R v S

[1996] QCA 93

IN THE COURT OF APPEAL	[1996] QCA 093
SUPREME COURT OF QUEENSLAND

C.A. No. 233 of 1995

Brisbane [R. v. S]

THE QUEEN

v.

S

Appellant

Davies J.A.
McPherson J.A.

Fryberg J.

Judgment delivered 10/04/1996

Joint reasons for judgment of Davies and McPherson JJ.A.; separate reasons of

Fryberg J. concurring as to the orders made.

APPEAL ALLOWED. VERDICT SET ASIDE. NEW TRIAL ORDERED.

CATCHWORDS:	CRIMINAL LAW - appeal against conviction - administering a stupefying drug with intent to commit an indictable offence - rape - incest - child under 16 - unsafe and unsatisfactory verdict - meaning of "administered stupefying drugs" - corroboration - directions to jury.
Counsel:	Mr. T. Glynn for the appellant Mr. M. Byrne Q.C. for the respondent
Solicitors:	Legal Aid Office for the appellant Queensland Director of Public Prosecutions for the respondent
Hearing Date:	14 August 1995

JOINT REASONS FOR JUDGMENT - DAVIES AND McPHERSON JJ.A.

Judgment delivered the 10th day of April 1996

The appellant was convicted after a trial in the District Court on 24 May last year of administering a stupefying drug with intent to facilitate the commission of an indictable offence namely rape. The offence was alleged to have occurred in 1991. The alleged victim was his own daughter who was then either 13 or 14. He had been charged with seven offences, all against his daughter; five of rape, one of incest and the one on which he was convicted which was the fourth of the seven counts. The fifth and sixth were alternatively rape and incest being the act of penetration in consequence of the administration of the stupefying drug. The jury disagreed on all counts other than the one on which the appellant was convicted and there will be a retrial on those counts.

It was common ground between counsel on the hearing of this appeal that the likely explanation for disagreements on counts 1, 2, 3, 5, 6 and 7 and a guilty verdict on count 4 is that the learned trial Judge told the jury that corroboration was necessary in respect of the former and not necessary in respect of the latter. There was no corroboration on any of the counts.

The appellant appealed against his conviction, in effect, on two grounds. The first was that the verdict was unsafe and unsatisfactory. In the alternative it was submitted that the trial Judge misdirected the jury in a number of respects. As will appear from what we say below there is no substance in the former contention except to the extent that it is consequent upon the success of the latter. It is therefore convenient to discuss first the criticisms of the learned trial Judge's directions.

The grounds on which, it was said, the learned trial Judge erred were:

(a)       failing to give the jury any guidance as to the meaning of the phrase "administered stupefying drugs";

(b)       directing the jury that "if they accepted the complainant's evidence of the acts of the night in question then they may infer that he intended to stupefy her ... with an intent to commit rape"; and

(c) failing to direct the jury that it was dangerous to convict the appellant of the
subject offence without corroborating evidence.
We do not think it was necessary, in the circumstances of this case, to direct the

jury on the meaning of the word "administer", a fairly plain English word. According to the complainant whose evidence must have been accepted by the jury on count 4, on the night in question the appellant, with the complainant as his passenger, drove to a hotel where he bought some beer for himself and some West Coast Cooler, an alcoholic drink, for her. He then drove to a deserted soccer field where he gave her the West Coast Cooler to drink and she drank two bottles of it. He later gave her what appeared to be a "roll your own" cigarette, during the course of smoking which she felt "very funny", "like I was in a dream". She then asked what it was and he told her it was "pot".

The appellant, having regard to the fact that the complainant was his 14 year old daughter in his care and under his control, in the above circumstances, administered the alcoholic drink to her. He also administered cannabis to her by giving her what appeared to be a cigarette to smoke and telling her only later that it was "pot". In those circumstances no direction was necessary as to the meaning of the word "administer".

The complainant said that her next recollection after smoking the cigarette was that she was lying on her back underneath a small hall and that the appellant was having intercourse with her without her consent. She then remembered being at home but did not recall how she had got there.

The learned trial Judge told the jury, in effect, that they might infer that what she was given was stupefying to the extent of causing the loss of memory and the apparent loss of will to resist to which she deposed. There was no evidence that either the alcohol which she consumed or the marijuana which she smoked was capable of having that stupefying effect.

We do not think that the jury would have needed evidence from which to conclude that the consumption of two bottles of West Coast Cooler would be capable of stupefying a 14 year old girl in the way described by her. The effect of consumption of alcohol is common knowledge. We do not think that the same is true of the effect of smoking marijuana either alone or together with consumption of alcohol. The present level of understanding in the community of the effect of ingestion of marijuana is not, in our view, such that evidence about it is unnecessary.

In the present case the jury may have concluded, without any such evidence, either that the ingestion of marijuana alone or that ingestion together with ingestion of alcohol caused the stupefying effect to which the complainant deposed. The learned trial Judge should have directed the jury, in the absence of expert evidence, that they could not conclude that the administration of marijuana in this case was the administration of a stupefying drug.

We think that the learned trial Judge was entitled to direct the jury that, if they accepted the complainant's evidence, they might infer that the appellant intended to stupefy her with the intention of raping her. The complainant's evidence disclosed a pattern of forced intercourse over some time before this night. It would have been reasonable to infer that his intention was the same on this occasion and that he was using the administration of alcohol to more easily effectuate that intention.

In Kelleher v. The Queen (1974) 131 C.L.R. 534 at 553, Gibbs J. described it as an established practice that, in cases of rape and other sexual offences in which corroboration is not required as a matter of law, a trial judge should warn the jury that it is dangerous to convict on the uncorroborated testimony of the person on whom the offence was committed. See also at 543 per Barwick C.J. and 559 per Mason J.; Longman v. The Queen (1989) 168 C.L.R. 79 at 85. That rule has been repealed by statute in a number of jurisdictions, though not in Queensland, and its rationale has been queried: Longman at 92-3; McKinney v. The Queen (1991) 171 C.L.R. 468 at 484. Although what may be a necessary or sufficient warning must vary according to the circumstances, it is wrong for a trial judge to say, as his Honour did here, that in a sexual offence case corroboration is necessary.

If, as appears to be the case, the rule of practice dictated a warning in the case of the offence of rape or incest which followed the ingestion of the stupefying drug, then a similar warning was probably required in respect of this offence. In any event, with hindsight, it would have been wiser to have given one: Longman at 86. The unwisdom of distinguishing count 4 in this respect appears to be reflected in the verdicts. It should be mentioned, however, that the warning was not given in respect of count 4 because both counsel had agreed that it was unnecessary.

The argument that the verdict was unsafe relied on contentions that the evidence did not disclose the administration of stupefying drugs and that it did not prove that there was a relevant intention. We have rejected these contentions in discussing the other ground of appeal.

The appeal should be allowed, the verdict set aside and a new trial ordered on

this count also.

REASONS FOR JUDGMENT - FRYBERG J.

Delivered the 10th day of April, 1996

The offence of which the appellant was convicted is established by s.316 of the Criminal

Code:

"316.Any person who, with intent to commit ... an indictable offence, ... administers ... any stupefying or overpowering drug or thing to any person, is guilty of a crime, and is liable to imprisonment for life."

The indictment charged the appellant with administering alcohol and cannabis sativa with intent to commit rape. The circumstances leading to the conviction and the grounds of appeal are set out in the judgment of Davies and McPherson JJ.A., a draft of which I have had the benefit of reading. In addition to the formal grounds of appeal, the appellant argued that there was no evidence that either the alcoholic content of the drinks or the cannabis sativa had a stupefying effect.

The summing up in relation to this count was in the following terms:

"The other aspect of it which is somewhat different is count 4 and that is that it is alleged the accused with intent to facilitate the commission of indictable offence, namely rape, administered to the complainant ... stupefying drugs, namely alcohol and cannabis sativa.

The elements of the offence there are that there was an intent. Now, you can infer intent from facts, namely that he took her to that area and if you accept her evidence of the circumstances of that night, you may infer that he intended to stupefy her and to then, with an intent to commit rape. So, you have to be satisfied about intent. You have to be satisfied about that, in fact, she was given these particular items which she describes she could not remember anything after lying under the house and the act of intercourse. She could not remember anything until she woke up at home.

Well, you may infer then, that what she was given was stupefying to that extent. That is, those particular items she was given of the wine and the pot which was referred to by the accused, she said. You have to be satisfied beyond reasonable doubt of each element that there was the intent to commit rape and that there was administration with that intent of stupefying drugs.

It is a question of fact for you and if you accept the evidence of the complainant that she could not remember those matters, then you may be satisfied beyond reasonable doubt."

The learned trial judge also summed up on corroboration.

"Administers"

I accept the submission advanced by Mr. Glynn on behalf of the appellant, that "administer" must mean something more than merely "supply" or "provide". However, I agree with Davies and McPherson JJ.A. that in the circumstances of this case it was unnecessary to direct the jury on the meaning of the word. It is also unnecessary to attempt an exhaustive definition of the word to resolve this appeal. Here, the person to whom the offending substances were supplied was the appellant's 14 year old daughter. There was abundant evidence from which the jury could have concluded that the appellant was dominant in this relationship. Her evidence was that it was not until after she had smoked some of the cigarette that the appellant told her it was "pot". The appellant gave evidence that the whole incident never happened, but the jury must have rejected his evidence by their verdict. The complainant's subordinate position in the relationship and her ignorance of the nature of the cigarette were plainly enough to bring the supply of the substances, if it occurred at all, within the meaning of the word "administers". In these circumstances it was unnecessary for the trial judge to elaborate in his summing up on the meaning of the word.

"Stupefying drug"

In my judgment, the question whether a drug is a stupefying drug can not be determined in the abstract by having regard solely to the effect which an unlimited quantity of the substance is hypothetically capable of producing when administered to a human being. It may be relevant to take into account the quantity of the drug which was administered as well as any susceptibilities or immunities of the person to whom it was administered which may promote or retard its effect1. There may be other relevant factors. Whether evidence of these matters is necessary will depend upon the circumstances of the case and the approach taken by the prosecution. If the Crown seeks to demonstrate that the drug in question was stupefying by reference to its effects on human beings generally, some evidence of the quantity of the drug needed to have a stupefying effect on a person with the relevant characteristics of the person to whom the drug was administered may be necessary. However that was not the situation in the present case. Here, the complainant's evidence was that she was in fact stupefied2. The only possible explanation for her condition was the ingestion of either or both of the drugs specified in the indictment. It is common knowledge that both drugs are capable of stupefying a person, and the jury were in my view entitled to have regard to that fact as such. In these circumstances it was unnecessary for the Crown to call evidence as to the characteristics of the drugs or to prove the precise quantity of each which was administered to the complainant.

It was also unnecessary for the trial judge to direct the jury as to the meaning of "stupefying". The appellant's case at trial was that the complainant's version was a complete fantasy. His evidence was rejected. That left the complainant's evidence. Her evidence did not call for any fine distinctions to be made as to what constituted a stupefying drug and what did not, and her counsel at trial did not contend otherwise. This ground of appeal should be rejected.

Intent

The submission on behalf of the appellant focussed on the fact that the indictment particularised the intended offence as rape rather than rape or incest. It was argued that on the evidence it was not open to the jury to exclude beyond reasonable doubt the possibility that the appellant's intent had been to commit incest, particularly since the Crown was maintaining before the jury an alternative count of incest based upon an act of intercourse allegedly occurring after the administration of the drugs. Consequently, it was argued, the judge's direction to the jury that they could infer an intent to commit rape if they accepted the complainant's evidence of the acts of the night in question was wrong. To say the least, this is an unattractive submission. It was not made in support of any request for a redirection at trial - indeed, there was no criticism then advanced of his Honour's summing up on intent. Had the matter then been raised, the Crown might well have responded by applying to amend the particulars in the indictment. In my judgment, the point is without merit.

Corroboration

Counsel for the Crown accepted that there is no doubt that in cases involving sexual offences a warning on the dangers of convicting on uncorroborated evidence should be given. In my judgment it is therefore not appropriate to consider in this appeal whether the practice of giving such a warning is so entrenched as to require either legislation or a decision of the High Court to reverse it. The question before us is whether, in accordance with the practice, the warning was required in the circumstances of the present offence. The learned trial judge warned the jury in accordance with the practice in relation to the counts of rape and incest3, but he emphatically told the jury that corroboration was irrelevant and unnecessary in relation to the present count.

The rationale for the rule of practice is said to be that in sexual cases experience shows people do sometimes tell "an entirely false story which is very easy to fabricate, but extremely difficult to refute"4. It is unnecessary in the present case to consider whether this rationale is sound. Accepting that the practice required the warning to be given in relation to the counts of rape and incest, it seems to me that the warning was also required to be given in respect of the count relating to the administration of drugs. The evidence in respect of the several offences was completely integrated and the rationale was equally applicable in every case. Moreover the effect of the omission was magnified by the emphatic direction that corroboration was irrelevant and unnecessary in respect of this count.

There is another reason why in my view the warning should have been given. At the relevant time s.218 of the Code provided:

"218.Any person who -

...

(3)administers to a woman or girl, or causes a woman or girl to take, any drug or other thing within intent to stupefy or overpower her in order to enable any man, whether a particular man or not, to have unlawful carnal knowledge of her

is guilty of a misdemeanour, and is liable to imprisonment for two years.

A person may be convicted of an offence defined in this section upon the uncorroborated testimony of one witness, but the Court shall warn the jury of the danger of acting on such testimony unless they find that it is corroborated in some material particular by other evidence implicating that person."

The last paragraph of that section was enacted in 1989. There are a number of similarities between that section and s.316. On the other hand, the legislature plainly viewed the offence created by s.218 as less serious than that created by s.316: the maximum penalty for the latter offence is life imprisonment. In these circumstances it would be odd if the warning were required in the former case, but not required in a case where, on almost identical facts, the latter offence is charged.

Even apart from the rule of practice, the circumstances of the present case in my judgment required that the jury be warned that they should proceed with caution on every charge. The evidence of the complainant was admittedly uncorroborated. It related to events occurring some three years earlier. It was in many respects vague and general. In my view, a jury faced with evidence of this quality ought always to be warned to proceed with caution, whatever the offence. Whether this Court should further develop the law along these lines is a matter which need not be pursued here.

It is true that defence counsel did not ask the judge to give the warnings when there was opportunity to do so. That weakens this ground of appeal. On balance, however, I do not think that is a fatal impediment in the circumstances.

Because no warning was given, the appeal should be allowed. I agree in the orders proposed by Davies and McPherson JJ.A.

1      Compare R v Barton (1931) 25 Q.J.P.R. 81; R v Murcott (1893) 19 V.L.R. 408.

Her evidence was that she had two West Coast Coolers and "some" of a cigarette, while sitting in and around a vehicle; that she started to feel very funny; that she felt like she was in a dream; that her next memory after having the drugs was being underneath a hall with the appellant having sex with her; and that she had no further memory until after she arrived home. The appellant's evidence that none of this occurred was rejected by the jury.

2  

3      It is true that at one point his Honour said that in relation to the other counts "corroboration is

necessary". However he immediately rephrased the direction to accord with the practice. His slip of
the tongue, if it favoured anyone, favoured the accused.

1. R v Henry (1968) 53 Cr.App.R. 150 at p.153; see also Kelliher v The Queen (1974) 131

C.L.R. 534; Longman v The Queen (1989) 168 C.L.R. 79.