R v Wichman & Evans

[1994] QCA 362

IN THE COURT OF APPEAL [1994] QCA 362

SUPREME COURT OF QUEENSLAND

C.A. No. 237 of 1994

C.A. No. 235 of 1994

Brisbane

Before Macrossan C.J. McPherson J.A. Mackenzie J.

[R. v. Wichman & Evans]

BETWEEN

T H E Q U E E N

v.

NUKU CHARLES WICHMAN and
SCOTT MARTYN EVANS

(Appellants)

Macrossan C.J. McPherson J.A. Mackenzie J.

Judgment delivered 16/09/94

Reasons for judgment by the Court

APPEALS AGAINST CONVICTION DISMISSED. APPLICATIONS FOR LEAVE TO

APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS: CRIMINAL LAW - RAPE/ROBBERY/WOUNDING - Woman
invited back to flat - Raped and robbed after
having hand cut - Whether inconsistent verdicts
- Whether verdicts unsafe and unsatisfactory -
Previous sexual relationship with one appellant
- Extensive corroboration - Blood and cut hair

found in flat - Stolen jewellery in flat - Bra

cut off - Used condom - Injuries to complainant.

CRIMINAL LAW - DIRECTIONS TO JURY - LIES - Admitted lies by one

appellant - Appropriateness of directions.

CRIMINAL LAW - SENTENCE _ Whether 10 and 8 years respectively excessive - Violent rape of drunk woman in company.

Counsel:T. Rafter for appellant Evans

R. Lynch for appellant Wichman

W. Clark for the Crown

Solicitors:Legal Aid Office for the appellants

Director of Prosecutions for the Crown

Hearing Date:29 August 1994

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the Sixteenth day of September 1994

These are appeals by Wichman and Evans against convictions sustained at their trial in the District Court, together with applications by each of them for leave to appeal against sentences imposed in respect of those convictions.

Wichman was found guilty of wounding (count 2); rape (count 3); and robbery (count 4). He was found not guilty of
another count of rape (count 1), and was found not guilty of a circumstance of aggravation in relation to count 4 (robbery), which was that he was armed with a knife. His co-accused was found guilty of a single count of rape (count 1).

The offences were alleged to have taken place on 13 May 1993 at a flat at Woodridge shared by the appellants. The complainant was a woman of some 38 years of age with whom Wichman, but not Evans, had a prior acquaintance. On the day in question she had met the appellants at a local hotel and spent the afternoon and evening drinking with them there. Late that night they all went to the appellants' flat for a drink. There, according to the Crown case, Wichman, in the course of threatening the complainant, wounded her by cutting the webbing between thumb and finger of one of her hands (count 2), which required the insertion later of some seven stitches in the wound. He also robbed her of some rings she was wearing (count 4). She was raped by Evans (count 3) at the invitation of Wichman, who menaced her with the knife (also count 3).

The first ground of appeal relied on by Wichman is not sustainable. It is that the verdicts are inconsistent with each other, and particularly with the verdict of acquittal on count 1, and that they cannot be explained on any rational basis. There are, however, several different reasons why the

jury might have decided to acquit on that count. Among them is

the fact that the complainant had previously had consensual sexual intercourse with Wichman on two or three occasions during the preceding two months and in that very flat. So far as the robbery is concerned, the jury's refusal to find that Wichman was armed seems surprising until one looks at the learned judge's summing up on the point. His Honour gave what might be

thought to be an extremely favourable direction on the evidence that was needed to find that particular circumstance. The jury evidently followed the direction quite literally. It is not therefore a matter of which anything can be made on the appeal.

It was also submitted by the appellants that the inconsistencies in the evidence of the complainant were such

that the verdicts were unsafe and unsatisfactory. There is no doubt that there were inconsistencies in the complainant's testimony particularly when compared with her early statements to the police. Her memory of the times and perhaps the places in the flat at which particular events occurred seems to have

been defective in various respects. She may also have been

mistaken about the proper sequence of events after her arrival at the flat. However, the jury may very well have concluded that the explanation for these discrepancies was that she had no means of telling the time; that after her hand was cut she was in a hysterical state; and that throughout the period when these

things were taking place she was in a state of considerable intoxication. Circumstances like those tend to dispel

suggestions that the complainant was telling deliberate lies about what had happened to her. At the same time they also serve to undermine or weaken the prosecution case against the appellants. On the other hand, there were various indisputable objective facts which showed that much of what the complainant was saying must in fact have taken place. The wound on her hand spoke for itself. There was blood on the bed linen upstairs, as well as in the hallway and bathroom, and elsewhere in the flat.

She claimed that immediately before she was raped by Evans, Wichman used a knife to cut her brassiere off her body. Forensic tests showed it was possible for it to have been cut off in this way without inflicting harm on her at the same time.

She also claimed that lengths of her hair had been slashed off with a knife. In the course of a search conducted by police that morning, quantities of her red hair were found in the upstairs bedroom, in the bathroom, and outside the window on the roof of an adjoining flat. She remembered seeing the appellant Evans placing a condom over his penis shortly before he raped her. Condom packets, at least one of which was opened, were

found during the search of the flat. A used condom containing

seminal fluid was found in a garbage can downstairs. The rings which she claimed had been taken from her were located in the flat during the morning search, as well as a locket and chain,

and an earring that had been torn through the lobe of her capable of affording corroboration of the complainant's testimony as to the rape, robbery, and wounding on the night in question. In fact, the learned judge in his summing up did not invite the jury to consider the evidence of those matters in that light. The only evidence presented to them as corroborative was of abrasions to the skin at the base of the complainant's spine. In giving her evidence the complainant said that these abrasions had not been there before that night; she thought she had sustained them in the course of the sexual intercourse that took place on the carpet downstairs, which was

pierced ear.

what constituted the rape alleged against the appellant Evans. He admitted the act of intercourse but claimed she had consented to it. Dr Culliford, who examined the complainant shortly after she complained to the police, said at the trial that such abrasions might have been caused in a number of ways, but that their appearance was compatible with her being on a carpeted floor and moving against the carpet at a time when she had no

pants on. In cross-examination, Dr Culliford was not prepared to agree that the abrasions was consistent with consensual but vigorous sexual intercourse.

The complainant's account of commission of the rape (count 3) was that after being raped (count 1) and robbed by

Wichman, she went downstairs and was trying to get out of the kitchen door when Wichman came at her with the knife. He forced

her on to the floor and then said to Evans "Help yourself". It

was then that she saw Evans putting the condom on his erect penis. Wichman cut her bra off with the knife, and Evans removed her leggings and underpants. Wichman held the knife at her chest while Evans had sexual intercourse with her.

It was submitted that the abrasions were not capable of amounting to corroboration of the complainant's evidence of being raped by Evans because those marks were equally referable

to other events that had happened that night. In particular, Evans claimed to have made an earlier attempt at sexual intercourse with the complainant upstairs on the bedroom carpet,

but said he had been unable to attain an erection on that

occasion. This was after Wichman had had sexual intercourse with her, but before the act of intercourse with Evans which took

place downstairs. independent proof of the prosecution case against the accused,

but to afford confirmation in some material particular of the

testimony of the complainant. Hence, it is not an essential requisite that it should be unequivocally and solely referable to a particular event or happening. Here, the fact that the abrasions visible on the complainant's lower back were capable of being ascribed to some other possible cause did not have the consequence that they ceased to be capable of affording confirmation of the complainant's account of what had taken place in the course of sexual intercourse with Evans. Circumstantial evidence is seldom susceptible of only one explanation, and, assuming it is not so ambiguous as to be worthless, it is for the jury to determine whether or not it has the probative effect contended for. The point now taken in this appeal was considered in R. v. Berril [1982] Qd.R. 508, which is not readily distinguishable either on its facts or in principle from the present case.

The question of the corroborative effect, if any, of the presence of the abrasions was, in any event, a matter that fell to be considered in the light of all the circumstances disclosed by the evidence before the jury. The appellant Evans himself gave evidence at the trial in which he said he had attempted to have sexual intercourse on the carpet in the bedroom upstairs.

It is possible that the jury thought his evidence on this point a deliberate fabrication designed to explain away the abrasions on her body. In the course of cross-examination Evans admitted that various specific matters he had told the police when interviewed were lies, and that he had lied "in many places"

throughout the record of interview. He said he had been trying to protect his friend Wichman. His admission that he had lied to the police must almost inevitably have damaged his credit in the eyes of the jury. If he was prepared to lie to save his friend, it was but a short step to suppose he might be prepared

to lie to save himself. the matter of the lies told to the police by the appellants in the course of their records of interview. He first considered in some detail various statements and denials made by Wichman

(who did not give evidence at the trial) in the course of a

video-taped interview. In doing so his Honour explained the use that could be made of lies told by an accused and the conditions that had to be satisfied before the jury could put them to such use. His directions in that regard accorded with the decision of the High Court in Edwards v. The Queen (1993) 178 C.L.R. 193, and no complaint about them is made on appeal.

The learned judge then went on to speak of Evans and the lies he told at his interview. His Honour directed the jury that this was a matter to be considered separately and apart from any question of corroboration, the point here being whether

those lies, if any, were evidence of his having committed the offence. He then briefly repeated four requirements to be satisfied before lies could be used for that purpose, ending by emphasising that it was the fourth element that was important in this case. It was that Evans had sworn that the reason for his telling the lies was that he wanted to protect Wichman.

On behalf of Evans it was submitted on appeal that the direction was at fault in failing to identify the lies in

question. Reliance was placed on what was said in Edwards by

Deane, Dawson and Gaudron JJ. (178 C.L.R. 193, 210):
"A lie can constitute an admission against interest only if

it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew the lie would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest."

We would, of course, not venture to question the authority of what was said by their Honours in a decision binding on us. The case before us now is, however, not one involving the telling of a single lie or one that is disputed. Here the appellant Evans expressly admitted in cross-examination that he had told a series of identified lies to the police in the course

of being interviewed. The lies were indisputably "material" because they were the appellant's version of what had happened

in which he contradicted the complainant's account of the

specific incidents constituting the offences committed against her. In these circumstances, it was not necessary for the judge to direct the jury that the lies must be material - they plainly were - or even to remind them precisely of what the lies were. To have repeated one by one each of the lies he admitted he had told could only have harmed the defence, and might have provoked complaints of a lack of balance in the summing up. That is the most likely explanation of why there was no application for redirection on the point. It would not have been at all helpful to the appellant Evans for the jury to be reminded in detail of the many lies he admitted to having told the police in the course of the interview.

The remaining complaint is that the judge failed to warn the jury that they should not decide to convict the appellant Evans merely because he told lies in the interview. The decision in Broadhurst v. The Queen [1964] 441, 457, was cited in support of this proposition. It was that passage in the

opinion of the Privy Council in that case which was referred to in Edwards (178 C.L.R. 193, 211) as authority for the need to

instruct the jury "that there may be reasons for the telling of a lie apart from the realization of guilt". Their Honours in Edwards went on to mention specifically the example of a lie told to protect some other person. That was, as his Honour reminded the jury here, the reason given by Evans for the lies he told the police. His Honour suggested they might think that

was the important question in the case before them. on this point. While a trial judge is under a duty to ensure that the jury is properly instructed on all matters necessary to enable them to return a verdict according to law, he or she is under an equally pressing duty not to complicate their task by unnecessarily dwelling on rules and requirements that have no direct relevance to the issues as they have developed in the

case before them. The summing up must always be tailored to the were justified in finding the appellants guilty as they did. Even without reference to the complainant's evidence, the wounding and the taking of the complainant's rings were virtually proved beyond doubt by what was found during the police search of the flat in the morning. Evans admitted to having had sexual intercourse with the complainant downstairs.

measure of the particular case they have to decide.

The only issue was her consent. The jury may have thought that, intoxicated as she was, it was most unlikely that she would have consented to sexual intercourse with a man she hardly knew after another man whom she did know had used a knife to cut her hand, her hair, and her brassiere.

The applications for leave to appeal against sentence must be viewed in the light of those and other events on the night in

question. The sentence imposed on Evans was imprisonment for 8 years. He is a relatively young man, 28 years of age, with no

relevant previous convictions, who was unemployed at the time in question. His personal circumstances are reflected in the recommendation that was made in his favour for release on parole after 2½ years. A term of 8 years may be heavy, but the rape was committed on a drunken, hysterical and helpless woman, who might fairly have expected Evans to protect her from further violence at the hands of Wichman. Instead, he took a cowardly advantage of her helplessness at knife point to rape her, following Wichman's contemptuous suggestion to Evans that he

"help yourself". counselling just mentioned, cutting her brassiere off, and subduing the complainant while Evans had his way. To treat an invited guest and erstwhile companion in love-making in that
fashion is inexcusable, the more so as it was followed or

accompanied by his wounding her and robbing her of rings which she vainly pleaded with him not to take because of their sentimental value to her and her family. It is not too much to say that Wichman treated the complainant as less than human. He is 30 years of age and has a history of offending in this

country dating from June 1987. Several of his convictions have involved the use of force, such as resisting and assaulting

police, and he has twice been fined for breach of domestic violence orders. Most of the offences have been of a relatively minor sort, although in 1993 he was sentenced to imprisonment for 6 months for stealing and false pretences. When the

wounding and the robbery are added to his part in assisting the rape by Evans, it is possible to conclude that the sentence of imprisonment for 10 years, although certainly not light, is not

beyond the range of a proper sentencing discretion for conduct

of this kind. applications for leave to appeal against sentence should be refused.