R v Sailor

[1993] QCA 23

IN THE COURT OF APPEAL [1993] QCA 023

SUPREME COURT OF QUEENSLAND

C.A. No. 301 of 1992

Before the Court of Appeal
Mr. Justice Pincus
Mr. Justice McPherson

Mr. Justice Byrne

T H E Q U E E N
v.
JAMES ROBERT SAILOR

(Appellant)

JUDGMENT - PINCUS J.A.

Delivered the Twenty-sixth day of February 1993

Counsel:	P. Rutledge for the Crown S.E. Herbert Q.C. for the Appellant
Solicitors:	The Director of Prosecutions for the Crown The Legal Aid Office for the Appellant
Hearing Date(s):	3  February 1993

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 301 of 1992

T H E Q U E E N
v.
JAMES ROBERT SAILOR

(Appellant)

JUDGMENT - PINCUS J.A.
Delivered the Twenty-sixth day of February 1993

As is explained in the reasons of McPherson J.A., which I have had the advantage of reading, the appellant was convicted of two counts, one of rape and another of attempted rape. The grounds of appeal argued were two: that the trial judge erred in admitting into evidence a complaint not made at the first reasonable opportunity and wrongly directed the jury that certain evidence of the complainant's distressed condition was capable of constituting corroboration. I am in respectful agreement with McPherson J.A. that there was admissible evidence of fresh complaint but, contrary to his Honour's view, think that the evidence of distress at the time of that complaint was fit for the jury's consideration as some corroboration of the complainant's story that there was intercourse induced by use of a knife. Sexual intercourse was admitted, but the appellant said, in effect, that there was enthusiastic consent.

The complainant gave evidence that she arrived home about 1.40 a.m. after having been raped. She said the "dogs had waken Dad up" and her father was "coming out to see what the noise was". She gave an explanation, set out by McPherson J.A., as to why she had not complained to her father; that was not on the face of it implausible. In cross-examination, the complainant was asked further questions about this incident and in response to them said, in effect, that she walked into her father's bedroom, identified herself, apologised, looked at the time and left. A question was asked which perhaps assumed that the light in the room was off:

"Yes. So there was enough light in the room for you to see the clock?--It's a digital clock - it's a digital, radio clock".

At that stage, according to the complainant, she was not crying, but was upset. The complainant's father was not called to give evidence. In the circumstances, it does not appear to be of critical importance that there was no evidence from him about the complainant's condition at the time of the encounter just described. However, about 7 a.m. the complainant's mother phoned her from Perth to make an inquiry and at that time the complainant's father was sitting by the phone; one might have expected the father would then have noticed any distress.

The next occasion on which people might have noticed distress, as I understand the evidence, was during a visit to a local shop which the complainant made after speaking to her mother on the telephone; no-one from the shop was called. The complainant then visited the residence of a cousin of hers to use his telephone and phoned a close friend, Gail; she complained to Gail that she had been raped by the appellant and she gave her some details of the appellant's behaviour. The complainant asked Gail to pick her up, but because Gail was unable to come at that time, her sister Kelly drove to do so.

Kelly gave evidence that she collected the complainant from the back driveway of her house:

"When I went to pick her up, she came outside and she looked very, very nervous. Her face was very, very red as if she had

been crying. Once she got into the car she was shaking and nervous as though something was wrong and once she got in the car she couldn't stop crying until I got home".

When she arrived at Gail’s, the complainant's appearance was described by Gail as follows:

"When she came to the door I looked up and she was crying and shaking and she was just different. The T I know is usually happy, you know, always fun to be with".

In my opinion, the complainant's father and, although less certainly, her mother might have been expected to become conscious of and be willing to testify to any distress which the complainant was exhibiting about 7 a.m. and it is a fair inference that none was noticeable at that time. Then the complainant presumably had some contact with her cousin, from whose house she telephoned Gail; observed distress at that stage could have been sworn to. I should not think that much significance should be attached to the absence of any evidence from persons at the shop; but from the evidence I have mentioned, the jury was bound to think that there was no manifest distress observable before Kelly and then Gail encountered the complainant.

Gail said the phone call from the complainant was made about 10 a.m. The complainant said she had woken up about 7 a.m. The jury could, of course, have thought that one or both of these estimates of time was wrong, but if they accepted them, then a period of about three hours elapsed from the time the complainant woke up until distress was first observed.

The question the judge had to answer was whether it was open to the jury to treat the distress seen by Gail and Kelly as corroborative of the complaint of rape. I agree, with respect, with the view expressed by McPherson J.A. that the longer the interval from the original event, the more difficult it is to be sure that a condition of distress is not due to some other intervening and unrelated cause. On the other hand, there was evidence as to what the complainant had been doing since, according to her, she was raped: she had an inconsequential conversation with her father, went to bed and eventually to sleep and in the morning was occupied in the way I have described; it was not suggested during the hearing that these activities in themselves were distressing. If, as the authorities suggest, the question whether a particular type of evidence is capable in law of being corroborative depends on the circumstances, the apparent absence of any cause of distress (other than the cause identified by the complainant) is, in my opinion, a relevant circumstance. On the complainant's version of events, she must have suppressed or controlled her distress until she made contact with Gail and Kelly.

That communication was capable of being held by the jury to have been a complaint made at the "earliest reasonable opportunity". It does not appear to me a long step to hold that distress noticed at the time of the complaint could, depending on the jury's view of it, be treated as corroborative.

The essential difference between this case and Roissetter [1984] 1 Qd.R. 477, where some of the evidence of distress occurred after a substantial gap in time, but was held not to be too tenuous or remote to be corroborative, is that there, but not here, there was also evidence of distress shortly after the offence. In this case, the jury was apparently asked to infer that, if distressed when she encountered her father before going to bed, as well as when she got up in the morning, the complainant must have been able to conceal her state sufficiently to enable it not to be noticed. In my respectful opinion, whether that was so was a jury question. It would not have been fanciful for the jury to believe a raped woman to be capable of behaving in that fashion.

If they did so, then they could properly treat Gail and Kelly’s unchallenged evidence of distress about 10 a.m. as tending to indicate rape rather than consensual intercourse. The evidence of distress would have been more probative if exhibited to her father the night before, or on awakening, but an explanation has been given for that. It is my opinion that Gail and Kelly’s evidence of distress was not so tenuous or remote as to give rise to a duty in the learned judge to withdraw it from the jury's consideration on the ground that it was incapable in law of being corroborative. Whether the jury in fact treated it as corroborative and, if they did, how much weight they placed on it are, of course, quite other matters.

I would dismiss the appeal.

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 301 of 1992

T H E Q U E E N

v.

SAILOR

JUDGMENT - BYRNE J.

Delivered the 26th day of February, 1993

I agree with McPherson J.A.