R v Shaw
[1993] QCA 459
•16/11/1993
IN THE COURT OF APPEAL [1993] QCA 459
| S | UPREME COURT OF QUEENSLAND |
C.A. No. 117 of 1993
| B | risbane |
| [ | R v. Shaw] |
T H E Q U E E N
v.
PAUL STUART SHAW
(Appellant)
| ─────────────────────────────────────────── | ─────────────────── |
The Chief Justice
Mr Justice McPhersonMr Justice Demack
| ─ | ───────────────────────────────────────────────────────────── |
| J | udgment delivered 16/11/93 |
SEPARATE REASONS FOR JUDGMENT OF THE CHIEF JUSTICE, MCPHERSON J.A. AND DEMACK J. MCPHERSON J.A. AND DEMACK J. AGREEING AS TO THE ORDERS TO BE MADE, THE CHIEF JUSTICE DISSENTING IN PART.
| ─ | ───────────────────────────────────────────────────────────── |
APPEAL ALLOWED IN RELATION TO THE COUNT OF RAPE. SET ASIDE THE CONVICTION ON THAT COUNT AND ORDER A NEW TRIAL. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE ON THE EXTORTION COUNT REFUSED.
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CATCHWORDS: | CRIMINAL LAW - Applt convicted of rape and extortion - evidence admissibility - wh letter written by complainant to applt. and family wrongfully rejected - wh prohibition in s. 4 Criminal Law (Sexual Offences) Act ought to have been waived - wh deficiencies in conduct of defence - wh fair trial - wh summing up correct re evidence capable of amounting to corroboration - alleged act of rape recorded on video - wh consent obtained by "threats or intimidation of any kind" - wh sentence of 1 yr in relation to count of extortion excessive |
Criminal Code, s. 347
Criminal Law (Sexual Offences) Act, s. 4
| C | ounsel: | Mr P. Nase for the appellant |
| Mr P. Rutledge for the respondent | ||
| S it : | olic ors | Legal Aid Office for the appellant |
| Director of Prosecutions for the respondent |
| Hearing date: | 23 and 24 June, 1993 |
IN THE COURT OF APPEAL
| S | UPREME COURT OF QUEENSLAND |
C.A. No. 117 of 1993
| B | risbane |
| Before | The Chief Justice Mr Justice McPherson |
| Mr Justice Demack | |
| [ | R v. Shaw] |
T H E Q U E E N
v.
PAUL STUART SHAW
(Appellant)
REASONS FOR JUDGMENT - THE CHIEF JUSTICE
Judgment delivered 16/11/93
I have had the advantage of reading the reasons for judgment prepared by Demack J. and I agree generally with what he states for concluding that the verdict in this matter should be quashed. However, I find, with respect, that I take a different view from His Honour concerning one of the matters contended by the Crown to be capable of amounting to corroboration. This involves the list found at the appellant's house on 25 September, 1992 and it is referred to under the heading "Ground 7A" in His Honour's reasons. I shall make some brief statement explaining the contrary view which I hold on this matter. More importantly, I have arrived at the conclusion that in this case no order for a new trial should be made.
In respect of the list which has been referred to, I observe that it contemplates the appellant as undertaking the leader's role in the highly exhibitionistic and extreme conduct which is described in it. Some of the episodes described, if carried into execution, would represent a distinct advance even on the sexual episode portrayed on the video film. However, I think it is placing too great a burden on the word "make" as it appears in the list to accept that it indicates that the sexual activity at the earlier date portrayed on the video film was the result of compulsion brought to bear upon the complainant. Apart from anything else, the word may mean only something like "arrange that it shall occur".
The more significant matter is whether there should be an order made for a new trial. Since the verdict is to be set aside, it becomes a matter for this Court, in the exercise of its discretion, to decide whether an order should be made for a new trial: see Director of Public Prosecutions for Nauru v. Fowler (1984) 154 C.L.R. 627 at 630. I have to decide whether the interests of justice require a new trial and this involves, amongst other things, looking at the cogency of the admissible evidence at the original trial.
The allegation of rape in this case was a most unusual one.
It arose out of the prolonged sexual episode in which the
complainant and the appellant took part. According to the
complainant it extended over a period which was as long as half
an hour to one hour and, in accordance with a plan previously
discussed between the complainant and the appellant, it was
video recorded. The claim of the complainant was that after
initial sexual contact, full sexual relations between them had
commenced without her consent when she was sixteen or seventeen
years of age and thereafter it was continued when the
complainant visited and lived with her sister and her sister's
husband, the appellant, in their household. As an eighteen year
old and as what must be thought of as a free agent, the
complainant went to Innisfail to make another visit to the
household and her allegation is that the episode video recorded
in these circumstances constituted a rape. The complainant's
allegation was that numerous occasions of sexual intercourse had
earlier taken place outside Queensland without her consent and
evidence of them was admitted in the present proceedings,
although the appellant was not charged in this jurisdiction with
any offences arising from these incidents. In considering the
strength of the case alleging rape at Innisfail, it is necessary
to direct principal scrutiny to that occasion. to arrange future events in a way which will block the accrual of an advantage to that person which will constitute a threat of the kind that is referred to in s. 347. When a competitor in a race tells another that he intends to do his utmost to defeat that competitor he can hardly be said to threaten him and, to take an example of greater relevance in the present context, if a man says to a woman that unless she has sex with him he will not give her $100 but otherwise that he will do so, he does not threaten her. Strangely, there is little examination of relevant meanings of `threats' and `intimidation' in the cases.
An important aspect is that the complainant made only a
very belated complaint of the alleged rape about the time when,
in an endeavour to persuade her to continue the relationship,
the appellant was threatening to expose her participation and
use the video to prove it. The embarrassment this would cause
her is obvious. The complainant, faced with the appellant's
written threat to make the video public and having formed a
relationship with a new boyfriend, went to the police in
September, 1992. She would ave had a difficult decision to
make. Her relationship with her boyfriend, her sister and her
family could be jeopardised by her admission of what had been
occurring but worse could follow from the disclosure which the
appellant was threatening. All of this, however, is background
to the principal allegation: that the sexual intercourse which
took place on 27 February, 1992 was without her consent or, if
with consent, then it was obtained by threats or intimidation
and this directs attention to the alternatives expressed in s.
347 of the Code.
In essence, the Crown was forced to concede that the
complainant agreed to take part in the video session but
contended that it was after urging, pressures and persuasions on
the appellant's part. The persuasions which the Crown says were
brought to bear by the appellant were that if the complainant
participated in the video recorded session, the appellant would
end their relationship and not pursue or attempt to exert any
claim upon her in the future and also that he would not stand in
the way of her departure from the Innisfail household or
obstruct the presentation to her of an air ticket back to
Victoria that had become available through his wife, the
complainant's sister. The appellant's case was, of course,
different and essentially it maintained that the complainant
willingly took part in the episode on 27 February, 1992,
including the recording of it by video camera just as in the
past she had willingly had sexual intercourse with him when
occasions presented themselves.
It will not be often that rape will be alleged by a female
in similar circumstances comparatively independently placed, of
relatively mature age while an unrestrained guest in the
household of her own sister, not physically forced but free to
say no and leave the house. In this case it might be accepted
that she was subject to the risk that her brother-in-law, the
appellant, might be disposed to try and prevent the gift of the
air ticket to take her back to Victoria. In these
circumstances, the complainant agreed to take part in the
episode with its large variety of intimacies to be filmed and
thereafter made no complaint about it until some seven months
later when disclosure was being threatened against her.
To submit to sexual intercourse after arguments, persuasion
and pressures is not to be raped unless there is no consent or
the consent results from the matters specified in s. 347. Of
those matters, the only ones which can realistically be regarded
as arguable in the present case are "threats or intimidation of
any kind". Force and fear of bodily harm were not claimed to
operate here.
It can no doubt be difficult to say in some cases whether a
woman has withheld her consent or has actually consented but
only because of threats or intimidation and sometimes a jury may
not be concerned to draw a precise distinction between the two
mental states. But there is a distinction between a woman's
wanting to have sex and her consenting to do so. If one assumes
for the moment that on the complainant's story there was a
sufficient case that she had not wanted to have sex with the
appellant on 27 February, 1992, is there a sufficient case that
she did not consent or consented only as a result of threats or
intimidation? Her evidence contains a claim that this was so,
but on the other hand, the evidence is that, threats aside, she
was not acting under any physical compulsion and was
participating in a protracted sexual episode which, to her
knowledge at the time, was being recorded on film.
Dictionary definitions of "threat" and "intimidation" in
Collin's English Dictionary, third edition, include for "threat"
"a declaration of the intention to inflict harm, pain or misery"
and for "intimidate" "(1) to make timid or frightened, scare (2)
to silence unscrupulously as by threats of blackmail".
However, some attention has been devoted to the difficulties of the concept of consent in a context of this kind: see, for example, Glanville Williams Criminal Law 2nd ed. p. 552 and ff. and Smith and Hogan Criminal Law 7th ed. 454 and ff. and the much criticised case of R. v. Olugboja (1989) 3 W.L.R. 585.
While it may be conceded that in certain circumstances there will properly be left to a jury a question of fact to judge when lack of consent and threats and intimidation are alleged, in the present case the complainant on her own story seems rather to have responded to the appellant's promises (to leave her alone in future and to do nothing to impede his wife's gift of an air ticket) than to what should be regarded as threats or intimidation for the purposes of s. 347 of the Code.
If there was not conduct capable in law of constituting threats or intimidation, there was not on the Crown case a sufficient case of absence of consent since the complainant was otherwise acting in a way which indicated consent and would have been taken as consenting.
Whatever lack of consent may have attended any of the sexual encounters between the complainant and the appellant in the past, the circumstances attending the episode on 27 February, 1992 seem to make it an unsafe basis for a conclusion that rape then occurred. Even if, arguably, there may be a tenuous basis on which some of the evidence supports it, other aspects of the evidence must raise very considerable doubts and the Crown case has no overall cogency. As already mentioned, the decision whether or not to order a new trial depends on the exercise of a discretion by the appeal court. The Court should exercise its jurisdiction in this case by making no order for a new trial. In consequence, a verdict and judgment of acquittal should be entered on this charge.
The verdict on the extortion count will, of course, stand and the sentence imposed in respect of it needs to be considered but as to this the sentence of one year's imprisonment cannot be regarded as excessive and should not be interfered with.
IN THE SUPREME COURT
OF QUEENSLAND
C.A. No. 117 of 1993
Brisbane
| Before | The Chief Justice Mr Justice McPherson Mr Justice Demack |
[R. v. Shaw]
BETWEEN:
T H E Q U E E N
v.
PAUL STUART SHAW
(Appellant)
REASONS FOR JUDGMENT - McPHERSON J.A.
Delivered the Sixteenth day of November 1993
There are several aspects of the facts of this matter that may be described as out of the ordinary, not to say novel or even peculiar. One is, as Demack J. remarked in the course of the appeal hearing, that the alleged act of rape has been recorded on video film, which was admitted in evidence at the trial, and so has been viewed by the members of this Court. We have thus had the opportunity of seeing the actions and particularly the facial expressions of the complainant in the course of the alleged rape. It is largely from these expressions that the jury, and now this Court, have been invited to infer that she did not consent to what took place.
I am satisfied that it would not be possible for a jury, properly instructed, rationally or reasonably to conclude from what they saw on the video that the complainant was not consenting to what was happening. It is true that, as it appears on the video, her face has a vacant expression, and that she seems keen to avert it from the camera. But an explanation for that may well be that, although she was a consenting party to the act or acts of sexual intercourse, she was not a completely willing or consenting party to its being captured on film. In short, she may have found the experience distasteful.
It would be difficult if not impossible for a jury to decide whether her apparent unwillingness was related to one cause or the other, or to a combination of both.
If, therefore, the only question in the case was whether or not the complainant consented to the act of intercourse shown on the video recording, I would, like the Chief Justice, be disposed to allow the appeal, set aside the conviction, and order that judgment of acquittal be entered. I should think that course was justified because, on the issue of consent or its absence, the evidence afforded by the video recording is insolubly ambiguous. It would not be possible on the basis of it for any jury, acting reasonably on proper instructions, safely to conclude that the complainant was withholding her consent to sexual intercourse, as distinct from her consent to the recording of the act on film.
The Criminal Code does, however, distinguish between two categories of rape. Section 347 speaks of carnal knowledge of a woman: (i) without her consent, or (ii) with her consent if that consent is obtained under certain circumstances that are specified. In many cases it may not be necessary or even desirable to distinguish sharply between the two categories. Here, however, the evidence against the appellant is such that the case cannot fairly be brought within the first category. It is true that in answer to a question put to her in examination in chief, the complainant said that at the time of the incident she did not "want" to have sex with the appellant. It is not unknown for people to consent to sexual intercourse although not "wanting" it. A question and answer like that is therefore prone to confuse the jury, the more so because in this case it was followed almost immediately by asking whether the complainant did "consent to what was happening to you". More or less predictably, she answered "No". In form, that question may not strictly have been leading, but in context I think it was. And it, in the end, is really the only evidence available to sustain conviction in this case for rape of the kind described in the first of the two categories identified in s.347; that is, an act of sexual intercourse without the consent of the woman.
In the circumstances disclosed here, the foregoing evidence, although technically sufficient, could scarcely be considered satisfactory. The fact is, however, that the case presented against the appellant at trial never was one of a rape falling within the first category in s.347. On the contrary, it was one where the relevant act of sexual intercourse was alleged to have taken place not without, but with, the complainant's consent, which it was alleged by the Crown had been "obtained by force, or by means of threats or intimidation of any kind". I have quoted the whole of the relevant part of the phrase in s.347; but, properly considered, the prosecution case here must have been that the complainant's consent to sexual intercourse had been obtained by means of threats or, it may be, intimidation by the appellant. The rape alleged was therefore one falling within the second rather than the first of the two categories mentioned in s.347.
The threat or intimidation by which the complainant's consent was alleged to have been obtained came down to this. The appellant told the complainant that, if she did the video with him, he would let her go home, and he would never touch her again. So far, this looks more like a promise than a threat or intimidation; but the record of her evidence goes on:
"Did he say what would happen if you didn't do it? -- He wouldn't let me go home. He would cancel the plane ticket or something and I wouldn't be able to go home."
It is necessary to explain that the complainant, who ordinarily resided in Melbourne, was then staying in Innisfail with her sister and her brother-in-law, who is the appellant. There was an unused air ticket to Melbourne, which at the time was apparently in the possession of the sister. A factual difficulty in the way of accepting the evidence of this "threat" is that, according to the material in the record, the complainant's sister did not know that sexual activities were taking place between her sister and the appellant. Threatening that the air ticket would be cancelled and the complainant would not be able to go home would, one might think, inevitably lead to disclosure to the sister of what was taking place; which in turn would, one might surmise, serve only to expedite the complainant's departure for Melbourne once the sister found out. If the charge of rape has any claim to be considered one of substance, there must be more to it than that. But in any event, it is for a jury to decide questions of this kind. My principal reason for thinking there should be a new trial is that the vital question in the case was not adequately put to the jury in the course of summing up. In consequence there is a real doubt whether they ever really considered or decided what I think was the fundamental issue.
The case plainly called for a precise and detailed explanation to the jury, with particular reference to the facts, of the element of consent, or its absence, in the offence of rape; as well as reference to the fact that the Crown was alleging that the complainant's consent to the act of sexual intercourse with the appellant had been obtained by means of threats or intimidation. It was essential to identify the evidence said to prove the threats or intimidation and that the complainant's consent was obtained by means of it. The summing up fell well short of doing this. The trial judge read to the jury the whole of the definition of rape in s.347 of the Code; for good measure, he read it twice over. However, he neither explained nor dissected it for them, and he did not draw their attention to the vital questions whether the, or any, threat had been made to the complainant; and whether it was by that means that her consent to sexual intercourse had been obtained. The relevant passages in her evidence were read out, but only as parts of a much larger extract from the transcript, much of which was taken up with the complainant's account of what she and the appellant had done in the course of the sexual activity that was filmed, which was already before the jury in that form.
In that state of affairs, the real issue would not have been
| Because of this I think that the appeal should be allowed | identified by the jury or considered and decided by them. sentence imposed for the offence in count 2 (extortion). It follows that in my opinion the application for leave to appeal against that sentence should be dismissed; but that the appeal against conviction should be allowed; the conviction on count 2 should be set aside; and a new trial ordered with respect to that count. |
| IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND |
C.A. No. 117 of 1993
Brisbane
| Before | Chief Justice Mr Justice McPherson |
| Mr Justice Demack | |
| [Re: Shaw] |
T H E Q U E E N
v.
PAUL STUART SHAW
(Appellant)
REASONS FOR JUDGMENT - DEMACK J.
Judgment delivered 16/11/93
The appellant was charged with the rape of his sister-in- law, on 27 February 1992. He pleaded not guilty, was convicted by the jury and sentenced to imprisonment for eight years. On the same indictment he was charged with extortion in respect of the complainant. He pleaded guilty and received a sentence of imprisonment for one year. The sentences were made cumulative.
He has appealed against his conviction and seeks leave to appeal in respect of both sentences. Three specific areas of complaint were argued in respect of the conviction, being grounds 4, 7 and 7A. These grounds may be stated briefly:-
4. Wrongful rejection of a letter written by the complaintant to "Becky, Paul and Colin" dated 6 November 1991.
7. Deficiencies in the conduct of the defence by counsel.
7A. Matters wrongly left to the jury as evidence capable of
amounting to corroboration.
The circumstances of the offence.
The evidence led by the prosecution was of a relationship between the appellant and the complainant which began when she was fourteen years old. The complainant gave evidence of sexual overtures made in a caravan park near Moe by the appellant when he was living with her sister before they married. She gave evidence of acts of sexual intercourse to which she did not consent when she was living with him and his wife and baby son at Woomera. The act of rape, which was the subject of the charge, occurred at Innisfail, when she was staying with him, his wife and son. The appellant recorded with a video camera some of the sexual activity between himself and the complaintant that was alleged to constitute the rape on 27 February 1992. She returned to Victoria in early March 1992.
In late September 1992, he wrote her a letter threatening to show the video to her current boyfriend unless she came to Innisfail and did what he wanted. It was in respect of this letter that he was charged with extortion. She went to the police and subsequently phoned him on 25 September 1992. The conversation was recorded by the police. In the conversation, she accused him of rape. He was later interviewed by the police at Innisfail. He denied the allegation of rape.
The evidence which the jury had to consider included the video recording, the audio recording of the telephone conversation on 25 September 1992, the letter which constituted the extortion demand and the video recording of the interview with the police at Innisfail. In addition, there was a list written by the appellant which the police found in his house when they executed a search warrant on 25 September 1992. Both the complainant and the appellant were amongst the witnesses called at the trial.
Ground 4
In the course of his cross examination of the complainant, the appellant's counsel showed her a letter dated 6 November 1991 addressed to "Becky, Paul and Colin". This followed the complainant's denial that she had written to the appellant at this time. Counsel sought to tender the letter. The letter was written by her and in it she said, among other things, that she was still with Tracey, her current boyfriend, and that she and Tracey had sex and her mother was finding it hard to adjust to this news. It would be fair to say that the letter was written in a style suggestive of comfortable intimacy between its author, the complainant, and those to whom it was addressed, her sister, the appellant and their young child. The prosecutor referred to section 4(2)(b) of the Criminal Law (Sexual Offences) Act 1978-1989. Defence counsel submitted that leave should be given to adduce this evidence of her sexual activities with another person other than the appellant because the letter showed she was "willing to share that experience with somebody that she says she hates so badly".
The learned trial Judge gave the following ruling (p 49):-
The accused in this case is charged with one count of rape said to have occurred on 27 February 1992. However, the Crown has led from the complainant evidence of a history commencing with an incident of sexual assault some few years before, followed by a number of acts of rape said to have occurred in South Australia, estimated to be 20 to 25 in number by the complainant. The complainant has given evidence of having some severe ill-feeling towards the accused because of these incidents of rape.
She was asked by defence counsel if she had ever written to the accused and his family and she denied that she had done so. She was then shown a letter which she then admitted was written by her to her sister, the accused and their infant son. Within that letter, she describes in somewhat frank but light- hearted terms matters concerning a sexual relationship with her then boyfriend. It is true, as submitted by Mr Campbell for the Crown, that her admission that she wrote the letter and that it is couched in friendly terms is sufficient to rebut her answer and also serves some useful purpose to the defence in rebutting her claim that she harboured animosity towards the accused because of his earlier conduct towards her.
Counsel for the defence wishes to tender the letter. To do so without the leave of the Court would be contrary to paragraph 2 of section 4 of the Criminal Law (Sexual Offences) Act 1978 as amended. Section 4 of that Act provides, "That without the leave of the Court evidence shall not be received as to the sexual activities of the complainant with any person other than the defendant ... has substantial relevance to the facts in issue or is a proper matter for cross- examination as to credit". Paragraph four goes on to provide, "Evidence that relates to or tends to establish the fact that the complainant was accustomed to engaging in sexual acts ... special circumstances by reason of which it would be likely materially to impair confidence in the reliability of the evidence of the complainant".
The issue which concerns me is that in this case the complainant alleges that she was raped repeatedly by the accused and never mentioned that to her mother with whom she admittedly had a close, loving relationship. It occurs to me the fact that the complainant is prepared to talk about a consensual sexual relationship in a letter addressed to the accused might tend to undermine her explanation for failing to make a complaint which is capable of going to the issue of consent.
However, I think the two sexual relationships are different: in one, she was having a relationship with a young single man. In the other, she was a having a relationship with her own brother-in-law. The circumstances which might lead a young woman to speak freely about one relationship or keep it a secret would be quite different to that which would prevail in relation to the other. I have therefore come to the conclusion that the tendering of the letter would achieve nothing more than to put evidence before the jury which is clearly prohibited by section 4 of the Act. I therefore rule the letter inadmissible.
It appears from that ruling that His Honour did not directly deal with the basis on which counsel sought to tender the letter, namely, the complaintant's willingness to share her experience with somebody she says she hated badly. It is not an answer to that proposition that the complainant, having been shown the letter, admitted that the letter was in fairly friendly terms, which appears to have been the prosecutor's submission. A central issue at the trial was the question of consent. The complainant asserted she had been raped, and that she hated the appellant. This letter, written by her after the alleged rapes in Woomera had occurred, was very material to her credit, not because she had had intercourse with another man, but because she was willing to talk about this in a letter addressed to the man she said had raped her. In the circumstances here, the letter should have been admitted as evidence.
Ground 7
It appears from the record that defence counsel, who was not the counsel who argued the appeal, may not have been experienced in the conduct of criminal trials. When he concluded his cross examination of the complainant, the prosecutor, Mr Campbell, expressed concern, in the absence of the jury, that not all matters that might be suggested in address had been put to her to give her the opportunity to comment. After discussion, defence counsel asked further questions.
Towards the end of the prosecution case, Mr Campbell sought a ruling about evidence he proposed to lead from complainant's mother. After that had been dealt with, defence counsel raised some questions about evidence he would be calling for the defence. In the course of that, it became apparent that he had not put some aspects of the defence case to the complainant. She was recalled and further cross-examined.
The appellant gave evidence and concluded his evidence in chief at the end of the second day of the trial. Next morning in the absence of the jury defence counsel expressed concern that he had not put his instructions to the complainant, and asked to have the jury discharged because of possible prejudice to the appellant. This application was refused.
In evidence in chief, the appellant had been asked
(p 120):-
HIS HONOUR: Was she still enthusiastic about making the video?-- Yes, she was, Your Honour. She was enthusiastic about making the video until we started making the video and then she became self-conscious of the camera on herself and she refused to kiss or look at the camera or in any direction of the camera and she would keep her head turned away.
How do you mean she refused to kiss. Did she say something?-- Before we started filming, at one point when I turned off the camera, Your Honour, to move it she said that she wouldn't - she didn't like to kiss in front of the camera.In cross examination he was asked (p 132):-
But she drew the line at kissing you?-- Yes, she drew
the line at kissing me.Even though she had oral sex with you, intercourse and exposed her genitals, she wouldn't kiss you?-- That is correct.
Is that what you really want us to believe?-- She - if you noticed in the video that she also had a cold sore on her mouth and that was rather painful for her as well, but she just did not want to face the camera.
Mr Shaw, I'm going to give you a chance now to say precisely why she did not kiss you on that video, all of the reasons?-- She did not want to kiss me on the video as she just did not like the camera there and that she was having some pain with her cold sore.
This was the first time a cold sore has been mentioned. The complainant was not cross-examined about a cold sore, nor about the fact that she did not like looking at the camera. An affidavit by the appellant's solicitor was received on the hearing of the appeal. It included parts of the appellant's statement given to his solicitor in November 1992. The statement was included in counsel's brief. It included a reference to an act of intercourse the night before the videoed activity and, in respect of that earlier incident, the statement included,
"She would not kiss as she had a cold sore coming on
her lip".
Also in the statement is the comment that "she didn't like looking at the camera so I said keep your head turned away if you like".
A further matter in the statement which was not put to the complainant was an alleged incident of consensual intercourse after the videoed activity and on the night she left Innisfail.
The learned trial Judge began his summing up in the afternoon of the third day of the trial. Shortly before adjourning he said, at p 214:-
The other matters about which you could conclude that the accused is telling lies is lies about her reluctance to kiss on the video. Members of the jury, once again, as I have said to you, you may look at what was suggested to Tiffany when Mr Lanza was fulfilling his obligation to put his case to her and give her the opportunity to comment. When he did so, he made no suggestion that there was any reluctance on her part to kiss. Nothing was put to her about shyness in front of the camera, about an unwillingness to look at the camera. What was simply put to her was that she was willing to take part in the filming of that video.
So, members of the jury, when the accused gave evidence, of course, he described how she was shy of the camera at the last minute. She was reluctant to kiss. She had a cold sore. Now, members of the jury, you must take into account that explanation, and it is for you to decide whether you can give any credence to it; whether it is plausible; whether is it possible. If you think it is a possible explanation, then you may not be willing to act upon any suggestion that the accused recently invented it when he gave evidence.
You may consider that he invented it in order to explain to you, or to try to explain to you, or overcome a view which you might take that she was hardly an enthusiastic participant in the acts of sexual engagement which you observed on the video, but that is a matter for you to decide. You may decide whether or not it is a deliberate lie, invented at the last minute when he gave evidence to try to explain that problem.
Next morning, in the absence of the jury, defence counsel
said:-
Your Honour, I have to put myself on the record, that I failed by overlooking some of the instructions to put to the witness that at the last minute she became reluctant to watch the video, to watch the camera, you know, when she came into the room and that the defendant - sorry, that the complainant did have a cold sore, although it was not referred in my instructions as to that particular day, but to a day prior to that, and that's it, Your Honour. Those were in my instructions. I've overlooked it.
HIS HONOUR: You've put it on the record, Mr Lanza, but I'm not interested, frankly. These things happen and the consequences of them must be borne. Nothing else?MR LANZA: On the issue of the recent inventions matter, I am a bit concerned, Your Honour, that perhaps the jury was left to go home last night with a bit too much emphasis on the recent invention matters; in other words, the jury might have gone home thinking that the accused, my client, was a complete liar.
It appears from this passage, that, although counsel lacked experience, he did not lack integrity or courage. He seems also to have had a keen appreciation of the effect that his failure to put these two matters to the complaintant may have had on the jury.
When the video of the incident was seen, it appears to have been thought that some explanation for her facial expression might be called for, because she does not give the appearance of enthusiasm. The way in which the appellant's explanation was presented to the jury not only denied him the opportunity of having the jury consider his explanation fairly, but it allowed the explanation to be treated as a recently invented lie. Counsel had not properly put his instructions to the complainant, and this prejudiced the fair consideration of this part of the defence by the jury. This is not a case where a convicted person finds fault with the way the defence case was handled. It is a case where defence counsel belatedly realised the seriousness of his error.
Other matters were argued under this head but it is possible to regard them as matters where counsel may have followed a particular course, expecting to gain some forensic advantage.
The difficulty here is that the learned trial Judge, in the passage quoted, told the jury:-
"You may decide whether or not it is a deliberate lie, invented at the last minute when he gave evidence to try to explain that problem".
Mr Campbell, in his cross examination of the appellant, had not clearly suggested to him that he had recently invented this evidence about the cold sore and the reluctance to face the video camera. Consequently, the stage was not clearly set to allow the tender of the appellant's statement: The Nominal Defendant v. Clements (1960) 104 C.L.R. 476, particularly per Windeyer J, at p 495. Whatever may have been the better course to have followed at the trial, the situation is now clear, that a significant part of the defence case was presented to the jury in a way that prejudiced the appellant. It is not possible to say that he had a fair trial in respect of this matter.
Ground 7A
This ground calls into question the correctness of the summing up in respect of corroboration. Three matters which were left to the jury as capable of amounting to corroboration are said to be not capable of amounting to corroboration. Two of them relate to what are said to be lies by the appellant in the witness box. The third relates to the list found in his house on 25 September 1992.
The list may be dealt with briefly. It was argued by Mr Nase that the list could not corroborate the complainant's evidence that she was forced to perform the acts that were recorded on the video in early 1992. The list, which was written by the appellant, is a series of ideas or fantasies, each of which involves the complainant in some form of sexual activity. There are nine ideas and each is expressed as a short sentence beginning with a verb. Four of the sentences begin with the verb "make". The list was left to jury as capable of amounting to corroboration if they took the view "that he intends to continue a relationship or renew a relationship whereby he is forcing the complaintant to engage in sexual activity with him". The use of the word "make" clearly permits such a view of the list.
The use of lies as corroboration presents difficulties in many cases. The particular lies here were said to be the evidence about the lack of enthusiasm to which reference has been made and evidence by the appellant that he wrote notes to the complainant whilst she was living in Woomera.
The directions to the jury about the passing of notes was
(p 212-214):-
Members of the jury, it was never suggested to Tiffany Deaves that they had ever passed notes between each other. When the accused gave evidence, and indeed when he was being cross-examined by Mr Campbell, he told you for the first time that over a period of time they had been passing quite a lot of notes back and forth. Some, indeed most, seemed to be innocent inquiries about whether Rebekah would be home, when the accused might be coming home. Some were perhaps less innocent. "Can I see you tonight?", I think, was one matter that he mentioned.
Members of the jury, it is for you to decide - I emphasise, it is for you to decide - but you may come to the conclusion that when the accused told you that they had passed these notes, that it was a recent invention, that he had suddenly hit upon it for the first time in order to escape a difficult situation during cross-examination.
One of the matters you may take into account in deciding whether or not that is recent invention is that fact that it was never suggested to Tiffany that any notes had been passed between them. Indeed, the only note she mentioned was denied by the accused and it was put to her that the note never existed.Members of the jury, as I said, before you can act on that lie as corroboration, you must first decide that it was a deliberate lie. You can not act on it unless you are satisfied that it is recent invention, and that is for your to decide. As I have said, before you can act on it, you must decide it is a deliberate lie. You must decide that it relates to a material issue, and you might think that it does in this case because it is their relationship, whether they had a consensual sexual relationship, a relationship of, as I have termed it, affection and passion. If that was so, then they might well pass notes, intimate notes, between each other frequently.
If they had a relationship whereby she was being forced by some means or another to engage in sexual intercourse, then you might expect that perhaps they would not be passing friendly notes between themselves so as to keep the relationship from Rebekah. For instance, so as to be sure of when they will be able to get together. So, that is a material issue. You cannot act on that recent invention unless you are satisfied that he invented it out of a consciousness of his guilty conduct; consciousness that he had been engaging in a relationship with Tiffany, whereby he was, by intimidation or threats carrying on a sexual relationship with her against her will and he has recently invented the lie about the notes to try to escape the consequences of that.
Lastly, of course, you must be satisfied that it is established by evidence independent of Tiffany, and as I have explained to you, that is the case. It is established by evidence independent of Tiffany. But, once again, members of the jury, I remind you you can only act upon it if you are satisfied that it is recent invention. I am in no way suggesting that it is to you. It is for you to decide whether it is recent invention, and if those requirements are met, you may take the view that it corroborates Tiffany's account.
It is apparent that the learned trial Judge was giving a direction in accordance with R. v. Lucas (1981) 1 Q.B. 720, see R. v. McK (1986) 1 Qd. R. 476 and R. v. Kerim (1988) 1 Qd. R. 426. Such a direction requires that the lie fulfils four tests before it can be used as corroboration. The fourth test is that the statement must clearly be shown to have been a lie by evidence other than that of the witness whose evidence is to be corroborated. It seems that here the learned trial Judge equated recent invention with independent evidence. That cannot be correct. The fact that the passing of notes was not put to the complainant may encourage the jury to find that his statement about the matter was a lie. That alone does not allow the statement to be used as corroboration. The conduct of counsel is not evidence, and there must be evidence to show that the statement is false. In the circumstances, where the notes were passed in a secretive fashion, such evidence is not likely to be forthcoming. Indeed, it is difficult to imagine what kind of evidence other than that of the complainant would prove that no notes were passed.
| This evidence should not have been left to the jury as strong one, that is arguable. It is a case that requires very careful presentation to ensure that the jury's attention is kept firmly on the central issue, namely that, on or about 27 February 1992, the appellant had unlawful carnal knowledge with the complainant without her consent or with her consent if it was obtained by force, or by means of threats or intimidation of any kind. The case seems to be essentially one that involves consent obtained by threats or intimidation. There is often a tendency in Queensland to let the clear words of Section 347 - "without her consent or with her consent, if it is obtained by force, or by means of threats or intimidation of any kind". - slip out of mind and use language from other jurisdictions. In Queensland, consensual intercourse may constitute rape if the consent is obtained by means of threats or intimidation of any kind. This is most relevant in family situations such as this when the issue is not consent or non-consent, but whether consent has been obtained by impermissible means. being capable of corroborating the complainant's evidence. | A similar direction was given about the complainant's |
| The complainant's evidence, illustrated by the video recording, is of consent obtained by threats or intimidation. There is evidence capable of corroborating this evidence, both in the extortion letter and in the list. Where the truth lies in the complex interaction of personalities in a family situation cannot be determined without seeing the family members give their evidence. In those circumstances, there should be a re-trial. |
Appeal against sentence.
The application for leave to appeal against the sentence for rape necessarily falls by the way. However, the sentence in respect of the extortion letter needs to be considered. His Honour's sentencing remarks were (p 242):-
I consider the offence of extortion to be a very serious one. It is clear that you intended to use the film, the fruits of your rape, to further threaten and intimidate the complainant, enabling you to subject her to further sexual humiliation and further rape. Finally, she was mature enough to realise that the only way to be rid of you was to report your conduct.
She had the strength of character to face the disruption to the family her exposure of you would cause. She had the fortitude to face the humiliation which she would inevitably feel in order to free herself of your dominance.
I consider that the extortion can not be looked upon as part of the rape. It is a distinct and separate offence from the rape. It substantially aggravates the rape. I give you credit for your early plea of guilty to the offence of extortion, but it requires a cumulative penalty. I sentence you to imprisonment for one year.
While His Honour describes the film as "the fruits of your rape", it does not follow that this has meant that he has increased the penalty because of this. The case is a plain one of blackmail. Even if the sexual acts depicted in the video recording were freely consensual , the threat to disclose the recording was a contemptible act deserving of a sentence of one year's imprisonment. Indeed, standing alone, that would be a light sentence. The application for leave to appeal against the sentence for extortion should be refused.
Proposed orders
1. Appeal allowed, conviction for rape and sentence for rape quashed. New trial ordered in respect of charge of rape.
2. Application for leave to appeal against sentence for
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