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R v Johani

 

[2019] QCA 232

SUPREME COURT OF QUEENSLAND

CITATION:

R v Johani [2019] QCA 232

PARTIES:

R

v

JOHANI, Mitterand Badesire

(appellant)

FILE NO/S:

CA No 253 of 2018

DC No 486 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich – Date of Conviction: 18 September 2018 (Horneman-Wren SC DCJ)

DELIVERED ON:

29 October 2019

DELIVERED AT:

Brisbane

HEARING DATE:

16 May 2019

JUDGES:

Fraser and Morrison and McMurdo JJA

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – SEXUAL INTERCOURSE – where the appellant was charged with 11 counts of sexual offending, including: rape, unlawful carnal knowledge and indecent treatment – where the appellant was acquitted of all but two of the counts against him – where the appellant was convicted on two counts of rape – where the appellant challenges his convictions on two grounds – whether the merits of either of the grounds hold that the convictions should not have occurred

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of two counts of rape – where the appellant challenges his convictions on the ground that the verdict was unsafe or unsatisfactory, and cannot be supported by the evidence – where the appellant challenges his convictions on the ground that the jury should not have been informed that an alleged lie told by the appellant to police about which bedroom was his, was capable of evidencing consciousness of guilt – whether the verdict that was decided by the jury can be supported by the evidence – whether the alleged lie that was told to the jury was prejudicial to the appellant – whether the alleged lie has the qualities of an Edwards lie

Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, followed

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited

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

R v PBA [2018] QCA 213, cited

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited

COUNSEL:

A J Edwards for the appellant

C N Marco for the respondent

SOLICITORS:

Owens & Associates for the appellant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    FRASER JA:  I agree with the reasons for judgment of Morrison JA and the order proposed by his Honour.
  2. [2]
    MORRISON JA:  The complainant, then a month or so short of 14 years old, ran away from her parents during a library visit.  After a time she was persuaded by her sister to return.  On the way she met a number of men and joined them in their house.  A short time later the appellant arrived and, upon being told that the complainant did not know the other men, and upon hearing that the complainant did not wish to return to her home, proposed that the complainant stay with him.  He asked how old the complainant was, and she told him.  He was 25.
  3. [3]
    The appellant drove the complainant to his house where, over the space of the next two days, various sexual acts took place, including oral, digital and penile penetration, touching of the complainant’s body in various places, and kissing.  Eventually, having become aware that the police were searching for the complainant, the appellant dropped the complainant at a park near her home.
  4. [4]
    Out of these events the appellant was charged with 11 counts of sexual offending.  Counts 1-3, 5 and 7-9 were all counts of indecent treatment of a child under 16.  Counts 4 and 6 were of unlawful carnal knowledge.  Counts 10 and 11 were of rape, involving penetration of the complainant’s vagina with the appellant’s penis, without her consent.
  5. [5]
    At the conclusion of a trial the jury acquitted the appellant on all counts except counts 10 and 11, those of rape.
  6. [6]
    The appellant challenges his convictions on two grounds, first that the verdict is unsafe or unsatisfactory, and cannot be supported by the evidence, and secondly, that the jury should not have been informed that an alleged lied told by the appellant to police about which bedroom was his, was capable of evidencing consciousness of guilt.

Particularised counts

  1. [7]
    When considering the evidence, particularly that of the complainant, the particularised counts should be borne in mind.  They are:
    1. (a)
      Count 1 – indecent treatment – the appellant rubbed the complainant’s leg;
    2. (b)
      Count 2 – indecent treatment – the appellant kissed the complainant;
    3. (c)
      Count 3 – indecent treatment – the appellant inserted his finger or fingers into the complainant’s vagina;
    4. (d)
      Count 4 – unlawful carnal knowledge – the appellant penetrated the complainant’s vagina with his penis;
    5. (e)
      Count 5 – indecent treatment – the appellant rubbed his penis on the complainant’s genital area;
    6. (f)
      Count 6 – unlawful carnal knowledge – the appellant penetrated the complainant’s vagina with his penis;
    7. (g)
      Count 7 – indecent treatment – the appellant touched the complainant’s breast or breasts;
    8. (h)
      Count 8 – indecent treatment – the appellant touched the complainant’s vagina area with his tongue and/or mouth;
    9. (i)
      Count 9 – indecent treatment – the appellant touched the complainant’s chest area with his penis;
    10. (j)
      Count 10 – rape – the appellant penetrated the complainant’s vagina with his penis, without her consent; and
    11. (k)
      Count 11 – rape – the appellant penetrated the complainant’s vagina with his penis, without her consent.

Review of evidence

  1. [8]
    The central ground on his appeal was that the verdict was unsafe.  When that is raised the principles are clear.
  2. [9]
    The principles governing how this ground of appeal must be approached are not in doubt.  In a case where the ground is that the conviction is unreasonable or cannot be supported having regard to the evidence, SKA v The Queen[1] requires that this Court perform an independent examination of the whole evidence to determine whether it was open to the jury to be satisfied of the guilt of the convicted person on all or any counts, beyond reasonable doubt.  It is also clear that in performing that exercise the Court must have proper regard for the pre-eminent position of the jury as the arbiter of fact.
  3. [10]
    In M v The Queen the High Court said:[2]

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.  On the contrary, the court must pay full regard to those considerations.”

  1. [11]
    Recently the High Court has restated the pre-eminence of the jury in R v Baden-Clay.[3]  As summarised by this Court recently in R v Sun,[4] in Baden-Clay the High Court stressed that the setting aside of a jury’s verdict on the ground that it is unreasonable is a serious step, because of the role of the jury as “the constitutional tribunal for deciding issues of fact”,[5] in which the court must have “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.”[6]  The High Court said:[7]

“With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court "must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

  1. [12]
    Further, as was said by this court in R v PBA,[8] in the course of elucidating the applicable principles:

“The question is not whether there is as a matter of law evidence to support the verdict. Even if there is evidence upon which a jury might convict, the conviction must be set aside if “it would be dangerous in all the circumstances to allow the verdict of guilty to stand”. The Court is required to make an independent assessment of the sufficiency and quality of the evidence at trial and decide whether, upon the whole of the evidence, it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence of which he was convicted.”

Evidence at the trial

  1. [13]
    Evidence at the trial came from a variety of witnesses.  Principal amongst them was the complainant and her sister.  Others included the three house mates of the appellant, school personnel at the complainant’s school, two police officers and a doctor.[9]

The evidence

  1. [14]
    COM and her boyfriend, CBF, met in a park and tried unsuccessfully to have sex.  CBF’s evidence was that COM had told him she was 16; COM denied that.
  2. [15]
    SIS messaged COM saying that MUM was looking for her, as a result of which COM was scared to go back.  She and CBF parted and shortly afterwards COM met a few men, and accepted an invitation into their house.  While there, the appellant arrived and questioned whether she knew the men, and when she said she did not, he persuaded her to leave with him, because the men would try to take advantage of her.
  3. [16]
    In the course of driving around Brisbane for some time, before arriving at the appellant’s house, the appellant asked COM how old she was.  COM said she told him 13, and repeated that a few times over the next couple of days.  The appellant said she told him she was nearly 17, and he believed her.
  4. [17]
    During the course of the first evening and early the next day COM willingly participated in a range of sexual conduct with the appellant, including: kissing, taking her clothes off, attempted and actual sexual intercourse, digital penetration of her vagina, sucking her breasts, masturbation between her breasts, and cunnilingus – counts 1-9.  Her evidence was that what she called sex, and which she objected to, was characterised by the appellant’s ejaculating.  Penetration without ejaculation was a different matter.
  5. [18]
    In the morning the appellant offered her a phone, effectively in return for sex.  Whilst she had agreed to various acts there came a point where she objected and made that known to the appellant.  Notwithstanding that the appellant insisted and overcame her physically, and two occasions of full sexual intercourse took place – counts 10 and 11.
  6. [19]
    The appellant saw via Facebook post that the police were searching for COM, and that she was 13.  He persuaded COM that she should go home.
  7. [20]
    The appellant dropped her close to her home.  He made her promise that she would not disappoint him, which she understood to mean that she should not get him into trouble by telling the police what they had done, or telling her parents.
  8. [21]
    COM told SIS some of the events, including that she had been offered the phone for sex, and that she had been raped.  On the day COM returned home a youth worker, SUP1, spoke to her at length.  COM told her that the appellant offered her a phone for sex, and that she had been raped by him.
  9. [22]
    The next week, while at school, COM became concerned she might be pregnant, and spoke to a teacher.  As a result the events became known, youth workers became involved and COM was sent for a medical examination and treatment.
  10. [23]
    The medical evidence was that the examination was normal, and there were no unusual findings, or evidence of bruising or abrasions to the external genitalia.  However, that did not exclude penile-vaginal penetration.
  11. [24]
    The appellant was interviewed by police and though he agreed COM had stayed at his house, and in his room, she said she was 17 and running away because of family trouble, and she slept by herself in his room while he slept in another room.  He said there was no sexual contact at all.  During a police search at the house the appellant identified another person’s room as his own room; this was advanced at the trial as being a lie.

Ground 1 – unreasonable verdict – appellant’s submissions

  1. [25]
    Counsel for the appellant submitted that there were a number of factors which compelled the view that COM’s evidence could not have been accepted by the jury:[10]
    1. (a)
      it was entirely uncorroborated;
    2. (b)
      there was no DNA and no injuries despite repeated painful intercourse and rape;
    3. (c)
      none of the housemates heard the times when she said she was screaming and yelling;
    4. (d)
      COM initiated contact with the appellant after the event; and
    5. (e)
      there were substantial internal inconsistencies in her evidence.
  2. [26]
    The inconsistencies referred to were in five brackets.  First, in the police interview concerning counts 1-4: (i) whether and when the appellant was wearing a towel; and (ii) contrasts between the free narrative part of COM’s police interview and the responses to detailed questions later, specifically the sequence in which penile versus digital penetration occurred and whether the appellant ejaculated.
  3. [27]
    Secondly, in the police interview concerning counts 5-6: contrasts between the free narrative part of COM’s police interview and the responses to detailed questions later, specifically, (i) references to the appellant’s begging to continue, and (ii) what she said or did not say.
  4. [28]
    Thirdly, in the police interview concerning counts 7-10: changing references to the sequence and content of events, including penetration, slapping breasts and ejaculation; the suggestion that she said she did not want to lose her virginity to him when there had been prior intercourse; and that she was “sitting on him” when they were having sex.
  5. [29]
    Fourthly, in the police interview concerning count 11: changing references to the sequence and content of events, including whether the appellant continue after she said “no”, the suggestion that she said she did not want to lose her virginity to him when there had been prior intercourse; and the difference between saying that the appellant “somehow ... just went full inside” and the reference to his having “ripped through her shorts”.
  6. [30]
    Fifthly, general inconsistencies including: what COM said she told CBF while she was with the appellant compared to what she said to SIS, the fact that she was happy when she returned home and it was only the fear of pregnancy that caused the complaint to surface, and the reference (to DOC) that the appellant used lubricant when that was not said otherwise.
  7. [31]
    The ultimate submission was that:

“It is submitted that the jury should have experienced a doubt in the circumstances as to whether the appellant and complainant had engaged in intercourse at all, and that even had they been so satisfied, they should have had a doubt as to consent or mistake of fact as to consent, as there was no reliable evidence to prove those matters.”

Discussion – ground 1, unreasonable verdict

  1. [32]
    Discussion of this ground is informed by the way the prosecution case was conducted.  It contended that: (i) COM acquiesced to the sexual activity constituting counts 1-9 but told the appellant she was 13 years old; and (ii) she did not give consent, nor could be understood as giving consent, to the acts the subject of counts 10 and 11.  The defence case was that no sexual activity of any kind occurred.
  2. [33]
    The elements of the charges were explained to the jury by the learned trial judge, by means of a question trail which directed the jury as to the questions they needed to ask.[11]  No complaint is made on the appeal about the directions in this respect or the question trails.  There were differences:
    1. (a)
      on the indecent treatment charges (counts 1, 2, 3, 5, 7, 8 and 9) the issues were: (i) had the individual act occurred as particularised, and (ii) was the jury satisfied, on the balance of probabilities, the when the appellant did the alleged act, he believed on reasonable grounds that COM was 16 or more;
    2. (b)
      on the unlawful carnal knowledge charges (counts 4 and 6) the issues were: (i) had there been penetration, and (ii) was the jury satisfied, on the balance of probabilities, the when the appellant did the alleged act, he believed on reasonable grounds that COM was 16 or more; and
    3. (c)
      on the rape charges (counts 10 and 11) the issues were: (i) had there been penetration, (ii) without COM’s consent, (iii) had an honest and reasonable belief of consent been excluded, and (iv) was the jury satisfied, on the balance of probabilities, the when the appellant did the alleged act, he believed on reasonable grounds that COM was 16 or more.
  3. [34]
    The common element in all counts except the rape counts was whether the jury were satisfied, on the balance of probabilities, the when the appellant did the alleged act, he believed on reasonable grounds that COM was 16 or more.  On the indecent dealing and unlawful carnal knowledge counts if the jury were satisfied that the relevant act occurred,[12] then they had to address the question of whether the appellant reasonably believed COM was 16 or more.
  4. [35]
    But on the rape counts the elements did not include the question of reasonable belief that COM was 16 or more.  A child under 12 cannot consent to carnal knowledge, whereas a child over 12 can: s 349(3) of the Criminal Code 1899 (Qld).  But there is no specific defence based on reasonable belief as to age, as there is in the indecent dealing and unlawful carnal knowledge counts.  Therefore, on the rape counts, if the jury were satisfied that penetration occurred without COM’s consent, then the next question was whether the Crown had excluded an honest and reasonable belief on the appellant’s part as to COM’s consent.  If s 24 was excluded then a conviction followed.
  5. [36]
    On the question of COM’s age there were a numbers of pieces of evidence:
    1. (a)
      COM was, in fact, a few weeks off turning 14;
    2. (b)
      COM said she told the appellant that she was 13 on more than one occasion;[13]
    3. (c)
      the appellant said in his police interview that COM said she was turning 17 in February,[14] and he believed her;[15] he found out she was 13 when he saw the police search referred to on Facebook,[16] and even then COM maintained she was turning 17;[17]
    4. (d)
      COM’s Facebook profile page[18] stated that she “Went to [a named] State High School”, which might suggest to a reader that she had already left it;[19]
    5. (e)
      CBF said COM told him she was turning 16,[20] and he recalled her Facebook timeline said something to the same effect;[21] COM denied that, saying CBF knew she was 13;[22] and
    6. (f)
      SIS denied that COM told boys she was older than she was, but her answer as to whether COM had ever told her that COM told CBF she was 15 or 16 was less emphatic.[23]
  6. [37]
    The jury were given unchallenged directions that they could accept all or part of a witness’s evidence, and that they had to weigh considerations of credibility and reliability in order to reach a view as to what evidence they accepted.  They were directed that on the issue of whether the appellant reasonably believed that COM was 16 or more, the burden of proof was on the defence but only on the balance of probabilities.
  7. [38]
    One feature of the evidence that the jury would have weighed, particularly as it was the subject of defence Counsel’s address, was that the appellant’s account in his interview was that COM said she was turning 17 “in February”.[24]  As it happened that was the actual birth month for COM, but nowhere in her evidence did she say that she told the appellant her age by reference to the month of February.  The jury could have thought it was too much of a coincidence for the appellant to have lighted upon February, unless he was actually told that by COM.
  8. [39]
    That the jury considered the question is beyond doubt, particularly as they asked the learned trial judge a question after the summing up, as to what the standard of proof was.[25]  In answering the question the learned trial judge reminded the jury of the evidence referred to above.  Then the jury asked for clarification as to whether the evidence showed that any offences occurred after the appellant had seen the Facebook page noting COM’s age as 13.
  9. [40]
    In my view, it was open to the jury to believe CBF and the appellant on this issue, and disbelieve COM’s evidence as to what she said to the appellant as to her age whilst not rejecting the balance of COM’s evidence.  If the jury concluded, on the balance of probabilities, that the appellant believed on reasonable grounds that COM was 16 or more, then that would explain the acquittals on counts 1-9.  However, if they concluded that COM did not consent to the acts of penetration in counts 10 and 11, and the Crown had excluded an honest and reasonable belief on the appellant’s part as to COM’s consent, then the appellant’s belief as to COM’s age was irrelevant, and convictions on those counts would follow.
  10. [41]
    Much of the appellant’s criticism of the discrepancies in the evidence of COM depended upon a comparison between the first part of her police interview and later details in response to questioning.  In my view, there are a number of reasons why that sort of comparison, at least in this case, is misplaced.
  11. [42]
    First, it is unrealistic to expect a girl in COM’s position to be a perfect, or even properly sequential, historian when she is asked to “tell us about you having sex with a 25 year old and start at the beginning” and “Start right at the beginning … Tell us your story”,[26] and then be left to give a stream of narrative with no particular interruption or guidance, other than to understand terms used.  That is what is seen at AB 345 to AB 350, the first six pages of the interview transcript.
  12. [43]
    That is not to criticize the police interviewers for taking that course; far from it.  One can see the sense in that approach in terms of getting out the general narrative from which to then work in teasing out the detail, giving the interviewee a chance to speak without “cross-examination”, and giving the interviewee a chance to become more familiar with the process.  However, it has to be understood as being what it is, the first unrefined stream of narrative, not to be read as distinct from the later detailed account as each event is examined, point by point.
  13. [44]
    Secondly, the evidence of the timeline reveals the strain that COM must have been under at the time the interview commenced.  Thus:
    1. (a)
      the events took place between Thursday, 19 and Saturday, 21 January;
    2. (b)
      on Saturday 21 January SUP1 spoke with COM starting at around midday and ending at about 4 pm;[27] COM was quiet and withdrawn, in shock, crying and then distraught;[28] she was also very emotional and confused;[29] she asked how you knew if you were pregnant; she did not have an understanding of rape,[30] and was scared that the appellant might come to her house; SUP1 told her she would need to see a doctor;
    3. (c)
      COM did not go to school on Monday, 23 January,[31] but was there on Tuesday, 24 January;[32]
    4. (d)
      at school on Wednesday, 25 January, COM saw SUP2; she was scared that she might be pregnant; she was scared of her parents, and that if her father found out he might beat her;[33] her father came to the school and saw COM with another support person;[34] she said the appellant had sent her Facebook messages but she was scared to block him as it might make him angry and he knew where she lived;[35]
    5. (e)
      police attended the school on that Wednesday and met COM at about 4 pm;[36] they accompanied COM to see the doctor; they were at the hospital from about 4 pm to 9.30 pm;[37]
    6. (f)
      the doctor saw COM at about 6.45 pm;[38] during the doctor’s examination COM was given an intravenous antibiotic, a “day after pill”, anti-nausea medication and evidently had the possibility of infections such as chlamydia, gonorrhoea and HIV raised with her;[39] and
    7. (g)
      the police interview that night ran for nearly four hours, starting at about 10.30 pm and ending at 2.17 am.[40]
  14. [45]
    Given those circumstances it is, in my view, unrealistic to place emphasis on the first part of the police interview as having some greater significance than, or being necessarily contradictory of, later parts of the same interview where questioning directed COM’s mind to the sequence of events and the details of each event.
  15. [46]
    Thirdly, the interview reveals that at various points of the early narrative COM was evidently attempting to recall events.  Such times were often characterised by COM’s repetition of phrases and associated pauses, indicating that she was searching for recollection, for example:
    1. (a)
      “and then he said, then he started kissing me and saying … yeah, started kissing me and then saying…”;[41]
    2. (b)
      “[he] tried to do it again, but I just had my hands,  … my hand, but I had my hand still on …”;[42]
    3. (c)
      “and then, and then he fingered me, um he fingered me”;[43]
    4. (d)
      “and then we were just um, he was, I was, I was lying on him, I was lying on him …”;[44]
    5. (e)
      “Well it didn’t kind of but it hurted, yeah, it hurted …”;[45]
    6. (f)
      “... then it was getting dark, it was getting dark, and then so we paused a bit and we ate, we ate, we slept …”;[46] and
    7. (g)
      “And then um, I was crying, I was still crying.  And then someone called him.  That’s when someone called …”.[47]
  16. [47]
    The jury may well have concluded that that was a sign that COM was attempting to recall the events in sequence, even though she might not have been successful in doing so at that point in time.
  17. [48]
    Fourthly, COM’s responses, both at the start of the interview and later, exhibited a degree of spiral (non-linear) narrative.  In other words, the points she made were not addressed in a strictly chronological way, and on occasions earlier detail was filled in after the particular topic.  Examples of that are:
    1. (a)
      when she referred to the appellant’s proposal to get her a phone; the first mention was in conjunction with the first time of kissing, whereas it was the next day;[48]
    2. (b)
      the fingering episode was first mentioned as though it occurred on the first evening, but it was the next day;[49]
    3. (c)
      COM’s evidence that on the first evening they had a break, “And then we were just, um, he was, I was, I was lying on him, I was lying on him, that’s all and then there was morning, for a while we were just kissing and stuff and then it was morning and that’s when we actually had sex.  So we had sex and then he, he just put his dick, he just put his dick straight in …”;[50] when she returned to this sequence later she said she got off him after lying on him for a while, and “then I went to go to sleep, and it was, it was morning”, but having jumped ahead to the next morning then described the fingering episode that preceded it, eventually returning to the point of sleeping and then it was morning;[51]
    4. (d)
      COM’s evidence that the appellant sucked her vagina, then “we ate, we ate, we slept and then it was night time, so yeah that’s when we had sex again.  That was kind of when he was forcing me to.  I kept on saying no, he said that people have sex”;[52] having jumped ahead to the forced sexual intercourse, she then filled in intervening events  such as those the subject of counts 5 and 9, which then led to count 10, the forced intercourse which involved him holding her hands down on the bed;[53] and
    5. (e)
      the apparent conflation of counts 10 and 11 when COM first referred to them;[54] by that description COM went straight to the event that ended the sexual activity, namely the interruption by a phone call;[55] however there were two episodes for counts 10 and 11, distinguished by activity,[56] time[57] and outcome.[58]
  18. [49]
    The appellant’s contentions treat COM as a person who would be expected to give linear account whereas that was not necessarily the case, particularly as COM was Samoan born and spoke that language.
  19. [50]
    Fifthly, notwithstanding the criticisms based on the narrative at the start of the interview, there was quite a degree of coherency about what COM related.  For one thing events were delineated by reference to periods of time: the first night;[59] then the next morning;[60] then between when the appellant came back from the city and dark;[61] and then the second night.[62]
  20. [51]
    Sixthly, COM’s reference to the conduct relating to some counts may have been better understood by the jury when her definition of some basic matters was noted.  For example, her explanations suggested that there was, in her mind and method of expression, a difference between mere penile penetration (the appellant “putting his dick in”), and sex properly so-called.  Thus in her recitation:
    1. (a)
      she said that he “tried to put his dick in” or “tried to put his dick back inside”, and “every time he puts his dick inside, I like jump up and I go up …”;[63]
    2. (b)
      then the next morning “that’s when we actually had sex”, which she described as his penis fully inserted, him “banging” and then ejaculating;[64]
    3. (c)
      the second night was “when we had sex again”, which she described as “he just went full inside, full on went inside”, he was “banging on me”;[65]
    4. (d)
      later in the interview COM described the events of count 4, where the appellant “grabbed his dick” and he “went in”; she told him to go slowly but he “full on went in, he didn’t do it slowly”; once again she said that the next morning was “when we had sex”;[66] referring to that COM had trouble explaining what a virgin was,[67] and was the asked what she meant by sex:[68]

“NH: So … you tell me what is your, what is sex?  What do you mean when you say the word, sex?

COM: That we had or,

NH: No, you tell me what you think sex is.

COM: Um

NH: Or what you know sex to be, sorry.

COM: Sex is when, is how you produce babies.

NH: How you produce babies, and how do you do that?

COM: It's when a male sperm goes into a female.

NH: Ok, and sorry, where does that go?

COM: Into the vagina.

NH: Alright, ok, so that's sex.  Alright, so…”.

  1. [52]
    The jury could have concluded that explanation then made sense of her description of count 4 (on the first night) as involving penetration but not ejaculation, but count 6 (the next morning) as being when they “actually had sex”, as that did involve full penetration with ejaculation.
  2. [53]
    That explanation also makes sense of her description of her attempt to have sex with CBF in the park.  COM said they “tried to have sex on that day” while COM was sitting on him, but it hurt, so CBF said “Oh, OK, don’t”.  COM’s description of that was “that’s when we didn’t have sex”.[69]
  3. [54]
    More generally, the jury could have concluded that COM’s evidence displayed a considerable degree of consistency and frankness.  For example, COM did not try to hide the fact that she tried to have sex with CBF and she was a willing participant in the events the subject of counts 1-9.  As to the latter, her evidence in the police interview was: (i) she made no objection to the appellant coming into the bedroom in just a towel; (ii) she allowed the removal of all her clothes almost immediately upon the appellant joining her on the bed soon after they arrived at his house;[70] (iii)  her hands were wrapped around him;[71] (iv) she was kissing him back, tongue to tongue;[72] (v) there was no objection to the fingering and they kept kissing during it;[73] (vi) the first penetration involved her telling him to go slowly;[74] (vii) the next morning she allowed the removal of her clothes again after exchanging morning greetings, and they kissed again;[75] (viii) she allowed him to rub his penis on the front of her vagina, saying she was “fine with that”;[76] and (ix) when they had sexual intercourse that morning her objection was that he ejaculated, because she “told him not to come”.[77]
  4. [55]
    The jury may well have thought that is not the conduct of someone inventing a series of complaints.
  5. [56]
    COM’s evidence was also filled with a level of detail which the jury might have thought revealed a careful witness rather than an inventor of stories.  Her description of the car, the layout of the house, the food they got, the drinks they had in the car, the tablets the appellant bought, his room, the blanket and towel, and many other matters were borne out by the evidence otherwise, including the photographs taken during the search.  The level of detail went down to her description that there was nothing in the kitchen,[78] a recollection that proved accurate as the appellant said that most of the time they did not cook in the house, and he ate McDonalds “all of the time”.[79]
  6. [57]
    Further, the preliminary complaint evidence was such that the jury could have felt some reassurance as to COM’s credibility.  COM told similar elements to each of:
    1. (a)
      SIS: forced sexual intercourse and sexual intercourse in exchange for a phone, with a 25 year old man called Franck at Redbank Plains;[80]
    2. (b)
      CBF: sexual intercourse in exchange for a phone;[81]
    3. (c)
      SUP1: forced sexual intercourse and sexual intercourse in exchange for a phone, with a 25 year old man called Franck at Redbank Plains;[82] and
    4. (d)
      SUP2: forced sexual intercourse.[83]
  7. [58]
    The fact that there were no injuries was explained by the doctor.  If her evidence was accepted, and there was no countervailing opinion proffered, the absence of injuries did not mean the assaults did not take place.  Such injuries heal quickly, and five days had elapsed since the events.  Further, in adolescents it was common to find that the hymen was still intact even after forceful sexual penetration.  Further, there was no suggestion that semen might still be present in the low vagina area or vulval area five days later.
  8. [59]
    The evidence that COM was not heard screaming out or yelling is not, in my view, particularly compelling.  The jury would have been aware of COM’s evidence that every time she did so the appellant kissed her to keep her quiet.  Further, the bedroom door was closed and it was not established that anyone else was necessarily home at the same time.
  9. [60]
    In my view, the fact that COM initiated contact with the appellant on Sunday 22 January is not something that should have compelled the jury to reject COM’s evidence.  There was evidence that she had no real concept of what rape was, was scared that the appellant knew where she lived and might come around, and she still had a phone which she accepted was loaned to her by the appellant.  As well, even though she initiated contact, she did not thereafter reply to the appellant’s responses.  Given her age, the apparent status of a having a phone,[84] her confusion about the significance of the events, and that she had spoken to SUP1 the day before, the jury could well have concluded that it was a stupid thing to do but not destructive of her evidence otherwise.
  10. [61]
    The so-called inconsistency about whether the appellant was wearing a towel is not destructive of COM’s evidence at all.  It is easily explained by the fact that she consistently said he had a towel on, as opposed to being fully naked.  If there was a slip it was inconsequential.
  11. [62]
    The cross-examination of COM did not challenge one part of her evidence.  That was that at one point the appellant rubbed a black substance over her back, let it harden and then peeled it off.[85]  COM said that it was intended to remove a mark on her back.  She said the appellant called it “dead something” and came in a pack which he squeezed out onto her back and then rubbed it over with his hand.  None of that was challenged in cross-examination.  The closest it came was the suggestion that the appellant did not touch her in “a sexual way … on the body”.[86]  It may well be that the jury found that to be a matter that gave them reassurance as to COM’s credibility and reliability.
  12. [63]
    The other inconsistencies raised by the appellant’s outline are within the matters I have dealt with above, or do not take the matter any further.  And, the cross-examination of COM did not reveal any inconsistencies that were not already apparent.  COM’s evidence was that she effectively acquiesced in the conduct the subject of counts 1-9, but that stands in stark contrast to her resistance to penile penetration on the last two occasions.  If COM’s evidence was accepted each involved force to overcome her objections, and her lack of consent was manifest:
  1. (a)
    count 10 – the appellant asked if he could “go in” and she said “no you can’t”; he persuaded her to relent but then she tried repeatedly to take his penis out and was saying “please get it out”; he grabbed her two hands and held them on the bed; she could not do anything and was crying; she ended up  hitting him and saying “why didn’t you stop?”, to which he replied he “couldn’t help it”;[87] and
  2. (b)
    count 11 – the appellant asked her if he could put his penis in, and she said “no”; the appellant laughed at her because she was angry with him; he did not bother to take her clothes off but went underneath her shorts and pulled her underpants aside.[88]
  1. [64]
    In my view, it was open to the jury to accept COM’s evidence as to counts 10 and 11, and conclude that the appellant was guilty of rape.

Ground 2 – lies about the bedroom

  1. [65]
    This ground concerns the appellant’s identification of his bedroom during the police search.  The room he pointed out was not, in fact, his bedroom but that of HM2.  The prosecutor wished to rely upon the statement as being an Edwards[89] lie, contending that it was an attempt by the appellant to distance himself from the scene of the crime.  At the trial counsel then appearing for the appellant contended that it could not be elevated to an Edwards lie, as the appellant had pointed out during the search that he used both rooms, and explained that when COM was asleep in his own bedroom, he had gone and slept in that of HM2.
  2. [66]
    The learned trial judge ruled that the lie was capable of amounting to an Edwards lie:[90]

“To have identified that room as being his bedroom – the lie itself being that it was his room when it was not – and then the circumstances in which it was given were such to dissociated [sic] himself from the room as being his, which the complainant would be able to describe as being the location of the offences by virtue of the towel, the bedcover and things of that kind – would give rise to it being, potentially, an Edwards lie and one that would go to the jury on that basis.  It seems to be capable by its nature and in those circumstances of being told or the explanation for it being told is that he’s – knew the truth – that is that his bedroom was that one – would implicate him in a commission of offence where a girl is able to say ‘I was there, and I can describe the room, and this is where we were, and this is the cover that we were under’ and things of that kind.”

  1. [67]
    The learned trial judge directed the jury in relation to the identification of the wrong bedroom, as being a lie upon which the prosecution relied as showing that the appellant was guilty.[91]
  2. [68]
    No challenge is mounted to the direction as given.
  3. [69]
    The appellant contended before this court that it was “difficult if not impossible to regard the statements about the bedrooms as deliberate lies”.[92]  It was said that the appellant never denied that COM slept in the room she had indicated.  The appellant explained in his police interview that COM slept in one bedroom and he slept in another, indicating both bedrooms during the search.  In that circumstance it was submitted that the lie could not have the qualities necessary to be left to the jury as showing consciousness of guilt.  The innocent explanation for the asserted lie, it was submitted, was so plausible that the lie was without probative value as to guilt.[93]

Discussion – ground 2

  1. [70]
    The evidence concerning what happened at the search came from POL1 and POL2.  POL1 said that when she went into the house with the appellant she asked him “which one was his bedroom, and he pointed out the very first door when you enter through the front door, from the left”.[94]  None of the keys given to POL1 by the appellant would open that door, but the appellant was able to do so, not by putting a key in the keyhole, but instead using the keys on the side of the door to cause it to open.[95]  As the search continued the appellant’s keys opened the bedroom which was, in fact, the appellant’s bedroom.
  2. [71]
    POL2 was present during the search but did not add to the evidence.
  3. [72]
    In his police interview the appellant referred to the rooms in which he said COM and he stayed over the two nights:
    1. (a)
      he slept in the front room and COM slept “in the other one”;[96]
    2. (b)
      the appellant explained that the bedroom COM was sleeping in was reached by going past the sitting room;[97]
    3. (c)
      when they were first at the house he was with COM in his bedroom, that being the one with a TV and fridge; COM was sitting on the bed, using Facebook;[98]
    4. (d)
      when the appellant got back home later that night COM was sleeping, so the appellant went “to the other room, and sleep over there”; he identified that room as being the room he had identified earlier;[99] at around 7 pm on Friday he returned to the house and went to ask COM if she was okay, but the door was locked and he thought she might be asleep; he knocked on the door but did not use the keys to open it; he identified that bedroom as being “the other one”, the one with the TV.[100]
  4. [73]
    In Edwards v The Queen[101] Deane, Dawson and Gaudron JJ had the following to say in respect of lies probative of guilt:[102]

“But not every lie told by an accused provides evidence probative of guilt.  It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him.  In other words, in telling the lie the accused must be acting as if he were guilty.  It must be a lie which an innocent person would not tell.  That is why the lie must be deliberate.  Telling an untruth inadvertently cannot be indicative of guilt.  And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged.  It must be for that reason that he tells the lie.  To say that the lie must spring from a realization or consciousness of guilt is really another way of saying the same thing.  It is to say that the accused must be lying because he is conscious that ‘if he tells the truth, the truth will convict him’.”

  1. [74]
    Their Honours said shortly thereafter:[103]

“A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew the truth would implicate him in the offence.  Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest.  And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg v Lucas (Ruth), because of ‘a realization of guilt and a fear of the truth’.”

  1. [75]
    I am unable to accept the appellant’s contention that the jury could not regard the appellant’s identification of a room as his bedroom when it was not, as a deliberate lie.  The search was conducted on 27 January 2017, eight days after COM went to the appellant’s house for the first time, and nearly a week after she returned home.  The appellant had the warrant which permitted the search, and understood that the reason for the attendance of the police was to look for evidence in support of the complaint against him.  The search commenced with a search of the appellant’s vehicle, the keys for which were obtained from the appellant when he was inside the house.  After the search of the vehicle the police went inside, where POL1 asked the appellant which room was his bedroom.  The appellant identified the bedroom at the front left of the house, as one looks at it.  That bedroom was, in fact, the bedroom of HM2.
  2. [76]
    Even when police tried to open the door to that room using the keys provided by the appellant, and the keys would not open the lock, the appellant said nothing to correct the indication that that room was his bedroom.  The truth was only discovered when the police, using the keys, opened door by door and eventually opened the real bedroom.
  3. [77]
    Thus the circumstances were that in response to the police question, which room is your bedroom, the appellant not only did not identify his real bedroom, but identified another bedroom in which COM had never stayed.
  4. [78]
    In my view, that lie was capable of a jury conclusion that it displayed a consciousness of guilt.  It was for the jury to decide if the lie was deliberate and told because the appellant feared the truth would implicate him in the offence.
  5. [79]
    I reject the contention that there was an innocent explanation for the lie, which was so plausible that it was without probative value as to guilt.  That innocent explanation depends upon the appellant’s assertions in the interview that COM slept in one bedroom, and that except for a short period of minutes when they first arrived and a short time at the end when the Facebook webpage revealed the police were searching for him, he was never in the same bedroom as COM.  That contention does not take account of several features:
    1. (a)
      the question asked of the appellant was not which bedroom did he stay in six to eight days ago when COM was there;
    2. (b)
      the question asked, in effect, tell me the room that is your bedroom, and could not have been mistaken;
    3. (c)
      it is unmeritorious that the appellant would suggest that because he used the front room on one occasion raised the possibility that he was innocently identifying that room as his bedroom;
    4. (d)
      if he were truly innocent, and nothing occurred in his actual bedroom, other than that COM stayed there, why would he not identify his real bedroom, knowing that COM’s presence there was entirely innocent.
  6. [80]
    In my view, the lie had the qualities identified in Edwards.  There was nothing uncertain about the question, nor the answer and the only plausible explanation for falsely identifying his bedroom was that he was conscious that identification of the real room would implicate him in the offences being investigated.  It is sufficient for present purposes to observe that it was open to the jury to find that the lie was deliberate and told because of a fear that he would be implicated in the offence.
  7. [81]
    This ground fails.

Conclusion and orders

  1. [82]
    For the reasons which I have expressed above both grounds of appeal fail.  The appeal should be dismissed.
  2. [83]
    McMURDO JA:  I agree with Morrison JA.

Footnotes

[1](2011) 243 CLR 400 at [20]-[22]; [2011] HCA 13; see also M v The Queen (1994) 181 CLR 487 at 493-494.

[2]M v The Queen at 493; internal citations omitted.  Reaffirmed in SKA v The Queen.

[3](2016) 258 CLR 308 at [65]-[66]; [2016] HCA 35; internal citations omitted.

[4][2018] QCA 24, at [31].

[5]Citing Hocking v Bell (1945) 71 CLR 430 at 440; [1945] HCA 16.

[6]Baden-Clay at 329, citing M v The Queen at 494, and MFA v The Queen (2002) 213 CLR 606 at 621-622 [49]-[51], 623 [56]; [2002] HCA 53.

[7]Baden-Clay at 330 [66].

[8][2018] QCA 213 at [80].

[9]In these reasons I intend to refer to the various participants in the following way:  complainant, COM; complainant’s sister, SIS; complainant’s mother, MUM; complainant’s boyfriend, CBF; youth worker SUP1; youth support co-ordinator SUP2; doctor, DOC; investigating police officers, POL1 and POL2; the appellant’s three housemates, HM1, HM2 and HM3.

[10]Outline paragraphs 74-85.

[11]AB 562-564.

[12]Penetration in the case of the unlawful carnal knowledge counts.

[13]AB 136 line 44, 346, 347, 349, 408.

[14]AB 495-496, 535, 537, 557-558.

[15]AB 508.

[16]AB 496.

[17]AB 535.

[18]Exhibit 19.

[19]The jury were reminded of this evidence and the possible inference in the summing up: AB 87.

[20]AB 204, 207.

[21]AB 204 line 40, 207 lines 31-34.

[22]AB 132 lines 16-25.

[23]AB 146 lines 25-28.

[24]AB 495 line 16.

[25]AB 100.

[26]AB 344.

[27]AB 229, 232.

[28]AB 229 line 28, AB 230 line 37, 233 lines 1-3, AB 235 line 11, AB 236 lines 1-9.

[29]AB 230 line 38.

[30]AB 235 lines 15-45.

[31]AB 238 line 22.

[32]AB 238 line 38.

[33]AB 241.

[34]AB 242 lines 36-46.

[35]AB 241 lines 15-19.

[36]AB 342-343.

[37]AB 269 line 1.

[38]AB 247 line 8.

[39]AB 249.

[40]AB 342.

[41]AB 347.1.

[42]AB 347.6.

[43]AB 347.6.

[44]AB 347.9.

[45]AB 348.8.

[46]AB 348.9.

[47]AB 349.9-350.1.

[48]AB 347, 392.

[49]AB 347, 387-388.

[50]AB 347.

[51]AB 387, 389.

[52]AB 348.9-349.1.

[53]AB 406-407, 408-409.

[54]AB 349-350.

[55]AB 350.1.

[56]Count 10 involved COM and the appellant holding his penis, and ejaculation at the end: AB 408-409, whereas count 11 never involved ejaculation because the phone call intervened.

[57]Count 10 was followed by them going out to the house of the appellant’s friend, where COM spoke to that friend, and count 11 occurred after they had returned and the appellant had cleaned the house: AB 410, 413-414.

[58]Count 10 ended when the appellant ejaculated: AB 408-409, whereas count 11 ended because the phone call intervened.

[59]Counts 1-4, AB 346-347.

[60]Count 6, AB 347-348.

[61]Counts 7 and 8, AB 348.

[62]Counts 5, 10, 11, AB 349.

[63]AB 347.

[64]AB 347-348.

[65]AB 349.

[66]AB 389.

[67]Initially she said that if you were a virgin that meant you don’t have sex.

[68]AB 393.4.

[69]AB 351.

[70]AB 346-347, 386.

[71]AB 387.

[72]AB 387.

[73]AB 387.

[74]AB 389.

[75]AB 348, 395.

[76]AB 349, 397.

[77]AB 399.

[78]AB 379.6.

[79]AB 544.

[80]AB 145-146, 457, 469-470, 472.

[81]AB 209 line 5.

[82]AB 229-230, 233 line 42, 234 line 46.

[83]AB 241.

[84]See Exhibits of screen shots between COM and SIS.

[85]AB 377-378.

[86]AB 139 lines 32-33.

[87]AB 408.7 to 410.5.

[88]AB 414.2 to 416.7.

[89]Edwards v The Queen (1993) 178 CLR 193.

[90]AB 306 lines 20-31.

[91]AB Vol 1 p 78 line 39 to p 80 line 9.

[92]Appellant’s outline para 73.

[93]Edwards v The Queen (1993) 178 CLR 193 at 211-213.

[94]AB 271 lines 20-22.

[95]AB 271 lines 35-41.

[96]AB 514 line 47 to AB 515 line 35.

[97]AB 516.

[98]AB 517-519.

[99]AB 525.

[100]AB 530-531.

[101](1993) 178 CLR 193.

[102]Edwards at 209; internal citations omitted.

[103]Edwards at 210-211; internal citations omitted.

Close

Editorial Notes

  • Published Case Name:

    R v Johani

  • Shortened Case Name:

    R v Johani

  • MNC:

    [2019] QCA 232

  • Court:

    QCA

  • Judge(s):

    Fraser JA, Morrison JA, McMurdo JA

  • Date:

    29 Oct 2019

Litigation History

Event Citation or File Date Notes
Primary Judgment DC486/17 (No Citation) 18 Sep 2018 Date of Conviction (Horneman-Wren SC DCJ).
Appeal Determined (QCA) [2019] QCA 232 29 Oct 2019 Appeal against conviction dismissed: Fraser and Morrison and McMurdo JJA.

Appeal Status

{solid} Appeal Determined (QCA)