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R v Bond

 

[2018] QCA 130

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v Bond [2018] QCA 130

PARTIES:

R
v
BOND, Harry John
(appellant)

FILE NO/S:

CA No 118 of 2017

DC No 2516 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 31 May 2017 (Richards DCJ)

DELIVERED ON:

22 June 2018

DELIVERED AT:

Brisbane 

HEARING DATE:

5 March 2018

JUDGES:

Sofronoff P and McMurdo JA and Boddice J

ORDERS:

  1. The appeal be allowed.
  2. The verdicts of guilty on Counts 1 and 2 be set aside.
  3. There be a re-trial in respect of Counts 1 and 2 on the indictment.

CATCHWORDS:

Criminal law Particular offences Offences against the person Sexual offences Rape and sexual assault – where the complainant was eight-years-old at the time of the alleged offences – where the appellant was convicted of two counts of anal rape and found not guilty of one count of oral rape – where the appellant was sentenced to eight years imprisonment in respect of the counts of anal rape – where the appellant appeals those convictions on the grounds that: (1) the verdicts of guilty were unreasonable and cannot be supported having regard to the evidence, and (2) the verdicts of guilty were inconsistent

Criminal law Appeal and new trial Verdict unreasonable or insupportable having regard to evidence – APPEAL DISMISSEDwhere the complainant recounted the acts of rape to police, family, his teacher, and a psychiatrist prior to the trial – where the complainant gave evidence at trial – where the complainant’s evidence contained some inconsistencies – where the complainant nevertheless consistently recounted each act of anal rape – where it does not follow the inconsistencies in the complainant’s evidence were of such a magnitude as to cause a jury to doubt the reliability and credibility of the complainant’s accounts of each anal rape – whether the jury was entitled to be satisfied beyond reasonable doubt of the complainant’s guilt of each of the offences of anal rape

Criminal law Appeal and new trial Inconsistent Verdict – APPEAL ALLOWED – whether the jury’s verdict of guilty of anal rape (Count 2) was inconsistent with the jury’s verdict of not guilty of oral rape (Count 3) – where the acts of anal and oral rape occurred within the same uninterrupted period – where a consideration of the evidence of the complainant, and other evidence at trial, provides no logical or reasonable basis for the jury to have distinguished the complainant’s reliability and credibility in respect of Count 2 and Count 3 – whether the different verdicts on Counts 2 and 3 are an affront to logic and common sense

Evidence Act 1977 (Qld), s 93A

R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited
R v GAP [2013] 1 Qd R 427; [2012] QCA 193, cited
R v GAW [2015] QCA 166, applied

COUNSEL:

J Lodziak for the appellant

M T Whitbread for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant

Director of Public Prosecutions (Queensland) for the respondent

  1. SOFRONOFF P:  I agree with Boddice J.
  2. McMURDO JA:  I agree with Boddice J.
  3. BODDICE J:  On 31 May 2017, a jury found the appellant guilty of two counts of anal rape (Counts 1 and 2) and not guilty of one count of oral rape (Count 3).  The appellant was convicted of counts 1 and 2 and sentenced to eight years imprisonment.
  4. The appellant appeals those convictions.  The grounds of appeal are that, firstly, the verdicts of guilty are unreasonable and cannot be supported having regard to the evidence and, secondly, that the verdicts of guilty on Counts 1 and 2 are inconsistent with the verdict of not guilty on Count 3.

Background

  1. The appellant was born on 16 February 1948.  He was aged between 61 years and 63 years at the time of the offences and 69 years at sentence.
  2. The indictment alleged all three counts of rape occurred between 3 July 2009 and 1 February 2012.  All related to the one male complainant.  He was born on 3 July 2003.  The complainant was aged between six and eight years at the time of the offences and 13 years at the time of trial.
  3. All three counts of rape were said by the male complainant to have occurred whilst he was staying at the appellant’s residence at Runcorn in the State of Queensland.  The complainant stayed at the residence for a period of approximately two weeks.  The complainant’s mother was in a relationship with the appellant at that time.
  4. Count 1 was particularised as being an act of anal intercourse which occurred in an area of the garage under the house.  Counts 2 and 3 were particularised as acts of anal and oral intercourse which occurred in the kitchen area.  Count 2, the act of anal intercourse, was immediately followed by Count 3, the act of oral intercourse.

Trial

  1. The appellant’s trial commenced on 30 May 2017.  The Crown called the complainant and eight other witnesses.  At the conclusion of the Crown case the appellant elected not to give or call evidence.
  2. The issue at trial was whether the three acts of rape occurred at all.  Central to that issue was the jury’s assessment of the complainant’s reliability and credibility.

Complainant’s Evidence

  1. The complainant first spoke to police on 26 August 2015.  That interview was recorded and tendered at trial pursuant to Section 93A of the Evidence Act 1977.  At the time of that interview the complainant was 12 years-of-age and living with this father.
  2. The complainant told police he had lived in a few different places throughout his life.  His father had a ‘mental problem’.  He had only ever lived with his mother on holidays.  The complainant said he was both a Cook Islander and Italian.  The complainant described himself as a ‘Prince of the Cook Islands’.  His Great, Great Grandfather was ‘Chief of the Cook Islands’.
  3. The complainant told police he had informed his teacher he had been raped a fair few times, not just once.  The complainant spoke to his teacher because, after he had been raped, he started to “go weird” and was placed on medication.  As a consequence of the medication he suffered blackouts that would last for about two seconds.  He had one in class.  Luckily he struck his teacher’s shoe, rather than the ground.
  4. The complainant, when asked whether it had been determined why he had blacked out, said “yeah, the exact same reason when I was raped”.  When he was raped “a lot of thoughts went through [his] head and stuff”.  He would black out once every day.  It normally happened at home.  It had never happened at school before.  The blackouts all started after he was raped.
  5. When asked by police to tell them about the rape, the complainant said “He put his dick in my ass at least five times while I was over there, every time mum went out, he did it to me.  I just didn’t want to be there anymore, so I told mum.”  He did not tell his mum about the rapes; “I told mum can I go home and I went home”.
  6. The complainant said the man who raped him was his mother’s boyfriend or “fiancée by now.”  He thought his first name was Gary.  He described Gary as “Aboriginal Philippine” with brown skin with black hair, or white by now and two front teeth “gone.”  He was not tall and swore a lot.  He was “all flabby – he’s got no muscle at all.”  A description by the complainant was a little hard because “I got a bad memory because everything goes out, comes in and it stays for about two days, and it’s gone.”
  7. The complainant said his mother told him Gary was 64.  His mother was 27.  The complainant said “it’s pretty much like he was raping my mum, because [of] how old he was, plus my mum had a baby, my sister.  My birth mum had a baby when she was 14, so she was probably raped.”
  8. The complainant told police the rapes last happened about four years ago in a garage when he was seven, turning eight.  Gary had two four wheel drives, one red and one green.  Both were not “stock standard”.  They had “nice wheels”.  Gary’s house had a backyard with two palm trees, a type of bush thing, a clothes line and a shed near the house.  Something happened in the shed near the house.  Gary also “did it” in the house two times.
  9. The house was described as double storey, made of wood and bricks.  The floors were “nice polished wood everywhere”.  The house had concrete stairs to walk up outside the house.  There was also a spiral staircase inside the house.  The house was quite big, with at least eight bedrooms.  The garage was high.  It would fit two four wheel drive vehicles.  In the garage were benches under which were tins of paint.  There was only one door into the garage.  There was also a little area of garage connected to it.
  10. The complainant indicated, on a drawing he made of the house, the bedroom used by Gary and his mother, as well as the complainant’s bedroom and the bedroom of his uncle downstairs.  At the time, the complainant’s grandmother and eight year-old uncle were living in the house downstairs.
  11. The complainant was raped when his mother was out.  It happened a couple of times.  It was school holidays.  He was living with his father and only went to his mother’s for the holidays.  It was intended he go there for the six weeks of the school holidays.  He only remained for two weeks.  All the acts of rape occurred within that two week period.  The complainant left because he could “not handle it anymore”.  He had his eighth birthday whilst he was living at Gary’s residence.  He denied anything happened on his birthday.
  12. The complainant thought the first time it happened was two days before his eighth birthday.  His mother and grandmother had left to go somewhere.  Gary took the complainant downstairs into the section attached to the garage, where he repeatedly raped him.  In that area there were paint tins and some tools and a least two wooden benches.  The complaint’s mother returned home about half an hour after the rape.  The complainant did not tell her what had happened to him.  He was too scared, too worried.
  13. The rape occurred against a stool.  Gary shoved three cigarettes into the complainant’s mouth and lit them.  He did that a couple of times, like he was trying to make the complainant smoke.  The complainant chucked them away.  Gary started swearing at him a lot.  Gary then pulled down his pants and the complainant’s pants.  He put his penis in the complainant’s ass “for like 10 minutes I think it was, or something.”
  14. Initially, the complainant said the stool was not used for anything on the first occasion of rape.  No one sat on the stool.  It looked like it had been there for a year or two.  It had dust and stuff on it.  Later, the complainant said he was kneeling on the stool on the first occasion.  Gary was standing up, bending over.
  15. The complainant had a sore hand from the edge of the stool.  He also hit his head on the wooden bench when Gary was doing it to him.  His hands were on the stool and Gary was pushing forward.  He hit the bench because it was only a short distance from the stool.  The complainant had a big bruise on his head.  He did not think anyone saw it as he had long hair.  The complainant only saw it when he went for a shower.
  16. The complainant said whilst Gary had his “dick” in his ass, he was moving his body going back and forth.  Gary was swearing at the complainant telling him to shut up or he would rape his mother.  The complainant was fighting a lot.  After ten minutes the complainant got out.  The complainant wanted to go upstairs and find a knife and stab him in the heart, but he did not “have the guts” to do so.  The complainant felt a lot of anger.
  17. The complainant said on the second occasion, his mother said she was going to the pokies for an hour.  At that time the complainant was sitting on a couch watching television.  Gary sat down and put on the wrestling.  The complainant changed it back because his mother had said he could have the TV remote.  Gary said it was not his mother’s TV.  For about 20 minutes they kept flicking back and forth between channels.  At one point, the complainant threw the remote at Gary’s head.
  18. The complainant went to his room to find a plastic baseball bat.  The complainant did not know why he looked for the bat.  He said he did not have his tablet that day and he got “pretty flipped out”.  The complainant found a metal bat in the cupboard.  He thought it would be good.  Gary threw it out the open window.
  19. Gary put the stool from the garage, which had been used on the first occasion of rape, over near the dining table.  The complainant did not know why the stool was brought upstairs.  He thinks Gary liked carrying it around the house.  The complainant described the stool as a three stair stool, made out of black plastic.
  20. The stool was to put the complainant’s hands on.  The complainant described being bent over the stool.  Gary pushed his knees to “one of the stair things”, pulled down the complainant’s pants and his own pants and put his penis in the complainant’s ass again and went back and forth.  Gary was making a weird noise, like a moaning voice.
  21. The second occasion lasted three minutes or so and commenced after the complainant’s mother drove into the driveway.  The complainant said as his mother opened the door, Gary “started raping me”.  Gary then turned the complainant around and put the complainant’s face to his penis and put the complainant’s mouth over it.
  22. Gary only had his penis in the complainant’s mouth for about two seconds because the complainant “kicked it away”.  He thought he broke Gary’s penis.  Gary swore at him and hit him really hard over the head with something made out of wood.  Gary then pulled up his pants, went up the ladder and jumped back into the roof cavity.  The complainant thinks he was checking the “installation or something”.
  23. Two minutes later, the complainant’s mother came up the stairs.  The complainant was calling for his mother.  When his mother got to the door, it looked like nothing had happened.  Gary was up in the ceiling.  The complainant told her about Gary swearing at him and hitting him and about not leaving the channel alone.  His mother “went nuts” and Gary ran away.
  24. The complainant did not tell his mother that Gary had raped him because he had “no guts”.  He was too scared of Gary.  The complainant was also scared his mother would say he was lying because “everyone says Dad doesn’t even believe me when I first told him”.
  25. The complainant described Gary’s penis as brown, about 17 cm long.  It was purple pink colour at the end with skin at the back.  When asked if it was hard or soft, the complainant said the whole thing was medium.  He saw white stuff all over it when Gary shoved his penis in the complainant’s mouth.  When asked where the white stuff was coming from, the complainant replied “well it definitely didn’t come out of my bum”.  He thought it came out of Gary’s penis.
  26. The complainant described it coming out really hard from the end of Gary’s penis.  The white stuff was on the complainant’s face and bum.  The complainant was getting a tissue and cleaning it up when his mother came upstairs.  His pants were already pulled back up.  The complainant described the white stuff as slimy “like saliva but not saliva”.  He touched the white stuff on his bum when he was pulling up his pants.
  27. The complainant said on the second occasion his body was hurting, just hurting more again.  When asked what parts, he said his “bum and choking”.  It hurt when he was walking around for one to two days.  He remembered wiping his bum and seeing blood the day after the second occasion of rape.  The complainant did not go to the toilet for about two days after the first occasion of rape because he was sore.
  28. The complainant said the first two times were a couple of days apart.  When asked whether it happened a few other times the complainant said “no, I think only twice”.  The complainant said when he was leaving, Gary said good-bye to him and said “I’d kill your mum when I’m done” with whatever he was doing.  The complainant said sleeping there had made him feel uncomfortable.  He would wait until Gary went to bed.  He was afraid Gary was going to rape him again.
  29. The complainant spoke to Aunty Sam, his father and his helper at school about what happened to him.  He did not tell that helper what had actually happened, he simply made some comments, but without much detail.  He told the guidance officer at school some of what had happened, but not much.  He told his father about a year or two ago.
  30. The complainant told his Aunty Sam when he was about eight and a half years old.  Aunty Sam made sure he had no contact with his mother, other than once at a park without her boyfriend.  The mother could only stay for an hour or two.
  31. The complainant wanted to tell people now because he did not want his uncle to get raped.  His uncle still lived downstairs with the appellant.  The complainant wanted Gary to go to jail “before he did something like kill [the complainant’s] mum.”  The complainant had not seen his mother since the incidents.
  32. The complainant could not sleep well anymore.  He had sleeping tablets.  He also took dexamphetamine for ADHD (Attention Deficit Hyperactivity Disorder).  The complainant felt safe with his father, who would not let anything happen to him.
  33. The complainant’s evidence at trial was pre-recorded on 15 February 2017.  In chief, the complainant identified a number of photographs as depicting Gary’s house and backyard, the areas inside the garage where the first act of rape occurred and the area upstairs where the second act of rape occurred.  The complainant identified the wooden bench referred to in the first act and a bookcase referred to in the second act of rape.
  34. In cross examination, the complainant agreed he had been shown the previous day the video recording of his interview with police.  It had jogged his memory.  As time went on it was harder for him to remember things which happened some time ago.  Before he watched the video, the complainant could remember some of the things that happened to him except “pretty much the house and the place”.[1]  He could not remember some of the details he told police but for having watched the video.  The complainant had a bad memory.  Sometimes he would forget things a couple of days after they happened to him.
  35. The complainant said Gary raped him twice.  The first act of rape occurred in the off-garage area and the second act of rape occurred near the door in the kitchen.  If he told police he was raped five times, that was wrong.  He agreed there was a big difference between two and five times.  He accepted that would be a big mistake.[2]
  36. The complainant accepted he had a tough upbringing.  His mother left him when he was very young.  His father had had problems at various times, including being admitted to hospital for mental health issues.  There were mental health issues in relation to his mother as well.  The complainant was raised by his grandfather at times and at other times he stayed with his Aunty Sam.  He called Aunty Sam “Mum”.
  37. The complainant accepted his father was sent to jail for a time when he was growing up, after he had struck the complainant with a skipping rope.  The complainant had seen his father take drugs at some stage.  The complainant himself got into trouble while growing up.  He was caught stealing all the time.  The complainant was caught stealing cigarettes while he was living with his Aunty Sam.  He got into trouble for that theft.
  38. Aunty Sam grounded him for stealing those cigarettes for a fairly long time.  It was only after receiving that punishment that he told Aunty Sam about the appellant forcing him to smoke cigarettes.  Aunty Sam asked for more details.  He told Aunty Sam the appellant touched him and made the claimant touch the appellant.  He did not use the word rape.  He did not know what that meant.
  39. The complainant accepted that did not fit with what he had told the police.[3]  He did not tell police anything about the appellant making him touch the appellant.  He denied that meant that on one of the occasions what he said was wrong.  He said “they are both right”.[4]  He denied making these things up to his Aunty Sam because he was getting into trouble and he wanted to get himself out of trouble.
  40. The complainant accepted he had been diagnosed with ADHD at a fairly young age.  He was on those medications before he met the appellant.  He took medication because he had trouble concentrating and could not focus.  He recalled telling a doctor he had voices in his head, telling him to do bad things.  He described it as “a devil voice”.  He had struggled with it for a few years.
  41. The complainant accepted he had a few issues at school, at various points in time.  He had been suspended on a number of occasions.  He was expelled from high school.  The complainant also accepted he suffered blackouts from time to time.  The blackouts happened more than once.  They happened once a day.   He still had blackouts “occasionally here and now.”
  42. The complainant said when he went to visit his mother he was supposed to stay for six weeks, but left after two.  He did not want to be there anymore because of the appellant.  He accepted his mother did not want him to be there anymore either.  His mother arranged for his father to collect him because she was having trouble controlling his behaviour.  When he was picked up by his father, he said he hated the appellant.  He did not tell his father anything about being raped by the appellant.
  43. The complainant accepted he told police he thought the appellant was 64 years-of-age, the complainant’s mother was 27 years-of-age, and he thought the appellant was basically raping his mother as well.  The appellant was “like 40 years older” than the complainant’s mother.  He considered that to be rape.  He also accepted he told police he thought there were eight bedrooms in the house.  Eight bedrooms was a lot and he could be wrong.  He did not accept if he was wrong about that, he could be wrong about other things.
  44. The complainant could not remember where his mother was on the first occasion of rape.  Nobody was around in the house.  It occurred in the day time.  He did not recall saying anything to the appellant or whether he called out for help.  The incident caused him injuries.  His “arse hurt”.[5]  He did not tell anyone about that while he was at the house.  He did not go and see a doctor.  He thought he first saw his mother after the first rape around 6 pm or 7 pm.  He did not tell his mother anything when he saw her.
  45. The complainant said during the second occasion of rape his mother came home whilst the appellant was raping him.  The complainant could see her through the window, arriving in the driveway.  His mother went into the garage for a while after arriving home.  He heard a door open.  She was there for five or six minutes.  The complainant heard her come upstairs.  Nothing was happening when his mother came upstairs.
  46. The complainant agreed he told police that when his mother came upstairs he was cleaning up with a tissue.  He could see his mother while he was doing that cleaning.  He did not call out to his mother at any point in time during or around the incident.  He did not call out to anyone for help.
  47. The complainant agreed the first person he told was his Aunty Sam, after she had grounded the complainant.  He then told his father when he went back to live with him.  This was three or four years after the rapes but before he spoke to police.  He told his father the appellant “hit me, sexually abused me and stuff like that”.[6]
  48. Between the rapes and speaking to police he was seeing doctors about various things.  He discussed some quite personal things with the doctors.  He did not tell the doctors what had happened.  He did not talk to them about “that stuff.”  They were not psychiatrists.  He did not tell anyone else about it over that period.  His teacher told the police after the complainant said something in class.

Other Evidence

  1. Sarah Doherty, a psychologist, saw the complainant as a client on four occasions in 2014.  In her last session with the complainant, on 16 December 2014, the complainant told her he had been touched by his mother’s partner.  The disclosure “seemed a little bit out of the blue”.[7]  She did not doubt the validity of his statement.  She decided to refer him to a service more suitable to meet his needs.  She referred him to Mr Warbank.
  2. Doherty also referred to older conditions.  Attention deficit hyperactivity disorder refers to children with issues with attention and hyperactivity.  Those children have trouble paying attention and with concentration.  Emotional regulation issues refer to issues managing emotions.  Children with emotional regulation often get upset and lash-out.  Poor frustration tolerance refers to children getting frustrated easily, including a lack of ability to manage frustration.  These terms were a description of the complainant’s behaviours.  She could not recall what her reference to manipulative behaviour was in relation to, or where she received that information.
  3. In cross examination, Doherty agreed that in her letter of referral she used the words “lying and deceitful behaviour”.  Doherty could not recall whether she wrote that on the basis of the complainant’s Aunty’s reports, when she first spoke to her.  She agreed it correlates with oppositional defiant disorder.  Oppositional defiant disorder relates to children with significant behavioural issues who act-out in relation to authority or other figures.
  4. Aaron Warbank, a psychologist with the Department of Health, Child and Youth Mental Health Service, saw the complainant as a patient from March 2015 to December 2016.  He was referred to Warbank’s clinic by another psychologist.  The referring concerns were previous diagnoses of oppositional defiant disorder, attention deficit hyperactivity disorder (ADHD), and a history of trauma and disrupted attachments with carers.
  5. Warbank saw the complainant alone for the first time on 17 August 2015.  During that interview, the complainant told Warbank his “mother’s partner raped me”, when he was around eight years-of-age.  The complainant visited his mother and the appellant for several weeks.  It was the first visit he had had with his mother since she went out of his life when he was an infant.  He also mentioned that the mother’s partner stuffed cigarettes into his mouth.
  6. Shane Stefanack, the complainant’s teacher, said sometime after the Easter break in 2015, the complainant told him he had been raped by a family member or his uncle.  The conversation occurred in an Italian class being conducted by a relief teacher.  Stefanack was sitting near the complainant and other students.  The disclosure came out of the blue.  The complainant was not obviously emotional while making that disclosure.  Stefanack told the complainant they would speak after class.
  7. Stefanack then took the complainant to the school’s guidance officer.  During the conversation with the guidance officer and Stefanack, the complainant mentioned he had been raped and was currently speaking to someone about it.  Stefanack could not recall if it was a psychologist or a counsellor.
  8. Stefanack agreed he told police the complainant was not always truthful about things in class.  Stefanack was referring to interactions with other students.  If Stefanack asked the complainant whether he was involved with something, the complainant might not tell the whole truth at the time.  Usually, the complainant was quite truthful afterwards.  The complainant had lied about things “a couple of times”.[8]  The complainant had issues in adjusting to unfamiliar people.
  9. Catherine Lawson, a guidance officer with the Department of Education and Training Queensland, spoke to the complainant on 18 August 2015.  Stefanack had requested her support due to a disclosure the complainant had made in front of him in the classroom.  The complainant told her he had been raped by his mother’s ex-partner or partner who was approximately 60 years old.  This person put cigarette butts out on him at the time.
  10. Lawson contacted Warbank.  She understood he was a treating psychologist for the complainant at that time.  She contacted Warbank because the complainant said he was already getting support.  She wanted to confirm that was the case.
  11. The complainant’s grandfather cared for the complainant from about the age of one through to eight years-of-age.  He was assisting the complainant’s father.  He recalled an occasion when the complainant went and stayed with his mother.  The complainant was aged between six and seven years.  When he picked up the complainant from that visit, the complainant told him he had been touched by his mother’s boyfriend.  The complainant did not use the word “raped”.
  12. The grandfather did not contact police after he heard the complainant’s allegation.  He felt it was a very slim case.  He honestly believed the complainant would not be believed by the police.  He commenced looking after the complainant again.  Slowly, over the next couple of weeks, he noticed a very dramatic change in the complainant’s behaviour.  After eight to ten months the complainant went to live with his Aunty Sam.
  13. The complainant’s Aunty Sam, has cared for the complainant on and off over a number of years.  He calls her ‘mum’.  She remembered an occasion when the complainant came to stay with her towards the end of 2011.  Her brother, the complainant’s father, was struggling and had “belted” the complainant.  She offered to support her brother.  The complainant stayed with her for approximately three years.
  14. Sometime in 2012, the complainant stole cigarettes.  She asked him why and how he knew to smoke a cigarette at eight years-old.  The complainant told her that when he stayed with his mother over the Christmas period the year before, her boyfriend forced him to smoke a cigarette and drink alcohol.  When she pushed him further, the complainant told her “he touched me on the willy and asked me to touch him there too”.[9]
  15. The only other thing the complainant told her was the complainant received money and any time he referred to his mother was for money.  The complainant did not tell her anything further.  She did not go to police at that time.  She said she did not understand what to do.  Having the complainant in her care was a lot of pressure and she did not want to push the situation any further.  She was only 21 years-of-age.
  16. In cross examination, Aunty Sam accepted the complainant was a fairly difficult child around that time.  The complainant had stolen cigarettes.  She grounded him for a long time and took away his toys.  He was also not able to go across the road to the park.  She saw the seriousness of him smoking at such a young age.  It was a significant punishment.  She was angry with the complainant at the time.
  17. Aunty Sam had a lot of deep and meaningful conversations with the complainant to try and find out why he wanted to smoke cigarettes.  The first explanation he gave was that the mother’s boyfriend forced him to smoke.  It was only when she pressed him further in a series of conversations, that he said something about being touched on the willy by his mother’s boyfriend.  The words he used was “touched me and made me touch him”.  Those were the only details the complainant gave at that point in time.
  18. The complainant’s father, gave evidence that the complainant initially lived with him and the complainant’s mother as a family.  However, from about the age of one year the complainant lived with him alone.  The complainant visited his mother for one week when he was about eight years old.  He was meant to visit his mother for three weeks.  However, the complainant’s mother rang and he went to pick up the complainant.
  19. In the car ride back to their home, the complainant told him he hated the appellant.  Sometime after the car ride home after visiting his mother, the complainant said the appellant had done bad things.  He thought the complainant said the appellant was a bad man, that he did not like the appellant and that he did not want to go back to see his mother again.  That conversation was before the complainant went to live with Aunty Sam.  In neither conversation did the complainant say the appellant had touched him or that he had been raped by the appellant.
  20. In the months after the complainant’s return from his mother’s house, the complainant’s father was hospitalised for depression.  The complainant ended up in the care of his Aunty Sam.  The complainant only told him the full story after the complainant had told the school.
  21. Jasmine Orr, a police officer, undertook an investigation of the complainant’s complaint.  She caused photographs to be taken of the appellant’s residence.  She tried to obtain a statement from the complainant’s mother.  She was unable to do so as the complainant’s mother is subject to infirmity of the State.  As such, under the Mental Health Act, she is unable to be spoken to by police.
  22. In cross examination, Orr agreed that no forensic examination of the complainant was undertaken in this case.  She also agreed that nothing matching the complainant’s description of a black plastic stool was found at the appellant’s address.  She attended that address to take photographs on 5 February 2015.
  23. At the conclusion of the Crown case, it was formally admitted the appellant rented the relevant house at Runcorn between 11 October 2010 and mid to late July 2011.

Appellant’s submissions

  1. The appellant submits the verdicts of guilty were unreasonable and cannot be supported by a consideration of the evidence as a whole, as the Crown case relied wholly on the word of the complainant who gave inconsistent, contradictory and implausible accounts of each of the offences, the subject of Counts 1 and 2 on the indictment.
  2. The contradictions and inconsistencies were significant.  They included the complainant initially telling police of being raped at least five times and on another occasion, saying every time his mother went out.  Further, the complainant gave evidence of opportunities to immediately make complaint with an implausible explanation as to why he did not do so.  The complainant had complained to his mother immediately about a range of behaviours, including violence inflicted on him by the appellant, yet made no mention of being raped by the appellant.
  3. This implausibility was heightened by the complainant’s account of how each occasion of rape came to a conclusion.  The first concluded with the complainant swinging a paint can, which stuck the appellant’s head, causing him to fall to the ground.  The second occasion concluded with the complainant kicking the appellant’s penis.  That latter occasion also included evidence of “white stuff” being present and being cleaned up by the complainant at the time of his mother’s arrival in the room.
  4. The complainant’s inconsistencies also included accounts given to the complainant’s grandfather, father and aunt.  These accounts included that the appellant had touched the complainant’s penis and he had asked by the complainant to touch the appellant’s penis.  That version was not consistent with the complainant’s account of the events the subject of the rapes.
  5. The appellant further submits that the verdicts of guilty of Count 2, but not guilty of Count 3, were inconsistent.  Both offences were said to have been committed on the same day in the one location, as part of the same episode.  The evidence for both offences came from one witness, the complainant.  There is no proper basis upon which to satisfactorily explain the jury being satisfied of the complainant’s account beyond reasonable doubt in respect of Count 2, but not in respect of Count 3.  They are irreconcilable.

Respondent’s submissions

  1. The respondent submits the verdicts on Counts 1 and 2 were not unreasonable or unsupported by the evidence.  Inconsistencies in the complainant’s account were matters properly to be considered by the jury, in the context of other evidence supportive of his reliability and accuracy, such as photographs supporting his description of the house and his complaints to others.
  2. The events described by the complainant were not implausible.  They were a description given by a 12 year-old, of events which occurred when he was only eight years-of-age.  The striking by the paint can and by the kick, may not have been as powerful as recollected by a small boy.  Similarly, the complainant’s account as to the relevance of the stool was explicable by the complainant’s age, as was the complainant’s description of ejaculate on the second anal rape.  The jury was entitled to consider, on the whole of the evidence, that the complainant’s account contained a consistent core set of allegations which were supported by credible, reliable evidence.
  3. The respondent further submits that the verdict of not guilty on Count 3 was not inconsistent.  It was reconcilable on a consideration of the evidence as a whole.  The complainant’s account was of the appellant’s penis being in his mouth for a very short time after he saw ejaculate on his bum.  A jury was entitled to entertain a logical and reasonable doubt about the reliability of this account, whilst still accepting the reliability and credibility of the complainant’s evidence on Count 2.

Consideration

Unreasonable verdict

  1. The test to be applied in considering this ground is not in dispute.  The Court is to independently assess the whole of the evidence, both as to its sufficiency and quality, to determine whether it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt of the offences, the subject of Counts 1 and 2 on the indictment.  In undertaking that task, the court must be mindful of the primacy of the jury’s role in determining the appellant’s guilt.[10]
  2. A consideration of the complainant’s evidence reveals marked inconsistencies in his initial account to police and his evidence at trial.  Those inconsistencies included both the frequency of the acts of rape and the circumstances in which they occurred.  However, there was a core consistency in the circumstances of the two acts of rape, the subject of Counts 1 and 2 of the indictment.
  3. In his version to police and in evidence, the complainant consistently recounted an act of anal rape in a part of the downstairs garage and a further act of anal rape in an upstairs area, adjacent to the kitchen of the appellant’s residence.  The circumstances in which each act of rape occurred and the actions of the appellant on each occasion, were also consistently recounted by the complainant.
  4. Whilst there were inconsistencies in relation to the use and relevance of a stool during those acts, and a level of questionable recollection as to the circumstances in which each act ended, it does not follow those inconsistencies and questionable details were of such a magnitude as to cause a jury to doubt the reliability and credibility of the complainant’s account of having been anally penetrated without his consent on each such occasion.  This conclusion is supported by consideration of the photographic evidence, which was consistent with the complainant’s recollection of the house.
  5. Whilst the complainant’s initial complaints to his grandfather, father, and aunt did not include allegations of rape, the lack of such a complaint was properly a matter for the jury to consider in assessing the complainant’s reliability and credibility.  That lack of detail did not mean the jury could not accept the complainant as a reliable and credible witness.
  6. A consideration of the evidence as a whole, including the significance of those inconsistencies and the questionable aspects of the ending of each episode, supports a conclusion that it was open to the jury to be satisfied beyond reasonable doubt of the complainant’s guilt of each of the offences of rape.  Neither verdict of guilty on Counts 1 or 2, was unreasonable.  This ground fails.

Inconsistent verdicts

  1. The principles for determining this ground were also not in dispute.  In determining whether a jury’s verdicts upon differing accounts were inconsistent, the test is one of logic and reasonableness.  It is for the appellant to establish that “the verdicts cannot stand together because ‘no reasonable jury, who had applied their mind properly to the facts in the case could have arrived’ at them.”[11]
  2. In undertaking that assessment, this Court must respect the jury’s function.  A verdict will not be inconsistent if there is a proper way by which an appellate court may reconcile those verdicts.[12] Such a conclusion is consistent with the charge given to a jury that they must consider each count separately and determine, in respect of each count, if all of the ingredients have been proven beyond reasonable doubt.
  3. In R v GAP,[13] it was accepted that a jury’s assessment should be respected, even if an appellant court cannot understand why the jury did not accept the complainant’s evidence on a particular count.  Such a conclusion is consistent with a requirement that a relevant inconsistency normally only arises where the different verdicts returned by the jury are: an affront to logic and common sense and strongly suggests a compromise in the performance of the jury’s duty, or confusion in the minds of the jury, or a misunderstanding of their function, or uncertainty about the legal difference between specific offences, or a lack of clarity in the instruction of the applicable law.[14]
  4. In the present case, it would not be inconsistent for the jury to reach differing verdicts in respect of the differing occasions of rape.  These were separate episodes, days apart.  Such a conclusion would be consistent with the jury respecting the judge’s direction that they consider each count separately.  It would also be consistent with a jury giving due allowance for an inconsistency in the accounts given in respect of the counts of rape.
  5. However, the inconsistency arises in relation to the verdicts on Counts 2 and 3.  Those counts arose out of one episode in respect of which the complainant gave a consistent, specific and detailed account.  That episode occurred over an uninterrupted period, with the act of oral rape (Count 3), the subject of a ‘not guilty’ verdict, occurring immediately after the act of anal rape (Count 2), the subject of the ‘guilty’ verdict.
  6. The complainant’s account was that those acts occurred when his mother had returned to the downstairs area of the residence.  The complainant’s account included a specific description of ejaculate on both his bottom and his face, which he was in the course of cleaning at the time his mother entered the upstairs area.  There was nothing in the evidence which drew a distinction between his account of only anal rape, and that of anal and oral rape.
  7. A consideration of the evidence of the complainant, and of the other evidence called at trial, provides no logical or reasonable basis for the jury to have drawn a distinction between the reliability and credibility of the complainant’s account in respect of the act of anal intercourse (Count 2) and the reliability and credibility of his account in respect of the act of oral intercourse (Count 3).
  8. There was nothing in the complainant’s account, or in the surrounding evidence, which would cause the jury to have been satisfied beyond reasonable doubt of the appellant’s guilt of the act of anal intercourse (Count 2), but not be satisfied beyond reasonable doubt as to the complainant’s guilt of the act of oral intercourse (Count 3).  This conclusion is reinforced by a consideration of the complainant’s account that the ejaculate was present both on his bottom and on his face.
  9. The inconsistent verdicts are not explained by a conclusion that the jury found the presence of ejaculate implausible, having regard to the immediate arrival of his mother at a time when he was cleaning his face.  If that were to be the explanation, the jury ought to have had a reasonable doubt in respect of his account of anal rape on that same occasion.
  10. The different verdicts on Counts 2 and 3 are an affront to logic and common sense.  They are only consistent with either a compromise in the performance of the jury’s duty, or some confusion or misunderstanding in respect of the jury’s function and as to the legal difference between those specific offences.

Conclusions

  1. Whilst the jury’s verdicts were not unreasonable, the jury’s verdicts of guilty of Count 2 but not guilty of Count 3 are legally inconsistent.  As any compromise, confusion or misunderstanding could also have infected the jury’s deliberations on Count 1, both verdicts of guilty should be set aside.

Orders

  1. I would order:
  1.  The appeal be allowed.
  1.  The verdicts of guilty on Counts 1 and 2 be set aside.
  1.  There be a re-trial in respect of Counts 1 and 2 on the indictment.

Footnotes

[1]  AB 20/12.

[2]  AB 21/26-27.

[3]  AB 24/8.

[4]  AB 24/18.

[5]  AB 30/3.

[6]  AB 34/35.

[7]  AB 56/20.

[8]  AB 50/15.

[9]  AB 62/12-14.

[10] R v Baden-Clay (2016) 258 CLR 308 at [65]-[66].

[11] R v GAW [2015] QCA 166 at [19]; see also [20]-[23].

[12] R v GAW at [20].

[13]  [2013] 1 Qd R 427.

[14] R v GAW at [22].

Editorial Notes

  • Published Case Name:

    R v Bond

  • Shortened Case Name:

    R v Bond

  • MNC:

    [2018] QCA 130

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, McMurdo JA, Boddice J

  • Date:

    22 Jun 2018

Litigation History

Event Citation or File Date Notes
Primary Judgment DC2516/16 (No Citation) 31 May 2017 Date of Conviction (Richards DCJ).
Appeal Determined (QCA) [2018] QCA 130 22 Jun 2018 Appeal allowed; convictions on counts 1 and 2 set aside; retrial in respect of counts 1 and 2 ordered: Sofronoff P and McMurdo JA and Boddice J.

Appeal Status

{solid} Appeal Determined (QCA)