- Unreported Judgment
- Appeal Determined (QCA)
SUPREME COURT OF QUEENSLAND
R v Teece  QCA 246
TEECE, Nathan Alexander
CA No 130 of 2018
DC No 489 of 2016
Court of Appeal
Appeal against Conviction & Sentence
District Court at Southport – Date of Conviction and Sentence: 2 May 2018 (McGinness DCJ)
8 November 2019
29 April 2019
Morrison and Philippides and McMurdo JJA
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of one count of rape – where the offending occurred in the early hours of the morning while the complainant was asleep in the bedroom – where the appellant contended that it was not open to the jury to find the appellant guilty beyond reasonable doubt because of, inter alia, the absence of his DNA on vaginal and underwear swabs, the absence of other witnesses or independent evidence, the level of intoxication of the complainant and her being fully clothed – whether the verdict was unreasonable or insupportable having regard to the evidence
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where the appellant contended that the admission into evidence of words spoken by the appellant after the alleged offending were not capable of constituting an admission of guilt or statement against interest, and that allowing them into evidence had the potential to influence the jury’s consideration, giving rise to a miscarriage of justice – where the evidence was that the appellant said “What have I done? What the fuck?” – whether those words, in their context, constituted an admission such that they were admissible
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to seven years imprisonment with no parole eligibility date – where the applicant contends that the sentence is manifestly excessive – where the appellant was 29 at the time of offending and 31 at sentence with a minor, irrelevant criminal history – where the applicant had plead not guilty, and where the complainant had suffered long lasting adverse impacts – where the offending occurred when the complainant was asleep in her bed, in breach of her trust – whether the sentence is manifestly excessive
R v Ali  QCA 300, considered
R v Basacar  QCA 352, considered
R v Burton  QCA 37, considered
R v Caulfield  QCA 204, applied
R v Press  QCA 7, considered
R v Sollitt  QCA 44, considered
A J Kimmins for the appellant/applicant
M J Hynes for the respondent
Jasper Fogerty Lawyers for the appellant/applicant
Director of Public Prosecutions (Queensland) for the respondent
MORRISON JA: I have read the reasons of Philippides JA and agree with those reasons and the orders her Honour proposes.
PHILIPPIDES JA: The appellant was convicted on 2 May 2018 of one count of rape on 13 February 2016. The offending was alleged to have occurred in the early hours of the morning when the complainant was asleep and was woken when she felt her vagina being penetrated. The appellant appeals the conviction on the ground that it is unsafe and unsatisfactory and that there was a miscarriage of justice as a result of the admission of evidence alleged to have constituted an admission of guilt.
The appellant also appeals against his sentence of seven years imprisonment with no parole eligibility date on the ground that it was manifestly excessive.
The complainant’s evidence
On 12 February 2016, the complainant and her husband, Daniel, celebrated his birthday by going out to dinner and then to a nightclub with a group of friends. The group included the appellant, who the complainant knew as he was a long-time friend of her husband. Over the course of the evening the complainant consumed two glasses of wine, one shot of Jägermeister and three vodka cranberries. She became tipsy.
In the early hours of the morning, a number of the group left the nightclub by taxi and travelled to the townhouse where the complainant and her husband were staying the night. It was owned by the complainant’s mother in law and was in a gated complex. CCTV footage from the taxi showed the complainant, the appellant and their friends getting out of a cab at around 3.38 am in the morning.
Soon after arriving, the complainant decided to go upstairs to the master bedroom to go to sleep. The remaining group continued socialising. The group included her husband; the appellant; Morwenna, her sister in law; James McAuley; Matthew Hanley; and Jack Wilson.
After entering the bedroom, the complainant changed into a black singlet and pyjama shorts, leaving her underwear on, and fell asleep.
A number of the group went upstairs at various times and saw the complainant asleep on the bed. At one stage, when she was upstairs, Morwenna noticed that the handle of the bedroom had become loose on the inside and had fallen to the ground. She used a doorstop to keep the door ajar and returned downstairs.
At one stage, Daniel and James noticed that the appellant was not downstairs with the others and went to look for him outside the unit which was part of a gated residence.
The complainant fell asleep on her side and gave evidence that she remembered waking up with “a weight on her back and feeling that something was inside of me … Inside my vagina … I was being penetrated by someone”. She was in shock for “a couple of seconds” and then turned her head to the side and saw the appellant’s silhouette and immediately screamed out her husband’s name. The complainant said she “got one scream out” and then the appellant covered her mouth. She managed to get her “head up at some point out of his hand and screamed two more times”. Then the appellant put his hand back on her mouth. She was face down with her arms pinned down by her side. She heard her husband at the door and said that “the next minute [the appellant] was off me and just almost disappeared”.
The complainant’s evidence was that she was “penetrated and he was moving quite fast, in and out of me”. Her legs and hips were on the bed. In cross examination, the complainant said that she had no recollection of her legs being pushed apart or the initial act of penetration but reiterated that she “woke up when … it was happening” referring to the motion of “moving in and out” of her. The appellant may have actually penetrated her for a few seconds before she woke up.
The complainant said that as soon as the appellant was off her she “was able to get up and run to the door” and that she was “hysterical” and told her husband that the appellant had raped her. Jack, who was downstairs, heard the complainant screaming out her husband’s name. Morwenna, who was also downstairs, could hear the complainant calling out and saying that the appellant had raped her.
The complainant was unable to open the bedroom door as the internal handle had fallen off. The complainant’s husband was also unable to open the door from outside the room. He tried to explain to the complainant how to get the door open. He then ran back downstairs and, with help from the other men, scaled the balcony of the bedroom. The complainant let him into the bedroom through the sliding door. The complainant told him again that the appellant, referring to him as “Napper”, had raped her. The complainant said her husband looked around but could not see anyone and told the complainant that it must have been a dream. He then went towards the wardrobe in the room and tried the handle but was unable to open the door. The wardrobe was next to the bedroom door. Daniel went to the bedroom door which he managed to open from the inside. He told the complainant to go downstairs and called the other men to come up.
Daniel gave evidence corroborating that of the complainant, including that he ran upstairs to the bedroom and that the complainant was screaming and crying, he was unable to open the bedroom door and got in via the balcony, that when he went into the bedroom, the complainant was in tears and said she was raped by “Napper” and that the appellant had his hand on her mouth so she could not scream. He looked around and went into a walk in wardrobe and tried to open the door to it but could not and realised that the appellant was inside. He managed to open the bedroom door with a pair of scissors. He told the complainant to go downstairs and shouted to James and Mathew to come up. With their assistance, Daniel was able to force the wardrobe open. Daniel punched the appellant and was pulled away. Daniel’s evidence was that the appellant’s jeans were on inside out. The appellant said, “I didn’t do anything” and ran out to the balcony.
Jack gave evidence that he heard the complainant screaming “Dan, Dan, he’s up here. He’s in the fucking closet. Dan”. He later heard the complainant say to Morwenna “I can’t believe he’s done this. I can’t believe he’s raped me. He held his hands over my mouth. I couldn’t scream”. Jack went outside a little later and saw the appellant pacing on the balcony and saying to himself words to the effect of, “What have I done? What the fuck?” Those words were repeated by the appellant a little later after he had climbed down from the balcony.
Matthew gave evidence that he helped Daniel and James to open the wardrobe door which the appellant was trying to hold closed. He said there was an altercation between the appellant and Daniel and he was the one who separated them. He said that it was “too serious” and the police should be called. The appellant told Matthew, “it wasn’t me. It’s not what it looks like”. Matthew told him to leave immediately.
James gave evidence that at one point he realised the appellant was no longer with the group in the townhouse and looked for him with the others outside. Suddenly he heard the complainant screaming along the lines of “I’m being attacked. I’m being raped”. He went upstairs with Daniel and Matthew. He gave similar evidence to theirs as to the difficulty of accessing the bedroom. When he ultimately gained access he and the others forced open the wardrobe door to reveal the appellant.
The police were called at about 6.00 am and attended the unit at 6.25 am. The complainant told Officer Morton that:
“… she’d gone to bed at some stage during the night. She wasn’t sure what time… She said that she awoke during the night and that [the appellant] was on top of her, and that he was inside of her, and that she attempted to scream, but the [appellant] put his hand over her mouth.”
The complainant was examined by a doctor. His evidence was that no internal or external injuries were observed, but that that was a neutral finding which did not exclude penetration. The evidence of the forensic scientist was that a DNA comparison was conducted but semen was not detected in the high and low vaginal swabs and no further testing was done. The absence of semen could be due to a number of factors including that internal ejaculation did not occur. The appellant was excluded as a contributor from a vulval swab, the crotch of the complainant’s underpants and pyjama shorts. The forensic scientist reiterated her opinion that “the absence of DNA doesn’t mean that contact hasn’t been made due to the person’s ability to shed DNA, the nature of the contact” and other variables, but accepted that in the normal course of events one would expect to find DNA where there had been penetration and skin on skin contact.
Ground one – the unreasonable verdict
“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. In determining that question, this Court must undertake its own independent assessment of the evidence, both as to its sufficiency and quality, allowing special respect and legitimacy for the jury’s verdict. 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”. The boundaries of reasonableness within which the jury’s function is to be performed should not be narrowed in a hard and fast way.”
The appellant points to a number of features, which alone or in combination, support the contention that it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence:
The absence of DNA from the vaginal or underwear swabs, in circumstances where it would have been expected to have been found in the normal course of events should penetration had taken place.
The absence of other witnesses or independent evidence supporting penetration.
The level of intoxication and/or reliability of the complainant, in circumstances where she had only just awoke from sleep as the penetration was allegedly taking place.
The presence of full clothing on the complainant along with her evidence that her hips and legs were flat on the bed when the appellant was penetrating her would have, as a matter of common sense, made penetration difficult and particularly, the ability to effect penetration without waking the complainant in the process significantly less likely.
As to the absence of DNA from the vaginal or underwear swabs as supportive of there being a doubt as to penetration, it is to be observed that, as the respondent argued, the absence of such evidence was also consistent with the appellant being interrupted by the complainant’s screaming shortly after penetration and him not ejaculating. Further, as to the contention that it would have been expected that the appellant’s DNA would have been found if penetration occurred, it is significant to bear in mind, as the respondent argued, that the presence of DNA is affected by a variety of factors such as the nature of the contact and how much a person “sheds”. The absence of DNA was a factor for the jury’s consideration but was not such as to exclude penetration having occurred.
A central question in the trial was the reliability of the complainant. The appellant emphasised the complainant’s intoxication and that she had been suddenly woken as factors impacting on her reliability such that she could not be relied upon, and the absence of witnesses to the offence. That the appellant was in the complainant’s bed while she was asleep was not in dispute. Nor was it the defence case that the complainant was lying. It was that she was mistaken. The complainant’s evidence was that she was woken from her sleep to find someone on top of her and penetrating her. Her reaction on being woken was not simply confusion as to the appellant’s presence but one of great distress. Although she indicated she was wanting to believe that it was a dream, she was nonetheless adamant that she had been penetrated and she did not waiver in her evidence in cross-examination. Her response was to immediately tell her husband that the appellant had raped her. While there were no witnesses who were able to give evidence of the offence, the complainant’s credibility and reliability was bolstered by her immediate and consistent account about penetration not only to her husband, but also to Morwenna, Jack and the police.
While the complainant gave evidence of having consumed six drinks during the night and feeling tipsy, there was no evidence that her intoxication was such that she passed out or could not control her actions. Her evidence was that she decided to go to bed because she was tipsy, demonstrating, as the respondent submitted, an awareness of her state and level of comprehension. Further, the jury were entitled to find that her state of intoxication was not such that she was unable to enter the gate security code and use the key in order for the group to get inside the unit. It was open to the jury to find that intoxication had not impaired the complainant’s memory of the events in issue so as to render her an unreliable witness. Nor did the complainant’s inability to describe the mechanics of how penetration was achieved necessarily render her account implausible or unreliable given her evidence that she was woken by the act of penetration. The jury may well have understood the complainant’s failure to be woken by earlier touching by her having gone to bed late after a night of socialising and drinking, particularly since she gave no evidence of being woken when others had come to the room to check on her. The jury may have viewed the complainant’s failure to explain the mechanics of how the penetration occurred as a matter in her favour in terms of her honesty and reliability because she did not attempt to bolster her evidence beyond her original complaint. The complainant’s distress in calling out to her husband and in retelling what had occurred, combined with her immediate and consistent complaint, the appellant’s post offence conduct demonstrating a consciousness of guilt, his pants being on inside out, and him saying “What have I done? What the fuck?” were able to be viewed by the jury as all supportive of the complainant’s account.
Allowing for the jury’s benefit of seeing and hearing the witnesses, and having considered the evidence as a whole, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence.
Ground two – the admission of guilt
The appellant’s submission was that the evidence of the appellant’s words, “What have I done? What the fuck?” were not reasonably capable of constituting an admission of guilt or statement against interest because he claimed he had earlier denied any wrongdoing. The appellant relied on established principles concerning a discussion of statement against interest. However, the possibility of an innocent explanation for the appellant’s comments did not render them inadmissible. As was stated by Heydon J in BBH v The Queen, “In assessing questions of relevance in relation to admissibility, it is not for judges to speculate about possible constructions of the evidence which are adverse to the interests of the tendering party”.
In accordance with the principles explained in R v Caulfield, the test for admissibility is whether the words in question are reasonably capable of being construed as an admission. It was for the jury to determine whether or not the words, in fact, amounted to an admission and what weight, if any, to give them.
It was submitted that if, as was the case here, the words were not reasonably capable of constituting an admission and had the potential to influence the jury’s consideration, the admission into evidence of the words gave rise to a miscarriage of justice justifying the setting aside of the conviction.
At trial, no objection was raised as to the evidence being lead. The defence’s case as left to the jury was that the appellant did get into bed with the complainant but that he did not rape her by penetrating her with his penis as alleged. Rather, the complainant woke and started yelling causing him to panic and hide in the wardrobe. The appellant’s comments were said to be consistent with his panicking and being confused because he had woken up in the bedroom with his friend’s wife.
The appellant contended that the words first raised no more than a question as to what he had “done”. It was not capable of being understood as an admission of rape. Nor was it capable of amounting to an admission as to conduct by the appellant, if emphasis was to be given to the word “I” in the question “What have I done”.
The appellant was the only other person in the bedroom with the complainant at the relevant time. The jury were entitled to view the appellant’s comments as referrable to the conduct which the complainant loudly and hysterically accused him of, that is, raping her.
As the respondent submitted the words were to be considered in the context in which they were said to have been stated. In that regard, the probative force of the appellant’s comments was to be considered in the context of his hiding in the wardrobe and the scenario that ensued with the complainant immediately screaming out to her husband, so loudly it was heard downstairs and the appellant being found with his pants on inside out (according to the evidence of Daniel) after the wardrobe door was forced open.
As the respondent submitted, the proximity of the appellant’s comments to the complainant’s complaint of being raped rendered them admissible as statements against interest. They were reasonably capable of being seen as an expression of regret and realisation of the offending conduct and that negated any innocent explanation that might exist for him hiding in the wardrobe. There was no error in the admission of the appellant’s statements at trial and no prejudice to the appellant in that regard.
Appeal against sentence
The appellant does not challenge the head sentence of seven years imprisonment imposed on him for the serious offence of raping a sleeping woman in her bed, in circumstances where he had been invited into the house and there had been a breach of trust, which is unsurprising given that it mirrored the sentence contended for by his counsel below. His only argument in support of the ground that the sentence was manifestly excessive was that his parole eligibility date should have been set after three years, that is, six months earlier than the half way point of the sentence.
The sentencing judge observed that the appellant offended against someone he had known for a considerable period of time, having sexual intercourse while she slept and breaching her trust as well as that of her husband, one of his closest friends. The complainant was in a place where she should have felt safe, among friends and family. The adverse impact on the complainant had been significant and long lasting.
The sentencing judge noted that the appellant was 29 at the time of the offence and 31 at sentence. He had a minor criminal history that was of no relevance. A psychological report referred to injuries the appellant sustained in a motorcycle accident in 2013, leaving him with chronic pain and other physical and psychological injuries, including symptoms consistent with adjustment disorder, mixed anxiety, depressed mood and major severe depression.
General and personal deterrence were relevant sentencing considerations, as was community denunciation of the appellant’s conduct. His Honour considered comparatives concerning instances of rape within a home of a sleeping woman in imposing the sentence.
At sentence, counsel for the appellant did not contend for an eligibility date below the statutory halfway point, relying on the matters referred to in the psychological report in contending that the range did not extend to eight years imprisonment. The appellant now argues that the psychologist’s assessment that he is unlikely to reoffend ought to result in a further reduction of his sentence. The unlikelihood of reoffending mentioned in the report of the June 2016 was referred to by the sentencing judge.
It is to be observed that, while the report listed the appellant’s positive prognostic indicators as including his high levels of regret and remorse, the sentencing judge found that the appellant’s stance at trial did not reflect a remorseful attitude.
In Press, the applicant had plead guilty to one count of burglary, one count of indecent assault with aggravation and one count of rape and was sentenced concurrently. On appeal, the applicant was resentenced to seven years imprisonment with parole eligibility after serving three years for the count of rape. The applicant had raped the complainant in her bedroom after gaining entry to it in the early hours of the morning by removing a flyscreen. He had been drinking heavily at a nightclub. He lived in the general area but did not know the complainant or specifically where she lived. The complainant suffered considerable emotional and psychological trauma as a result. The applicant was 34 at the time of his application with a good work history and minor criminal record. It was observed that the applicant cooperated with police and had suffered from a drinking problem since he was 20 years old. He had also suffered permanent disability to his face and vision as a result of receiving a beating from the complainant’s boyfriend and stepfather, which was taken into account as a factor mitigating sentence.
Basacar and Burton were both sentenced to eight years imprisonment with parole eligibility at the halfway point. They were mature men with limited or no criminal histories who, like the appellant, were convicted after trial and showed no remorse. In Basacar, the applicant gained entry to the complainant’s dormitory at an accommodation establishment and raped her without additional violence. He deceived the complainant into thinking that he was her boyfriend. He was 42 at the time of offending with no previous criminal history and with good work history. In Burton, the applicant was 41 at the time of offending with a limited criminal history and good work record. The offending was described as opportunistic in that the applicant, having gained entry to the complainant’s bedroom, took advantage of her being asleep and intoxication, desisting when discovered without threats of violence or intimidation.
The offending in Burton can be seen as more serious, including because of the age disparity and that some physical injury occurred, as reflected in the longer head sentence. On the other hand, the sentence imposed in Press, which was the sentence urged on the sentencing judge in the present case, was imposed in circumstances where the offender had the benefit of a plea which saved the complainant having to give evidence.
The comparatives demonstrate that the sentence imposed was within the sound exercise of the sentencing discretion. In particular, there is no basis for complaint as to the failure to set a parole eligibility date earlier than the halfway point of the head sentence. The decision to set no recommendation for parole in the circumstances of this case, where the appellant was convicted after a trial for the rape of a sleeping woman in her bed, breaching her trust and that of her husband with long lasting adverse impacts for her, was not unreasonable or plainly unjust.
The orders I would make are:
- That the appeal against conviction be dismissed.
- That the application for leave to appeal against sentence be refused.
McMURDO JA: I agree with Philippides JA.
AB2 at 38.09.
AB2 at 12.04-32.
AB2 at 23.23.
AB2 at 153-157 and 94.44-46.
AB2 at 15.04.
AB2 at 16.44-17.04.
AB2 at 74.33-38.
AB2 at 18.04-08.
AB2 at 18.11-14.
AB2 at 18.16-21.
AB2 at 18.43-44.
AB2 at 27.09.
AB2 at 33.26-44.
AB2 at 19.01-05.
AB2 at 58.07-11.
AB2 at 76.41-46.
AB2 at 20.15. The complainant’s husband gave corroborating evidence including that he recalled the complainant saying that the appellant had his hand on her mouth so she could not scream (AB2 at 44.06).
AB2 at 28.35.
AB2 at 42- 44.
AB2 at 45.09-35.
AB2 at 45.26-45.
AB2 at 58.17-19.
AB2 at 59.11-14; 77.30-46.
AB2 at 59.43-45 and 60.20-22.
AB2 at 59.25-60.25.
AB2 at 91.25-36.
AB2 at 119.10-16.
AB2 at 96.20-97.05.
AB2 at 102.20-103.10.
AB2 at 103.10-105.07 and 106.34-107.10.
AB2 at 108.14-37.
 QCA 44 at .
(1994) 181 CLR 487.
(2002) 213 CLR 606.
(2011) 243 CLR 400.
(2016) 258 CLR 308.
R v Baden‑Clay (2016) 258 CLR 308 at - 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.
Morris v The Queen (1987) 163 CLR 454 at 473; SKA v The Queen (2011) 243 CLR 400 at .
M v The Queen (1994) 181 CLR 487 at 493; MFA v The Queen (2002) 213 CLR 606 at  and .
R v Baden-Clay (2016) 258 CLR 308 at .
R v Baden‑Clay (2016) 258 CLR 308 at - 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.
AB2 at 108.25-37.
AB2 at 23.07-11.
AB2 at 22.46-23.04; AB1 at 29.15.
AB2 at 23.25.
AB2 at 73.40-74.23.
R v Ali  QCA 300 at -.
(2012) 245 CLR 499 at 532 -.
 QCA 204 at .
R v Brock  QCA 185 at .
R v Brock  QCA 185 at -.
AB2 at 141.42; 143.05-25; see also R v Frame  QCA 9 at -.
AB2 at 148.17-19.
AB2 at 148.15-16.
AB2 at 148.21-23.
AB2 at 148.14.
AB2 at 148.03.
AB2 at 148.03-04 and 159.
AB2 at 148.25-41.
AB2 at 148.45-46.
AB2 at 143.06-28.
AB2 at 167.
AB2 at 167.
 QCA 352.
 QCA 7.
 QCA 37.
- Published Case Name:
R v Teece
- Shortened Case Name:
R v Teece
 QCA 246
Morrison JA, Philippides JA, McMurdo JA
08 Nov 2019
|Event||Citation or File||Date||Notes|
|Primary Judgment||DC489/16 (No Citation)||02 May 2018||Date of Conviction and Sentence (McGinness DCJ).|
|Appeal Determined (QCA)|| QCA 246||08 Nov 2019||Appeal against conviction dismissed; application for leave to appeal against sentence refused: Morrison and Philippides and McMurdo JJA.|