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  • Unreported Judgment

R v GBG

 

[2020] QCA 112

SUPREME COURT OF QUEENSLAND

CITATION:

R v GBG [2020] QCA 112

PARTIES:

R

v

GBG

(appellant/applicant)

FILE NO/S:

CA No 313 of 2018

CA No 11 of 2019

DC No 1724 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 21 November 2018; Date of Sentence: 11 December 2018 (Dick SC DCJ)

DELIVERED ON:

29 May 2020

DELIVERED AT:

Brisbane

HEARING DATE:

15 April 2020

JUDGES:

Morrison JA and Applegarth and Boddice JJ

ORDER:

  1. The appeal against conviction is dismissed.
  2. The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of one count of rape at trial – where the only issue in dispute at trial was consent – where at trial the complainant denied having sent explicit photographs from her phone – where the complainant delayed reporting the alleged rape for two days despite apparent opportunities to do so – where the complainant was cross-examined about previous complaints she was alleged to have made against the appellant and against others – whether it was open to the jury, in all the circumstances, to be satisfied beyond reasonable doubt that the appellant was guilty of rape

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCESENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced after trial to six and a half years’ imprisonment for the offence of rape, with parole eligibility after three years and three months – whether the sentence imposed was manifestly excessive in all of the circumstances

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

R v Black [2019] QCA 114, cited

R v Dalton [2020] QCA 13, cited

R v Flew [2008] QCA 290, cited

R v Oliver [2020] QCA 76, cited

COUNSEL:

The appellant/applicant appeared on his own behalf

N W Needham for the respondent

SOLICITORS:

The appellant/applicant appeared on his own behalf

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    MORRISON JA:  I have read the reasons of Applegarth J and agree with those reasons and the orders his Honour proposes.
  2. [2]
    APPLEGARTH J:  On 21 November 2018 the appellant was convicted after a three day trial on one count of rape, which was alleged to have occurred on or about 23 January 2017.  He appeals against his conviction on the grounds that:
  1. (a)
    the verdict was unreasonable and cannot be supported having regard to the whole of the evidence; and
  1. (b)
    in all of the circumstances, the verdict is unsafe and/or unsatisfactory and should be quashed.
  1. [3]
    The appellant’s sentence was adjourned to 11 December 2018, when he pleaded guilty to two counts of breaching a domestic violence order with a circumstance of aggravation, alleged to have occurred on or about 23 January and on or about 25 January 2017 respectively.  The appellant was sentenced to six and a half years’ imprisonment for rape.  Concurrent sentences of one month imprisonment were imposed for the other offences.  The appellant seeks leave to appeal against the sentence for rape, contending that it is manifestly excessive in the circumstances.

The rape charge

  1. [4]
    The complainant was aged 18 at the time of the alleged offence.  She knew the appellant, who had been in a relationship with her mother for some years when the complainant was aged between 12 and about 16.
  2. [5]
    The complainant had a troubled upbringing.  She did not have any contact with her father.  She did not live with her mother when she was a child for extended periods.  She was raised by a stepfather from when she was a baby.  Later, she and her siblings were fostered.  She was still in foster care at the time her mother started dating the appellant, when she was aged 12.  She would see her mother for “sleepovers” including at Christmas or on Mother’s Day.  Originally the sleepovers would be every couple of weeks but then she started going to the house at which her mother and the appellant lived every couple of days.
  3. [6]
    The complainant’s evidence was that the appellant began sexually assaulting her when she was 12.  This included raping her on Christmas Eve night when she was aged 12.  She estimated that the appellant had sexual intercourse without her consent more than 30 times over the following four years when she stayed over at her mother’s for contact visits.
  4. [7]
    By January 2017 the complainant was living in Toowoomba.  Her mother and the appellant had separated.  Her mother had the benefit of a Temporary Protection Order, which applied to her residence.  The complainant’s mother had a serious illness and by January 2017 had been in hospital for seven or eight months.  The complainant visited her, travelling by bus from Toowoomba every couple of months.  By January 2017 the complainant had decided to move to Brisbane to look after her mother’s unit and to be closer to the hospital.
  5. [8]
    She was in telephone contact with the appellant who offered to help her with money for a bus fare.  On 16 January 2017 she told him in a text message that she was going to be homeless soon.  On around 22 January 2017 he sent her money to enable her to buy a bus ticket from Toowoomba to Brisbane.  On 22 January 2017 he sent her text messages which asked her to send him sexually explicit photographs.  Photographs were sent from the complainant’s mobile telephone to the appellant’s phone soon afterwards.
  6. [9]
    The complainant travelled to Brisbane on 23 January 2017.  That afternoon the appellant remarked in a text about her photos, and stated “I love the hot sexualy (sic) love we make!”.  In another text he indicated to her that if her boyfriends did not want to give her sex he would anytime.
  7. [10]
    The appellant met the complainant at the Roma Street bus station at around 5 pm.  They travelled to the complainant’s mother’s unit.  The complainant had a spare key.  According to the complainant, the plan was that the appellant would not stay the night.  He dropped her off, stayed for about five minutes, then left.  The complainant had a bath and fell asleep at around 9.40 pm while playing a game on her phone.  This was in a bedroom in which there was only a bed base, without a mattress.
  8. [11]
    Some time later she awoke, lying face down, with the appellant on top of her.  Her shorts and underpants had been removed.  The appellant penetrated her vagina.  She tried to move but was unable to because her arms were stuck under her stomach.  In her statement to the police she said that the incident took five minutes, during which the appellant ejaculated inside her, then got off her and went for a shower.  She said she was not awake when his penis first entered her vagina.
  9. [12]
    After the appellant had hopped out of the shower, the complainant went into the bathroom and washed her face and hair.  When she had finished in the bathroom the appellant was asleep on the bed base.
  10. [13]
    He was still there the next morning.  The appellant was to meet his support worker who came to the unit.  The appellant, the complainant and the support worker then went to obtain food vouchers, a mattress and some clothes.  The complainant needed that assistance because there was no food at her mother’s place.
  11. [14]
    Either that day or the next day the complainant made arrangements to obtain a bus ticket so she could see her daughter in Toowoomba and made plans to visit her mother in hospital.  Her evidence was that after collecting food, clothing and a mattress with the support worker on 24 January 2017, she and the appellant returned to the unit and slept in the afternoon.  She told police that she went to go outside at 6 pm but it was “freezing”.
  12. [15]
    Arrangements were made with the complainant’s mother’s support worker to transport the complainant to the hospital so she could see her mother.
  13. [16]
    The complainant visited her mother on the afternoon of 25 January 2017, leaving the hospital at around 5 pm.  She caught a train in the direction of her mother’s unit.  On the way she rang the police and reported what she said the appellant had done to her.  The police met her at a train station.  Later that evening, police took a statement from her.
  14. [17]
    At 10.50 pm that night police went to the unit where the appellant was still staying.  The rape allegation was put to him.  He denied it.  He described his relationship with the complainant; saying that she was his daughter, and that he had protected the whole family for ages.  He denied having been intimate with her at any time.  He said that nothing had happened on the Monday night and that when they got back to the house he “crashed” asleep.  He was evasive as to where he slept that night, but said that he had put some blankets down in the bedroom that lacked a mattress, being the room that the complainant used.  He denied having gone in there while she was asleep.
  15. [18]
    The appellant participated in a formal interview at the Beenleigh police station not long after, commencing at 12.12 am on 26 January 2017.  Contrary to his conversation with police at the unit, he admitted having had sexual intercourse with the complainant while they had been at the unit together.  He told police that at some earlier stage when the complainant started having feelings for him, they began to have consensual sex.  He thought it was about a year ago, when she was of an age where she could make up her own mind, and that they had had sex on a couple of occasions.  He told police that he had had sex with her each day over the previous few days, including that morning.  He said that on the night the complainant arrived from Toowoomba, they went to her mother’s home, and they had just “normal sex” in the back bedroom where they had put a blanket on the floor.
  16. [19]
    The complainant’s allegations were put to the appellant.  He denied having left the unit, only to return.  He said he did not go out anywhere and just turned out the lights.  He said that she just wanted sex and that he knew that she was willing.  He denied having forced himself on her.

Cross-examination of the complainant

  1. [20]
    The issue at the trial was consent and the central issue was the credibility and reliability of the complainant.  Formal admissions were made that swabs were collected from the complainant’s vagina and vulva at around 10 pm on 25 January 2017 and that scientific examination, including DNA comparison, confirmed that the appellant’s spermatozoa was present on those swabs.
  2. [21]
    Cross-examination of the complainant commenced in relation to a photograph of breasts which was sent from the complainant’s phone to the appellant’s phone on 22 January 2017.  The complainant denied sending the photograph, saying that on the day in question she was having a contact visit with her daughter, and that her friend S had access to her phone.  She admitted having been asked questions about the photographs by the prosecutor and by police in the week before the trial, and that she did not tell them about her friend S using her phone.  She claimed to have only “just remembered”.
  3. [22]
    The complainant denied having told the investigating officer that she had sent the photographs to the appellant.  She denied having ever told anyone that she had sent the photographs to him.  She continued to assert that the photographs of the breasts were of S.  When asked by the trial judge to give some estimate of S’s age and asked “Is she a girl, an elderly woman, a middle aged woman?”, the complainant responded “middle aged”.  However, shortly afterwards the complainant acknowledged that S was younger than she was.  The police investigator gave evidence that the complainant had told him at some stage in his investigation that she had sent the photographs to the appellant and had done so because he was paying for her bus fare.
  4. [23]
    The complainant was cross-examined about her life in care and complaints which she had made at different times in respect of the appellant and others.  These were documented in police records.  Her evidence was that she had been raped by the appellant at Christmas-time in 2010, but did not pursue the matter after the appellant threatened to bash her mother if she spoke to the police.  She denied ever having complained of being raped by one or more of her brothers at Christmas 2010.
  5. [24]
    She either denied or could not remember making complaints in February and November 2011, and declining to speak to police when they attempted to speak to her about those matters in April 2011 and December 2011.  She was cross-examined about complaints she made in June 2013 when police were called to an incident at her mother’s home at Annerley where she witnessed an argument between her mother and the appellant.  She recalled an occasion when she was taken to the Royal Brisbane Hospital to have an examination but declined to participate because she did not want a male nurse to come near her.
  6. [25]
    She denied ever having complained of being raped by the appellant in the vicinity of the Cannon Hill RSL club in November 2013.  Police records were said to indicate that during a pat down search in April 2014, the complainant told police that she did not want them to search her and that she had been raped by the appellant.  She disagreed that she had said that to police.
  7. [26]
    She denied having complained to police on 25 September 2010 that her stepfather had raped her.  She said that she did not say anything about him to the police and that the only person she accused was her stepbrother J.  It was put to her that she refused to disclose information to the police and to provide a statement about that, to which she replied “I was nine years old.  What do you expect?”  She continued to deny that she had made a complaint of rape against her stepfather but acknowledged that she had complained that one of her brothers had raped her.  She denied having routinely lied to police.
  8. [27]
    The complainant was cross-examined about her delay in complaining about the rape she alleged had occurred on the night of 23 January 2017.  She was taken to her statement to police about having woken up at about 6 pm on 24 January 2017.  She acknowledged in her evidence that the police station was a short distance from her mother’s unit.  She insisted that it was freezing outside, although accepted that the lowest recorded temperature in Brisbane that day was 24 degrees.  She said that she did not walk around the corner to the police station because:

“It was cold and I didn’t have any warm clothes and [the appellant] would’ve heard the front door open”.

  1. [28]
    At the conclusion of her cross-examination the complainant rejected the suggestion that she and the appellant had consensual sex on the night of 23 January 2017, and also denied that she had consensual sex with him on 24 January and again on the morning of 25 January 2017.
  2. [29]
    In re-examination about other alleged complaints, the complainant reiterated that she had withdrawn a previous complaint about the appellant because he said that if she ever went to the police he would hurt her mother.  She complained in relation to the 23 January 2017 alleged rape because her mother was in hospital and was safe.  When asked whether the previous complaints she made to the police about the appellant were the truth, she responded “Yes”.  She was then asked:

“And you’ve also been asked about some other complaints you’ve made about other people doing sexual things to you.  Were all of those complaints the truth?---Only one of them are true.

MS HEDGE:  I’m sorry.

HER HONOUR:  Only one of them was true?---Only one of them are true”.

Addresses by counsel

  1. [30]
    In her address the prosecutor invited the jury to consider the indignity experienced by the complainant in receiving sexual texts from the appellant, having nowhere else to stay except in the unit and having to go with him to get food or clothes which she needed to live.  The prosecution emphasised that the complainant put up with this and preserved the evidence until she had seen her mother, and at that time made the complaint to police.  Reliance was placed upon the consistency of the complainant’s evidence about how she had been left on the first night in the room and woke up with the appellant’s penis being inserted into her vagina.  Her account of how her arms were pinned down was said to be consistent and the jury was asked to not judge her too harshly on the fact that in her initial statement she said it lasted five minutes but her evidence said an hour.  The key thing was said to be that she did not consent to sex with him: that she was asleep when his penis first entered her vagina and she could not have been giving consent when she repeatedly said “Get off”.
  2. [31]
    The next part of the prosecutor’s address related to the appellant’s “clear, deliberate lie” when initially interviewed by police when he denied any intimate relationship with the complainant and denied having sex with her.  This lie was said to be evidence of consciousness of guilt.  By the time the formal police interview started, he was said to have realised that the lie was not capable of being maintained, particularly because of the DNA evidence.  The prosecutor also pointed to the lack of detail in the appellant’s attempt to give his version of consensual intercourse on the night in question.
  3. [32]
    The complainant’s poor recollection of details of complaints made many years ago when she was at school was said to be understandable.  These things were said to have happened a long time ago when she was a child, in care and in difficult situations.  Her unwillingness to take the complaints further was said to be understandable for anyone, let alone a child in her situation.  However, her evidence was that all of the complaints that she made about the appellant were true.
  4. [33]
    The prosecutor’s address identified three key planks in the prosecution case.  The first was said to be the “clear and believable account of the incident”, which was contrasted with her poor memory of other things such as the photographs and the previous complaints which were not nearly as clear and strong and reliable as the evidence of the event.  This was the event that mattered and the jury was told that if they accepted her evidence of that event, including evidence that she was asleep and then struggled to push him off, then the case was proven.  The second plank was the admission that his sperm was in her vagina.  The final plank in the prosecution case was his lie, showing a consciousness that he was guilty of the offence.
  5. [34]
    Defence counsel explained that the case fell on the complainant’s evidence and that the jury could not be satisfied of her evidence beyond all reasonable doubt.
  6. [35]
    Reliance was placed upon the fact that her evidence was evasive, difficult and contradictory.
  7. [36]
    It was said that if she was truly the victim of long-term sexual abuse, including rape, at the hands of the appellant, it was unlikely that she would have put herself in the position she did, exchanged text messages and sent the photographs that she did to him.  The assertion that her friend S sent the photographs and that they were of S’s breasts was said to be false.
  8. [37]
    The text messages were submitted to make it obvious that the appellant intended to have sex with her after she came to Brisbane.
  9. [38]
    Next, there was the prosecution suggestion that the complainant had the wherewithal to not have a shower to preserve the evidence for a few days.  Her explanation for not walking around the corner to the police station because it was freezing was discredited since it was 24 degrees.
  10. [39]
    Reliance was placed upon the numerous complaints which allegedly had been made in the past in relation to matters which would not have been easily forgotten.  These were said to include allegations against another stepfather and against at least one brother.
  11. [40]
    Defence counsel also argued that the fact that the appellant initially lied did not demonstrate consciousness of guilt.  His initial denial of any intimacy was understandable, and within a very short space of time he told police of consensual sex with the complainant.
  12. [41]
    In conclusion, defence counsel asked the jury how they could possibly be convinced beyond all reasonable doubt, based on the complainant’s evidence, of the appellant’s guilt.

Summing up

  1. [42]
    The trial judge gave appropriate directions.  These included directions about consent and the limited use that could be made of evidence of prior sexual contact.  Directions were also given about lies going to consciousness of guilt.
  2. [43]
    The trial judge gave a Robinson direction that the jury would need to scrutinise the complainant’s evidence with great care before it could arrive at a conclusion of guilt.  Specific reference was made to the text messages beforehand and the photograph of the breasts that was sent from the complainant’s phone.  They were said to support the appellant’s version to the police that there had been a “movable relationship” between them, including sex.  Another reason to scrutinise her evidence carefully was the delay between the event and when she went to police.  This included spending most of the next day with a care worker who she could have told.  She could have gone out the next night after the appellant went to sleep.  A further and final reason to scrutinise the complainant’s evidence with great care was stated as follows:

“Finally, the reason you would need to scrutinise her with great care is that it is apparent that there were earlier complaints about a lot of different people. None of which was proceeded with. She has not accepted all those. But you heard Mr Pearce say he was reading from official documents and able to give dates and details and that is not being contested. The prosecutor did not stand up and say, “That’s not true.” So she even admitted some of them were false by the time she had finished her evidence.  So, of course, if you are dealing with somebody, whether it be in this sort of case, or it be stealing and there is only one witness, you look at them very carefully. But here you have more reason to look at her carefully because of the earlier, probably false, complaints. Anyway, ones that she did not proceed with.”

The jury was told that they should only act on her evidence if, after considering the judge’s warning and all the other evidence, the jury was convinced of its truth and accuracy.

  1. [44]
    The jury was reminded in some detail of the evidence.
  2. [45]
    Other than an unimportant redirection concerning s 39PC of the Evidence Act 1977 (Qld) about expert evidence being given by phone, no redirection was sought by the parties.
  3. [46]
    The jury initially retired at 11.07 am.  It requested certain evidence about the incident that happened at Christmas Eve in 2010 to be read back to it.  That further evidence was read to it between 3.08 pm and 3.14 pm.  It returned its verdict of guilty at 3.29 pm.

The appellant’s submissions on his appeal against conviction

  1. [47]
    A notice of appeal was filed on 26 November 2018 by the appellant’s then solicitors.  Legal aid was refused in early September 2019.  The appellant did not comply with directions to file an outline of argument by the due date of 27 March 2020 or at any time before the hearing of the appeal.  Instead, he made oral submissions.
  2. [48]
    A submission that the initial interview with police was obtained illegally does not fall within his grounds of appeal, was undeveloped and lacks any apparent merit.  No objection was taken to the admissibility of this evidence at pre-trial stages or at the trial, when the appellant was legally represented by different firms.  This tends to confirm that the point lacks merit.
  3. [49]
    The balance of the appellant’s oral submissions focused on what was contended to be the complainant’s unreliability and lack of credibility.  Points included:
  1. (a)
    her having denied at trial sending photographs on her phone;
  1. (b)
    the many opportunities which she had to report the alleged rape in the following few days, including to the police station around the corner, to support workers or to people at the hospital she visited;
  1. (c)
    the improbability that the complainant would not shower her body for a few days so as to preserve evidence of the appellant’s sperm, having told police that she was having a period at the time of the alleged rape; and
  1. (d)
    her having falsely accused others of sexual offences.

The respondent’s submissions on the appeal against conviction

  1. [50]
    The respondent relies upon the fact that there was no abnormality in the trial process, no evidence was admitted over objection, and comprehensive directions were given including the Robinson direction.  The appellant accepted that sexual intercourse occurred on the night in question and the only issue for the jury was consent, about which the jury was appropriately directed.
  2. [51]
    The respondent submits that there was nothing to suggest that the complainant’s evidence was such that the jury was precluded from accepting it.  While the complainant presented as having problems of reliability on some aspects of her evidence, apart from the unsworn evidence of the appellant, there was no evidence that objectively contradicted her account.  In the circumstances, the respondent submits that the jury was entitled to act upon her evidence, and significant weight must be attached to its verdict, it being the tribunal of fact vested with the responsibility for determining guilt or innocence, and having had the advantage of seeing and hearing the complainant give her evidence.  The verdict is submitted to be one which was rational and open to the jury.

Relevant principles

  1. [52]
    When a court of appeal is asked to conclude that the verdict of the jury is unreasonable or is unsafe having regard to the evidence, 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”.[1]  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”.[2]

  1. [53]
    In M v The Queen the High Court stated:

“If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.  In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the 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.”[3]

  1. [54]
    The Court is required to independently assess the sufficiency and quality of the evidence, rather than observing that the jury was entitled to accept the complainant’s evidence.[4]
  2. [55]
    In short, the appeal court proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable, and examines the record to see whether, notwithstanding that assessment, “either by reason of inconsistencies, discrepancies or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.”[5]
  3. [56]
    The relevant principles have been stated in a number of recent decisions of this Court, including R v Dalton[6] and R v Oliver.[7] It is unnecessary to re-state them at length.  I would, however, adopt the observations of McMurdo JA (with whom Fraser and Gotterson JJA agreed) in R v Black:

“… the question is not whether this Court has a doubt about the appellant’s guilt beyond reasonable doubt; it is whether it was open, upon the whole of the evidence, for the jury to be satisfied of the appellant’s guilt, having regard to the advantage enjoyed by the jury over this Court, which has not seen or heard the complainant’s evidence being given.  A doubt experienced by this Court, in some cases, may be resolved by recognising that advantage.”[8]

Analysis of the sufficiency and quality of the complainant’s evidence

Text messages and photographs

  1. [57]
    The complainant’s denial at trial of having sent the photographs from her phone to the appellant on 22 January 2017, along with her sudden recollection in the witness box that her friend S had sent them, diminished her credibility.  She had told police that she had sent the photographs to the appellant.  The appellant had requested such photographs at 3.45 pm on 22 January 2017.  The photographs were sent at 3.56 pm and 4.03 pm.
  2. [58]
    The complainant’s evidence about S sending the photographs was unsatisfactory, with her first telling the trial judge that S was middle aged, before saying that S was younger than she was and had been visiting her in Toowoomba in January 2017 for a sleepover.  Evidence from a police officer confirmed that S was a juvenile at the time.  The complainant denied having told the investigating officer some time earlier that if she had not sent the photographs the appellant would not have paid for her bus ticket.
  3. [59]
    The appellant’s sexually explicit text messages to the complainant on 22 and 23 January 2017 indicate that he was hoping or expecting to have a sexual encounter with her after she arrived in Brisbane.  The complainant must have known this.  It was open to the jury to treat the complainant’s denial at trial of having sent the two photographs to the appellant as stemming from embarrassment at having done so in exchange for a bus fare or anxiety on her part that the photographs put her in a bad light on the issue of consent.
  4. [60]
    Upon analysis, the distinct possibility that the complainant was prepared to have a sexual encounter with the appellant during her time in Brisbane did not mean that she consented to sexual intercourse at the time and place she alleged she was raped.  Even an expectation by the complainant of a sexual encounter with the appellant during her time in Brisbane did not constitute consent to being penetrated by him when she was asleep or when resisting him after she awoke.  Her evidence that she was raped, initially when asleep in the second bedroom, was not rendered incredible or unreliable by the inference that might be drawn from the text messages that she knew that the appellant expected to have sex with her.  The text messages do not mean that she consented to having sex when she was asleep or at any other time of the appellant’s choosing.

Delay

  1. [61]
    The complainant’s delay in reporting the alleged rape in the following few days, despite apparent opportunities to do so, calls for close scrutiny.  She presented as a homeless young woman without money, who was prepared to stay with the appellant while she obtained food, a mattress and other items to allow her to stay at her mother’s unit.  Having obtained those items on 24 January 2017, she still did not go to the police that night.  Her explanation that it was “freezing” or that the appellant would have heard the front door open were far from convincing explanations as to why she did not walk or run the short distance to the police station.
  2. [62]
    Her delay in reporting the matter to the police might be explained as allowing her time to see her mother in hospital, before being swept up in a police investigation into a rape.  That delay did not make her allegation of rape lack credibility.
  3. [63]
    An associated point is the evidence that she did not shower her body for a few days so as to preserve evidence of the appellant’s sperm for when she did report him to police.  When asked under cross-examination why she only washed her hair, she answered:

“Because obviously I want him done for what he done to me”.

She confirmed that she wanted to preserve some evidence.

  1. [64]
    A reasonable jury, assessing the credibility and reliability of the complainant’s evidence, would need to consider the improbability that she would not shower for a few days, rather than promptly report the matter to police, undergo a medical examination which secured the evidence of his sperm, and then see her mother in hospital.  The improbability that she would not shower for a few days, preferring to delay reporting matters to the police, is associated with another possibility.  This is the possibility that the appellant’s sperm which was found in the medical examination on the night of 25 January 2017 was not sperm which had been preserved by the complainant for a few days, but was the result of consensual sex on the morning of 25 January 2017 about which the appellant gave unsworn evidence.
  2. [65]
    It seems unlikely that a rape victim would not shower for a few days.  However, if the complainant was deciding on 24 and 25 January 2017 whether or when to make a complaint to the police, or waiting to see her mother on the afternoon of 25 January 2017 before doing so, then her evidence about seeking to preserve the evidence is not incredible.  Her conduct in not showering parts of her body for those two days does not make her allegation of rape incredible or unreliable.

Previous complaints

  1. [66]
    A troubling aspect of the complainant’s evidence is the earlier quoted passage from her re-examination[9] which suggests that she admitted having made complaints of sexual offences by other people that were untrue.  This aspect requires analysis of her evidence about other complaints.  For the reasons which follow, her evidence admitted having made only a complaint of sexual offending about one person other than the appellant: her brother J.  This makes her answer in re-examination that “Only one of them are true” confusing.
  2. [67]
    The complainant was cross-examined on the basis of entries in police records from which defence counsel was reading.  Defence counsel had difficulty in putting some matters to the complainant because some of the records were said to be redacted.  The records were not put into evidence and no formal admissions were made as to their contents.
  3. [68]
    The contents of complaints made about the appellant and about others were not properly proved.  Defence counsel relied in cross-examination on police records which may not have consisted only or even primarily of complaints made directly by the complainant to police.  At least some of the records appear to be things which others, such as case managers or carers, reported that the complainant had said.  These included complaints about the appellant, to which I will return after considering the cross-examination about alleged complaints about others.
  4. [69]
    The complainant denied having made a complaint of rape against her former step-father C.  Defence counsel suggested that on 25 September 2010 the complainant alleged that C had been raping her over the previous two years.  The passage is as follows:

“You’ve complained to police, I suggest, on the 25th of September 2010, that [C], your then-stepfather had been raping you over the previous two years?---No.

You complained at the same time, I suggest, that one of your brothers had been raping you over the same period?---I didn’t say anything about my stepdad to any police. The only person I spo – told someone about was my brother, [J].

You refused, I suggest, to disclose information to the police about what you were alleging and you refused to provide a statement? Is that correct?---I was nine years old. What do you expect?”

  1. [70]
    The evidence was that C had raised her “for a period” from when she was a baby and had been her step-father.  It is not clear when he ceased to be her step-father.  In any case, later in her cross-examination, the complainant denied that she had made a complaint that C had raped her.
  2. [71]
    The complainant denied that she had made a complaint at Christmas 2010 that she had been raped by her two brothers.  She later denied saying to anyone at Christmas 2010 that she had been raped by one or more of her brothers.  The suggestion put to her was that she told someone who was caring for her in an all-girls home that she had been raped by one of her brothers.  She denied making that complaint.  As noted, she accepted that she had spoken to someone about her brother J when she was nine years old.
  3. [72]
    She could not recall telling police on 23 May 2011 that she had been touched inappropriately on the breasts by a male student at her school.
  4. [73]
    Therefore, while it was suggested to the complainant in cross-examination that she had complained at different times of being sexually assaulted by C (her step-father at one stage), by one or two brothers and by a male school student at her school, she only accepted that she had made a complaint in respect of her brother J.  There was no evidence that the complainant had complained of sexual assaults apart from complaints about J and about the appellant.
  5. [74]
    It is appropriate to return to the passage in her re-examination which occurred after she gave evidence that the previous complaints she made to the police about the appellant were true:

“And you’ve also been asked about some other complaints you’ve made about other people doing sexual things to you.  Were all of those complaints the truth?---Only one of them are true.

MS HEDGE:  I’m sorry.

HER HONOUR:  Only one of them was true?---Only one of them are true”.

The question had the potential to confuse.  It may have been taken to direct her attention to questions she had been asked under cross-examination about some other complaints she allegedly had made about other people doing sexual things to her.  It was not the case, on her evidence, that she had in fact made all of those complaints.  If the complainant understood the question to be asking her about complaints which she was alleged to have made about other people, then her answer was to the effect that she made only one of those complaints and it was true.

  1. [75]
    Any ambiguity in the question or answer was not clarified at that point.
  2. [76]
    It remains to be considered how a jury, having the advantage of seeing the complainant give her evidence over a substantial period and the manner in which she was giving evidence in re-examination at the end of that period, would interpret her answer.[10]
  3. [77]
    In his address to the jury, defence counsel did not single out the complainant’s answer in re-examination as an admission of having made false allegations of sexual misconduct against others.  One might have expected him to do so if this is how a participant in the trial would have interpreted the answer.  Instead, defence counsel invited the jury to recall how he was cross-examining her about the contents of documents and that she could not accept some, could not remember others and rejected parts.  Defence counsel invited the jury to infer that he was reading from official documents and he was not corrected by the prosecutor that what he was reading was not in the documents.  Defence counsel invited the jury to assess the way in which she gave her evidence.  He said “although she didn’t admit that she’d done certain things, you saw the way she responded”.  This appears to have been an invitation to assess the reliability of the complainant’s evidence by reference to the manner in which she responded to her cross-examination.  No point was made that in re-examination the complainant had admitted making complaints of sexual offences by others and that only one of those complaints was true.
  4. [78]
    The trial judge did, however, appear to interpret the complainant’s evidence as admitting that some of her complaints were false.  The relevant part of the Robinson direction has been quoted.[11]  That direction was not confined to complaints about persons other than the appellant.  It referred to “earlier complaints about a lot of different people”.  They would include complaints about the appellant, about J and, possibly, complaints about others.  As the trial judge noted, “She has not accepted all those”.  The trial judge went on to say “So she even admitted some of them were false by the time she had finished her evidence”.
  5. [79]
    Earlier complaints that were not pursued included:
  1. (a)
    a complaint that her mother had assaulted her, hurt her and split her lip, the truth of which was left somewhat uncertain; and
  1. (b)
    a complaint that C had kicked her in the back with steel capped boots, which the complainant admitted having made,

as well as complaints against the appellant which were not pursued.

  1. [80]
    When the trial judge stated “So she even admitted some of them were false by the time she had finished her evidence”, and referred to “earlier, probably false, complaints”, the trial judge was probably referring to her understanding of the complainant’s answer in re-examination that “Only one of them are true”.
  2. [81]
    The trial judge was not asked to correct or clarify this direction.  It is possible that the prosecutor understood the complainant’s answer in re-examination as an admission of having made false complaints against others.  If not, the absence of a request for a redirection may have been a prudent decision so that the jury’s focus did not shift to alleged complaints against others which the complainant said she did not remember making.  The forensic disadvantage of reopening that issue was that the jury might give undue attention to alleged and unproven complaints that, if made, were not proceeded with.  In her address to the jury, the prosecutor had briefly previewed a likely attempt to discredit the complainant about events that happened a long time ago when she was a child, in care and in a difficult situation.  The complainant was not living in a home with a mother and father and brothers and sisters.  The prosecutor suggested that even in such a stable family situation it is a hard thing for anyone, let alone a child, to make and pursue a rape complaint.  The prosecutor referred to complaints that the complainant had made and chosen not to go ahead with before saying “But she says they were all true, about [the appellant].  She says every complaint she’s made about [the appellant] was true.”  Therefore, in her address to the jury, the prosecutor did not engage with the issue of whether alleged complaints against others, which the complainant said she could not recall save for the complaint against her brother J, had in fact been made and whether they were true.
  3. [82]
    The absence of a request by the prosecutor for a redirection is consistent with the prosecutor having regarded the answer in re-examination as an admission of having made false complaints about others in the past.  It is also consistent with the answer being ambiguous and not warranting further consideration by the jury, lest it divert the jury from consideration of the complaints against the appellant, all of which the complainant said were true.
  4. [83]
    Because of the respects in which the prosecutor, defence counsel and the trial judge dealt with, or did not deal with, the quoted questions and answers in re-examination, they remain ambiguous when read in a transcript.
  5. [84]
    The complainant’s evidence was that she could only recall making one complaint of a sexual offence against someone other than the appellant and there was no evidence that she made more than one such complaint.  Her answer in re-examination was capable of being understood to mean that of the alleged complaints of sexual offences she had been cross-examined about, she had only made one such complaint against a person other than the appellant and it was true.
  6. [85]
    The jury had an advantage over this Court in interpreting the relevant question and answer or simply finding that it was an ambiguous answer by a witness who was reaching the end of a substantial period in the witness box.  It cannot be said that the answer given in re-examination is a clear admission of having made false allegations of sexual offences against persons other than the appellant.  If the complainant had admitted making false allegations of sexual offences against persons other than the appellant, then one would have expected that something would have been said about this by defence counsel in his address to the jury.
  7. [86]
    Recognising the advantage enjoyed by the jury, and having analysed the evidence of alleged complaints made by the complainant against persons other than the appellant, the complainant’s answer in re-examination does not mean that she lacked credibility in general or that her evidence about the appellant lacked credibility.
  8. [87]
    It is appropriate to turn to the evidence about alleged complaints previously made by the complainant against the appellant.  Again, this aspect of the complainant’s cross-examination suffered from a lack of clarity in some cases as to whether the complaint was said to have been made by the complainant to the police or to a carer or case manager.  Also, in many of her answers, it is not clear whether the complainant was denying having made the alleged complaint or saying that she could not recall it.  She did, however, acknowledge making complaints about the appellant having raped her in the past.  This included on Christmas Eve in 2010 when she would have been aged 12.  Her evidence was that she was living in an all-girls home at the time.  She told her youth worker on 31 January 2011 that the appellant had touched her on her private parts.  She told that youth worker that she did not wish to provide police with any information because she was concerned about her mother’s safety.  Her evidence is that the appellant told her that “if I went to the cops he’d bash my mum”.
  9. [88]
    It was also suggested to the complainant that in June 2013 she complained to police that the appellant had raped her.  At first she could not remember making that complaint of rape against the appellant that day, but then did.  She recalled an occasion when her mother was living at a house in Annerley and that, on returning there, she witnessed an argument between her mother and the appellant which prompted her to call the police.  She also recalled being taken to a hospital but refusing a medical examination with a kit because it was a male nurse, rather than a female nurse, who was to undertake the procedure.  She became abusive when the male nurse came near her.
  10. [89]
    It was also put to her that on 25 April 2014 she told police that the appellant had raped her.  The complaint was said to have been made when police were searching her mother’s house.  She did not agree that she said that to police on that occasion, denied that arrangements were made for her to attend a police station and denied ever having made a formal complaint to police in April 2014, alleging that the appellant had raped her.
  11. [90]
    Another part of the complainant’s cross-examination illustrates the difficulty of being sure of whether the complainant was denying having made a certain complaint against the appellant, could not recall it or was, in effect, suggesting that the record which was being put to her in cross-examination was inaccurate.  It was put to her by defence counsel that in November 2013 she told police that she had been raped by the appellant at the Cannon Hill RSL.  She said she could not recall that incident.  She did not think it was possible that she told police that she had been raped by him at the Cannon Hill RSL.  The following passage was read to her in order to refresh her memory:

“The child stated she had had an argument with her mother in the morning.  This resulted in the mother’s boyfriend, [the appellant’s first name], leaving the house and the child went with him.  The child stated [appellant’s first name] took her to the Cannon Hill RSL and raped her.”

  1. [91]
    Having had that entry read to her, the complainant could not say whether she spoke to either police or a youth worker on 20, 21 or 22 November 2013.  She had no recollection of speaking to either a youth worker or police.  She did not admit to making a complaint against the appellant that he had raped her at the Cannon Hill RSL.  She could not say if police tried to speak to her on 20, 21 or 22 November.  It was put to her that there is no Cannon Hill RSL, to which the complainant responded that there is.  It was also put to her that she was never raped by the appellant at an RSL club at Cannon Hill or elsewhere, to which she responded “Not at Cannon Hill RSL”.
  2. [92]
    In summary, the cross-examination of the complainant about previous complaints against the appellant suffers from some of the same features as her cross-examination about alleged past complaints against others.  The making of some complaints was either denied or not recalled by the complainant.  The alleged complaints which were either denied or not recalled by the complainant were not proven in evidence or the subject of formal admissions by the prosecution.  Some previous complaints against the appellant by the complainant were admitted.
  3. [93]
    In her re-examination she said that she had made previous complaints to the police about the appellant.  She said she chose to withdraw one of them.  All of the previous complaints she made to the police about the appellant were said to be true.
  4. [94]
    The complainant gave an explanation for not proceeding with past complaints against the appellant.  In particular, she said that she did not wish to proceed because he threatened to hurt her mother.
  5. [95]
    The cross-examination of the complainant about previous complaints she had made or was alleged to have made against the appellant did not provide a proper foundation to conclude that her previous complaints against him were false.  Her explanation for not proceeding with complaints that were admittedly made was plausible.  Her parlous circumstances included a mother who was in prison at some stages and in a dysfunctional relationship with the appellant.  The complainant was aged between 12 and 16 at the time of the alleged offences by the appellant.  Given her age and family predicament, the fact that she did not progress complaints she made to youth workers and carers about the appellant is understandable.  Her evidence was that she chose to withdraw only one complaint against the appellant (seemingly the complaint of being raped on Christmas Eve in 2010) because he told her that if she “ever went to the cops that he would hurt my mum”.
  6. [96]
    The complainant did not progress at least one complaint of rape against the appellant when she was aged between 12 and 16.  This matter warrants scrutiny of her evidence that she was raped by him on 23 January 2017.  However, it does not not discredit her.  There is a relevant distinction between rapes that were alleged to have occurred when the complainant was aged between 12 and 16 (when the appellant was living with or dating her mother) and the rape with which the appellant was charged.  By January 2017 the appellant was no longer living with the complainant’s mother.  Her mother had the benefit of a temporary protection order which prohibited the appellant from going to her house.  The complainant’s mother was in hospital with a serious illness.  The complainant’s mother was not at risk of being bashed while there.
  7. [97]
    The complainant explained to the jury that she did not progress previous complaints about the appellant because he said that “if I ever went to the cops that he would hurt my mum.”  This prompted the following exchange:

“HER HONOUR:  But you did go to the cops?---Yes, when my mum was safe.”

The complainant’s evidence of why she had not progressed complaints of rape against the appellant in the past, but felt able to do so in January 2017, was plausible.

  1. [98]
    The making of previous complaints by the complainant against the appellant, being complaints which were not progressed, warrants scrutiny.  However, it is not a sufficient reason to reject the credibility and reliability of her evidence that she was raped by him on 23 January 2017.

Application of relevant principles

  1. [99]
    The evidence of the complainant that she was raped on 23 January 2017 was assessed by the jury to be credible and reliable, notwithstanding:
    1. text messages she received on 22 and 23 January 2017 in which the appellant anticipated a sexual encounter with her;
    2. her denial at trial of sending photographs on her phone to the appellant on the afternoon of 22 January 2017;
    3. her delay of almost two days following the alleged rape in reporting the matter to police, during which time she said she had not showered her body because she wanted to preserve some evidence; and
    4. aspects of her evidence in which she was asked to recall making previous allegations of sexual offences against the appellant and others, only some of which she could recall.
  2. [100]
    The issue is whether, notwithstanding the jury’s acceptance of the credibility and reliability of her evidence that she was raped on 23 January 2017, it was open, upon the whole of the evidence, for the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.
  3. [101]
    The fact that the complainant should have anticipated from his text messages that the appellant would seek to have sex with her after she came to Brisbane does not mean that she consented to having sex with him when, on her evidence, she was asleep after he returned to the unit.
  4. [102]
    The complainant was a vulnerable young woman, dependent upon the appellant for a bus fare to Brisbane so she could see her mother in hospital.  She had no food or money.  That she kept company with the appellant on the day after the alleged rape is remarkable, but explicable because he was a source of food vouchers and a mattress she needed.  Her delay in going to the police until after she had seen her mother in hospital on the afternoon of 25 January 2017 warrants scrutiny, but does not discredit her allegation that she was raped on the night of 23 January 2017.
  5. [103]
    The complainant’s evidence about past complaints which were not progressed was confusing.  The jury had an advantage over this Court in assessing the reliability of her evidence that she could not recall making some previous complaints that seemingly appeared in official records, but which were not proven in evidence.  The inability of the complainant to recall some things she may have said to case workers, carers and police between the ages of 12 and 16 is understandable.  She was a disadvantaged child in dysfunctional relationships with her mother and others, including the appellant.  She did not make or did not progress complaints of sexual abuse against the appellant during those years.  She explained this.  The fact that she did not progress those complaints during those years did not discredit her allegation that she was raped by the appellant in January 2017.
  6. [104]
    Each of the challenges to the credibility and reliability of the complainant’s evidence that she was raped on 23 January 2017 does not discredit that allegation.  Each of the challenges to the credibility and reliability of the complainant’s evidence that she was raped on 23 January 2017 is capable of being met. In combination they might raise a doubt in some minds about the appellant’s guilt.  However, the issue remains whether it was open, upon the whole of the evidence, for the jury to be satisfied of his guilt, having regard to the advantage enjoyed by the jury over this Court, which has not seen or heard her evidence being given.  A doubt experienced by this Court may be resolved by recognising that advantage.  Is this such a case?
  7. [105]
    The evidence of the complainant that the appellant unexpectedly returned to the unit and began to rape her when she was asleep does not lack probative force.  It is consistent with the appellant’s sexual interest in her and a sense of entitlement, having arranged her transportation and provided a blanket to sleep on that night.  The complainant’s evidence of having been raped does not lack probative force because she took almost two days to report the matter to police.  The jury had the benefit of seeing and hearing the complainant, including her evidence about sexual offences the appellant had committed against her when she was aged between 12 and 16.  Those allegations were not implausible.  The complainant’s explanation for either not reporting them or not progressing them was plausible.  The jury enjoyed an advantage in assessing the credibility of her evidence about previous sexual offences committed by the appellant against her.  It also had an advantage over this Court in assessing the reliability of her evidence in which she either denied or could not recall making previous complaints against others, being complaints which were not proven in evidence.
  8. [106]
    In general, the jury had the advantage of assessing whether the complainant was credible in explaining her actions as a disadvantaged child aged between 12 and 16 and, more importantly, her actions in January 2017.  It had an advantage in assessing the truth or otherwise of her testimony.  That advantage, and the jury’s collective experience of the world, inclined it to believe that a young woman in desperate financial and personal circumstances would be prepared to take money from the appellant for a bus fare and accept assistance from him to find shelter, and even remain in his company the day after he raped her in order to obtain food, clothes and a mattress.  The jury also was inclined to believe that she would wait to see her mother in hospital on 25 January before reporting the rape to police.
  9. [107]
    Remaining with the man who had raped her and delaying reporting the rape to police until after she had obtained food and had seen her mother in hospital may seem like odd behaviour, when judged against the behaviour to be expected from an ordinary 18 year old.  However, the complainant was not an ordinary 18 year old.  She was living in a kind of survival mode, on the brink of homelessness.  She turned to the appellant for material support before and after the alleged rape.  Her decision to see her mother in hospital before seeing the police does not discredit her.  The jury had the advantage of assessing the credibility and reliability of the complainant’s account of events and it was reasonably open to it to conclude, on the whole of the evidence, that she was telling the truth about events on the night of 23 January 2017.
  10. [108]
    That sexual intercourse occurred between the appellant and the complainant on the night of 23 January 2017 was not in dispute.  The issue for the jury was consent.  The complainant’s evidence about the circumstances of the alleged rape and her lack of consent was consistent, save for a discrepancy between what she told police and what she told the jury about how long the episode took.  Her evidence about being raped that night does not lack probative force in such a way as to lead to the conclusion that, even making full allowance for the advantages enjoyed by the jury, acting rationally, it ought nonetheless to have entertained a reasonable doubt as to proof of guilt.  Any doubt on the issue of consent is resolved by recognising the advantage enjoyed by the jury in assessing the credibility and reliability of the complainant’s evidence.  In my view, it was open, upon the whole of the evidence, for the jury to be satisfied of the credibility and reliability of the complainant’s evidence that she did not consent to having sexual intercourse when she was asleep in her mother’s unit on the night of 23 January 2017 and continued to resist the appellant after she had awoken.  The complainant’s evidence of the circumstances under which she was raped did not lack probative force and it was open, upon the whole of the evidence, for the jury to be satisfied of the appellant’s guilt.
  11. [109]
    I would dismiss the appeal against conviction.

Application for leave to appeal against sentence

  1. [110]
    The appellant applies for leave to appeal against sentence on the ground that the sentence of six and a half years’ imprisonment for rape is manifestly excessive in the circumstances.
  2. [111]
    The appellant was born in late 1962.  He was 54 at the date of the offence, and 56 when he came to be sentenced on 11 December 2018.
  3. [112]
    He has an extensive criminal history, much of it dated.  The more serious offences in his criminal history involved offences of violence.  He was sentenced to eight years’ imprisonment in 1984 for unlawful wounding with intent to do grievous bodily harm.  It was a knife attack which was described as vicious, cowardly and unprovoked.  In 1995 he was again sentenced to imprisonment for eight years, arising from the armed holdup of a convenience store.  His criminal history included property offences, street offences and possession of dangerous drugs.  He has no criminal history of sexual offending.
  4. [113]
    On 24 July 2014, he was sentenced to various terms of imprisonment for a range of offences, including five charges of contravening a domestic violence order.  He received a head sentence of six months’ imprisonment with a parole release date on 31 October 2014.  His response to supervision following his release was highly unsatisfactory.  He was assisted in obtaining supported living accommodation, but failed to comply with curfews and left his accommodation.  He took up residence with the victim of his domestic violence.  He failed to report and attempts to locate him were unsuccessful.  His parole order was suspended on 28 November 2014 and cancelled on 9 February 2015.
  5. [114]
    At the sentencing hearing on 11 December 2018 the prosecutor relied upon the appellant’s breach of trust, the fact that the complainant was asleep when the rape commenced, and that he persisted with the rape through to ejaculation, which was unprotected.  A number of comparable cases were submitted to support a sentence range of between six and eight years’ imprisonment, taking into account the appellant’s personal circumstances.[12]
  6. [115]
    The comparable authorities which involved sentences in the order of five or five and a half years were offenders with no criminal history and who desisted immediately.  The aggravating circumstances in this case already noted were said to place this case above six years and in the range of seven to eight years.  Particular reliance was placed upon R v Hutchinson,[13] who had a less serious criminal history, a nine year delay between when the offence occurred and when he was sentenced and a guilty plea.  Hutchinson received a sentence of seven years’ imprisonment which was not disturbed on appeal.
  7. [116]
    Defence counsel submitted on the appellant’s behalf that the sentence should be between six and seven years.  The appellant’s “serious and unenviable criminal history” was noted, as was the fact that there was no previous conviction for sexual offending.  The appellant’s personal history, including his “long-term dysfunctional relationship” with the mother of the complainant, was relied upon.  The appellant had an 11 year old son.  The appellant had no fixed place of abode and lived on the streets.
  8. [117]
    The trial judge had regard to the submissions made, including the fact that much of the appellant’s lengthy criminal history was very dated and did not include any previous conviction for an offence of a like nature.  Reference was made to the fact that the complainant was a vulnerable person.  Regard was also had to the appellant’s disadvantaged life.  Had it not been for the appellant’s lengthy criminal history, the judge would have contemplated a sentence of less than six years.  He was sentenced to six and a half years’ imprisonment on the rape indictment.  Pre-sentence custody of 684 days was declared.  Parole eligibility was fixed after three years and three months, being 26 April 2020.
  9. [118]
    The appellant made no submissions, either in writing or orally, as to why the sentence imposed upon him was manifestly excessive.  The sentence imposed accorded with the range of between six and seven years contended for by his defence counsel.
  10. [119]
    In R v Flew,[14] it was stated:

“The circumstance that the sentence which was imposed accorded with the submission put to the sentencing judge on the offender’s behalf means that an assertion that the sentence imposed was manifestly excessive could be upheld only in circumstances which are sufficiently exceptional to warrant relieving the applicant from responsibility for the conduct of his case at first instance.”[15]

  1. [120]
    No exceptional circumstances are shown.  The comparable cases provided to the sentencing judge supported the sentence which was imposed.  The head sentence imposed on the rape count took account of the short concurrent sentences for the domestic violence contraventions to which the appellant pleaded guilty on 11 December 2018.
  2. [121]
    The appellant has not shown that the sentence of six and a half years’ imprisonment was manifestly excessive.  His application for leave to appeal against sentence should be refused.
  3. [122]
    BODDICE J:  I have had the considerable advantage of reading the reasons for judgment of Applegarth J.
  4. [123]
    His comprehensive analysis of the evidence and applicable legal principles allows me to briefly state my reasons for allowing the appeal, setting aside the verdict of guilty and entering a verdict of acquittal.
  5. [124]
    Whilst the complainant’s personal circumstances provided significant context within which the jury was to view the inconsistencies and discrepancies in the complainant’s evidence, one feature not explained by those circumstances was the complainant’s acceptance in re-examination that only one of the complaints made about other people doing sexual things to her was true.
  6. [125]
    A reading of the transcript supports a conclusion that that evidence was an admission to having made false complaints in the past about people doing sexual things to the complainant.  That conclusion was consistent with the trial Judge’s summing up to the jury.  Whilst the effect of the complainant’s answers was ultimately a matter for the jury, there is no basis to determine this appeal on a differing understanding of that answer.
  7. [126]
    That conclusion significantly impacts upon the consideration of the unsatisfactory aspects of the complainant’s evidence.  Those unsatisfactory aspects were the complainant’s denial of having sent sexually explicit images of herself in response to the appellant’s specific request, her explanation for not attending police, namely, that it was “freezing” when the temperature did not fall below 24 degrees in what was late January in Brisbane; and her evidence about not having showered so as to preserve evidence.
  8. [127]
    Whilst each of those matters, alone, may have an explanation, the combination of them, in the context of an admission to previously making untrue complaints of a sexual nature, so impacted on the complainant’s reliability and credibility that it was not open to the jury, on the evidence as a whole, to be satisfied beyond reasonable doubt that the appellant was guilty of the offence of rape.
  9. [128]
    The complainant’s evidence that she did not send the sexually explicit photograph constituted much more than a mere denial.  It involved a detailed explanation of the photograph being of another person, of its being sent on her telephone by that other person and of a denial of making earlier statements to police about sending the photograph.  In the context of evidence of previous false complaints, that evidence assumed a significance beyond a simple inconsistency or discrepancy.
  10. [129]
    Similarly, the proffered explanation for not attending police, namely, that it was freezing on a late January morning in Brisbane, was consistent with a conclusion that the complainant was prepared to give a false account in evidence.  Her preparedness to make false assertions was a matter that impacted upon the plausibility of her explanation for not having showered in the following days.  Again, these matters went beyond simple inconsistencies and discrepancies within her evidence.
  11. [130]
    In the context of a case where the only issue in dispute was consent, the inconsistencies and discrepancies within her evidence were such that, even making full allowance for the advantages enjoyed by a jury, the jury, acting rationally, ought to have entertained a reasonable doubt as to proof of the appellant’s guilt.
  12. [131]
    I would order:
  1. (1)
    The appeal be allowed.
  1. (2)
    The verdict of guilty be set aside.
  1. (3)
    A verdict of acquittal be entered.

Footnotes

[1] M v The Queen (1994) 181 CLR 487 at 493; R v Baden-Clay (2016) 258 CLR 308 at 330 [66].

[2] M v The Queen (1994) 181 CLR 487 at 493.

[3] At 494-495 (footnotes omitted).

[4] BCM v The Queen (2013) 303 ALR 387 at 392 [31] citing SKA v The Queen (2011) 243 CLR 400 at 406 [14].

[5] Pell v The Queen [2020] HCA 12 at [39].

[6] [2020] QCA 13 at [173]-[181].

[7] [2020] QCA 76 at [14], [34]-[37] and [98].

[8] [2019] QCA 114 at [36] (footnotes omitted).

[9] See [29].

[10] The complainant’s evidence went from 2.42 pm to 4.11 pm on the first day and for about an hour on the morning of the second day, with some short breaks.

[11] At [43].

[12] The authorities were R v Hutchinson [2010] QCA 22; R v HAK [2008] QCA 30; R v Basacar [2006] QCA 352; R v Miller [2012] QCA 168 and R v Simmons [2015] QCA 194.

[13] [2010] QCA 22.

[14] [2008] QCA 290.

[15] At [28] (emphasis in original).

Close

Editorial Notes

  • Published Case Name:

    R v GBG

  • Shortened Case Name:

    R v GBG

  • MNC:

    [2020] QCA 112

  • Court:

    QCA

  • Judge(s):

    Morrison JA, Applegarth J, Boddice J

  • Date:

    29 May 2020

Litigation History

No Litigation History

Appeal Status

No Status