R v Murphy

[2003] QCA 234

SUPREME COURT OF QUEENSLAND

CITATION:

R v Murphy [2003] QCA 234

PARTIES:

R
v
MURPHY, Aaron Lance
(appellant)

FILE NO/S:

CA No 61 of 2003
DC No 3120 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

6 June 2003

DELIVERED AT:

Brisbane

HEARING DATE:

30 May 2003

JUDGES:

Williams JA and White and Wilson JJ
Judgment of the Court

ORDERS:

1. Appeal allowed
2. Set aside the convictions for one count of burglary and six counts of abuse of an intellectually impaired person
3. Order that there be a retrial of the burglary count and the six counts of the abuse of an intellectually impaired person
4. Remand the appellant in custody

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL ALLOWED – where appellant convicted of one count of burglary and six counts of abuse of an intellectually impaired person – where complainant severely handicapped and unreliable as a witness – where complainant’s identification evidence a critical issue – where complainant did not identify the appellant from a photo-board – whether jury could have found guilt beyond reasonable doubt

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – WHERE GROUNDS FOR INTERFERENCE WITH VERDICT – PARTICULAR CASES – WHERE APPEAL ALLOWED – where identification in issue – whether Domican direction should have been given by learned trial judge – whether warning should have been given by learned trial judge about the possible danger of basing a conviction on testimony of an intellectually impaired witness

Bromley v The Queen (1986) 161 CLR 315, considered
Domican v The Queen (1992) 173 CLR 555, considered
R v Turnbull [1977] QB 224, followed

COUNSEL:

K M McGinness for the appellant
C W Heaton for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. THE COURT: The appellant was charged with one count of burglary and six counts of rape; the offences were related having allegedly been committed on the same night. The complainant, LF, was an “intellectually impaired person”. The prosecution allegation was that each of the appellant and two other young men (not identified or charged) had intercourse with LF, and also each of the three inserted his penis into her mouth (rape as defined in s 349 of the Criminal Code). Two of the charges of rape against the appellant involved his own act allegedly constituting rape; the other four counts of rape relied on either or both ss 7 and 8 of the Code to establish the appellant’s responsibility.

1. The jury returned verdicts of guilty of burglary, not guilty on each of the six rape counts but guilty of the alternative count on each of those six charges of “abuse of an intellectually impaired person”.  (Section 216 of the Code).

1. The appellant was sentenced to five years imprisonment on each of the offences to be served concurrently.

1. The appellant appeals against conviction and also seeks leave to appeal against the sentence.  The principal ground of appeal is that the verdicts are unsafe and unsatisfactory, but it was also alleged that the summing up was defective in a number of respects.

1. As noted the complainant was an intellectually impaired person for purposes of the Code.  She was aged 30 at the time the offences were allegedly committed, and 32 when she gave evidence.  It must be said that the complainant was severely handicapped.  Evidence from a clinical psychologist (Parsons) was that the complainant had an extremely low IQ.  It is clear from her evidence in court, and the interview with the police admitted into evidence pursuant to s 93A of the Evidence Act 1997, that she was an extremely unreliable historian.  She could not give evidence as to her age or date of birth, had an extremely poor concept of time, had a tendency to answer yes to questions asked of her, and gave inconsistent responses to simple questions asked within a short space of time.

1. To compound those problems the complainant had been drinking heavily during the 12 hours or so prior to the incidents allegedly occurring and would have been intoxicated at the material time.  That meant that her capacity to recount accurately what had occurred was even more reduced.

1. The complainant had only met the appellant and the other two boys allegedly involved about 12 hours prior to the relevant events.  The appellant’s mother was staying at that time in the house in which the complainant was residing with her mother.  The appellant and two of his friends were at the house in question for a period during the day.  The evidence of identification was a critical issue at trial.

1. The transcript of the s 93A interview occupies some 37 pages.  In the first 31 pages of interview there was nothing positively linking the alleged offences with the appellant and his two companions.  On one occasion during that first part of the interview she did introduce the name “Aaron”, but when immediately asked “Who’s Aaron?”  she replied “I don’t know”.  Then on page 32 comes the following passage in the interview between the police and the complainant:

“Q.  What about the three boys that were drinking over your house before?  Had you seen them before?

A.  No . . . on the lounge.

Q.  They were on the lounge?

A.  Yeah.

Q.  Okay.  Were they the same three boys.  The three boys that came into your bedroom, were they the same three boys that were drinking at your house?

A.  Yep.”

1. Shortly after that passage the complainant was shown a photo-board containing photographs of 12 male persons including the appellant at No 6.  The complainant picked out the person shown in photograph No 10 as the person involved in the offences; she also made some reference to the person depicted in photograph No 1.  She made no reference to the person depicted at No 6.

1. In her evidence in chief at trial there was nothing which positively identified the appellant as the offender.  Nor was there anything directly implicating the appellant as the offender in her cross-examination until the point where defence counsel asked a series of specific questions concerning the appellant.  But even then there were inconsistent answers.

1. The summing up contained no directions on the issue of identification.  The only possible reference to that issue is contained in the following passage:

“Well, members of the jury, of course, as I have said to you, the important witness is the complainant and she says that the accused was one of those who came through the window.  The defence point out to you her evidence in which she said that the room was dark, she likes it dark, and the occasions when she said that it was not the accused or she did not know that it was the accused.”

1. There was no reference at all in the summing up to the misidentification of an offender when shown the photo-board.

1. Defence counsel in essence asked for a redirection in accordance with Domican v The Queen (1992) 173 CLR 555. The learned trial judge responded by saying that “Domican style identification and directions on identification are really for different situations”.  Then the learned trial judge appeared to say the problems with identification in this case “comes down to inconsistencies . . . and it is really the credit question  . . . and I think I have stressed enough of the inconsistencies in my summing up”.  There was, in our view, a serious error made by the learned trial judge in failing to give directions in accordance with Domican, and at least refer to some of the matters highlighted in R v Turnbull [1977] QB 224 at 228 as being relevant matters for a jury to consider when identification was in issue. At the very least the learned trial judge should have drawn the jury’s attention to the fact that the only occasions on which there was anything amounting to a positive implication of the accused were in response to leading questions either in the s 93A statement or in cross-examination. The jury should also have been reminded of the error made by the complainant in making an identification from the photo-board. The identification issue was of particular significance because the events alleged to constitute the offences occurred at night in a dark situation at a time when the complainant was intoxicated. Even leaving aside the customary warning to the jury that even honest witnesses can make mistakes with identification, the failure here to draw the jury’s attention to the important factors relevant on the issue of identification must result in the conclusion that the summing up was totally inadequate.

1. We should say that the prosecution relied heavily at trial on the fact that the appellant’s fingerprint was found on the window sill through which it was alleged the three males gained access to the complainant’s bedroom.  The force of that finding was somewhat diminished by the fact that the complainant’s evidence was that the day after the alleged incident the appellant and his mother repaired the window and its screen.  The defence’s contention was that the fingerprint could well have got on the window at that time.  In any event the presence of that fingerprint on the window would hardly assist the jury in determining whether the appellant was guilty or not guilty of each of the six sexual offences. 

1. Counsel for the appellant also contended that the summing up was defective in that it did not contain an adequate direction in accordance with Bromley v The Queen (1986) 161 CLR 315. In that case the High Court held that where an important witness has some mental disability which affects capacity to give reliable evidence, the jury should be given a warning, appropriate to the circumstances of the case, of the possible danger of basing a conviction on the testimony unless it is confirmed by other evidence. The critical passages in the summing up were the following:

“Well, you have had the advantage of hearing Dr Osborne and her assessment and evidence as to the level of the complainant is something which of course is significant.  Difficult as it is for her, the complainant operates on a much lower level than most of the members of society.  Well, that is a factor you take into account.  It does not mean that you reject her evidence.  Of course it does not mean that you automatically accept her evidence and give it any greater latitude, but it is something you must take into account in considering the reliability of her evidence and how she may have behaved.”

“If in this case you have doubt about her reliability and accuracy, then you would acquit.  Only if you were satisfied that she is truthful and correct in her allegation that the accused was one of the three who came through the window, that he penetrated her with his penis and secondly, put his penis in her mouth, then can you convict.  So it is a matter on which you must scrutinise her evidence with great care.”

1. Given all of the circumstances relevant to the complainant in this case we are of the view that a stronger direction in accordance with Bromley should have been given.  This was not a case, in our view, where there were mere inconsistencies in the complainant’s evidence.  Having made a statement which could provide a basis for concluding that an offence of the type alleged occurred, and perhaps implicating the appellant, the complainant frequently very shortly thereafter gave an answer suggesting that she did not know, or was not sure, that the alleged event occurred.  Without the complainant’s evidence the prosecution had no case, and in consequence it was incumbent upon the learned trial judge to give a warning in accordance with Bromley.

1. We also have grave concerns about the adequacy of the summing up in dealing with each of the six charges of rape.  Relevantly the learned trial judge said:

“Let’s go to counts 2, 3 and 4.  The allegation there is that having entered, each of those – there were three persons and each of them had intercourse with her without consent . . . How is it that the accused could be guilty of rape while the others have penile penetration of the complainant?  Three persons break into a residence and they’re  all acting together, assisting one another, and that he’s present, encouraging and assisting while the others – an other commits rape.  They’re all guilty of rape and that’s a matter of commonsense, too, isn’t it. . . . So if you’re satisfied those matters are proved, then all three have been guilty of rape and the accused is guilty of rape while he actually has penile penetration.  But in the circumstances, if you’re satisfied that the others had penile penetration, he’s guilty of involvement in their rape and equally guilty of it.”

1. A similar direction was given with respect to the alleged oral intercourse committed by each of the three.

1. But the problem is that the complainant’s evidence does not clearly distinguish between six acts of penetration either of her vagina or mouth.  There are numerous references in her statement and oral evidence to “they” and “their dicks”, but it is not possible to isolate out any individual act and determine just what happened.  Some acts are alleged to have occurred in the bedroom, and others out in the backyard on the concrete.  But it is impossible to say which of the men were involved in acts in the bedroom and which involved in acts in the backyard. 

1. It is significant that the jury returned not guilty verdicts on each of the six rape counts.  They were instructed that if they were not satisfied that penetration had been effected then that was the appropriate verdict.  An objective observer may well conclude that the jury returned those not guilty verdicts because of the inadequacies in the complainant’s evidence in identifying each of the six acts and the various perpetrators.

1. But if that be the case on what evidence was the alternative verdict returned.  What act of each of the other two unidentified males results in the appellant being guilty of abuse of an intellectually impaired woman by virtue of the operation of s 7 or 8 of the Code. 

1. All of that again highlights serious inadequacies in the summing up.  Given the particular circumstances and the nature of the evidence, more was required in directing the jury what constituted each of the charged acts and what would be necessary for the jury to find beyond reasonable doubt before convicting the appellant on the basis of either or both ss 7 and 8 of the Code.

1. The verdicts of guilty are clearly unsafe and unsatisfactory and, as indicated, there were such serious deficiencies in the summing up that the convictions cannot be allowed to stand. 

1. We have given anxious consideration to whether or not there ought be a retrial on any or all of the charges of burglary and abuse of an intellectually impaired woman.  We have grave doubts that convictions could be sustained under ss 7 and 8 of the Code with respect to acts committed by either or both of the other two unidentified persons if the evidence remained the same as it was at the trial under review.  The position with respect to the alleged acts of the appellant is perhaps different, but it has to be said that the complainant’s evidence against him may not alone be sufficient to support  convictions.  But it is for the Director of Public Prosecutions ultimately to determine whether or not a retrial should proceed, and if so on what charges. 

1. The orders of the court should therefore be:

1.   Appeal allowed.

2.   Set aside the convictions for one count of burglary and six counts of abuse of an intellectually impaired person.

3.   Order that there be a retrial of the burglary count and the six counts of the abuse of an intellectually impaired person.

4.   Remand the appellant in custody.