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R v Sollitt

 

[2019] QCA 44

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v Sollitt [2019] QCA 44

PARTIES:

R
v
SOLLITT, Allan Gordon Desmond
(appellant/applicant)

FILE NO/S:

CA No 134 of 2018

CA No 266 of 2018

DC No 89 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 8 May 2018; Date of Sentence: 23 May 2018 (Coker DCJ)

DELIVERED ON:

19 March 2019

DELIVERED AT:

Brisbane

HEARING DATE:

18 February 2019

JUDGES:

Holmes CJ and Morrison and Philippides JJA

ORDERS:

  1. The appeal against conviction is dismissed.
  2. The application for an extension of time within which to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – RAPE – where after a retrial on the charge of rape, the appellant was convicted and sentenced to seven years imprisonment – where the appellant appeals against his conviction of rape to this Court – where the question for the appellate court must always be whether the Court considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty – where the predominant issue at trial was the issue of consent, including a mistake of fact as to the complainant’s consent – where the respondent submitted that it was open to the jury to conclude that the consent to sexual intercourse referred to by the complainant in cross examination evidence was not free and voluntary – where there was abundant uncontroverted evidence given by the complainant of sustained violence by the appellant in the period immediately prior to intercourse – where it was for the jury, and open to them, to find that the complainant gave an honest and reliable account, particularly given that it was corroborated by the evidence of both children and photographic evidence of her injuries – whether the verdict was unreasonable or insupportable – whether the appeal should be allowed

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – OFFENCES AGAINST THE PERSON – RAPE – whether directions as to mistake of fact were confusing and objectively inaccurate – whether in giving a final direction on mistake of fact there was error in failing to give a repeat direction on the standard of proof required of the prosecution to negate the defence of mistake of fact beyond a reasonable doubt – where the final redirection was given in conjunction with the aide memoire, which itself specifically identified the requisite standard of proof – whether there has been a misdirection – whether the appeal against conviction should be allowed

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – OFFENCES AGAINST THE PERSON – RAPE – where the applicant sought an extension of time to appeal against his sentence of seven years – where the applicant’s explanation for leave to appeal against sentence was that his lawyer did not provide him with any information about appealing his sentence – where the applicant’s appeal against conviction was lodged in time – whether a provisional assessment of the viability of an application to appeal against sentence demonstrates that the interests of justice do not warrant the grant of the extension application – where the applicant was 41 years old at the time of the offences and 43 years of age at sentence and had repeatedly been convicted of offences of violence, particularly in a domestic setting – where those convictions span almost a 20 year period

Dhanoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited

R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited

R v Motlop [2013] QCA 301, cited

R v Postchild [2013] QCA 227, cited

R v Pryor [2007] QCA 232, cited

COUNSEL:

A J Kimmins for the appellant in relation to the appeal against conviction

The appellant appeared on his own behalf in relation to the sentence application

C A Marco for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant in relation to the appeal against conviction

The appellant appeared on his own behalf in relation to the sentence application

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    HOLMES CJ:  I agree with the reasons of Philippides JA and with the orders her Honour proposes.
  2. [2]
    MORRISON JA:  I have read the reasons of Philippides JA and agree with those reasons and the orders her Honour proposes.
  3. [3]
    PHILIPPIDES JA:  The appellant was charged with a number of offences against the complainant, his then de facto partner, arising out of events occurring on 1 September 2016.  After a trial, he was convicted on 23 February 2018 of two counts of assault occasioning bodily harm (domestic violence offence) and contravention of a domestic violence order with a circumstance of aggravation, committed against his former partner.  The jury acquitted the appellant of a charge of torture.  The jury was unable to reach a verdict in relation to a charge of rape.
  4. [4]
    On 8 May 2018 after a retrial on the charge of rape, the appellant was convicted and sentenced to seven years imprisonment.
  5. [5]
    The appellant appeals against his conviction of rape to this Court on the grounds that:
  1. (a)
    the jury’s verdict was  unreasonable and unsafe; and
  2. (b)
    a miscarriage of justice resulted from the trial judge’s misdirection of the jury on the defence of mistake of fact under s 24 of the Criminal Code (Qld) and, in addition, the prosecutor incorrectly addressing the jury on that issue.
  1. [6]
    In addition, the appellant seeks an extension of time in which to appeal his sentence.  A separate outline was filed in support of this application on 19 December 2018.

Background evidence

The evidence

  1. [7]
    In addition to the complainant’s evidence, which had been recorded, evidence was given by the complainant’s children; Ms Piggott, a forensic nurse at the Townsville Hospital; two police officers stationed in Townsville; and another police officer stationed in Cairns.
  2. [8]
    The appellant elected not to give or call evidence, but at the commencement of the trial, the following admissions were made by the appellant:
  1. (a)
    A domestic violence and family protection order was made against him on 8 October 2014 for a period of two years, expiring on 7 October 2016, which named the appellant as the respondent and the complainant as the aggrieved.
  1. (b)
    That order was served upon the appellant on 12 October 2014 and was in force on 1 September 2016, being the date of the present offence.
  2. (c)
    The appellant attended the complainant’s home on 14 June 2014, between 12 and 15 October 2014, 24 December 2014, 29 May 2015 and 9 March 2016.
  3. (d)
    On 27 June 2015, the appellant attended the home of the complainant in his car, which he parked in the driveway.  An argument developed.  The appellant’s foot slipped off the brake.  The complainant was knocked to the ground and the appellant drove over her legs and torso.
  4. (e)
    Between 11 and 17 November 2015, the appellant sent the complainant a series of abusive text messages.  The messages included threats to ruin her reputation and job, threats to take his own life and abuse in relation to the complainant sleeping with other men.  The text messages included vulgar language.

The complainant’s evidence in chief

  1. [9]
    As at 1 September 2016, the complainant was living with her son, who was 16 at the time, in a house she rented at Kirwan.  The appellant was also residing there.  He and the complainant had been in an on and off relationship for a couple of years at that time.
  2. [10]
    On the afternoon of the day in question, the appellant and complainant were together at the house.  They had been drinking for several hours.  The complainant became tipsy.  The appellant’s mood changed and he gradually became more aggressive and started arguing with the complainant and calling her a slut, whore and other derogatory names.  The appellant became upset because the complainant’s children had spoken of their father.  The complainant said the appellant blew it out of proportion.  She asked him to leave “at least 20 times” but he did not.  The complainant decided to leave the house herself to get away from the appellant and hoped that the appellant might leave in her absence.  She went to the bathroom to get dressed to go out.  The appellant was in the bedroom and started to pack some things.  He was very angry and smashing things.  He continued to call the complainant derogatory names.
  3. [11]
    The complainant left the house and walked to the Kirwan Tavern, which was about 20 to 30 minutes away.  At the tavern, the complainant had two drinks before walking back to the house.  While she was at the tavern, she received abusive text messages from the appellant, saying that she was a slut and whore and accusing her of “sleeping around”.
  4. [12]
    On her return to the house, about two hours later, she decided not to go inside in case the appellant was still there and to sleep in her car instead.  She was pretty drunk at that stage.  She got inside the car and locked the car doors.  About 10 minutes later, the garage roller door opened and the appellant came out to her car.  He started punching the bonnet and roof, he also punched the driver’s side window.  The appellant was “really aggressive” and telling the complainant to get out of the car and continued calling her derogatory names.
  5. [13]
    The complainant got out of the car and started to walk up the street to get away from him. The appellant grabbed the complainant “in, like, a really tight bear hug” and started bringing her back towards the house.  The complainant said that the appellant “tried to sound kind and gentle” and was telling her they could work it out.  Once inside the house, the appellant locked the door and punched the complainant in the head with a closed fist at least three times.  The complainant said she lost control of her bladder.  The appellant continued to abuse her verbally, calling her a “slut and a whore” and saying “You fucking cheated on me”.
  6. [14]
    After the complainant wet herself, she wanted to get out of her clothes.  She had black tights on which she took off.  The appellant dragged her forcefully to the shower, saying something like, “get in the shower, you fucking whore, and wash his cum off you”.  The complainant said she was shaking because the appellant kept punching her and was hitting her repeatedly with the blade and butt of a small paring knife around the head, ribs and chest.  The complainant had not seen the appellant arm himself with the knife.  She saw he was holding it in his fist.  At some stage, the appellant grabbed the complainant’s underwear, yanking them and saying “get them off ... you dirty whore”.
  7. [15]
    Whilst in the shower, the appellant knocked the showerhead off and made the complainant stand under hot, but not scalding, water.  He was still armed with the knife and continued to hit and verbally abuse the complainant.  The complainant was in the shower for some time as the bathroom floor flooded and water was running out to the hallway.  The complainant was scared.  Because of threats the appellant had made in the past, she thought she was going to die and that he was going to cut her throat.
  8. [16]
    The complainant got out of the shower but slipped, and the appellant picked her up by her hair and told her to “Get in the fucking bedroom”.  The complainant tried to wrap a towel around herself.  She slipped two or three more times in the hallway and each time the appellant “grabbed a fistful of … hair” and picked her up.
  9. [17]
    In the bedroom, the complainant laid on the bed.  The appellant continued to punch her and “grabbed” her very hard by her jaw which hurt her.  The appellant took her mobile telephone, cut the charging cable and took money from her purse.  The appellant was saying things like, “You see it on the news all the time.  Men – they kill their ladies.  They stab them 20 or 30 fucking times” and then he said, “You’re going to die tonight.  And, you know, sad loss, anyway.  No one will miss you”.  The appellant continued to punch the complainant to the head, chest and ribs.  The appellant also spat in her face.  The appellant accused the complainant of being unfaithful.  By this stage, the complainant was naked.
  10. [18]
    The complainant gave the following evidence as to what happened in the bedroom:[1]

“After him, like, hitting me this whole time, the whole thing in the shower, being picked up and dragged by my hair to the bedroom, we got there and, you know, in the room and he said, “You’re a slut.  You’ve fucked around on me.  Rah, rah, rah.  I bet you’ve got his cum in you right now.”  And by this stage, I was naked and I can’t remember – I can’t recall the exact words he said to me but it was along the lines of, like, yeah, “Spread your legs” or something.  And I knew that I had to have sex with him because we’d have consensual sex any other night of the week but that was going to be the only thing to convince him that I hadn’t slept around and that to try and make him stop what he was doing.

To make him stop, do you mean the assaults – the punching? --- Yes.

Did you want to have sexual intercourse that night? --- No, I didn’t.  No.

Did you consent to the sexual intercourse that night? ---Yes, I did.  Because---

And why did you consent? --- Because I thought it might make him stop, you know.  Pacify him a bit.”

  1. [19]
    The appellant had sexual intercourse with the complainant for about 10 minutes.  The complainant was asked to describe the appellant’s “demeanour” during intercourse, that is, his “behaviour”, and responded by saying “business as usual”.  The complainant said she was not able to leave at any stage because the appellant told her “If you try to run, bitch, I’ll kill you.  And you know I will”.
  2. [20]
    The sexual intercourse ended when the appellant ejaculated.  The appellant then “sort of rolled away”.  He then laid over the complainant and started crying.  The complainant was lying on the side of the bed furthest from the door because “that’s where [the appellant] told [her] to lay and not move”, saying “If you run, I’ll fucking kill you”.  The complainant said that the appellant said he loved her and laid down and she then thought “this is over”.  The appellant put his leg over her on the bed and they fell asleep.
  3. [21]
    When the complainant woke the next morning, the appellant was still beside her in the bed.  She heard and saw the police at the door.  She said she did not know why she did not open the door.  But after the police left, the complainant’s son, who was with the police, came into the house.  Not long after that, the complainant’s daughter also arrived.  The appellant was still at the house.  The complainant did not tell them at that time what had occurred, but did so after the appellant left later that day.  The complainant described the state of the house that morning; there was broken glass in the lounge room and blood on the bathroom tiles and elsewhere from the appellant having cut his thumb the night before.  She described it as a significant cut but said she could not say whether it was caused by the knife or from “busting the locks”.  Later that afternoon, after the appellant left, the police returned to the house.
  4. [22]
    On the following day, after the complainant was cleaning up with the help of her son, she discovered that a safety cord had been wound up over the back door in the laundry so that it could not be opened.  The complainant also discovered that the appellant had ripped up some of her clothing.

The complainant’s cross examination evidence

  1. [23]
    In cross examination, the complainant agreed that, not long after the start of her relationship with the appellant, a domestic violence protection order was imposed after an application by the police in October 2014.  The complainant agreed that, although the order prohibited contact, they maintained an “on and off” relationship together.  The complainant accepted that she would ask him to come over and the appellant would stay with her for periods of time, stating that the appellant could “be quite forceful” and wanting to be with her and “possessive”.  In the weeks prior to the incident, the appellant would “come and go”.  She agreed that the appellant had “a bag with clothes and his gear” at the house and did some work about the house.  The complainant accepted that, despite being scared of him, she would still invite him over and he would, on occasions, stay for periods.  She explained that “he was insistent.  And when you’re in a domestic violence cycle, this is what happens”.  The complainant said that she was often not the person to contact the police when they argued.
  2. [24]
    The complainant agreed that, on the day in question, she returned home with her daughter to celebrate her daughter having obtained finance to buy a car.  She and the appellant were drinking.  The complainant agreed that her children talked about their father and that was an issue that sometimes aggravated the appellant.  She did not accept that they were doing so to wind him up.
  3. [25]
    The complainant was asked about a photograph of a bath with water taken on the day after the incident.  The complainant could not remember whether the bath had been filled on the day of the incident, but rejected the proposition that the argument on the afternoon in question started because of water from the bathtub being splashed around the bathroom and going into the hallway.
  4. [26]
    The complainant did not accept that, while she was at the tavern, she retaliated against the appellant’s text messages by sending text messages saying that there was “some fucking nice cock here” and “I’m going to fuck all these cunts”.  The complainant accepted that it would have been closer for her to walk to the police station rather than the tavern, but said she did not go to the police station because she was hoping the appellant “wouldn’t be there when I went back home” and she “wasn’t thinking about going to the police at the time”.
  5. [27]
    The complainant denied the proposition put to her that, after the appellant came out of the house and she got out of her car, she walked down the street telling the appellant that she was going to kill herself.  The complainant’s evidence was that she wanted to get away from the appellant and that she had hoped he would be gone because that was “the normal pattern, that he’d find somewhere to stay”.  She was in fear of him and that was why she walked away from him.
  6. [28]
    The complainant also flatly denied a number of other propositions put to her, including that the appellant “never came through the roller door” (which was raised in the context that the roller door was not up when the police arrived).  She denied the suggestion that the reason that the appellant held her tightly in a bear hug was because she was “drunk and walking on the road”.  She denied the proposition that the reason why she wet herself was that she “needed to go to the toilet” after drinking at the tavern.  The complainant reiterated that she wet herself out of fear because the appellant “has hit [the complainant] like that before”.  That had been in Atherton, where the police had taken out the domestic violence order.  She agreed she had not made a complaint on the previous occasion, saying:[2]

Because I’ve always lived in fear of the man …  He’s a big bloke … Every time we’d fight or argued, I’d kick him out and then I’d get a series of threatening texts and phone calls, him saying that – and he had even done this to my kids, my extended family, my sister – threatened to kill them, run through their houses, get them bashed.  He has threatened to send all these filthy disgusting photos, and they were not of me, but they’re from other women on sex websites that he had stuck in his head that might’ve had similar features as me – he threatened to email them to my family and my boss.”

  1. [29]
    She rejected the proposition put to her by defence counsel that the bruising and scratches to her body occurred when she had “stumbled into the garden bed” outside the house.  She also rejected that the way the injuries to her ribs were sustained was that she “fell and … hit the side of the bath tub” after she slipped in the bathroom.  The complainant denied that her and the appellant’s clothing were ripped when she fell in the shower and grabbed a towel rail that came off.
  2. [30]
    Defence counsel also put to the complainant that she told police on 2 September 2016 that she allowed the appellant to have sex with her to prove that she had not had sex with another man and it had nothing to do with being scared.  The complainant replied that, “It was the only way that he was going to stop hitting me repeatedly and abusing me and calling me a whore.  It was the only way I could prove to him”.  The complainant rejected the proposition that, during intercourse, the complainant used a vibrator and they were talking erotically to one another.  The complainant also denied that they, in fact, had intercourse a second time after smoking marijuana.
  3. [31]
    The complainant denied that the paring knife she had described the appellant attacking her with was one she used to carry in her handbag for protection.  The complainant did not accept that, the following morning, she threatened the appellant with the knife and demanded that he leave because of the damage to the property.
  4. [32]
    Defence counsel put to the complainant that she and the appellant regularly fought and had “arguments” in the following extract:[3]

“… regularly fight - have these arguments and then you have make-up sex.  That’s what happens, isn’t it?--- I wouldn’t say all the time.  No.

And there was nothing different in terms of the way in which this happened in terms of having an argument and having make-up sex.  This was the same as any other time?---No.  Well, for him, it was just business as usual.  I didn’t want to sleep with him after he beat the shit out of me.

But in terms of you having sex with him, there was nothing different about it than usual?---I guess not.”

The evidence of the complainant’s son

  1. [33]
    The complainant’s son gave evidence that supported that of the complainant.  He said that on the afternoon in question, the appellant and complainant were drinking and they were arguing and “words were being said both by my mum and [the appellant]”.  The appellant was behaving “pretty aggressively” in his language to him and to the complainant, using vulgar words like “slut, whore”.  They had argued many times, it was not confined to when they were drinking.
  2. [34]
    At one stage, when his mother went to the kitchen, the appellant went into the bedroom and he saw him ripping up his mother’s clothes and her nursing text books.  His mother went into the bathroom and was putting on make up to go out. The appellant kept “carrying on” and was packing his suitcase.  After his mother left the house, around 9.30  to 10.30 pm, he also left.  He decided to stay the night at his girlfriend’s place.  He tried to call his mother but got no answer.
  3. [35]
    He returned early the next morning.  He saw “a fair bit of blood” outside the house.  He knocked on the door and when there was no answer he phoned the police.  He tried to gain entry through the front and back doors.  He called out to his mother.  He could hear muffled talking and knew his mother was inside but was not sure if the appellant was.  He rang his sister.  The police arrived after about 10 minutes and he told them his sister was on her way.  The police also tried to gain access through the back and front doors.  They were at the house for 30 to 45 minutes.
  4. [36]
    It was only after the police had gone and his sister arrived with her boyfriend that his mother opened the door.  When she did he saw that his mother had “a fair bit of bruises” on her arms and legs.  She seemed anxious that both of her children were at the house.  Inside the house he noticed a “fair bit of blood up and down the hallway”.  The bathroom was “all flooded with water all through the hallway cupboard”.  The appellant was still at the house and his suitcase was packed.  The complainant and appellant were ignoring one another which he had not seen before.
  5. [37]
    In cross examination, he accepted that the appellant and the complainant argued “pretty regularly” and agreed that they would both “press each other’s buttons” but said that his mother “wasn’t never the antagoniser” but “once it started, it’d be pretty hard to stop”.  He agreed that the complainant would sometimes carry a little knife with her for protection but said she did not do that while they were living at that house.

The evidence of the complainant’s daughter

  1. [38]
    The complainant’s daughter gave evidence of the events of the afternoon in question.  She was present with her brother.  The appellant and her mother had been drinking.  The appellant became aggressive and angry first about his former partner and then about her own father because they were discussing him.  The appellant started verbally abusing her mother, who was calm at first and trying to pacify the appellant.  Eventually, she asked him to leave “multiple times”.  Her mother said she was going to leave and the appellant responded by being “very aggressive verbally”.  Her mother went to the bathroom to get ready to go out, the appellant was in the bedroom.  He was yelling, throwing things around the room and punching walls.  She heard him saying words like “slut, whore, I’m going to kill you”.  She left with her daughter after her mother had left the house.  She came across her mother later and pulled over.  Her mother was calm and said she would be okay.
  2. [39]
    The next morning, following a call from her brother at about 8.30 am, she returned to the house.  The appellant was inside the house sitting at the kitchen table.  He had a cut on his hand and he said to her, “I really fucked up this time, bub”.  Her mother came over at some stage and sat at the table and said to the appellant, “Get the fuck out of my house”.  He left about half an hour later.
  3. [40]
    After the appellant left, she had a conversation with her mother about what had happened the previous night.  Her mother disclosed that the appellant had committed acts of violence against her and that he accused her of having sexual intercourse with someone else.  She said that she had to have sexual intercourse with him to prove that had not occurred.

Other evidence

  1. [41]
    The complainant was examined on 3 September 2016 by Ms Piggott, who documented the various injuries she observed on a general examination.  Her notations were admitted into evidence.  The injuries observed included abrasions, lumps, bruises and lacerations to the complainant’s head, arms, wrists, back, legs, abdomen and foot.  The complainant also reported tenderness to her ribs and head.  The complainant declined a genital examination, saying that “she wasn’t sore and … she didn’t want to label the offender as a rapist because she hadn’t actually said no to the intercourse”.

The defence case

  1. [42]
    Defence counsel submitted in his address that, in determining the charge, there were questions about “important details” which needed to be considered, which included that there was no photograph of the chopped charger, how the complainant’s mobile was able to receive messages the morning after the incident when she claimed her phone was almost about to go flat and how the roller door came to be closed when the police arrived yet the complainant said it was open the previous evening.  Counsel submitted that, although the appellant had issues with “emotional regulation”, it was not a one way street and that the complainant responded to being called a slut and a whore and that in sending text messages from the tavern she threw “petrol on the fire”.  Counsel suggested that the complainant had exaggerated aspects of her evidence, such as claiming that her car was wrecked by the appellant’s conduct in hitting the roof of the car and the window, giving evidence that she told the appellant, a significantly larger person, to go about 20 to 30 times and in her evidence that she wet herself when the appellant struck her and “saw stars”.  He questioned why there were no injuries noted by the forensic nurse to the complainant’s face, given her evidence of being repeatedly punched in the head.
  2. [43]
    In submissions to the jury, defence counsel questioned why the complainant did not answer the door to the police when they attended and emphasised the complainant’s statement, when examined by the forensic nurse, that she did not want to label the appellant a rapist.  Counsel also put forward for the jury’s consideration that the complainant had an ongoing relationship with the appellant, notwithstanding the domestic violence order, where on occasions she initiated contact.  Counsel invited the jury to find that the relationship was one where “violent outbursts” were something the complainant “accepted as part of the relationship”.  In support of that submission, counsel referred to the admissions that the appellant had contact with the complainant in 2014, 2015 and on 9 March 2016 and suggested to the jury that the appellant had been violent on those occasions.
  3. [44]
    As to the evening in question, the defence submission was that the complainant stated in her evidence that she consented to intercourse referring to that part of her evidence that she did so because she thought it might make him stop and pacify him.  Counsel also referred to her evidence that it was “business as usual”.  It was submitted that the appellant would not have known of her thought process unless she articulated it.  Defence counsel submitted that the relationship was a toxic one and that “at the end of the day, [the complainant] conceded that they would argue and, on occasions, they would have make up sex”.

Appeal against conviction

Ground 1 - Unreasonable verdict

  1. [45]
    In relation to the appellant’s contention that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, such that the verdict is unsafe or unsatisfactory, the question for the appellate court must always be whether the Court considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[4]In determining that question, this Court must undertake its own independent assessment of the evidence, both as to its sufficiency and quality,[5] allowing special respect and legitimacy for the jury’s verdict.[6]Setting aside a jury’s verdict on this ground is “a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial”.[7]The boundaries of reasonableness within which the jury’s function is to be performed should not be narrowed in a hard and fast way.[8]
  2. [46]
    The predominant issue at trial was the issue of consent; including a mistake of fact as to the complainant’s consent.  The Crown case was that, if there was any ostensible consent by the complainant, it was consent induced by force and invalid at law.  Further, in all of the circumstances, the appellant could not have held a mistake of fact as to consent, and, moreover, if he did it was not a reasonable mistake.  The submission for the appellant was that consent was given by the complainant and that sexual intercourse in the context of violent circumstances was not a departure from the usual dynamics of the relationship.  It was submitted that, in those circumstances, the jury could not exclude that the appellant held an honest and reasonable belief as to consent.
  3. [47]
    Before this Court, the appellant placed emphasis on two parts of the trial transcript in contending that a properly instructed jury would have entertained a reasonable doubt as to whether the appellant held an honest and reasonable but mistaken belief as to the complainant’s consent to intercourse.
  4. [48]
    The first concerned the following exchange, referred to earlier at [18]:[9]

“… What happened in the bedroom?--- After him, like, hitting me this whole time, the whole thing in the shower, being picked up and dragged by my hair to the bedroom, we got there and, you know, in the room and he said, “You’re a slut.  You’ve fucked around on me.  Rah, rah, rah.  I bet you’ve got his cum in you right now.”  And by this stage, I was naked and I can’t remember – I can’t recall the exact words he said to me but it was along the lines of, like, yeah, “Spread your legs” or something.  And I knew that I had to have sex with him because we’d have consensual sex any other night of the week but that was going to be the only thing to convince him that I hadn’t slept around and that to try and make him stop what he was doing.

To make him stop, do you mean the assaults – the punching? --- Yes.

Did you want to have sexual intercourse that night? --- No, I didn’t.  No.

Did you consent to the sexual intercourse that night? ---Yes, I did.  Because---

And why did you consent? --- Because I thought it might make him stop, you know.  Pacify him a bit.”

  1. [49]
    The second concerned cross examination evidence given by the complainant in response to questioning as follows:[10]

“Counsel: … I was asking you some questions about the act of sex that occurred in the bedroom, and you’ve said in evidence-in-chief why you say that occurred – why you allowed that to occur or why you [participated] in it, I should say.  But you told the police on the 2nd of September 2016 that:

‘He had sex with me and I allowed it because I knew – because that’s what I knew he was wanting.  And that was my only way of proving to him that I haven’t slept with anyone else – anyone because I didn’t have another man’s cum in me and I don’t really want to talk about it any more.  I’ve had enough.’

It had nothing to do with being scared.  It was simply that you wanted to prove to him that you hadn’t had sex with someone else.  That’s why you did it?

Complainant: It was the only way that he was going to stop hitting me repeatedly and abusing me and calling me a whore.  It was the only way I could prove to him.”

  1. [50]
    The respondent argued that it was open to the jury to conclude that the consent to sexual intercourse referred to by the complainant in cross examination evidence was not free and voluntary, “given the proximity of the vicious and prolonged assault he inflicted upon her and his threats to kill her”.  That submission must be accepted.  There was abundant uncontroverted evidence given by the complainant of sustained violence by the appellant in the period immediately prior to intercourse.  This evidence included that while verbally abusing the complainant, the appellant had punched the complainant in the head three times, hit her with his fists and the blade and butt of a knife and made the complainant stand in the shower under hot water.  Further, after pulling her off the ground by her hair and directing her to “get in the fucking bedroom”, the appellant, as already mentioned, said, “You see it on the news all the time.  Men - they kill their ladies.  They stab them 20 or 30 fucking times … You’re going to die tonight.  And, you know, sad loss, anyway.  No one will miss you”.
  2. [51]
    It was entirely a matter for the jury, and open to them, to find that the complainant gave an honest and reliable account, particularly given that it was corroborated by the evidence of both children and photographic evidence of her injuries.
  3. [52]
    It is also not surprising that the jury were satisfied that the prosecution had negatived, to the requisite standard, any mistake of fact as to consent on the part of the appellant.  There was no evidence from the appellant that he held an honest but mistaken belief as to voluntary consent.  Further, as the respondent submitted, the appellant’s conduct immediately following the offence and his admission to the complainant’s daughter were supportive of the prosecution case and undermined any suggestion that the appellant honestly and reasonably believed that the complainant consented.
  4. [53]
    I do not consider that there is cause for complaint as to the prosecutor’s address concerning the “cycle of domestic violence” and the “ongoing domestic violence in the relationship”.  As the respondent pointed out, the complainant herself gave evidence asserting that she was in a “domestic violence cycle”.  It was appropriate for the jury to have regard to the “ongoing domestic violence in the relationship” and the complainant’s continuation of the relationship in considering the issues raised by the case.  In fact, the matter was one which defence counsel also addressed the jury on in contending that they could not be satisfied that mistake of fact had been excluded.[11]The complaint is without merit.

Ground 2 – Summing up, directions and comments regarding s 24 of the Code

  1. [54]
    The appellant made a number of complaints about the trial judge’s directions.  The complaints concerned several statements of the trial judge in the summing up and statements of the prosecutor in his address.  Since the appellant’s counsel at trial did not apply for redirections, the appellant must establish that a miscarriage of justice occurred and the appellant was deprived of a real chance of acquittal.[12]The appellant submitted that the summing up, directions, redirections, as well as comments made by the prosecutor, alone or in combination, resulted in the appellant not receiving justice according to law and being deprived of a chance of acquittal fairly open to him.

The reference to the complainant not in fact consenting

  1. [55]
    The appellant made reference to his Honour’s statement in summing up that the complainant “acknowledged that she consented to sexual intercourse”.[13]His Honour had earlier stated that, “In this case the complainant says that she did not, in fact, consent”.[14]The latter statement was said to be confusing and objectively inaccurate, since the complainant accepted in cross examination that she did consent.
  2. [56]
    The two statements were made by the trial judge at different parts of the summing up.  The latter statement was made in summing up the rival contentions and the Crown case that the consent was induced and therefore not consent at law.  In my view, it is clear in the statement criticised by the appellant that his Honour was seeking, by using the words “in fact”, to focus the jury’s attention on the critical dispute as to whether the consent was free and voluntary and that consent is not consent unless it is freely and voluntarily given.[15]
  3. [57]
    The context in which the two statements were said did not make them inaccurate or contradictory.  This complaint has no substance.

The use of the term consent and other terms as interchangeable

  1. [58]
    Complaint was made that the judge used a number of terms interchangeably regarding consent.  It was submitted that these terms which included: “acquiesced”,[16]“agreement”[17]and “agreed to sex”[18]were never explained to the jury and were apt to confuse the issue.  I am unable to accept that contention.
  2. [59]
    In his summing up, the trial judge gave orthodox directions to the jury as to the elements of rape, including consent.[19]The trial judge directed the jury as to the meaning of consent that “Consent may be defined as the agreement to or the acquiescence in the act of sexual intercourse by the complainant.  That acquiescence may be reluctant or regretted”.[20]The trial judge also, as mentioned, directed the jury as to the definition of consent pursuant to s 348 of the Code and explained that it was a common word in everyday use.[21]
  3. [60]
    The trial judge’s use of words other than “consent” did not constitute a miscarriage of justice.
  4. [61]
    The trial judge used the term “acquiesced” in the context of the discreditable conduct direction.[22]I agree with the respondent’s contention that the jury could not have been confused by the use of that word as to the purpose for which that evidence was led.  In any event, no complaint is made about that direction.
  5. [62]
    The trial judge used the terms “agreement” and “agreed to sex” when he was referring to the prosecutor’s submissions in his summing up,[23]adopting the terminology of “agreement” of the prosecutor.[24]There was no material difference between the phrases “consenting to have sex” and “agreeing to have sex” in the context of this case.
  6. [63]
    The trial judge was not required to provide definitions or synonyms for the word “consent” and, given the entirety of the direction and the summing up, there was no miscarriage of justice.  There was no difficulty in the circumstances of the present case in using the various terms which were not likely to have caused any confusion.

The directions as to mistake of fact

  1. [64]
    The appellant argued that, in the context where the trial judge directed the jury on three separate occasions with respect to mistake of fact, each in different terms,[25]and it was clear that the issue carried significant weight in the jury’s mind (not only as it was the pivotal issue at trial, but as it was the subject of a jury note[26]), the final direction given[27] ought to have repeated that the standard of proof required the prosecution to negate the defence of mistake of fact beyond a reasonable doubt.  This was the sole ground of complaint concerning the direction concerning s 24 of the Code (an additional contention that the concept of “reasonable” as it relates to s 24 of the Code was not properly explained was not pursued before this Court).
  2. [65]
    It is the case that the trial judge redirected the jury following a note from the jury regarding the contents of the aide memoire and then gave a correction to the redirection.[28]With the exception of the erroneous first redirection, which was corrected, what was conveyed to the jury in the other directions regarding the law was correct and the same.
  3. [66]
    There was no error in failing to refer specifically to the standard of proof in the final redirection.  The final redirection was given in conjunction with the aide memoire, which itself specifically identified the requisite standard of proof.[29]The jury could not have overlooked the requisite standard of proof that needed to be applied.
  4. [67]
    In my view, there is no substance in any ground of appeal and the appeal should be dismissed.

Application for extension (sentence)

  1. [68]
    The applicant also sought an extension of time to appeal against his sentence of seven years for rape on the ground that it is manifestly excessive.  In considering whether an extension of time should be granted to appeal the approach is to “examine whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension”.[30]Where it is feasible for the Court to undertake an assessment of the viability of the appeal, the Court will often make a provisional assessment of the merits and take that into account in deciding whether to grant the extension.
  2. [69]
    The applicant’s explanation for the delay in filing the application for leave to appeal against sentence was that his lawyer did not provide him with any information about appealing his sentence and that he thought he would be able get more time.[31]I note that the applicant’s appeal against conviction was lodged in time.[32]I am not persuaded that good reason has been shown to account for the delay so that an extension should be granted.  But additionally, the lack of merit on a provisional assessment of the viability of an application to appeal against sentence demonstrates that the interests of justice do not warrant the grant of the extension application.
  3. [70]
    The applicant was 41 years old at the time of the offences and 43 years of age at sentence and had repeatedly been convicted of offences of violence, particularly in a domestic setting.  Those convictions span almost a 20 year period.[33]  The decisions of R v Pryor,[34] R v Postchild[35]and R v Motlop[36]support the sentence imposed and indicate the sentence imposed was not manifestly excessive.

Orders

  1. [71]
    The orders I would propose are:
    1. The appeal against conviction is dismissed.
    2. The application for an extension of time within which to appeal against sentence is refused.

Footnotes

[1]  AB2 at 127.40.

[2]  AB2 at 156.29-156.40.

[3]  AB2 at 173.27.

[4] R v BadenClay (2016) 258 CLR 308 at [65]-[66] per French CJ, Kiefel, Bell, Keane and Gordon JJ.  See also M v The Queen (1994) 181 CLR 487; MFA v The Queen (2002) 213 CLR 606.

[5] Morris v The Queen (1987) 163 CLR 454 at 473; SKA v The Queen (2011) 243 CLR 400 at [14].

[6] M v The Queen (1994) 181 CLR 487 at 493; MFA v The Queen (2002) 213 CLR 606 at [48] and [59].

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

[8] R v BadenClay (2016) 258 CLR 308 at [65]-[66] per French CJ, Kiefel, Bell, Keane and Gordon JJ.  See also M v The Queen (1994) 181 CLR 487; MFA v The Queen (2002) 213 CLR 606.

[9]  AB2 at 127.39.

[10]  AB2 at 166.16.

[11]  AB1 at 33.25-47 and 35.1-7.

[12] Dhanhoa v The Queen (2003) 217 CLR 1 at [38] and [49].

[13]  AB1 at 48.23.

[14]  AB1 at 46.5.

[15] Criminal Code, s 348.

[16]  AB1 at 44.5.

[17]  AB1 at 47.21.

[18]  AB1 at 47.19.

[19]  Benchbook Direction No 168.1 at Footnote 4; AB1 at 45.8.

[20]  AB1 at 45.32.

[21]  AB1 at 45.21-38.

[22]  AB1 at 44.1-19.

[23]  AB1 at 47.18-27.

[24]  AB1 at 28.9-18.

[25]  AB1 at 45-46 and 51.

[26]  AB1 at 50.

[27]  AB1 at 52.

[28]  AB1 at 50-53.

[29]  AB1 at 51.10-20.

[30] R v Tait [1999] 2 Qd R 667 at [5].

[31]  Notice of application for extension of time to appeal.

[32]  Notice of appeal against conviction.

[33]  Note 76 at 4.

[34]  [2007] QCA 232.

[35]  [2013] QCA 227.

[36]  [2013] QCA 301.

Close

Editorial Notes

  • Published Case Name:

    R v Sollitt

  • Shortened Case Name:

    R v Sollitt

  • MNC:

    [2019] QCA 44

  • Court:

    QCA

  • Judge(s):

    Holmes CJ, Morrison JA, Philippides JA

  • Date:

    19 Mar 2019

Litigation History

Event Citation or File Date Notes
Primary Judgment DC89/18 (No Citation) 08 May 2018 Date of Conviction (Coker DCJ).
Primary Judgment DC89/18 (No Citation) 23 May 2018 Date of Sentence (Coker DCJ).
Appeal Determined (QCA) [2019] QCA 44 19 Mar 2019 Appeal against conviction dismissed; application for an extension of time within which to appeal against sentence refused: Holmes CJ and Morrison and Philippides JJA.

Appeal Status

{solid} Appeal Determined (QCA)