied at the trial on s.24 of the Criminal Code. As to this, the question for the jury was whether, even if they thought that the complainant was not consenting to sexual intercourse with the appellant, he nevertheless believed she was doing so. It was for the prosecution to exclude the possibility that he honestly and reasonably believed she was a consenting party. Objectively speaking, there was nothing in her conduct or in the circumstances of time and place to encourage such a belief. According to what she told the appellant at the time, she had never previously had sexual intercourse. It seems most improbable that her first choice would fall on someone whom she scarcely knew, who came to her home unexpected and uninvited, and whose opening blandishment at 8.30 a.m. was "Do you want to root me?" The possibility that the appellant honestly held such a belief was also a matter for the jury to determine. There was nothing to suggest the appellant ever applied his mind to the question. On the evidence it was open to the jury to find it was not something that concerned him at all.

The second ground of appeal is directed to the evidence given by Joanne Duncan. She said that when she returned home that morning the complainant appeared to her to be "really white and really pale" and "shaky". She asked what was wrong, but the complainant would not tell her. In the course of cross-examination, Joanne said she persisted in questioning her, knowing from experience as she claimed that it was difficult to get the complainant to speak sometimes because "she feels like she's burdening you in some way".

The trial judge had previously ruled that Joanne's evidence was not capable of constituting corroboration. On appeal it was submitted that it was altogether inadmissible, or else that the judge ought to have excluded it as a matter of discretion. The evidence particularly criticised on appeal emerged in answers to questions that were put in cross-examination. Counsel for the defence was, as he had earlier acknowledged, naturally interested in having Joanne's evidence before the jury to the extent that it showed that no early complaint was made to her. He made no attempt to prevent or to limit what the witness said.

The evidence given by Joanne was in any event admissible to explain why the complainant said nothing about the rape as soon as Joanne returned home. Wigmore says that in rape cases the complainant's silence may be explained away as due to fear, shame, or the like, "so that it loses its significance as a suspicious inconsistency". Wigmore on Evidence, vol. IV §1135, at 301 (Chadbourne revd. ed.) The author cites R. v. Rearden (1864) 4 Fost. & Fin. 76; 176 E.R. 473, as an instance of admission of such evidence in England. What was said by Joanne was properly admitted as tending to explain why there was no complaint to Joanne at the first opportunity. It was not simply prejudicial.

The third ground of appeal is that the direction on
corroboration which the judge gave to the jury was insufficient.
Various criticisms of it are made by the appellant. It is said
that the judge told the jury only that corroboration was
"desirable" instead of directing them, as it was submitted he
should have done, that it was "dangerous" to convict on the
uncorroborated evidence of the complainant in a rape case. It
is, however, now well settled that there is no fixed formula or
set form of words that must be used in the direction, and that
the terms of the warning must be adapted to the particular
circumstances of the case. See Longman v. The Queen (1989) 168
C.L.R. 79, 86, 93-94. The matter has been the subject of
discussion in several recent decisions in this Court. See R. v.
Stewart [1993] 2 Qd.R. 322; R. v. Hinton (C.A. No. 173 of 1993);
and R. v. Wright (C.A. No. 433 of 1993).
Here the trial judge gave an adequate explanation of the risks of fabrication of complaints in sexual cases and warned the jury of the need to scrutinise the complainant's evidence carefully before it was acted on. He explained to them what was meant by corroboration and in the end he left them in no doubt that the complainant's evidence was not corroborated. It was submitted by counsel for the appellant that the judge should have gone further and not only explained to the jury that there was no corroborative evidence, but instructed them specifically that the testimony of Joanne Duncan was not capable of being so regarded. There may be occasions or circumstances in which particular evidence ought to be made the subject of a specific warning like that; but there was nothing in Joanne's evidence in this case to attract special attention of that kind. The judge's explanation of what was meant by corroboration and his direction to the jury that the complainant's evidence was not corroborated were sufficient, without adding a particular direction about the negative status of Joanne's evidence in that regard.
The fourth ground of appeal is that there was a fatal misstatement of fact in the course of the judge's summing up. The passage complained of is part of the following paragraph:

"The Prosecutor addressed you on the basis: what would you think of someone presenting themselves at your place at 8.30 on Saturday or whenever it was and said, 'Do you want to root me?'. Well, I do not think that is a correct approach at all because your reaction of course, would be simply abhorrence. But what you have to concern yourself with here is, what was the result?

What did happen? So far as a deal of the girl's evidence is concerned as to what was allegedly said about rooting and sixty-niners and that sort of business, it has not been suggested it did not happen at all; and that somehow, in some unknown way that has not been actually put to the girl, she finished up consenting on the bed."

The particular aspect of the passage that is attacked on appeal is the statement that "somehow, in some unknown way that has not been actually put to the girl, she finished up consenting on the bed". On appeal it was said this was a misstatement because in cross-examination defence counsel had in fact specifically suggested to the complainant that she was quite willing to have sex with the accused.

In our opinion this complaint mistakes the point that his Honour was making to the jury. Accepting that it was put to the complainant that she was willing to have sex with the appellant, the particular matter being drawn to the attention of the jury by the trial judge was that she was never asked anything at all about how she had ended up on the bed consenting to sexual intercourse with the appellant. In other words, the defence never put to her an alternative version of events that competed with her own account, which was that he had taken her by both shoulders and pushed or pulled her on to the bed and held her down while having sexual intercourse with her. There was, in short, nothing but the bare suggestion that she was willing to have sex with him, without any specific challenge to details of her evidence about what had happened before or on the bed.

Apart from that, when the whole of the relevant paragraph is considered it is apparent that it is by no means entirely favourable to the prosecution. What his Honour was telling the jury was that they should not, as had evidently been suggested to them by prosecuting counsel, decide the case and find the appellant guilty simply because they felt a natural abhorrence to the appellant's crude opening question "Do you want to root me?". Their duty as jurors, his Honour was reminding them, was to work out what the evidence showed had taken place after the appellant had put that question. What, he asked the jury, "was the result? What did happen?".

No one suggests that this was not the proper way for the jury to go about their task of deciding the case, or that in doing so they were not entitled to take account of the striking absence of detail in the questions put to the complainant in cross-examination about what had happened. The fact that no redirection was sought by the experienced counsel who represented the appellant at the trial also provides support for the impression that the judge did not misstate the way the defence had been conducted, and that he had not overlooked the question put to the complainant in cross-examination about her willingness to have sex with the appellant.
Defence counsel's decision not to ask for any redirection is also relevant to the fifth and final ground of appeal. It is that the summing up lacked balance in that it failed to put the defence case adequately before the jury.

It is true that the summing up paid much more attention to the prosecution case than to the defence. The problem of discovering the defendant's version of events from the questions put in cross-examination has been mentioned. No evidence was given or called by the appellant. The only other source from which the defence case could have been ascertained at the trial was counsel's address to the jury. Precisely what it contained we cannot say because the addresses of counsel are not recorded.

What we do know is that it occupied some 34 minutes from 11.20 a.m. to 12.14 p.m. and that it was followed immediately by the summing up, which took from 12.14 p.m. to 12.48 p.m. The jury thus had a very recent and fresh impression of what was said on behalf of the appellant, with the consequence that there was little occasion for the judge to repeat it in summing up. So far as can be gathered, the address to the jury on behalf of the appellant focussed on two elements in the case; that is, weaknesses in the complainant's evidence and the reasonableness of a belief on the part of the appellant that she consented to sexual intercourse. Both matters were dealt with by the judge in the summing up.

In these circumstances it was inevitable that the summing up should have been occupied principally with details of the prosecution case and evidence. It is quite another matter to suggest that in consequence it was unfair. Of a similar submission advanced in R. v. Strampel (C.A. 308 of 1984; June 19, 1985 unrep.), Andrews S.P.J. said:

"The appellant by his counsel argued that the defence was not appropriately put. The defence case was one of simple denial based on suggestions as to the likely or possible inaccuracy of the evidence as tendered by the Crown. The nature of the defence was such as to call for a scrutiny of the Crown case in some detail and this was in fact carried out by the learned trial judge.

In a case such as this the trial judge is not required to repeat defence counsel's argument in support of the defence. He must explain what the essential matters are which have to be proved and give reference to the appellant's defence in his directions as to essential matters. He is not, however, required to give weight by detailed summary to a case which is essentially weak. In such a case, it is sufficient for him simply to advert to what is contended by the defence and to make plain what the duties of the Crown are as to onus of proof and exigency of proof and to make appropriate comment upon the evidence ...".

The summing up in the present case followed this pattern. Its sufficiency for the needs of the trial on this occasion is confirmed by the fact that, as we have said, no redirection was sought by counsel for the appellant at the trial.

We do not consider that any of the grounds of appeal raised before us is sufficient to justify the Court in setting aside the verdict or conviction. The appeal should be dismissed.