R v Porter

Case [2008] QCA 203

SUPREME COURT OF QUEENSLAND

CITATION:  R v Porter [2008] QCA 203
PARTIES:  R
v
PORTER, Stephen Bruce
(appellant)
FILE NO/S:  CA No 26 of 2008
DC No 1800 of 2007
DIVISION:  Court of Appeal
PROCEEDING:  Appeal against Conviction & Sentence
ORIGINATING 
COURT: 		 District Court at Brisbane
DELIVERED ON:  25 July 2008
DELIVERED AT:  Brisbane
HEARING DATE:  10 July 2008
JUDGES:  McMurdo P, Muir JA and Mackenzie AJA
Separate reasons for judgment of each member of the Court,
each concurring as to the orders made
ORDERS:  1. Appeal against conviction dismissed
2. Application for leave to appeal against sentence refused
CATCHWORDS:  CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – OTHER CASES – where the appellant was convicted of one count of burglary with violence, one count of deprivation of liberty, one count of robbery with personal violence, two counts of sexual assault, and three counts of rape – where the complainant’s injuries were consistent with an injury caused by penile penetration – where the appellant’s DNA was found between the complainant’s inner and outer labia and the complainant’s perianal region and on the inside crotch area of the complainant’s underpants – where the appellant argued that the failure to detect traces of his DNA in the complainant’s mouth or vagina indicated that the semen on the complainant’s body was a result of his ejaculating after oral sex – where the appellant did not give or call evidence on his behalf – where the appellant’s version of events was put to the complainant in cross-examination and rejected by her – whether the verdicts were unsafe and unsatisfactory
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – where the appellant was 42 years of age at the time the offences were committed – where the appellant had Hepatitis C and a lengthy criminal history – where the offences had a significant impact on the complainant – where the primary judge concluded that the appellant’s prospects of rehabilitation were relatively low – whether the sentences imposed were manifestly excessive
R v Coghlan [1998] 2 Qd R 498; [1997] QCA 270, cited
R v Mallie [2000] QCA 188, considered
R v Mason [1997] QCA 67, cited
R v Price [2004] QCA 10, considered
R v Robinson [2007] QCA 349, considered
COUNSEL:  The appellant appeared on his own behalf
M J Copley for the respondent
SOLICITORS:  The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the
respondent

  1. McMURDO P: The appeal against conviction should be dismissed and the application for leave to appeal against sentence should be refused for the reasons given by Muir JA.

  2. MUIR JA: The appellant was convicted on 17 January 2008 after a trial in the District Court and sentenced as…

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AGLC
R v Porter [2008] QCA 203
Case
[2008] QCA 203
Decision Date

CaseChat Overview and Summary

In the matter of R v Porter, the appellant appealed against his conviction on several grounds, including the argument that the verdicts were unsafe and unsatisfactory. The appellant was found guilty of multiple serious offences, including burglary with violence, deprivation of liberty, robbery with personal violence, sexual assault, and rape. The complainant testified that the appellant had entered her home, assaulted her, tied her up, and subjected her to a violent sexual assault. The prosecution presented compelling evidence, including the complainant's consistent and detailed account of the events, as well as forensic evidence linking the appellant to the crime. The appellant's argument that the absence of his DNA in certain areas of the complainant's body indicated that he had not ejaculated inside her vagina was rejected by the court. The court found the complainant's testimony credible and the forensic evidence supported her account. The jury's verdict was deemed to be safe and satisfactory based on the evidence presented.

The court considered whether the appellant's failure to provide evidence or call witnesses weakened the prosecution's case. However, the appellant's version of events was put to the complainant in cross-examination, and she firmly rejected it. The court also found that the appellant's alternative theories, such as the possibility of post-ejaculatory semen transfer, were not supported by the evidence. The court concluded that the appellant's DNA found in other areas of the complainant's body, along with the complainant's consistent and detailed account, provided sufficient evidence to support the jury's verdict. The court further noted that the complainant's immediate and consistent reporting of the incident, along with the physical and psychological impact on her, corroborated her testimony. The appellant's argument that the verdicts were unreasonable or unsupported by the evidence was dismissed.

The appeal against the conviction was dismissed, and the application for leave to appeal against the sentence was refused. The court upheld the appellant's convictions and sentences, finding that they were supported by the evidence and the jury's verdicts were safe and satisfactory.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant appeals against his conviction on the grounds that the convictions were unsafe and unsatisfactory. He also appeals against the sentences imposed on the grounds that they were manifestly excessive. The evidence adduced at trial The complainant, a 19 year old female student, gave evidence to the following effect. On 20 February 2007 the complainant was residing in a house at Wooloowin. She was expecting an electrician to call at the house that day. At 10.15 am she heard a knock on the door and expecting the electrician, she opened it. The man standing at the door said that he was looking for Louann Street and asked if she had a street directory. She noticed that he had "very bad body odour" and detected a smell "slightly like marijuana". She said she couldn't find the street directory and directed the appellant to a corner store. She then locked the door behind her. The complainant had a shower, got dressed and was searching for her watch when she again noticed the smell which had earlier come from the person at the front door. She was then grabbed from behind by a person who held a hand over her mouth. She started to scream and was warned to be quiet. She was taken to her bedroom and told to lie on her stomach on the bed. She did so and the intruder tied her hands behind her back. In the course of discussion which ensued, she asked the intruder not to sexually abuse her and was told not to worry, that "this is just a robbery". A little while later, the complainant was blindfolded with a pillow case and her hands were tied tightly behind her with an electrical cord. The complainant told the intruder that her money was on the kitchen bench and that she had about $250 in her wallet. She then heard footsteps going in the direction of the kitchen and returning. The intruder turned the complainant onto her back, pulled her shirt down and commenced to rub her breasts roughly. Shortly afterwards he commenced to lead the complainant, it would seem, out of the house. She screamed for help and tried to escape from the house. After a struggle, the intruder commenced to strangle the complainant, who may have lost consciousness briefly. She recalls being back on the bed with the intruder lying beside her. He commenced to kiss her and out of fear, she kissed him and he put his tongue in her mouth. He asked her if she wanted to have sex, was told no, but nevertheless placed his penis in her mouth and pushed her head up and down. The complainant told the intruder that she was going to be sick. After a pause, the intruder continued his actions and the complainant tasted semen. The intruder then removed the complainant's underwear, spread her legs apart and placed his tongue inside her vagina. He then had penile intercourse with her. During this conduct, the complainant experienced a great degree of pain. Her hands were tied behind her back and she was forced to lie in awkward positions. The intruder made the blindfolded complainant go to the bathroom where he showered her, washed her body, particularly her breasts, and then departed. After she was sure that the appellant had left the house, she freed her hands from the electrical cord, rang triple 0 and made a complaint of rape. She then rang her sister and her mother, also complaining of rape. Two hundred and fifty dollars was found to be missing from the complainant's purse. The sheets which had been on the complainant's bed prior to the intruder's entry into the house were also missing.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Before leaving the complainant's house the appellant took back the "speed" and removed two boxes of morphine from the complainant's bathroom. The complainant made false complaints because of her anger at the taking of her drugs. The complainant refuted all of these assertions. Consideration of the appellant's argument It was plainly open to the jury to be satisfied on the whole of the evidence of the appellant's guilt beyond reasonable doubt. The appellant called no evidence on his behalf. The appellant's version of events put to the complainant in cross-examination, was rejected by her. It was also inherently improbable. The complainant's evidence was unshaken in any material respect by cross-examination. She made a very prompt complaint and the reports and observations of those who had dealings with her immediately after the incident were entirely consistent with the account she gave of it. The extensive bruising and abrasions reported by the medical practitioner who examined the complainant at about 2.15 pm on 20 February 2007 were consistent with the complainant's evidence but inconsistent with the appellant's version of events. The senior constable who went to 17 Kent Road on 20 February 2007 at about 12.13 pm recalled that the complainant's eyes were red and swollen, that she looked very distressed and that, when she informed him that she had been tied up and raped, she broke down. He noted the absence of bed sheets. The female constable who accompanied the senior constable described the complainant as having hair which "appeared to be quite untidy or dishevelled sort of looking". She said that the complainant had red eyes and appeared to be very upset and distressed. She observed a computer cord still tied round her right wrist and a piece of material tied around her neck. The prosecution case was thus very strong. The DNA and medical evidence made it perfectly plain that the appellant had had unprotected sexual intercourse with the complainant, as she alleged and he denied. The appellant who was self-represented, argued that the fact that DNA testing failed to detect traces of his DNA in the complainant's vagina supported his contention that the semen on the complainant's body resulted from his ejaculating on the front of her body after oral sex. He contended also that the presence of this semen made it improbable that he had ejaculated in the complainant's mouth and that she had swallowed the ejaculate. The complainant's evidence was not that the appellant, as a result of an orgasm, had ejaculated in her mouth. She described a taste, which she attributed to ejaculate throughout the time the appellant had his penis in her mouth. She said: "The oral sex continued and then after a while, I tasted ejaculate very strongly. Like, throughout the whole time that I was performing oral sex, I could taste it and that's why I felt like I was going to be sick, but towards the end, it was very strong and just disgusting." The appellant's DNA in the material obtained by swabs taken from between the complainant's inner and outer labia, the complainant's perianal region and from the inside crotch of her underpants and the other evidence referred to in paragraph [9] above demonstrate that the failure to detect the appellant's DNA in the vaginal swabs signified only that the appellant may not have ejaculated in the complainant's vagina. It did little, if anything, to contradict the complainant’s evidence.