R v Post

[1994] QCA 419

IN THE COURT OF APPEAL	[1994] QCA 419
SUPREME COURT OF QUEENSLAND

C.A. No. 131 of 1994

[R. v. Post]

THE QUEEN

v.

BARRY MAXWELL POST

(Appellant)

The President
Mr Justice Davies

Justice Demack

Judgment delivered 12/10/1994

Judgment of the Court.

APPEAL DISMISSED.

CATCHWORDS:	CRIMINAL LAW - Verdicts - unsafe and unsatisfactory - why despite inconsistencies in complainant's evidence the verdict was not unsafe or unsatisfactory - why a request by jury to have complainant's evidence read to them whilst considering verdict did not place undue emphasis on that part of the case.
Counsel:	P Smid for the Appellant A Butler for the Respondent
Solicitors:	George Hatzis & Associates for the Appellant Crown Solicitor for the Respondent
Hearing date:	21 June 1994

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 12/10/1994

On 18 March 1994, in the District Court in Brisbane, the appellant was convicted on one count of rape and sentenced to 6 years' imprisonment. He appeals against his

conviction upon the basis that the verdict is unsafe and unsatisfactory.

The Court must therefore undertake an independent examination of the relevant evidence to determine whether it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of the accused: Morris v. The Queen (1987) 163 C.L.R. 454. This involves a consideration of the quality of the evidence.

The alleged rape occurred on 30 June 1993. At that time, the appellant was the caretaker of a block of units at Woodridge, one of which was occupied by the complainant, her husband and their six month old baby. The appellant lived in one of the units, rent was paid to him each Friday and he dealt with maintenance problems.

The complainant gave evidence that on 30 June 1993 sometime after 8:00am she went to the appellant's unit to ask him to fix a tap. He came to her unit and asked her for a kiss while he was attending to the tap. She refused but he gave her a peck on the cheek. He went into the hallway to check a leak in the ceiling. He went into the marital bedroom. She followed, carrying her baby. He pushed her onto the bed. She was still holding the baby who was crying. He held her down, removed his track suit pants and underwear. He started to remove her underwear and she said, "Do you know that I'm a married woman and I don't play around behind my husband's back because I love him really much". He removed her underpants, and got on top of her and put his penis in her vagina. She asked him to stop so she could feed the baby. After he ejaculated, he got off, wiped his penis with a tissue and then wiped her vagina. He dressed and she dressed. He went outside and a little while later she found him talking to the woman in the next unit, Isobel. She joined in the conversation. The appellant left. That is a brief synopsis of the complainant's evidence-in-chief about the incident.

The complainant made no complaint to Isobel whom she knew well. However, she went down to a cafe where she thought her parents might be. By then it was lunch time. The complainant gave no satisfactory explanation of her movements in the intervening period, which was about 2-3 hours. She told her mother, "Barry had intercourse with me in my bedroom on my bed". The police were contacted about 1:00pm, and the appellant was interviewed after 6:00pm that day.

In that interview, the appellant admitted having intercourse but said it was consensual. He agreed that, as he was trying to kiss the complainant while they were both on the bed, she said the baby wanted something to eat. He said that while they were kissing on the bed the complainant had hold of the baby with one arm. Later, after intercourse began, he withdrew for a time while she "cleaned the baby and quietened it down". They then continued intercourse.

In cross-examination, the complainant said that following the alleged rape, she and the appellant went to the front door of the unit together and she let him out. As they were at the opened front door, Isobel saw them and told the appellant she had his mail. Isobel said that the three of them were laughing and joking at the front door. Isobel said that the complainant appeared normal. The complainant had said she was very upset after she had been raped.

There were other inconsistencies between the complainant's evidence and that of the other witnesses. It is not necessary to refer to all of these. Perhaps the evidence upon which Mr Smid, for the appellant, relied most strongly concerned the complainant and her husband.

The complainant said that prior to September 1992, the appellant had kissed her once or twice, and she had told her husband, Robin, about that. It was agreed between them that from then onwards Robin would pay the rent and otherwise deal with the appellant. She explained her departure from this arrangement on 30 June 1993 by saying that Robin had asked her to tell the appellant about the leaking roof. Robin was not aware of any concern about a leaking pipe that day. (The complainant's evidence about leaking pipes and a leaking roof does contain different emphases.) When the complainant phoned Robin between 12:30pm and 1:00pm on 30 June 1993, she told him that the appellant had touched her. It was not until 17 July 1993, when he made his written statement for the police, that Robin learned that the complaint was one of rape.

The experienced District Court Judge who presided over the trial, gave a full, careful and correct summing up. There can be no complaint about any part of it. While he did not refer to every inconsistency or every shift in the complainant's evidence from committal to evidence-in-chief and to cross-examination, he referred to many of these and generally commended the addresses counsel had made. Mr Smid has directed our attention to all these matters and it can be safely assumed that he addressed the jury with that same care.

The jury retired at 12:18pm on the second day of the trial. At 5:00pm the jury asked to have the complainant's evidence read. This was done and the verdict of guilty was returned at 8:07pm. The fact that the complainant's evidence was read to the jury in full does not mean that there was any undue emphasis on that part of the case. The police interview with the appellant was video-recorded, and the video tape became ex. 1. Very late in his summing up the learned District Court Judge reminded the jury that they had "the tape-recorded interview" and that in considering that interview they should look at it as a whole and not take aspects of it out of context. What happened in the jury room is of course known only to the twelve members of the jury, but, as far as can be done, the trial was conducted with scrupulous fairness, and the length of the jury's retirement suggests careful deliberation.

Having made an independent examination of all the evidence, can it be said that the verdict is unsafe and unsatisfactory? This is not a case like Morris v. The Queen (supra) where the majority of the High Court were able to see various matters which rendered it doubtful that any confessional statement made by the applicant was "intrinsically likely to be true" (p. 474). In matters involving sexual activity between adults, the twelve members of the jury, both male and female, are ordinarily as likely to be able to decide if matters are "intrinsically likely to be true" than are three male judges sitting on appeal. Further, members of the High Court have recognised in Chidiac v. The Queen (1991) 171 C.L.R. 432 that the jury has an advantage in determining issues of credibility that the Appeal Court does not have; Mason C.J. (p. 443), Dawson J. (p. 452) and McHugh J. (p. 462). Toohey J. (p. 458) made the observation:

"Certainly, nothing said in Morris, on the pages mentioned or elsewhere in the judgment of Deane J., Gaudron J. and myself, suggests that, in determining whether a conviction is unsafe or unsatisfactory in the sense explained in the proceeding paragraph of these reasons, an appellate court may substitute its own assessment of the evidence for that of the jury. The independent examination of the evidence which the appellate court carries out is for the purpose of concluding whether it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of the accused."

Here, the quality of the complainant's evidence and the nature of what she said was not such that it could not have been accepted by a reasonable jury. It was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of rape. While there were justifiable criticisms of the complainant's evidence, at the end of it all, she held to the assertion that the intercourse, which occurred in circumstances that some might describe as bizarre, was without her consent. The summing up had correctly put before the jury the need for all of its members to be satisfied beyond reasonable doubt that penetration was without the consent of the complainant, and further that the appellant was aware that the complainant was not consenting, or realised that she might not be consenting, but determined to penetrate her whether she was consenting or not. The trial Judge went on:

"Well, ladies and gentlemen, may I say this: if you accept the account of the complainant as to what happened in the bedroom of her unit on that morning and you are satisfied beyond reasonable doubt that she was telling you the truth, then it may be that you would have little difficulty in concluding that (a) she was not consenting, and (b) that the accused was aware that she was not consenting. She said she expressed her lack of consent in word and indeed by her actions. So the question for your determination is this: is this a case in which you are satisfied beyond reasonable doubt that the evidence of the complainant is the truth as to what occurred in that bedroom?"

Depending on the assessment which the jury made of the veracity of the complainant, it was open to the jury to accept her evidence and on that evidence it was open to them to be satisfied beyond reasonable doubt that the appellant was guilty of rape.

The appeal is dismissed.