R v Weeks

[1992] QCA 337

COURT OF APPEAL [1992] QCA 337

MACROSSAN CJ McPHERSON JA MOYNIHAN J

CA No 190 of 1992

THE QUEEN

v.

LIONEL JOSEPH WEEKS	Appellant
BRISBANE
..DATE 11/09/92 JUDGMENT

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THE CHIEF JUSTICE: The Court is concerned with two appeals

here. The accused in the original trial is an appellant

seeking to set aside the conviction entered and the Honourable

the Attorney General appeals against the sentence imposed,

contending that it was inadequate in the circumstances. The
appellant, as I shall call him, was charged with three

offences arising out of conduct on the one occasion.

The appellant was a 40 year old man - and at this point I say

with no previous convictions - and on the night of 7 December

1991 there was a birthday party held in his honour at his

house. He was naturally enough in attendance. The

complainant was in a de facto relationship with the son of a

woman with whom the appellant was in a de facto relationship.

By way of some slightly longer explanation, the appellant was

living a woman and her son Wayne was at the party as was the

younger woman with whom Wayne was in a de facto relationship

and who it was said it was proposed that he should marry at

some stage.

There were quite a number of guests at the party - some 30 or

so we were told - and it is obvious that a lot of drink was

taken. At about 10.30 Wayne went into the bedroom which

adjoined the lounge where the majority of the guests were and

fell asleep. It seems that it was a deep sleep. Sometime

later the complainant went into the bedroom and joined Wayne.

She too had had an amount to drink and described herself as

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feeling “tiddly”.

The complainant said she was then woken by the appellant and

thereafter a number of actions took place. The appellant was

charged with unlawfully and indecently assaulting the woman -

the assault consisting of an act of carnal knowledge by anal

intercourse. The jury found him not guilty of that charge.

He was charged also on a count, which was third in the

indictment, of attempting to procure the young woman without

her consent to commit an act of gross indecenty - that act

consisting of bringing her mouth into contact with his

genitals. Again the jury found him not guilty on that charge.

The further charge, originally the second on the indictment,

was that the appellant assaulted the young woman with intent

to have carnal knowledge of her against the order of nature

and on that count he was found guilty.

The complainant's description of events was that the

appellant, having entered the room where she was, first

touched her and things moved on. He straddled her. She said

that she didn't consent to any of this activity. She says

that she struggled and called out at different stages of the

actions. At one point she turned towards Wayne, who was

beside her on the bed, and at that point her story was one

which the jury did not accept - at least fully. She said the

appellant tore at her pantyhose and then had an act of anal

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intercourse with her. She said that Wayne made some remark

along the lines of "Get off her Bobby." Bobby was not the

appellant's name and later Wayne said "Get off her."

The appellant, then having achieved an act of anal intercourse

as she said, did leave her, getting off and departing from the
room. She said that she then said to Wayne, "How can you let

this happen to me?"

Now, Wayne was called to give evidence at the trial, and he

said that he did not recollect any of those events including

the remark which the complainant said she made to him, as I

have just stated it. After the appellant had left the
complainant, she said that she wished to go home, and Wayne
endeavoured to persuade her to stay at first, but then

departed with her.

While they were waiting outside the house for a taxi which had

been called, she said that she made a further complaint, “I

have just been raped" to a boy who was out there. That boy
was not exactly identified. She said that when she got home,

she complained to her parents.

Now, at the trial there was no challenge made to the complaint

said to have been made to the person referred to as a boy, at the point when the complainant was waiting for a taxi, nor in

respect of the complaint to the complainant's parents.

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When the Judge had concluded his summing up, there was some

debate involving defence counsel and the prosecutor, and the

Judge then, in a redirection, left for the jury's consideration, the remark said to have been made to Wayne by the complainant, "How can you let this happen to me?"

The Judge at that point was in effect persuaded that that

piece of evidence was in the category commonly called fresh

complaint, or at least, depending upon the construction which
the jury might put upon those words, if they were satisfied

they'd been uttered, could be regarded as within that category

and used by the jury.

The interesting thing, from the point of view of consideration

of this appeal, is that at the trial there was no objection
whatsoever by defence counsel to the admission of this
evidence. And defence counsel cross-examined the complainant
about her actions in the room when the relevant assault was
said to be taking place. Obviously, the line pursued by the

defence was that she had made no complaint in respect of the

matters charged at a time when it could be expected.

It is clear enough that defence counsel wished to suggest that

the words I have referred to several times, which the

complainant says she used, did not constitute, and could not

be regarded as constituting, a complaint of any of the sexual

conduct as charged.

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The category of fresh complaint, as a basis for admission of

evidence, is usually encountered in a context where there is a debate, whether evidence is admissible or not. In the present

case, this debate did not arise at the trial because, as I
say, the evidence was admitted without objection and the

defence endeavoured to rely upon the words themselves as well

as the other matters which had significance in the course of

the trial.

One of the things which the appellant's counsel on appeal

contends, is that the words in question were not specific
enough to be capable of being used as a complaint within the
relevant category of recent complaint, that is in terms of

the offences charged in the case. I am far from persuaded

that we have before us any relevant issue which depends

upon a consideration of the doctrine of fresh complaint. We

have rather than that, a question of the use which can be made

of this evidence, or could properly have been made by the jury
of this evidence, it being admitted as part of the evidence

introduced at the trial, and there being no objection to it.

Since the Judge let the evidence in, he being persuaded that

he should do so, as being capable of being regarded as a

fresh complaint, he gave a direction to the jury which limited the use that, at best, they could make of it. That limitation

of the use which could legitimately be made, other matters

being established, was something which could only assist the

defence. That is, if it was to be used at all, it assisted

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the defence that it could be used only a limited basis. That

was the basis which the trial Judge allowed the jury's

consideration of the matter to proceed upon.

We are then on this appeal, not concerned with any question of

admissibility of evidence; we are concerned with a debate
about a narrow legal category. I am not persuaded that this

debate is significant, and that the disposal of the present

appeal depends upon providing answers to a number of the

propositions raised by both counsel before us. The defence at

the trial, in wishing to say that the matter did not fall

within a category of fresh complaint, seems to have wanted the
trial Judge to say to the jury that they could not regard
these words said to have been uttered as anything which would

support the credit of the complainant in her allegations, or as anything which was relevant to their determination of the matters of guilt or innocence on the charges.

It is difficult to accept that proposition, however, when, as

I have already said more than once, the evidence was

introduced without objection, and actually availed of by

defence counsel in the line which he took in the conduct of

the trial and in his final address to the jury.

I do not think then that the appeal ground which has been

argued by the appellant here has substance, and I do not think that anything occurred in the course of the trial to which the

defence can on appeal legitimately take objection. If it

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came to the point, and I do not believe it does, but if it came to the point I would say it is most distinctly a case where the proviso should be applied.

In my opinion the appeal against conviction should be

dismissed.

Once it is accepted, as indeed it must be, that there were

acquittals on the two further counts to which I have referred,

there was some difficulty, perhaps, for the trial Judge in

deciding upon the basis on which he should sentence the

accused. What he did was to fine him. He imposed what was
really quite a substantial fine. The appellant was fined
$5,000 and orders were made if default should occur. In

effect, the argument for the Attorney on this appeal was that a custodial term in the circumstances of the case should have been imposed.

His Honour reviewed matters which appeared to him to be

relevant. He looked at the family relationship - I use the
word "family" in the extended sense - which prevailed amongst
the protagonists in the matter. He took into account that the

appellant had a blameless record up to that point, being 40 years of age. He noted the useful life which the appellant

had led - useful in community terms, that is, being a

productive member of the workforce. He took into account that

the appellant was extremely intoxicated at the time. The

Judge was also impressed by a number of references which were

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able to be put forward on the appellant's behalf. He noted

that he should not regard the appellant as being any danger to

the complainant again.

Taking into account all of these matters, which attracted the

attention of the Judge when he came to sentence, and noting

that the offence for which he was called on to impose a

penalty involved an assault with intent, rather than any

further completed act, it seems to me that it could not be

said that this is a case where the penalty imposed should be

interfered with. The amount of force which was used does not

appear to have been excessive. The Judge thought it was less

than the complainant had claimed. There was torn pantyhose

resulting from the episode, and there were some tears in the
region of the complainant's anus, it being necessary to assume

that those tears came from the actions which the appellant

performed with his hands, since there are the other verdicts

of the jury which establish other aspects of the allegations

which we are not free to take into account.

In all the circumstances I think the appeal against sentence

should be refused, so that I would refuse both appeals.

McPHERSON JA: I agree. The full text of the passage on

which this appeal depends, and which appeared in the evidence

in chief of the complainant, is as follows:

"So he goes out the door, and what do you do?-- I

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get up off the bed. Then I said to Wayne - I said,

'How can you let this happen to me?'

Did he reply?-- No, not at that stage, and I said,
‘I’m going home to Mum’s to see Mum.’, and that’s
when he replied - he said, 'Don’t go.’, and I said,
‘I want to go - I want to go home to see my Mum.’
And then he kept on pulling me by my right arm. He
pulled me back. I said., ‘Let go.’ I said, ‘I’m
going home.’”

The evidence in question to which I have just referred was admitted without objection, as the Chief Justice has pointed out. Defence counsel at the trial acknowledged that he had a reason for wishing to have it before the jury. No question of admissibility, therefore, arises on the appeal. The only question is whether it was, as a matter of law, open to the

jury to regard the statement, or these statements, as

amounting to a complaint within the terms of the doctrine

relating to fresh complaints in sexual cases.

It was submitted on behalf of the appellant that the statement

or statements in question were too ambivalent or ambiguous to

be so capable. In my opinion that proposition is not

supported by the authorities upon which reliance was placed.
They are, or include, R. v. Lillyman (1892) 2 QB 163 at 177,
R. v. Robertson, ex parte Attorney-General (1991) 1 QdR 262 of

276; and, more particularly, the case referred to at that

point; that is to say, R. v. Whinfield (1986) CA 132, 16

September 1986, unreported.

In my opinion none of those decisions supports the

propositions referred to, and the proposition is itself

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incapable of being sustained when regard is had to the context

in which the relevant statement by the complainant was made. I

would therefore dismiss the appeal against conviction.

With respect to the Attorney-General’s appeal against sentence

I have listened to what the Chief Justice has said and I agree

with it.

MOYNIHAN J: I agree with what is being said and the outcome

proposed.

THE CHIEF JUSTICE: The result then is that the appeal against

conviction is dismissed and the Attorney-General’s appeal

against sentence is dismissed.

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