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R v SDE

 

[2018] QCA 286

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v SDE [2018] QCA 286

PARTIES:

R
v
SDE
(appellant)

FILE NO/S:

CA No 23 of 2018

DC No 545 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Cairns – Date of Conviction: 7 February 2018 (Fantin DCJ)

DELIVERED ON:

23 October 2018

DELIVERED AT:

Brisbane

HEARING DATE:

17 October 2018

JUDGES:

Sofronoff P and Morrison JA and Davis J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of two counts of rape – where the appellant called but did not give evidence at trial – where the evidence led by the appellant challenged the complainant’s credibility but did not directly contradict the complainant’s evidence – where the appellant submits that the directions given did not properly instruct the jury how to use the evidence led by the appellant – whether the trial judge not instructing the jury that they need not accept the evidence led by the appellant to find him not guilty amounted to a miscarriage of justice

Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66, distinguished

R v De Silva [2018] QCA 274, cited

R v Gunewardene [1951] 2 KB 600, considered

R v Hoban [2000] QCA 384, cited

R v Johnson & Honeysett [2013] QCA 91, cited

R v Lapuse [1964] VR 43; [1964] VicRp 7, distinguished

R v Lawrence [2002] 2 Qd R 400; [2001] QCA 441, cited

R v Lavery (2013) 116 SASR 242; [2013] SASCFC 46, cited

R v McBride [2008] QCA 412, followed

RMD v Western Australia [2017] WASCA 70, cited

Salmon v The Queen [2001] WASCA 270, cited

COUNSEL:

M J Copley QC for the appellant

S J Farnden for the respondent

SOLICITORS:

McMillan Criminal Law for the appellant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    SOFRONOFF P:  I agree with the reasons of Davis J and the order his Honour proposes.
  2. [2]
    MORRISON JA:  I agree with the reasons of Davis J and the order his Honour proposes.
  3. [3]
    DAVIS J:  The appellant appeals his conviction after a trial in the District Court in Cairns of two counts of rape.[1]  Both counts averred that the offences were domestic violence offences.[2]  The complainant who, at relevant times lived with her mother and the appellant in Cairns, is the step daughter of the appellant who is married to the complainant’s mother.  The first offence was alleged to have occurred in May 2014 and the second in October 2015.  As at May 2014, the complainant was 13 years of age and as at October 2015 she was 15.[3]
  4. [4]
    The appellant did not give evidence at the trial, but called his wife, who gave evidence.  The sole ground of appeal is that the jury was not instructed as to how they should consider that evidence.  There was no complaint at trial about the point now being raised on appeal and no application by the appellant for any redirections.

The evidence

  1. [5]
    On 16 March 2016, about five months after the later of the two incidents, the complainant was interviewed by police in Cairns.  That interview was recorded and admitted into evidence pursuant to s 93A of the Evidence Act 1977 (Qld) (the s 93A statement).  Her evidence at the trial was later recorded and admitted pursuant to section 21AK of the Evidence Act 1977 (Qld) (the s 21AK evidence).
  2. [6]
    During the s 93A interview the complainant said that the first rape occurred when she and the appellant travelled to Brisbane to meet other members of the appellant’s family.  The complainant’s mother did not travel on the trip and she remained in Cairns.  The complainant stayed with the appellant at the Hotel Grand Chancellor for one night, being Saturday 17 October 2015.[4]  This was all corroborated by other witnesses.[5]  The complainant alleged that on that evening in Brisbane the appellant penetrated her vagina with his penis while he was wearing a condom.[6]  She said that she froze[7] and was crying,[8] that she tried to stop him[9] and that she did not want the intercourse to happen.[10]
  3. [7]
    The complainant went on to allege that the second incident occurred when she and the appellant had driven from Cairns to Townsville.[11]  Again, the complainant’s mother did not accompany them and remained in Cairns.[12]  She was apparently ill.[13]  When in Townsville the appellant and the complainant spent time with friends of the appellant, Mr GD and his partner, Ms MQC.  Mr GD’s birthday was on 20 October 2015 and a surprise birthday party had been arranged for the weekend commencing 17 October.  Both Mr GD and Ms MQC gave evidence at the trial and confirmed that the appellant and the complainant were in Townsville with them that weekend.[14]  While the complainant could not recall the name of the hotel in Townsville at which she and the appellant stayed,[15] un-contradicted evidence was received that the appellant booked into a one bedroom apartment in the Quest Apartments in Townsville on 17 October 2015 and left on 18 October.[16]
  4. [8]
    After attending Mr GD’s birthday party, the complainant and the appellant returned to the Quest Apartments.  The complainant told police in the s 93A interview that the appellant raped her in the apartment.[17]
  5. [9]
    In the s 21AK evidence, counsel for the appellant put to the complainant that there was never sexual contact of any kind between her and the appellant in May 2014, October 2015 or at any other time.  She disagreed with that proposition.[18]  It was suggested to her that she had been mischievous on social media including by making false allegations against people.  She denied this but did admit that her mother and the appellant took steps preventing her from using social media including, for a time, prohibiting her from having a mobile telephone[19].  There was further cross-examination on matters of credit but it is not necessary to go into the detail of that evidence.  She confirmed under cross-examination that she made complaint about the offences to PJM, who had been her boyfriend at some stage, and said that what she told Mr PJM was true.[20]
  6. [10]
    Detective Senior Constable Greenwell gave short evidence which resulted in the admission into evidence of various documentary records of the two hotels and the marriage certificate of the appellant and the complainant’s mother.[21]
  7. [11]
    It was necessary for the Crown to prove the marriage of the appellant to the complainant’s mother, because that placed the complainant in an “adoptive or step relationship” with the appellant for the purposes of s 222 of the Code; incest.  By s 578, on a charge of rape,[22] conviction of the offence of incest is open as an alternative verdict.  Here, the learned trial judge left incest as an alternative to each count of rape.[23]
  8. [12]
    PJM told the jury that the complainant had told him that the appellant raped her on two occasions.[24]  This was evidence of preliminary complaint.[25]  The conversation probably occurred in January 2016, about three months after the trip to Townsville.[26]  Under cross examination Mr PJM was referred to his police statement.[27]  In the statement he relayed to police the conversations he had with the complainant where she told him what the appellant had allegedly done to her.  He agreed that what was recorded in the statement was an accurate recording of what she told him.  As to the incident in Brisbane, she had told Mr PJM that the appellant had covered her mouth with tape and then tied her to the bed before raping her.[28]  In relation to the incident in Townsville, she told him that the sexual activity either happened in the shower or may have started in the shower and ended with the appellant tying her up and putting tape on her mouth before raping her.[29]  In her s 93A interview, there was no mention of the appellant taping the complainant’s mouth or tying her to a bed.  This inconsistency was relied upon by the defence as reflecting adversely on the complainant’s credit.
  9. [13]
    Headspace National Youth Mental Health Foundation Limited offers counselling to young people.  The complainant contacted that organisation in March 2016 and told a clinician of the commission of the two offences.  Documentary evidence of these disclosures was tendered through admissions made on behalf of the appellant.[30]  That evidence was admitted as evidence of preliminary complaint.[31]
  10. [14]
    As already observed, the appellant did not give evidence but his counsel called the complainant’s mother.  In evidence-in-chief the complainant’s mother was asked this:

“Would you believe her on her oath or a solemn affirmation?---No.”[32]

  1. [15]
    This evidence was led in reliance upon the common law rule that a witness who has knowledge of the character of another witness may be asked to say whether he or she would believe the statement by the other witness on oath.[33]  The rule, though, is that a witness who gives such evidence cannot then go on to explain the reason for forming the view about that other witness’s credit.[34]  Another exclusionary rule, the finality rule, in general, prohibits the leading of evidence on collateral issues such as credit.[35]  The complainant’s mother gave further evidence, the effect of which was that the complainant had sent mischievous messages on social media including misleading messages that she had cancer.  Whether the leading of that evidence offended the common law rule as explained in R v Gunewardene[36] need not be determined.  In R v Lawrence,[37] McPherson JA noted a modern trend towards relaxation of the finality rule.[38]  Whether the finality rule was offended here need not be determined.  The evidence was all lead without objection.
  2. [16]
    The complainant’s mother confirmed that the complainant and the appellant had undertaken the two trips, respectively to Brisbane and Townsville.[39]  She said that while the complainant and the appellant were away on the Brisbane trip, she was in contact with the complainant by telephone and text messages.[40]  In relation to the trip to Townsville, the complainant’s mother said that “[the complainant] was texting [her] the whole time she was down there.”[41]  Although she was not specifically asked, the inference is that there was no complaint made by the complainant to her mother about any misconduct by the appellant.
  3. [17]
    The complainant’s mother was cross-examined.  She agreed that before the allegations arose the complainant and the appellant were “thick as thieves[42]” but denied that they would share a bed together when that was put to her.[43]  She also said that after the two trips the complainant was affectionate to the appellant and was apparently comfortable in his presence when she was only wearing underwear.[44]  That evidence might be some evidence of the relationship between the complainant and the appellant.  There was some challenge attempted of the evidence that the complainant had been mischievous on social media.[45]  She was cross-examined as to the why she did not believe the complainant’s allegations.[46]  That cross-examination was without objection but may have offended the rule in R v Gunewardene.[47]  It was put to her that she was financially dependent upon the appellant[48] but it was not put to her that she was being deliberately untruthful.
  4. [18]
    In cross-examination of the complainant’s mother, further evidence of preliminary complaint was elicited.  The complainant told her mother in January 2016 that she had been raped by the appellant.[49]

The ground of appeal

  1. [19]
    One ground of appeal was argued, namely:

“A miscarriage of justice occurred because the jury was not instructed about how it should consider the defence evidence.”

  1. [20]
    The appellant’s complaint is that the jury ought to have been directed to the effect of a standard direction which appears in the Supreme and District Courts Benchbook as follows:[50]

The proper approach is to understand that the prosecution case depends upon you the jury accepting that the evidence of the prosecution’s principal witness, [the complainant] was true and accurate beyond reasonable doubt, despite the sworn evidence of [the complainant’s mother]; you do not have to believe that [the complainant’s mother] is telling the truth before the accused is to be found not guilty.”[51]

  1. [21]
    The standard direction is derived from statements made by Brennan J (as his Honour then was) and Deane J in Liberato v The Queen,[52] and has become known as a Liberato direction”.  For ease of reference, I will use that term.
  2. [22]
    The ground of appeal properly acknowledges that in the case of an alleged failure of a trial judge to give a direction, where no such direction was sought at trial, the appeal can only succeed if the failure to give the direction has resulted in a miscarriage of justice.[53]  The appellant must demonstrate “…that the direction should have been given and it is ‘reasonably possible’ that the failure to direct the jury ‘may have affected the verdict’”.[54]

Liberato directions

  1. [23]
    Liberato v The Queen[55] was an appeal from the Court of Criminal Appeal in South Australia who had dismissed an appeal against convictions for rape.  Mason ACJ (as his Honour then was), Wilson and Dawson JJ, while accepting that there were errors in the summing up, refused special leave on the basis there was no point of law raised such as to justify a grant of leave.  Brennan J (as his Honour then was) and Deane J would have granted special leave and would have allowed the appeal.  The statements of Brennan and Deane JJ in dissent in Liberato have influenced the summing up to juries of cases where an accused has either given evidence or called evidence in their defence.[56]
  2. [24]
    In an often cited passage, Brennan J in Liberato said:

“When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue. His Honour did not make that clear to the jury, and the omission was hardly remedied by acknowledging that the question whom to believe is ‘a gross simplification’.”[57]

  1. [25]
    Deane J on the same topic said:

“The above misdirections about onus of proof must be considered against the background of a number of passages in the learned trial judge's summing up in which he carefully and correctly explained to them the requirements of the criminal onus and standard of proof. They must, however, also be considered against a background where, on a number of occasions, his Honour directed the jury in terms which indicated that the overall question for them essentially involved the making of a "choice" between prosecution and defence evidence: "in many ways this case boils down to who do you believe"; "You may well think that the attitudes are so far apart that you have to make a choice"; "The case may well be one as I have put to you before, where the real question is who do you believe on the whole of the evidence, (the complainant) or the accused?" Provided that they are accompanied by clear and unequivocal directions about the criminal onus and standard of proof, express or implied references in a summing up to a "choice" between particular witnesses are, no doubt, sometimes unavoidable and commonly unobjectionable. The main significance of the directions about having to make a "choice" lies, in the present cases, in their clear suggestion that the "real question" in the cases turned upon a mere "choice" between the evidence of the complainant and that of the accused and in the possible contribution of that suggestion to the overall effect of the misdirections about onus of proof…”.”[58]

  1. [26]
    Well before Liberato, the Full Court of the Supreme Court of Victoria decided R v Lapuse.[59]  That was a case where the accused had given evidence and the trial judge instructed the jury that the real issue was as to which version was correct; that of the Crown witnesses or that of the accused.  In allowing the appeal, the Court observed:

“The jury may have been satisfied beyond reasonable doubt to accept one or other of the opposing versions, but their attention was at no time directed to the fact that they might find themselves in an intermediate position in which they were not satisfied beyond reasonable doubt that the version of the Crown witnesses was true.”[60]

  1. [27]
    R v Lapuse was followed by the Queensland Court of Criminal Appeal in R v George,[61] in setting aside a conviction for stealing.  George was decided four years before Liberato.
  2. [28]
    A conviction was set aside in R v McBride[62] by this Court where the complainant and the accused had both given evidence and a Liberato direction was not given.  R v Johnson & Honeysett[63] was an appeal against conviction for assault.  The Crown called not only the complainant, a Mr Vlaisan, but also a witness to the altercation, a Ms Popescu.  Ms Popescu gave evidence favourable to the accused.  No Liberato direction was given in relation to her evidence and the case was left to the jury essentially as a contest between the evidence of Mr Vlaisan (consistent with the accused’s guilt) and the evidence of Ms Popescu (consistent with the accused’s innocence).  In setting aside the conviction, Holmes JA (as her Honour then was), with Fraser JA and Daubney J agreeing, said:

“Counsel for the appellants referred to a series of cases in which this court and its predecessor emphasised that where there was conflicting Crown and defence evidence, the jury should be directed that if they were left in doubt as to where the truth lay, the verdict should be not guilty: R v George; R v Booth; R v McBride. The same logic, in my view, applies in this situation. The jury should have been directed that if they were left in doubt as to which of the two versions was correct, they should acquit; and that, even if they did regard Ms Popescu’s evidence as less reliable than that of Mr Vlaisan, they should not convict if the former’s evidence left them with a reasonable doubt about the matters in issue: as to whether the Crown had excluded self-defence and provocation, in the case of Honeysett, and had proved Johnson’s involvement in the second assault.”[64]

  1. [29]
    Johnson & Honeysett was not, like Liberato, Lapuse, George, and McBride a case where the contest was between evidence led by the Crown and evidence led by the accused.  The Court held though that the direction was necessary to ensure that the jury considered the case consistently with the burden of proof remaining upon the Crown.  That of course, is the point of a Liberato direction.[65]
  2. [30]
    In R v De Silva,[66] the accused did not give evidence, but his version of events was before the jury in the form of a recording of an interview conducted by police.  It is well settled that a jury can rely on exculpatory statements made in a police interview, as well as incriminating statements.[67]  It was held, though, that no Liberato direction was required on the facts of that case.[68]
  3. [31]
    Buss P sitting in the Court of Appeal of Western Australia last year observed in RMD v Western Australia:[69]

“It is well-established that a Liberato direction is not required as a matter of law. See, for example, Salmon v The Queen [2001] WASCA 270 [3] (Malcolm CJ), [11] (Kennedy J), [101] (McKechnie J). Such a direction should be given, however, if, in the circumstances of the particular case, there is a real (as distinct from a fanciful) risk that the jury may otherwise have the impression that disbelief of an accused's evidence, or preference for a complainant's evidence, means that the State has proved its case beyond reasonable doubt. See Cooper v The State of Western Australia [2010] WASCA 190 [38] (Buss JA); Turner v The State of Western Australia [2014] WASCA 214 [11] (Mazza JA, Hall J agreeing).”[70]

  1. [32]
    In Salmon v The Queen,[71] McKechnie J cited with approval statements of Murray J in Miles v The Queen.[72]  In Salmon, McKechnie J said:

96 In Miles, Wallwork J agreed with certain passages in Miller J's judgment but did not deal with this particular question. Murray J took a different view from Miller J. He conducted an analysis of Liberato, saying at par 14:

"In my opinion it is clear that Brennan J was not intending to lay down any particular addition of principle to the form of direction required in relation to the onus and standard of proof, but was seeking to make it clear that if the directions of the trial Judge included observations about conflicting evidence, care should be taken to avoid any observations which might compromise the clarity and effectiveness of the directions of law on the onus and standard of proof."

97 His Honour analysed the decisions in Latham[73] and Middleton[74] before concluding at par 17:

"In my respectful opinion the nature of the directions to be given about the onus and standard of proof will depend upon the particular circumstances of the case, the evidence relied upon by prosecution and defence, and the way in which that evidence is discussed, if at all, and commented upon by the trial Judge ..."

98 I would, with respect, adopt Murray J's analysis of the authorities which is more detailed than I have, for convenience, merely sketched.”[75]

  1. [33]
    In R v Lavery,[76] Nicholson J, with whom Kelly and Peek JJ agreed, said of Liberato:

“Nevertheless, it would seem that an omission to direct in the way advocated by Brennan J (and Deane J) as just set out did not sufficiently trouble the majority on the facts of the case before it. The majority was not prepared to review the Court of Criminal Appeal’s decision to dismiss the appeals following its application of the proviso in s 353(1) of the Criminal Law Consolidation Act and notwithstanding the presence of various identified defects in the summing up. It cannot be, and notwithstanding the strong language used by Brennan J (“must”), that in every case of oath against oath the failure to give a Liberato type direction, that is, in the terms stated by Brennan J, will result in a successful appeal.”[77]

  1. [34]
    Salmon has often been followed and is consistent with the Queensland cases.[78]  In R v McBride,[79] Holmes JA (as her Honour then was) said:

[30] While such a direction might not be essential in every case where a defendant gives evidence (depending on what else is said), in this case it was, at the very least, desirable. This was a case in which P’s and the appellant’s versions of the crucial events were starkly opposed. P’s evidence was not corroborated in any way. It was important that the jury understood that their decision to convict or acquit was not a simple question of deciding which of the conflicting accounts of P and the appellant they found more credible. The direction given failed to explain to the jury that it was possible for them to find the defence evidence unconvincing or, indeed, to reject it, but nevertheless, to acquit if they were not satisfied that the Crown had made out its case beyond reasonable doubt. That deficiency would not have been improved by the note on which his Honour ended the summing up. On the other hand, he did remind the jury repeatedly of the need to be satisfied of the appellant’s guilt beyond reasonable doubt; and if this were the only lack in the summing up, I might not be convinced of a miscarriage of justice.

[31] But in addition to failing to bring the intermediate possibility to the jury’s attention, there was, I think, a real prospect that the statement, “On the other hand, his evidence may strengthen the case for the prosecution”, left the jury with the impression that an adverse view of the appellant’s evidence could serve to bolster the Crown case. This was not a case in which the Crown sought to rely on lies told by the appellant, and no Edwards direction was given. His Honour’s reference to strengthening the prosecution case was capable of being understood as meaning that if the jury took the appellant to be lying, it would go to support a conclusion of guilt. In leaving that interpretation open, it was a dangerous misdirection.”[80]

The submissions

  1. [35]
    The appellant in his written outline submitted this:

“Brennan J said that it was “essential” to ensure by an appropriate direction that the jury understands that a rejection of the defence evidence does not conclude the issue about whether the prosecution has proved its case. Brennan J said that the jury “must be told” that even if they prefer the prosecution’s evidence they should not convict unless satisfied of guilt on that evidence and that even if the jury does not accept positively the defence evidence the jury cannot, essentially, convict if that evidence is apt to raise a reasonable doubt.”[81]

  1. [36]
    If that submission was meant as an assertion that a Liberato direction must always be given when an accused gives or calls evidence, the submission ought to be rejected.  However, the appellant went on to submit as follows:

“A miscarriage of justice has occurred because there is a significant possibility that the jury reasoned in the way that that direction would have guarded against.”[82]

  1. [37]
    It can be accepted that if such a significant possibility exists then a miscarriage of justice has occurred and the appeal ought to be allowed.
  2. [38]
    The Crown accepted that no Liberato direction was given.  It was submitted though that no miscarriage of justice had occurred because a Liberato direction was not warranted given the nature of the evidence given by the complainant’s mother, and further that when the summing up is considered as a whole there was no real risk of impermissible reasoning by the jury.

Consideration

  1. [39]
    The evidence of the complainant’s mother did not directly contradict the evidence of the complainant.  Indeed, her evidence corroborated the complainant’s evidence by confirming that the complainant and the appellant travelled together to Brisbane in 2014 and to Townsville in 2015.  The complainant’s mother also provided evidence of a further instance of preliminary complaint.  What her evidence did, though, was to raise issues from which the appellant hoped the jury would draw a reasonable doubt as to the credibility of the complainant.
  2. [40]
    The complainant’s mother did not provide the jury with an alternative version of events, so there was no danger that if evidence of an alternative version was rejected the jury would accept the complainant’s version to some standard below that of proof beyond reasonable doubt and convict the appellant.  Logically, the rejection of the complainant’s mother’s evidence must be based on the acceptance of the credibility of the complainant, which was the central and proper issue for the jury’s consideration.  It is difficult to see that there was any real danger of impermissible reasoning following a rejection of the evidence of the complainant’s mother.
  3. [41]
    In any event, the summing up taken as a whole left no risk that the jury would reason in an impermissible way to guilt upon a rejection of the complainant’s mother’s evidence.
  4. [42]
    A proper direction was given as to the presumption of innocence, the burden of proof and the standard of proof.[83]
  5. [43]
    A direction was given consistently with Azzopardi v The Queen,[84] namely that the fact that the appellant had not given evidence should not be taken against him (an Azzopardi direction).  An Azzopardi direction is necessary where the accused has not given evidence even if the accused has called witnesses.[85]  The trial judge said:

“Finally, I turn to comment on the defendant. The defendant has not given evidence. That is his right. He is not bound to give evidence. The defendant is entitled to insist that the prosecution prove the case against him if it can. And the prosecution bears the burden of proving the guilt of the defendant beyond a reasonable doubt. The fact that the defendant did not given evidence is not evidence against him. It does not constitute an admission of guilt by conduct, and it may not be used to fill any gaps in the evidence lead by the prosecution. It proves nothing at all.

And you must not assume that because he did not give evidence, that adds in some way to the case against him. It cannot be considered at all when deciding whether the prosecution has proved its case beyond a reasonable doubt, and most certainly does not make the task confronting the prosecution any easier. It cannot change the fact that the prosecution retains the responsibility to prove guilt of the defendant beyond reasonable doubt. The defendant must still satisfy you beyond reasonable doubt that any defence is excluded.”[86]

  1. [44]
    There is an error in the last sentence of that direction.  The reference to “the defendant” is wrong.  In context, the error is obvious.  The jury were specifically told that the Crown bore the onus to disprove any relevant defence.[87]  Here, mistake of fact[88] was left for the jury’s consideration on the question of consent.[89]  Her Honour directed the jury that it was upon the prosecution to exclude mistake of fact.[90]  No redirection was sought.  On the hearing of the appeal, Mr Copley QC, who appeared for the appellant, told the Court that he had noticed the error but took no point about it.  It can be ignored.
  2. [45]
    The jury were directed that the Crown case depended upon an acceptance of the complainant’s evidence beyond reasonable doubt.  Her Honour directed:

“So, members of the jury, if you accept the complainant’s evidence beyond reasonable doubt, which is entirely up to you, you would be satisfied that there was penetration, and you would be satisfied it was without her consent, because that is the effect of her evidence. But as I say, it is entirely up to you whether you accept that evidence.

If you do not accept her evidence beyond reasonable doubt that this event occurred, there would be a finding of not guilty, of course, if you had a reasonable doubt about what she says. If you accepted the act took place, but had a reasonable doubt that she did not consent – in other words, if you had a doubt about whether or not there was consent – then you would go and consider the alternative count of incest.”[91]

  1. [46]
    And later:

“You’ve got to look at the evidence relating to the particular charge to see whether the Crown has proved its case for each charge one by one. If you have a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one or both counts, whether by reference to her demeanour or for any other reason, that must be taken into account in assessing the truthfulness or reliability of her evidence generally. Your general assessment of witnesses will be relevant to all the counts, but you will have to consider the evidence in respect of each count when considering that count.”[92]

  1. [47]
    Consistently with Robinson v The Queen,[93] the jury were directed:

“I’m going to say something further now about the complainant’s evidence. You need – you will need to scrutinise the evidence of the complainant with great care before you could arrive at a conclusion of guilt, because of the following circumstances. First, there is a delay between the time of the alleged incidents and the time the defendant was told about the complaint and how that delay may have affected his opportunity to prove or disprove the allegations. Now, the delay here was this. The first count was said to have occurred in May 2014, the second count in October 2015. The evidence of preliminary complaint is in January 2016, but the interview with the police is not until March 2016, so it’s a little under two years from the alleged incidents which make up the first count.

In the scheme of sexual offences, that delay is not particularly significant, but what is relevant is that delay may have affected, for example, the availability of a timely medical examination of the complainant, which may have revealed evidence tending to inculpate or exculpate the defendant, particularly in relation to count 1. The allegations are that the defendant wore a condom on each occasion, which would limit the forensic evidence able to be obtained, but the fact is that there was some delay.

And both charges are alleged to have occurred in a hotel room, so you might think that there may have been a limited opportunity to obtain evidence from the room itself if an immediate complaint had been made. And there may have been – the delay may have affected any opportunity to retrieve text messages of preliminary complaint made by the complainant to her friend NAC, but that matter would only be relevant to the complainant’s credit. It would not be relevant to proof of the offences.

The second reason which is relevant is because of the difference in the account the complainant gave to Mr PJM. Now, I have already read out to you in detail, from the transcript, the account that Mr PJM gave in his cross-examination of what he said to police and what the complainant had said to him, and you are aware that there are inconsistencies between that evidence and what the complainant’s evidence is. You would only need to exercise great care in considering the complainant’s evidence if you, first, accepted that Mr PJM was a witness of truth and that his account of what the complainant said was accurate.

Finally, you should only act on the complainant’s evidence if, after scrutinising it with great care, considering all the circumstances relevant to its evaluation and paying heed to this warning, you are convinced of its truth and accuracy.”[94]

  1. [48]
    As can be seen, it was made very clear to the jury by the learned trial judge that the Crown case depended upon an acceptance of the complainant’s evidence to a standard beyond reasonable doubt.  In various ways, this was confirmed to the jury on numerous occasions during the summing up.  In all the circumstances of the case, and taking the summing up as a whole, there is no risk that the jury has impermissibly reasoned that upon rejection of the complainant’s mother’s evidence a verdict of guilty could be returned absent an acceptance of the complainant’s evidence beyond reasonable doubt.
  2. [49]
    It follows that there has been no miscarriage of justice.  The ground of appeal has not been made out, and I would dismiss the appeal.

Footnotes

[1]  The jury in an earlier trial in May 2017 was discharged after being unable to reach a verdict.

[2] Criminal Code s 564(3A).

[3]  Birth certificate, exhibit 11: Appeal record book (ARB) 277.

[4]  Transcript of 93A evidence, exhibit for identification A: ARB 300; Guest Registration – Hotel Grand Chancellor, exhibit 9: ARB 272.

[5]  Evidence of BMS: ARB 145; exhibit 8: ARB 271; exhibit 9: ARB 272.

[6]  Transcript of 93A evidence, exhibit for identification A: ARB 317.

[7]  At 312, 314, 323.

[8]  At 314–314, 317.

[9]  At 322.

[10]  At 313.

[11]  At 324.

[12]  At 324.

[13]  At 324.

[14]  Evidence of GD: ARB 85; Evidence of MQC: ARB 88.

[15]  Transcript of 93A evidence, exhibit for identification A: ARB 337.

[16]  Evidence of Shawn Lewis Nicolls: ARB 91; Evidence of Detective Senior Constable Stuart Adam Greenwell: ARB 94; Bundle of Quest Townsville Hotel records, exhibit 10: ARB 273.

[17]  Transcript of 93A evidence, exhibit for identification A: ARB 325–326.

[18]  Transcript of 21AK evidence: ARB 33.

[19]  At 33.

[20]  At 35–36.

[21]  Evidence of Detective Senior Constable Stuart Adam Greenwell: ARB 92–95; Guest Registration – Hotel Grand Chancellor, exhibit 9: ARB 272; Bundle of Quest Townsville Hotel records, exhibit 10: ARB 273; Marriage Certificate of SDE and BMS, exhibit 12: ARB 279.

[22] Criminal Code (Qld) s 349.

[23]  Sheet A – Elements of Offences, exhibit for identification K: ARB 377.

[24]  Evidence of PJM: ARB 127.

[25] Criminal Law (Sexual Offences) Act 1978 s 4A.

[26]  Evidence of PJM: ARB 125.

[27]  At 129–130.

[28]  At 130.

[29]  At 130.

[30] Criminal Code (Qld) s 644; Transcript of the trial: ARB 132–135; Eheadspace session notes and transcript, 14 March 2016, exhibit 13: ARB 281; Eheadspace session notes and transcript, 15 March 2016: ARB 290.

[31] Criminal Law (Sexual Offences) Act 1978 s 4A.

[32]  ARB 141.

[33] R v Gunewardene [1951] 2 KB 600 at 608–609; R v Hoban [2000] QCA 384 at [25]–[27] and R v BDX (2009) 24 VR 288 at [27]–[46], [185].

[34] R v Hoban [2000] QCA 384 at [26].

[35]  In Natta v Canham (1991) 32 FCR 282 at 295 and following, the Full Court of the Federal Court of Australia considered the development of the rule.

[36] [1951] 2 KB 600.

[37]  [2002] 2 Qd R 400.

[38]  At [11].

[39]  Evidence of BMS: ARB 145–146.

[40]  At 146.

[41]  At 147.

[42]  At 147.

[43]  At 147.

[44]  At 150.

[45]  At 148.

[46]  At 149–150.

[47] [1951] 2 KB 600.

[48]  Evidence of BMS: ARB 149.

[49]  At 149.

[50]  With appropriate adaptations.

[51]  Item 26.1 in the benchbook.

[52]  (1985) 158 CLR 507.

[53] Criminal Code (Qld) ss 668D and 668E; Dhanhoa v The Queen (2003) 217 CLR 1 at [38].

[54] Dhanhoa v The Queen (2003) 217 CLR 1 at [38], citing Simic v The Queen (1980) 144 CLR 319 at 332.

[55]  (1985) 159 CLR 507.

[56]  In Victoria, see R v KDY (2008) 185 A Crim R 270; in New South Wales, see R v E (1995) 89 A Crim R 325; in South Australia, see R v Lavery (2013) 116 SASR 242 and in Western Australia see Miles v The Queen [2000] WASCA 364.

[57]  At 515.

[58]  At 515.

[59]  [1964] VR 43.

[60]  At 46.

[61]  [1980] Qd R 346.

[62]  [2008] QCA 412.

[63]  [2013] QCA 91.

[64]  At [21].  Footnotes omitted.

[65] Azarian v Western Australia (2007) 178 A Crim R 19 at [11].

[66]  [2018] QCA 274.

[67] R v Callaghan [1994] 2 Qd R 300.

[68] R v De Silva [2018] QCA 274 at [41]–[43].

[69]  [2017] WASCA 70.

[70]  At [165].

[71]  [2001] WASCA 270.

[72]  [2000] WASCA 364.

[73] Latham v The Queen [2000] WASCA 57.

[74] Middleton v The Queen (2000) 114 A Crim R 141.

[75]  At [96]–[98].  Footnotes added.

[76]  (2013) 116 SASR 242.

[77]  At [34].  Footnotes omitted.

[78] R v Lavery (2013) 116 SASR 242; R v Chen (2002) 130 A Crim R 300; R v Booth [2005] QCA 30 at [6]–[8]; R v McBride [2008] QCA 412 at [30]; R v Johnson & Honeysett [2013] QCA 91.

[79]  [2008] QCA 412.

[80]  At [30]–[31].  Footnotes omitted.

[81]  At [11].

[82]  At [12], referring to R v Johnson & Honeysett [2013] QCA 91 at [21]–[22] and Middleton (2000) 114 A Crim R 141 at [12]–[14].

[83]  Summing up: ARB 224.

[84]  (2001) 205 CLR 50 at [51].

[85] R v Hartfiel [2014] QCA 132 at [3] (Margaret McMurdo P) and [48] (Muir JA, with whom Dalton J agreed), following R v GAJ [2011] QCA 141 at [42].

[86]  Summing up: ARB 226.

[87]  At 229.

[88] Criminal Code (Qld) s 24.

[89]  Summing up: ARB 228–229.

[90]  At 229.

[91]  At 227.

[92]  At 229.

[93]  (1999) 197 CLR 162.

[94]  At 233–234.

Close

Editorial Notes

  • Published Case Name:

    R v SDE

  • Shortened Case Name:

    R v SDE

  • MNC:

    [2018] QCA 286

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Morrison JA, Davis J

  • Date:

    23 Oct 2018

  • White Star Case:

    Yes

Litigation History

Event Citation or File Date Notes
Primary Judgment DC545/16 (No Citation) 07 Feb 2018 Date of Conviction (Fantin DCJ).
Appeal Determined (QCA) [2018] QCA 286 23 Oct 2018 Appeal against conviction dismissed: Sofronoff P and Morrison JA and Davis J.

Appeal Status

{solid} Appeal Determined (QCA)