Loading...
Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

R v HCB

 

[2020] QCA 164

SUPREME COURT OF QUEENSLAND

CITATION:

R v HCB [2020] QCA 164

PARTIES:

R

v

HCB

(appellant)

FILE NO/S:

CA No 103 of 2019
DC No 38 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 29 March 2019 (Moynihan QC DCJ)

DELIVERED ON:

11 August 2020

DELIVERED AT:

Brisbane

HEARING DATE:

17 March 2020

JUDGES:

Sofronoff P and Morrison and Philippides JJA

ORDER:

The appeal against conviction is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted by a jury of one count of sexual assault and four counts of rape committed against an 18 year old complainant – where the complainant, after a night out at a nightclub, stopped at a convenience store where the appellant worked and asked to use the bathroom, which the appellant refused – where the complainant subsequently returned to ask to use the bathroom again, to which the appellant agreed – where the appellant locked the door to the store and took the complainant to the toilet cubicle at the back of the store where the offending occurred – where the appellant initially denied any sexual contact between himself and the complainant to police – where, at trial, the appellant’s evidence was that the sexual activity with the complainant was consensual – whether, on the whole of the evidence, it was open to the jury to be satisfied, beyond reasonable doubt, that the appellant was guilty of the charged offences

Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12, cited
R v TAI [2018] QCA 282, cited

COUNSEL:

The appellant appeared on his own behalf
C N Marco for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    SOFRONOFF P:  I agree with Philippides JA.
  2. [2]
    MORRISON JA:  I have read the reasons of Philippides JA and agree with those reasons and the order her Honour proposes.
  3. [3]
    PHILIPPIDES JA:

Background

  1. [4]
    On 29 March 2019, the appellant was convicted by a jury of one count of sexual assault (count 1) and four counts of rape (counts 2 to 5).  The offences were committed in the early hours of 22 September 2018 against an 18 year old complainant at the convenience store in Fortitude Valley where the appellant was working when the complainant used the toilet of the store.
  2. [5]
    The appellant was sentenced to concurrent terms of imprisonment of five years and six months on counts 2, 3 and 5; imprisonment for three years on count 4; and 18 months imprisonment on count 1.
  3. [6]
    The appellant appeals against his convictions on the grounds that they were unsafe and unsatisfactory.

The evidence

The complainant’s evidence

  1. [7]
    The complainant gave evidence that on 21 September 2018, at about 10.30 pm, she went with her friend P to a nightclub in Fortitude Valley, where they met P’s friend, W.[1]  She was wearing a lingerie one piece and striped pants.  The complainant stayed at the club for about four to five hours.[2]  During that period, she had about nine mixed vodka drinks and took two or three “pingers” (MDMA tablets).[3]  At about 2.15 am, she left the club with P and W and walked down the street to look at getting an Uber to go home.[4]
  2. [8]
    The complainant stopped at a convenience store and asked the attendant (the appellant) if she could use the bathroom in the store.[5]  He responded, “No” and she left the store.[6]  CCTV footage showed W then entering the store to buy chewing gum while the complainant and P waited outside and P rolled a cigarette.[7]  W returned and he and P became distracted and started kissing and trying to order an Uber.[8]  The complainant kept saying that she needed to go to the toilet and said she would ask again.  She walked back into the store and asked again if she could use the bathroom and started to “beg and say that [she was] not going to do anything” and that she just “need[ed] to use the bathroom”.[9]  The appellant eventually agreed.  He then locked the front doors of the store and told her to follow him to the bathroom.[10]  She followed him through a storeroom.  There was no light on in the storeroom.  They went through to a bathroom which contained a hand basin and a separate toilet cubicle.  There was a light in the bathroom.
  3. [9]
    The complainant entered the cubicle and was looking to see if there was a hook on the door for her to hang her bag.  She was standing facing the toilet seat when she noticed the appellant.  She “kind of blanked” and told him to turn around.[11]  She had taken her pants off and her underpants were “halfway off”.[12]  She noticed that the appellant had come closer to the toilet and she “started to freeze”.  The appellant told her to “be quiet”.[13]  The appellant then took the shoulder straps off the top part of her one piece, leaving her breasts exposed.[14]  He started to touch her breasts and put his mouth on her nipples, sucking them.[15]  This conduct constituted the count of sexual assault, count 1.
  1. [10]
    The complainant tried to push the appellant and he then turned her around so that she was no longer facing him and pushed her so that she was leaning on the toilet.  He then put his penis into her vagina.[16]  That conduct constituted count 2, rape.  The penetration was painful.[17]  The appellant kept calling her “baby” and told her to be quiet.  She asked whether he had a girlfriend, to which he said he did.[18]  The complainant told him she had a boyfriend and the appellant said he did not care.[19]  This continued for about 10 minutes.
  2. [11]
    The appellant then turned the complainant around, pushed on her shoulders and told her to “Get on your knees”.  He grabbed her jaw, pulled her mouth open and put his penis in her mouth for about five minutes.[20]  This constituted a further count of rape, count 3.  The appellant was pushing the back of her head towards him.  The complainant pushed against his thighs and tried to pull away.  She bit the appellant’s penis, although, as she was scared, she did not bite very hard.[21]  She heard the appellant taking a photo with a mobile.  It sounded like a Samsung.  Her own mobile had fallen to the floor.  She heard her mobile ringing at one stage but was too scared to answer it and it felt really far away.[22]  The complainant told him it would be her friends calling, and the appellant said, “‘Just a minute,’ or, ‘Let me finish,’ or something like that” a number of times.[23]
  3. [12]
    The appellant then sat on the toilet and told the complainant to sit on him.  She refused and backed away.  The appellant stood up and turned her around to face the wall and put his penis inside her vagina for about the same amount of time as the earlier occasion.[24]  This conduct constituted another count of rape, count 4.
  4. [13]
    After that, the appellant moved the complainant so that she was sitting on the toilet and pulled her legs up and he again put his penis inside her vagina.[25]  This conduct constituted count 5, rape.  The appellant then stopped and said, “I’m done now”.[26]
  5. [14]
    The complainant then used the toilet and dressed herself.  The appellant unlocked the front doors of the store to let her out.  She turned and said to the appellant, “I’ll see you later”.[27]  (She was seen on CCTV footage to be fixing her hair and clothes as she left the storeroom.)  The complainant then looked for the others.  She found W, who asked her where she had been and about what had happened and she started crying.  She used W’s mobile to called P who arrived shortly afterwards.[28]  P asked if “he had done something” and the complainant nodded.  P stormed off to the store, with the complainant and W following.  At the store, P told the appellant that she would call the police.[29]  The police attended and took the complainant to hospital where DNA swabs were taken.
  6. [15]
    The complainant stated in cross examination that in 2016 she was diagnosed with anxiety, depression and minor paranoia by a counsellor but was not medicated for these conditions.[30]  She said that she had never used MDMA before the night in question and was feeling a higher degree of anxiety but denied feeling reckless.[31]  She described herself as being “moderately” intoxicated and accepted that the drugs did have some effect on her in terms of a sense of euphoria and wellbeing but denied that she felt a greater sense of closeness to others or recklessness.[32]
  7. [16]
    The complainant said that she did not use her mobile to call for help because she was afraid.  She accepted that she could have called 000 even though she had no credit on her phone.[33]  She accepted that the force used by her against the appellant was to push him and that she did not hit or slap him.[34]  She said she was “One hundred percent certain” that the appellant did not leave the cubicle at all during the offending but accepted when shown CCTV footage inconsistent with that that he had[35] but said she did not notice that he had left.[36]
  8. [17]
    The complainant denied that the appellant asked if he could take a photograph of her and she also denied asking him not to photograph her face.[37]  The complainant accepted that oral sex could have occurred more than once.[38]  The complainant denied removing the straps of her top and inviting the appellant to engage in sexual activity and opening the appellant’s pants.  She said that she intended to move her one piece “to the side” so that she could use the bathroom.[39]
  9. [18]
    The complainant denied that the sexual activity started with her initially performing oral sex on the appellant[40] and denied that the appellant “didn’t particularly know what he was doing” or seemed otherwise sexually inexperienced.[41]  She also denied rubbing the outside of her vagina as the appellant was leaving the cubicle.[42]  She said that she did not hear the appellant’s phone ringing.[43]  She did not recall the appellant ejaculating into the toilet.[44]  She denied saying to the appellant that the sex was pleasurable and that he should pay her.[45]  She said she was being sarcastic when she said, “See you around. See you later”, or words to that effect, to the appellant.[46]  The complainant said she did not scream during the offending because she “just shut down”.[47]

P’s evidence

  1. [19]
    P gave evidence of going to a nightclub in Fortitude Valley with the complainant, where they met W.  She said that she consumed eight to 10 drinks at the nightclub and took MDMA pills.[48]  She said that she, the complainant and W left the club and walked to a convenience store where the complainant asked to use the toilet, but the store attendant said that they did not have one.[49]  They were at the front of the store and the complainant said again that she needed to use the bathroom.  P was rolling a cigarette and kissing W.  She said she would go walk back to the nightclub and they could use the toilet there.  She was still rolling her cigarette and looked over and realised that the complainant was gone.  She started phoning the complainant and became concerned when there was no answer.[50]  She went to look for her at the nightclub.  When she got there she received a call from the complainant on W’s mobile number.  The complainant sounded like she was crying hysterically.[51]  P then met the complainant outside the club.  She was still crying hysterically and told P that the store attendant had raped her and that he was taking photos of her on a phone, which sounded like a Samsung phone.[52]
  2. [20]
    P went to the store and confronted the appellant and asked if he had raped the complainant, which he denied.  P asked to see the photos on the appellant’s phone.  He showed her an iPhone that had no photos of the complainant on it.  P then called police.[53]
  3. [21]
    During cross examination, P acknowledged that in her statement to police she said that the complainant had broken up with her boyfriend for six weeks[54] but that they had also recently resumed the relationship at the time of the offences.[55]  The complainant said that her boyfriend was going to break up with her but that was after the event.[56]

W’s evidence

  1. [22]
    W gave evidence of meeting P and the complainant at the nightclub and that he consumed approximately 20 alcoholic drinks during the night.[57]  After they left the club at between 1.30 and 2.00 am, he bought some chewing gum at a convenience store.  He and P started “making out” and they also had a cigarette and spoke for approximately five to 10 minutes.[58]  P became concerned about the whereabouts of the complainant and made multiple phone calls to the complainant, which were not answered.[59]  P then returned to the nightclub and went in while W waited outside.  While he was there, the complainant came up to him.  She was in a distressed state and was “breathing very heavily” and in “panic mode”.  She told W that the store attendant had raped her and that he “pulled up her dress, slammed her head against the wall, and … stuck it in”.[60]  P returned to the store and spoke to the appellant.  W stayed with the complainant, who was shaking and screaming for her boyfriend.[61]  He went into the store and asked to see the appellant’s phone.  The appellant showed him an iPhone which did not contain any photos of the complainant.[62]

Police evidence

  1. [23]
    Senior Constable Ashford responded to the initial police call and attended at the scene, where he spoke to the complainant with his body worn camera recording.  The conversation that he recorded with the complainant was played to the jury.
  2. [24]
    Senior Constable Hanlon also spoke with the appellant, who showed him his iPhone and his LG phone, neither of which contained any photos of the complainant.

Medical evidence

  1. [25]
    Dr Robinson conducted a physical examination of the complainant who gave her an account that she had used the toilet and was pulling up her pants when the appellant pushed her to floor and started to assault her[63] (the claim that she used the toilet prior to the offending was inconsistent with the complainant’s evidence).  She did not observe any genital injuries but said that that was common in rape cases.[64]  She took swabs from the complainant.  No toxicology samples were taken from the complainant.  She was unable to comment on the effects of MDMA because of the many variables that are relevant to such an assessment.  She agreed that the psychological effects of MDMA include euphoria, wellbeing, a sense of closeness to others and elation.[65]

CCTV Evidence

  1. [26]
    The CCTV footage showed the complainant being in the store for 18 minutes.  There were no CCTV cameras in the bathroom area.[66]

Admissions

  1. [27]
    Admissions were made that:
    1. (a)
      the appellant’s DNA was matched to swabs taken from the complainant’s vulva, vagina and nipples;
    2. (b)
      the appellant’s sperm was found in the complainant’s vagina; and
    3. (c)
      the complainant’s DNA matched that on swabs taken from the appellant’s penis.

Appellant’s police interview

  1. [28]
    In his police interview, the appellant said that the complainant appeared “really drunk” and entered the store to ask to use the toilet.  She came in again and said it was urgent and he allowed her in.  He told her he had to lock the door of the store so no one could take anything.  He took her to the back of the store through a storeroom to the washroom.  He turned the light on in the storeroom.  He waited outside the washroom and both the door to it and the toilet were closed.  At one stage, he told her to go faster because she was taking a long time, about 15 minutes.[67]  He said that the complainant came out of the bathroom, thanked him and said good night.  He unlocked the door and let her out.[68]  A while later, a male (W) entered the store and accused him of raping the complainant, which the appellant denied.  The male then said he would call the police and the appellant said he would too.[69]
  2. [29]
    The appellant denied any sexual contact with the complainant and said that he had never had sex before.[70]  The appellant said that he did return to the counter once to get his iPhone that he was playing a game on.[71]  The appellant denied preventing the complainant from closing the toilet door.[72]

The appellant’s evidence at trial

  1. [30]
    The appellant gave evidence and had the assistance of an interpreter, but gave his evidence in English as much as possible.[73]
  2. [31]
    Although denying any sexual contact between himself and the complainant to police, at trial the appellant’s evidence was that the sexual activity he detailed was consensual.
  3. [32]
    The appellant said that when the complainant initially attended at the store to ask to use the toilet, he said, “no” and told her to use the nearest public bathroom.[74]  She had returned to the store again and was insistent and the appellant allowed her in and said he had to lock the front door.  He took the complainant to the washroom and stood outside.[75]  Then, the complainant went in and closed the door of the toilet cubicle.  The complainant then came out, removed her top and said to him to “come fuck me”.[76]  The appellant said no.  The complainant asked him to “come and suck my boobs”.  He walked closer to the complainant and she then led him into the bathroom.[77]  In the bathroom, he touched and sucked the complainant’s breasts[78] and the complainant touched the appellant’s penis through his pants and removed his pants to suck his penis for approximately 10 to 15 seconds.[79]  The complainant then put the appellant’s penis in her vagina.[80]  They changed positions several times.  The appellant heard his phone ringing and told the complainant he had to answer it.  At that stage, the complainant was sitting on the toilet and put her legs up and rubbed her vagina.[81]
  4. [33]
    The appellant returned to the bathroom after attending to his phone.  He closed the door to the cubicle and the complainant again started sucking the appellant’s penis.  The appellant said that he then asked if he could take a photo of her and she said he could but not of her face.[82]  The appellant said that he took a photo.  (He said he deleted the photo after she left the store, as he did not want to keep it.[83])  The complainant told him to sit on the toilet and said, “Let’s have sex again” which they did for about a minute.[84]  He ejaculated into the toilet.  The appellant said that the complainant asked the appellant for money because she gave him a “really good fuck”.  He said he did not have any.  The complainant then used the toilet.  The appellant unlocked the door and the complainant left the store saying “Goodbye, baby” and “Good night”.[85]
  5. [34]
    The appellant said he initially lied to the police regarding sexual contact taking place because he was concerned that he would be imprisoned and deported[86] and that he was scared of the police when they arrested him.  However, he accepted during cross examination that he did not tell anyone he was scared or that he thought he would be sent to jail.[87]  He also accepted that police were polite to him and offered him assistance, although he did not recall being told of his right to be silent.[88]
  6. [35]
    The appellant accepted that the complainant was asking for his help.[89]  He agreed that the complainant was wearing a “see-through” top.[90]  He described the complainant as a “little bit” drunk, whereas he described her as “really drunk” to police.[91]  The appellant said that the complainant told him that she had a small purse so she could not steal anything.  He did not agree that she offered to leave her purse with him.[92]
  7. [36]
    He denied that he deleted the photo he had taken of the complainant after being confronted by P and W and that he had shown them another phone.[93]  The appellant maintained that this was his first sexual experience.[94]
  8. [37]
    The appellant admitted that he knew where the CCTV cameras were in the store.[95]
  9. [38]
    During cross examination, the appellant admitted that he lied to police when he told them he did not enter the washroom.  He said he was scared at the time.[96]  He also admitted that he lied in saying that he did not touch the complainant at all and that he did not have sex with her.  He conceded he lied about retrieving his phone to play a game on it.  The appellant said he did not know that he was going to be examined by a doctor following the police interview.[97]  The appellant agreed he was not scared of the doctor but said he did not tell him he had consensual sex with the complainant because the doctor did not ask any questions.  The appellant agreed that he had another opportunity to speak with police on 26 October 2018 but did not do so and told them to speak with his lawyer.[98]

The summing up

  1. [39]
    His Honour gave the standard directions as to the onus of proof on the prosecution and the elements of the offences, including the meaning of consent.  The trial judge summed up the defence case at trial as being that the complainant consented to all sexual activity.  His Honour also gave a direction as to mistake of fact as to whether the complainant consented.[99]  His Honour pointed out that the prosecution case relied primarily on the evidence of the complainant and directed them to scrutinise it carefully.  The trial judge also gave directions as to lies, including lies going to credit only and going to a consciousness of guilt.  In the first category was the appellant’s statement to police that he turned the lights on in the storeroom and that he retrieved his phone from the counter because he was playing a game on it.  In the second category were the statements to police that he did not enter the washroom and that he did not have sex with the complainant.

Appeal against conviction

Relevant principles

  1. [40]
    In an appeal such as this, where the conviction is sought to be set aside as unsafe and unsatisfactory, the relevant principles set out in High Court authorities were summarised by me in R v TAI as following:[100]

“1. The question which an appellate court must ask itself is whether it considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the defendant was guilty: M v The Queen[101] and MFA v The Queen.[102]

  1. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ 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: R v Baden-Clay.[103]
  1. In most cases, a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.  In such a case of doubt, it is only where a jury’s advantage in seeing and hearing the evidence can explain the difference in conclusion as to guilt that the appellate court may conclude that no miscarriage of justice occurred: MFA v The Queen.[104]
  1. If the evidence contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court 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: M v The Queen[105] and MFA v The Queen.[106]
  1. The ultimate question for the appellate court 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: R v Baden-Clay.[107]  In determining that question, this Court must undertake its own independent assessment of the evidence, both as to its sufficiency and quality: Morris v The Queen[108] and SKA v The Queen.[109]  In doing so, the Court must disclose the manner of that assessment: GAX v The Queen.[110]
  1. [41]
    As recently stated in Pell v The Queen:[111]

“Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box.”

Submissions

  1. [42]
    On the hearing of the appeal, the appellant appeared for himself and made oral submissions without the need to resort to the assistance of the interpreter who had been made available.
  2. [43]
    The appellant contended that the jury ought to have had a doubt as to the element of lack of consent.  In that regard, the appellant referred to the evidence that he declined the complainant’s initial request to use the bathroom and to P’s evidence that, at one point when she was outside the store with W, she told the complainant to wait and that she would accompany the complainant back to the nightclub to use the toilet there, as supporting the inference that the complainant willingly engaged in the sexual activity that thereafter occurred and consented to it.
  3. [44]
    The appellant also referred to the complainant’s evidence of consumption of MDMA as supportive of the complainant consenting to the sexual activity.  He referred to Dr Robinson’s evidence that the psychological effects of MDMA included “euphoria, wellbeing and a sense of closeness to others”.  The appellant submitted that the drug was having that effect on P and W who were outside the store and that it could be inferred that the drug also had the same effect on the complainant, which explained her behaviour in returning to the store and seeking to have sexual intercourse with him, as the appellant’s case was put at trial.[112]  The appellant also referred to the complainant’s evidence that she was feeling a greater amount of anxiety from taking the drugs but was not feeling reckless.  He submitted that this was indicative of the complainant retaining capacity to understand her surroundings and what she was doing, particularly in relation to consent to sexual activity.[113]
  4. [45]
    Further, the appellant relied on evidence that the complainant did not try to call her friends or police when she was at the store.  He referred to the complainant’s explanation that her phone was too far from her, that she was afraid and that she was out of credit.  The appellant submitted that that explanation for not calling for help ought to have been rejected, since phone credit is not required to call 000, and the complainant had time to answer her phone when he left the cubicle.[114]  The appellant also relied on evidence that the complainant did not scream or hit him or otherwise try to physically fight him off during the course of the conduct as evidence consistent with consent.[115]
  5. [46]
    The appellant additionally referred to his evidence that the complainant said “Good bye, baby” and “Good night” to him as inconsistent with the complainant’s account of what happened and to the CCTV footage of her fixing her hair and clothes as she left the store in which he argued she appeared “normal” and did not behave or appear as someone who had just been raped.[116]
  6. [47]
    The appellant referred to an inconsistency between the complainant’s evidence that she was “one hundred per cent certain” that he did not leave the cubicle during the course of the sexual conduct and the CCTV footage from the store which showed that he did.[117]  He also submitted, in respect of Dr Robinson’s evidence that it is not uncommon for victims of sexual assault and rape not to display physical injuries indicative of an assault, that the lack of injuries were able to be understood as supportive of consensual intercourse.[118]
  7. [48]
    The appellant therefore submitted that, on the whole of the evidence, the jury ought to have entertained a reasonable doubt as to his guilt of the offences due to the evidence that supported the proposition that the complainant consented to the offending conduct, which ought to have left them with a doubt on the element of lack of consent.[119]
  8. [49]
    In relation to the appellant’s denials of sexual contact to police when interviewed, the appellant maintained that he was scared and that he did not have the benefit of legal advice and was not aware of his right to silence.[120]

The respondent’s submissions

  1. [50]
    The respondent submitted that the complainant’s evidence was capable of being accepted as honest and reliable.  The evidence was that the complainant did not scream, or offer physical resistance or called 000, but she made immediate and consistent complaints to her friends, who gave evidence of her visibly distressed state.  The respondent submitted that to the extent that there were inconsistencies in the complainant’s evidence (such as in relation to whether she recalled the appellant leaving the cubicle), they were minor and did not detract from her otherwise compelling account of the offending conduct.  The lack of significant inconsistencies showed that the complainant’s moderate intoxication did not impair her reliability.
  2. [51]
    As to the complainant’s appearance and behaviour as she left the store, this was to be considered with her other evidence that she had “blanked out” during the offending conduct and that she offered little physical resistance because she was scared.  An appearance of calm did not necessarily reflect her true mental state, which was later demonstrated by her very distressed state when telling her friends what had happened.
  3. [52]
    The respondent submitted that the complainant’s evidence was supported by the appellant’s initial lies to police.  Had the sexual activity been consensual, as the appellant later claimed, it was difficult to understand why he would have told such lies to police.  It was open to the jury to conclude that the appellant lied out of a consciousness of guilt to divert police attention from the nonconsensual sexual activity that actually occurred.  The appellant’s lies were relevant also to his credibility and the jury could well have been unpersuaded that it was an honest account because they found it implausible.  His evidence was essentially that a young woman whom he did not know, who entered his store, because as he accepted, she urgently needed to use the toilet, offered in very strong terms to have sex with him and sexually asserted herself.

Consideration

  1. [53]
    The jury had the advantage of hearing the witnesses give evidence, including the complainant and the appellant.
  2. [54]
    The appellant referred to various pieces of evidence in support of his contention that the jury ought to have entertained a reasonable doubt as to the issue of lack of consent.  In my view, the jury were entitled to reject the submission made by the appellant on appeal and at trial that the failure of the complainant to hit or forcefully resist the appellant supported an inference of consent, given the complainant’s evidence that she froze and was scared.  Furthermore, it may have been possible for the complainant to use her phone to call 000 for help when the appellant left the toilet cubicle as shown in the CCTV footage.  However, her evidence is that she did not notice he had left.  Nor was her evidence inconsistent with P’s evidence of having received a call from the complainant, since that call was made by the complainant using W’s phone after she had returned to the club and found him outside the club.
  3. [55]
    As to the complainant’s lack of attempts to seek help, her account that she was scared of getting to her phone and that it was too far away is, on its face, a plausible account that was open to the jury to accept.  The appellant’s argument that she could have had time to call for help when the appellant was not in the cubicle was again something that ought properly be left for them to determine in relation to the issue of consent.
  4. [56]
    As to the appellant’s submission concerning the effects of MDMA, as the respondent correctly submits, the jury were entitled to have regard to the complainant’s denial that it had the effect of making her have feelings of increased closeness and to the evidence of Dr Robinson who spoke of the many variables at play in relation to the effect of MDMA on any particular person.  It was for the jury to consider the weight to be given to the evidence.
  5. [57]
    As to the submission that the complainant’s behaviour appeared “normal” when exiting the store, it was for the jury to determine what they made of the CCTV footage of the complainant when considered with the whole of the evidence, including the evidence of P and W that she was crying hysterically when she found them.  Further, as the respondent submitted, inconsistencies in the complainant’s evidence were matters for the jury to consider in light of the whole of the complainant’s evidence, including her early, immediate and consistent complaints to friends when she was visibly distressed.
  6. [58]
    As to the complainant’s lack of physical injuries, the jury were entitled to consider that evidence as neutral in relation to whether or not the sexual activity was consensual such that it did not materially bear on the outcome.
  7. [59]
    It was open to the jury, as the respondent submitted, to accept the complainant’s evidence as honest and reliable, given her immediate and consistent complaints and her visible distress when making those complaints, notwithstanding the minor inconsistencies in her evidence.  It was also open to the jury to reject the appellant’s account as implausible for the reasons put forward at trial and reiterated by the respondent on appeal.  They were also entitled to take into account such lies as they found were told by the appellant, (as the trial judge properly directed) as going both to the appellant’s credibility and to a consciousness of guilt in terms of the sexual activity being nonconsensual.
  8. [60]
    Having reviewed the whole of the evidence, I consider it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offences.
  9. [61]
    I would therefore dismiss the appeal against conviction.

Footnotes

[1]AB2 at 133.16-27.

[2]AB2 at 134.32.

[3]AB2 at 134.39-46.

[4]AB2 at 135.6; 135.26-29.

[5]AB2 at 135.41-136.6.

[6]AB2 at 136.4-8.

[7]AB2 at 209.36-38; 210.12-14.

[8]AB2 at 137.6.

[9]AB2 at 137.25-27.

[10]AB2 at 138.13-17.

[11]AB2 at 139.33-35; 140.30-31.

[12]AB2 at 140-35-141.17.

[13]AB2 at 141.33-35.

[14]AB2 at 141.39-142.1.

[15]AB2 at 142.3-6.

[16]AB2 at 142.

[17]AB2 at 143.9.

[18]AB2 at 142.36-47.

[19]AB2 at 143.3.

[20]AB2 at 143-144.

[21]AB2 at 144.

[22]AB2 at 145.19-25.

[23]AB2 at 145.27-31.

[24]AB2 at 145-146.

[25]AB2 at 146.13-33.

[26]AB2 at 146.39-41.

[27]AB2 at 147.11-43.

[28]AB2 at 149.18-150.11.

[29]AB2 at 150-152.

[30]AB2 at 153.47-154.17.

[31]AB2 at 155.45-156.3; 158.20-44.

[32]AB2 at 158-159.

[33]AB2 at 159.43-44; 160.26-42.

[34]AB2 at 164.

[35]AB2 at 166-167.

[36]AB at 179.

[37]AB2 at 168.8-15.

[38]AB2 at 168.15-20.

[39]AB2 at 169.14-170.11.

[40]AB2 at 170.23-28.

[41]AB2 at 171.6-12.

[42]AB2 at 171.30-37.

[43]AB2 at 171.16-24.

[44]AB2 at 174.7.

[45]AB2 at 174.18-19.

[46]AB2 at 173.36-43.

[47]AB2 at 180.24-25.

[48]AB2 at 202.40.

[49]AB2 at 203.24-26.

[50]AB2 at 203.28-34.

[51]AB2 at 204.20-205.6.

[52]AB2 at 205.16-26.

[53]AB2 at 205.

[54]AB2 at 206.32-33.

[55]AB2 at 208.4-7.

[56]AB2 at 207.23-25.

[57]AB2 at 209.18-22.

[58]AB2 at 210.18-21.

[59]AB2 at 210.23-31.

[60]AB2 at 211.36-41.

[61]AB2 at 212.11-18.

[62]AB2 at 212.33-38.

[63]AB2 at 190.7-15.

[64]AB2 at 192.11-42.

[65]AB2 at 194-195.

[66]AB2 at 127.14 and 148.45.

[67]AB2 at 401.40-52; 402.

[68]AB2 at 398.1-10.

[69]AB2 at 399.24-400.30.

[70]AB2 at 401.11-33.

[71]AB2 at 403.3-35.

[72]AB2 at 404.35-43.

[73]AB2 at 243.41-244.2.

[74]AB2 at 249.15-16.

[75]AB2 at 249.24-250.32.

[76]AB2 at 252.27-35.

[77]AB2 at 252.45-253.38.

[78]AB2 at 253.47.

[79]AB2 at 254-255.

[80]AB2 at 255.22.

[81]AB2 at 257.

[82]AB2 at 260.

[83]AB2 at 261.

[84]AB2 at 260-261.

[85]AB2 at 262.

[86]AB2 at 263.

[87]AB2 at 271.30-40.

[88]AB2 at 267.

[89]AB2 at 274.

[90]AB2 at 275-276.

[91]AB2 at 276.

[92]AB2 at 277.

[93]AB2 at 279.35-280.41.

[94]AB2 at 291.

[95]AB2 at 299.

[96]AB2 at 316.

[97]AB2 at 317.

[98]AB2 at 319.

[99]AB1 at 75.15-44.

[100][2018] QCA 282 at [37].  See also R v Mackay [2018] QCA 313 at [24]; R v Dalton [2020] QCA 13 at [173] – [181]; R v Manning [2020] QCA 14 at [44]; and R v Scofield [2020] QCA 101 at [62].

[101][1994] HCA 63; (1994) 181 CLR 487 at 494-495.

[102][2002] HCA 53; (2002) 213 CLR 606 at 623.

[103][2016] HCA 35; (2016) 258 CLR 308 at [65]-[66] per French CJ, Kiefel, Bell, Keane and Gordon JJ.  See also M v The Queen [1994] HCA 63; (1994) 181 CLR 487; MFA [2002] HCA 53; (2002) 213 CLR 606.

[104][2002] HCA 53; (2002) 213 CLR 606 at 623.

[105][1994] HCA 63; (1994) 181 CLR 487 at 494-495.

[106][2002] HCA 53; (2002) 213 CLR 606 at 623.

[107][2016] HCA 35; (2016) 258 CLR 308 at [65]-[66] per French CJ, Kiefel, Bell, Keane and Gordon JJ.  See also M v The Queen [1994] HCA 63; (1994) 181 CLR 487; MFA [2002] HCA 53; (2002) 213 CLR 606.

[108][1987] HCA 50; (1987) 163 CLR 454 at 473.

[109][2011] HCA 13; (2011) 243 CLR 400 at 406.

[110][2017] HCA 25; (2017) 91 ALJR 698 at [25].

[111][2020] HCA 12 at [37].

[112]Appeal transcript at 1-4.12-35.

[113]Appeal transcript at 1-5-1-6.

[114]Appeal transcript at 1-6.13-14.

[115]Appeal transcript at 1-9.

[116]Appeal transcript at 1-5.19-40; 1-9.

[117]Appeal transcript at 1-5.

[118]Appeal transcript at 1.7-31-1.8.

[119]Appeal transcript at 1-15-1-16.

[120]Appeal transcript at 1.8.17.-1-9.

Close

Editorial Notes

  • Published Case Name:

    R v HCB

  • Shortened Case Name:

    R v HCB

  • MNC:

    [2020] QCA 164

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Morrison JA, Philippides JA

  • Date:

    11 Aug 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
Help

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.