R v Stirling

[1996] QCA 342

IN THE COURT OF APPEAL	[1996] QCA 342
SUPREME COURT OF QUEENSLAND
Brisbane	C.A. No. 205 of 1996
[R v. Stirling]

T H E Q U E E N

v.

PETER THOMAS STIRLING

Appellant

Fitzgerald P
Davies JA

Thomas J

Judgment delivered 17 September 1996

Separate reasons for judgment by each member of the Court, all concurring as to the orders made.

Orders:

1.Appeal against conviction dismissed.
2.Application for leave to appeal against sentence granted.
3.Appeal against sentence allowed.

4.Ordered that the sentence imposed below in respect of the appellant's conviction for rape

be set aside.

5.Ordered that in lieu the appellant be sentenced to imprisonment for seven years with a recommendation that the appellant be considered eligible for release on parole on 4 October 1999

CATCHWORDS:	CRIMINAL LAW - Misdirection and non-direction - Appellant convicted of rape and indecent assault - Admissibility of evidence of flight - Trial Judge paraphrased directions on proof beyond reasonable doubt - Whether the errors caused a substantial miscarriage of justice.
Sentence - Whether sentence of nine years' imprisonment for rape manifestly excessive - Interstate parole -Fresh recommendation for parole necessary under s.157(3) of Penalties & Sentences Act.
Counsel:	Mr A. Rafter for the Appellant Ms L. Clare for the Respondent
Solicitors:	Legal Aid Office for the Appellant Department of Public Prosecutions for the Respondent

Hearing Date: 29 August 1996
REASONS FOR JUDGMENT - FITZGERALD P.
Judgment delivered 17/09/1996

The circumstances giving rise to this appeal are set out in the reasons for judgment of Thomas J.

I agree that the trial judge misdirected the jury on important matters, namely the effect of the evidence that the appellant failed to appear on the original date set for his trial and the requirement that his guilt on the rape count be established beyond reasonable doubt. I am not clear that the directions given were deficient in only the respects raised by the appellant, since I am unsure what was intended to be conveyed to the jury by the direction concerning the appellant’s failure to appear or how it would have understood what was said. The appeal must therefore be allowed unless there has been no substantial miscarriage of justice: Criminal Code, sub-s. 668E(1).

While it is legitimate to take into account that there was no material request for redirections at the appellant’s trial, a conclusion that there has been no substantial miscarriage of justice can only be reached in circumstances such as the present if the jury, properly instructed and acting rationally, must have convicted. That seems to me to be the position in this case. The only issue was whether the appellant had not only indecently assaulted the complainant - as he admitted - but also had sexual intercourse with her, as she swore. The corroboration of her evidence by the result of a vaginal swab put the issue beyond dispute when there was no evidence to the contrary.

I agree that the appeal against conviction should be dismissed.

I also agree that the head sentence imposed in respect of the rape sentence should have been imprisonment for seven years for the reasons given by Thomas J., and that the application for leave to appeal against sentence should accordingly be allowed.

As Thomas J. has pointed out, the trial judge also erred in relation to sentence by his failure to recommend a non-parole period in relation to the fresh term of imprisonment which he imposed: Penalties & Sentences Act 1992, sub-s. 157(3)(b). Thomas J. has referred to questions which might have arisen in the District Court because of the sentence imposed on the appellant by the Supreme Court of Western Australia on 3 September 1990 and the transfer of parole supervision in relation to that sentence to this State under the Parole Orders (Transfer) Act 1984. However, as this Court is to set aside the sentence for rape imposed in the present matter and sentence the appellant itself under sub-s. 668E(3) of the Code, those problems do not seem to me to exist. This Court must act under sub-s. 157(3)(a) of the Penalties & Sentences Act and “make a fresh recommendation for parole relating to the period of imprisonment which the offender must serve”.

On the one hand, there is no basis upon which the appellant could hope for a recommendation that he be considered eligible for parole earlier than the half way point of the sentence which is to be imposed in respect of his rape conviction. I agree that that sentence should be considered to have commenced on 4 April 1996, when he was sentenced in the District Court in respect of that offence. In the ordinary course of events, he would be eligible for consideration for release on parole on 4 October 1999.

On the other hand, while there is no suggestion that the sentence in respect of the present rape conviction should be made cumulative upon the sentence imposed on the appellant by the Supreme Court of Western Australia which he has only partially served, the question arises whether his non-parole period should be extended beyond 4 October 1999 to take account of his commission of the present offences whilst on parole and the factors which justify termination of parole and a requirement that the original sentence be fully served in such circumstances. While there seem to me considerations which militate in favour of recommending a non-parole period later than 4 October 1999, I am prepared to accept that date which is considered suitable by Thomas J.

In summary, the appeal against conviction should be dismissed and the application for leave to appeal against sentence granted and the appeal allowed. The sentence imposed below in respect of the appellant’s conviction of rape should be set aside and in lieu he should in respect of that offence be sentenced to imprisonment for seven years with a recommendation that he be considered eligible for release on parole on 4 October 1999.

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered the 17th day of September 1996

I have had the advantage of reading the reasons for judgment of the President and Thomas J. I agree with Thomas J. that the learned trial Judge misdirected the jury in the respects he mentions but that there was no substantial miscarriage of justice because, on the question whether the appellant had intercourse with his victim as well as sexually assaulting her (which he admitted), the evidence was overwhelming.

I also agree that a sentence of nine years was excessive in this case and that one of seven years was appropriate. I agree generally with the reasons of Thomas J. for that conclusion except that I would not accept that voluntary intoxication was a mitigating factor. See Attorney General v. Rosenberger [1995] 1 Qd.R. 677.

I also agree with Thomas J. as to the appropriate non-parole period. As he has pointed out the mid-point of the period from 3 September 1990 (when the term of imprisonment in Western Australia commenced) to 4 April 2003 (when a term of seven years from the date of imposition of these sentences would expire) would be mid-December 1996 and that that would be much too early a date upon which the appellant should become eligible for parole having regard to the seriousness of these offences and the fact that they were committed whilst he was on parole.

Accepting that it was appropriate to impose these sentences concurrently with the sentence he was then serving I would agree that an appropriate non-parole period is one which would expire at the mid-point of the sentences now being imposed, that is 4 October 1999. I also agree that there was no period of custody served by the appellant before the sentences were imposed which was in relation to proceedings for these offences and for no other reason.

Accordingly I agree with the orders proposed.

REASONS FOR JUDGMENT - THOMAS J

Judgment delivered 17 September 1996

The appellant was indicted in the District Court on charges of rape and indecent assault with a circumstance of aggravation. He pleaded guilty to the assault charge but not to the rape. The jury in due course returned a verdict of guilty on that count. He was sentenced to nine years for the rape. He appeals against his conviction on that count, and seeks leave to appeal against the sentence.

The grounds of appeal concern the trial judge's directions to the jury on flight; and his directions to the jury on the meaning of "beyond reasonable doubt".

The notice of appeal on the first point was confined to the question of admissibility of evidence of flight. Counsel for the appellant conceded that the evidence was admissible and was permitted to argue that the learned trial judge's directions to the jury on this question were inadequate. The issue arose because the appellant had absconded on the eve of his initial trial date. He had been on bail with a condition that he report to Broadbeach Police Station every Wednesday. The last day on which he reported was 28 November 1995. His trial was listed to commence on 6 December 1995. On the Thursday before the trial was due to start, the appellant asked the manager of his unit to look after the keys of a friend's vehicle which the friend would pick up the next day. The appellant told the manager that his reason for the request was that he was going to Beenleigh for a few days "to get away from it all prior to the trial". He eventually made contact with the police on 6 March 1996 stating as his reason for not appearing that he "just wanted to see some nieces and nephews and it had taken so long for the trial to come on".

The learned trial judge's summing up on this question included the following:

"The fact of an accused person's flight, failing to appear for his trial, is admissible as evidence indicating a consciousness of guilt and in that way of guilt itself and it is capable of corroborating the complainant's account. It is for you as the jury to decide what inference is to be drawn from the accused's flight, on his leaving the area. It is open to you to conclude that his failure to appear for his trial was free of sinister or suspicious overtones. If you accept as possible, and just possible, because of the onus of proof, that his reason for not appearing was simply what he claimed then you may not properly infer that he acted out of a consciousness of guilt. But if you reject his claim of reasons for not appearing for trial, or conclude even despite that claim that he absconded to avoid trial because he knew he was guilty, then you may use that evidence as corroboration of the complainant. His conduct, if caused by a consciousness of guilt is consistent, totally consistent, with her claim and inconsistent with his own. It is only as proof of a consciousness of guilt, however, that that evidence of flight can be corroborative."

As to this the appellant complains that the trial judge failed to:

(a)warn the jury that the appellant's conduct in fleeing was not conclusive of his guilt; and

(b)draw to the attention of the jury the difficulty of inferring from the appellant's flight a

consciousness of guilt of rape rather than of indecent assault.

The first proposition is based upon an obiter statement of Connolly J (with whose reasons Shepherdson J agreed) in R v. Melrose [1989] 1 Qd R 572, 574. The passage relied on in that case should not be taken as laying down a general rule applicable in all criminal trials where flight is an issue. The relevant passage was plainly directed to what should happen in the new trial that the majority in Melrose considered necessary -

" This conclusion unfortunately leads to an order for a new trial. This in turn makes it necessary to return to the question of consciousness of guilt. In my opinion the evidence of both Banach and Williams was admissible as being capable of showing consciousness of guilt, with the proviso that, if admitted, the jury should be warned, as in the case of false statements said to have been made out of court, that they must not assume that the accused's conduct is conclusive of his guilt."

(at 574)

Such a direction will commonly be desirable, but it would not be necessary unless the circumstances were such as to raise the risk that the jury would consider such evidence conclusive of his guilt as distinct from a circumstance or a factor capable of being used as corroboration.

In the present case there was no request for any redirection, and I do not think that there was any error of law in not giving that particular direction.

In relation to (b) however it seems that the learned trial judge did not specifically refer to the factor that the appellant's flight might arguably have stemmed from his awareness of guilt on the other charge which he had admitted and of which he knew he should be convicted and to which he did plead guilty. The existence of other possible explanations for the flight does not render the evidence inadmissible, but it is a factor which deserves judicial comment.

"I would agree with the appellant's submission that, at the very least, the learned trial judge should have drawn the jury's attention to the special difficulty of inferring from the appellant's flight a consciousness of anything more than indecent dealing. Indeed, it was probably appropriate to tell the jury that they could not safely infer from the flight alone that the appellant was conscious of having raped the complainant. In my opinion, the learned trial judge's failure to do so constituted a misdirection."

(R v. M [1995] 1 Qd R 213, 223, per Davies JA with whom
McPherson JA agreed, Williams J contra on this point)

It therefore seems that the omission to point out this possibility to the jury should be regarded as an error in the summing up.

However, it is impossible to see how this failure could have produced a substantial miscarriage of justice. The evidence of corroboration in the present case was very strong, including scientific evidence of fluid identified from vaginal swabs entirely consistent with the complainant's evidence of intercourse and inconsistent with the appellant's denial of it. Furthermore, the distinction between the issue of rape and the indecent assault to which there was a plea of guilty was highlighted to the jury on other questions including "you must be careful not to use that plea of guilty as inferring guilt of rape because they are two different offences and the accused has clearly differentiated between them by his plea". Further, it might be thought that the present circumstances are far more consonant with flight by reason of consciousness of responsibility for both incidents rather than for one or other of them. Finally it may be noted that defence counsel sought no redirection on this point.

I conclude that the error could not have led to any miscarriage of justice.
Unfortunately in the present case the learned trial judge ventured into paraphrase of the

notion of proof beyond reasonable doubt. The summing up includes the following passages - "The Crown must prove each and every element of its charge on every offence to such an

extent that is left in your mind no reasonable doubt of the accused's guilt before you

may convict him.

If you have a reasonable doubt you must find him not guilty.

Now, reasonable doubt is a term which defies definition because it is comprised of words of ordinary meaning and a reasonable doubt is a doubt which you, as jurors, aware of the oaths which you took and the responsible duty that you perform, consider to be a reasonable one. What it really means in practice is you should not and you may not convict the accused unless you are sure of his guilt."

and

"Now, as I have said, the onus is on the Crown throughout to proof its case beyond a reasonable doubt, not beyond any doubt, because that amounts to an impossible standard. We would simply waste time holding trials if the Crown had to prove its case beyond any doubt. There is no such thing as certainty in human relations. A reasonable doubt is one which you using your commonsense, fully aware of your responsibility as representatives of your community determine to be reasonable and not fanciful or imaginative."

Some hours after the members of jury had retired to consider their verdict they returned for a redirection, asking "Will the judge clarify for the jury the term 'reasonable doubt'?". The learned trial judge then gave the following redirection -

"Yes, I understand you would like the term reasonable doubt clarified. Well, the difficulty I have is that Judges are constrained by Courts of appeal throughout the world not to give explanations of that term because it means what it says. It's comprised of words of ordinary meaning, but the words have their full effect. A reasonable doubt is a doubt which is reasonable, not fanciful or imaginative or something you dream up to avoid what might be an otherwise difficult decision. It must be a doubt which you recognise as representatives of the community with a serious task to perform as a reasonable one.

I said yesterday, in effect, you may not convict an accused person unless you are sure of his guilt. That may be how it works in practice, but a term beyond a reasonable doubt means the Crown must remove from your mind any doubt about his guilt which is reasonable. If you are satisfied beyond a reasonable doubt of his guilt you may convict him. If you are not satisfied to that standard then you must acquit him.

The standard of proof which the Crown must reach is not certainty. There is nothing certain in life. It is for that reason that that standard of proof cannot be defined further. A reasonable doubt means exactly what it says. It is left to the commonsense and conscientiousness, integrity of a jury to determine what is a reasonable doubt."

It is well settled that directions of this kind should not be given unless some special need arises in the trial (Green v. The Queen (1971) 126 CLR 28, 33; R v. Willson Tchorz and Young (1986) 42 SASR 203; R v. Dam (1986) 43 SASR 422, 429; R v. Britten (1988) 51 SASR 567, 570, 575, 581). It was not suggested, for example, that during the present trial counsel for the accused laboured the onus of proof to such a degree as to suggest that fantastic or unreal possibilities ought to be regarded as affording a reason for doubt, such that the trial judge was under a duty to "restore the balance".

In my view the above extrapolations by the learned trial judge were unwarranted and constituted an error because they had the potential to distract the jury from itself setting the standard of what was reasonable in the circumstances.

The question arises whether the proviso should be applied. The test is whether no reasonable jury properly directed could fail in the performance of their duty on the evidence before them to have convicted the accused of the charge (Driscoll v. R (1977) 137 CLR 517, 524). In the present case the appellant did not give evidence. His defence may best be described as putting the Crown to proof and through cross-examination of the complainant attempting to suggest that while oral sex had been forced upon the complainant, intercourse did not happen. The issue was plainly whether there was any reasonable doubt in relation to the complainant's allegation that sexual penetration had occurred. The corroborative evidence was very persuasive in favour of the complainant's story being true. In these circumstances, the use of the word "sure" would hardly have a tendency to mislead or distract the jury from the direct determination of the issue, or to convict the appellant in circumstances where there was a possibility that he might have been acquitted. The same may be said for the other extrapolations including the "not a fanciful doubt" and other phrases that some judges used before Thomas v. The Queen (1959- 1960) 102 CLR 584 and Green above in 1971. It is hardly necessary to say that these points were established a long time ago, and that such directions are a dangerous practice which are to be strongly discouraged.

In the present case, although the directions were unnecessary, and had the potential to cause the trial to miscarry, they cannot be seen to have had any adverse effect upon the appellant's chance of an acquittal. Accordingly the section 668E proviso should be applied.

The appeal against conviction should therefore be dismissed.

Sentence

The applicant was sentenced to nine years' imprisonment for the rape and two years concurrent for the indecent assault. The circumstances, briefly stated are that the complainant and the applicant were known to one another as they lived in adjacent units at Mermaid Beach. A group from both flats consumed liquor and marijuana in the complainant's unit and by 10.40 p.m. the complainant and the applicant were left alone. The complainant went to bed. About twenty minutes later the applicant said he was leaving. However at about 2 a.m. the complainant awoke and felt someone under the doona interfering with her underpants and licking her genital area. She observed the applicant and told him to get out but he held her down on the bed, started licking her face and said he was not leaving until he finished what he had come for. When she stood up the applicant tore her underpants down the side. He lay her on the bed and again licked her genital area before having sexual intercourse with her. The complainant described her sensation during this act as a "sort of slimy feeling not like a jelly but almost like he maybe was wearing a condom or it was lubricated or something". Scientific evidence suggests that vaseline intensive care lotion had been used from a bottle in the appellant's bedroom.

The applicant was thirty years old, and had a criminal history, but nothing of a sexual nature. In fact his only prior serious convictions were recorded in 1990 in Western Australia when he was sentenced to eight and a half years imprisonment on a variety of charges including armed robbery, deprivation of liberty and break enter and steal. He had been released on parole in relation to these offences after serving approximately half of the term. The Western Australian parole supervision order was transferred to Queensland and he was of course still on parole when the present offences were committed.

Relevant factors in the present case include intoxication, absence of significant violence, absence of injury, and on the other hand a persistence in putting the complainant through the ordeal of a trial, and the circumstance that he was on parole at the time.

We have been referred to a variety of past sentences for like offences, including R v. Raymond C.A. 299 of 1994, 12 September 1994, R v. Chinfat C.A.354 and 355 of 1995, 17 November 1995, and R v. Day C.A. 247 of 1993, 13 September 1993. Sentencing patterns are discussed in these and many other cases in this Court, and there is little point in restating the position. Suffice it to say that a nine-year sentence seems more appropriate for those cases where specially serious factors operate such as the infliction of injury or the use of serious threats, possession of a weapon or some factor of a particularly aggravating kind. The present circumstances suggest that a sentence of seven years was the appropriate response, and I am accordingly of the view that the sentence of nine years was manifestly excessive and that it should be replaced with one of seven years.

A difficulty exists in the present case by reason of the loss of parole under the Western Australian sentences. Parole supervision had been transferred to Queensland under the Parole Orders (Transfer) Act 1984-1988. An order registered under that Act has effect as if the sentence of imprisonment had been imposed by a Queensland court (s.10). In turn s.157(3) of the Penalties & Sentences Act applies, and the present sentence was deficient in its failure to provide a fresh non-parole period.

The situation is rather complex. The relevant datum points are that he was sentenced in Western Australia on 3 September 1990 and was released on parole on 18 January 1994. He was taken into custody on the present matter on 8 March 1996 and was sentenced on the present matters on 4 April 1996.

Under s.187 of the Corrective Services Act 1988, which applies because of registration of the order under the Parole Orders (Transfer) Act, his parole was cancelled, and under s.190 of the Corrective Services Act the unserved part of the original sentence remains to be served. However, in the absence of the necessary designation of a fresh parole date under s.157(3), the parole eligibility date (calculated in accordance with the law stated in R v. Gipters C.A. 25 of 1995, 30 May 1995) is the halfway mark of the current "term of imprisonment". That term is deemed to have commenced at the beginning of the first current sentence and to end at the end of the last expiring current sentence.

In the present case this would produce an unwarranted windfall for the applicant unless, as s.157(3) of the Penalties & Sentences Act requires, a fresh parole date is specified. There may be some doubt as to the precise date for consideration of parole in the absence of such a declaration, as there is difficulty in calculating "the unbroken period of imprisonment (the applicant) is liable to serve by virtue of a number of sentences, whether ordered to be served concurrently or cumulatively and whether imposed at the same time or at different times" (s.10(b)) (the definition section of the Corrective Services Act) having regard to the interruption to the original sentence which has now been reactivated. It is unnecessary to make a conclusive determination as to that date, because our essential task is to fix an appropriate date having regard to all the circumstances. However, on the assumption that the automatic parole consideration day would be the mid-point between 3 September 1990 (the original sentence date) and 4 April 2003 (the end of the full term of the present sentence if seven years is substituted) the date would be approximately mid-December 1996. That would seem to be an absurdly early entitlement for consideration.

This Court has on a number of occasions recognised that unduly oppressive results may occur if an offender has to serve a new sentence as well as the unexpired portion of an old one when the benefit of parole is lost, as for example when the new sentence is made cumulative upon existing sentences in respect of which parole entitlement has been lost (R v. Coss C.A. 262 of 1994, 15 March 1995). It was not suggested that a cumulative sentence would be appropriate in the present matter and in the absence of submission that some cumulative effect was desirable I shall not pursue this point. This Court's function is to make a recommendation which fixes a non-parole period in respect of all current sentences the offender is serving, including the new sentence. In the present circumstances it seems to me that such a date would be the mid-point of the present sentence, namely 4 October 1999.

It was submitted that the applicant should be given credit for the time served between 6 March and 4 April 1996 (twenty-seven days) but I would regard that period as being served mainly by reason of his own breach of conditions of bail. It is not "time that the offender was held in custody in relation to proceedings for the offence and for no other reason" under s.161 of the Penalties and Sentences Act. I therefore do not consider that it should be declared time already served under s.161, or that it should persuade this Court to advance the recommended parole date.

It was recognised during argument that the effect of this Court's order might be to subject the applicant to a result less favourable than that which has earlier been described as a windfall through the sentencing judge's failure to make a recommendation under s.157(3). The applicant was therefore given the opportunity of withdrawing his sentence application. Presumably in view of the fact that the defect may be corrected by means of reopening the sentence under s.188 of the Penalties and Sentences Act, and to avoid loss of the opportunity to reduce the length of the sentence for rape, there has been no withdrawal of the present application. This Court should therefore proceed, under s.668E(3) of the Code, to pass "some other sentence, whether more or less severe".

I would therefore allow the application for leave to appeal against sentence, set aside the sentence of nine years for rape and in its place substitute a sentence of seven years, and under s.157(3) of the Penalties & Sentences Act make a fresh recommendation for parole on 4 October 1999.

The appeal against conviction will be dismissed.