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- Unreported Judgment
SUPREME COURT OF QUEENSLAND
R v Pollard  QCA 188
POLLARD, Joshua Cameron
CA No 317 of 2019
Court of Appeal
Appeal against Conviction
District Court at Emerald – Date of Conviction: 1 November 2019 (Reid DCJ)
4 September 2020
10 August 2020
Sofronoff P and Morrison and Philippides JJA
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was charged with three counts of rape of the same complainant – where a jury convicted him on count 2 and acquitted him on the other two counts – where the appellant submits that the jury’s guilty verdict on count 2 was unreasonable having regard to the acquittals on counts 1 and 3 – where the evidence of penetration was very slight on count 1 – where the evidence of penetration on count 2 was stronger and the defence case was largely concerned with the issue of consent – where the evidence of penetration on count 3 was that the penetration might have happened but, if it had, it had been inadvertent – whether the verdicts were inconsistent – whether the jury’s verdict of guilty was unreasonable
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant was charged with three counts of rape of the same complainant – where a jury convicted him on count 2 and acquitted him on the other two counts – where defence counsel at trial sought “a Robinson-style direction in relation to the complainant’s evidence” – where the complainant’s evidence was the sole evidence to prove the charges, she had been drinking alcohol and smoking cannabis, she was mixing medication and alcohol, she was having mood swings, she had actually initiated sexual conduct by exposing her breasts, she had raised the question of sexual intercourse by asking, “Is this really happening?” and there were several inconsistencies in her evidence that were remarkable – where the learned trial judge accepted that submission and directed the jury to consider her evidence very carefully – whether the trial judge misdirected the jury
Robinson v The Queen (1999) 197 CLR 162;  HCA 42, considered
The appellant appeared on his own behalf
S J Bain for the respondent
The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent
- SOFRONOFF P: The appellant was charged with three counts of rape of the same complainant, whom I will call Ms Jackson. A jury convicted him on one count and acquitted him on the other two counts. The appellant appeals on two grounds. First, he contends that the guilty verdict was irrationally inconsistent with the two not guilty verdicts. Second, he contends that the learned trial judge erred in rejecting defence counsel’s application that he give the jury a “Robinson direction”.
- Ms Jackson said that she was out drinking with friends on the night of 18 November 2016 when the appellant made continual phone calls to her. She ignored these for a time but, finally, she called him back. He asked her to come to join him at his friend’s, Spreadborough’s, house. He offered to pay the taxi fare. She agreed and, upon her arrival, she and the two men sat on the patio of the house. Ms Jackson asked for a jumper to keep off the cold but, instead, the appellant suggested that she have a shower. He led her to the bathroom where he undressed her and left her to her shower. Ms Jackson said that when, previously, she had lived in the same house as the appellant, he used to do this. She was not allowed to lock the door and the appellant “always had to be able to come in.” She said that it “was just normal”. She finished her shower and went to lie down on a couch in the living room. The appellant told her that she was not allowed to do that. He took her to a bedroom where she lay down and he joined her on the bed, kneeling beside her.
- According to Ms Jackson, the appellant “came over the top of me” and tried to put his erect penis into her mouth. According to her evidence, “He was pressing it against my lips. And he did get, probably, the head of it in a couple of times.” This was count 1 on the indictment.
- Ms Jackson said that she “was telling him no” and to “leave me alone”, that she “loved [T]om”. The appellant did not stop. He said, “Who has a dick in their mouth and doesn’t suck it?” He then gave up his efforts and said, “Are you ready to go home now?” Ms Jackson was asked by the prosecutor, “Did you consent to him putting his penis in your mouth?” and she answered in the negative.
- The appellant and Ms Jackson returned to the patio and she said that she was going to walk home. Against her wishes, the appellant and Mr Spreadborough accompanied her. Upon their arrival at Ms Jackson’s home, the appellant asked whether Mr Spreadborough could stay the night. At her refusal, the appellant said that that was “rude”. They went to the patio and sat to smoke cigarettes. The appellant said he wanted to have a shower and asked Ms Jackson to watch him do so. She refused and the appellant had a shower in the bathroom adjoining Ms Jackson’s bedroom. Ms Jackson went to bed, wearing shorts, underpants and a blouse. Mr Spreadborough was lying on her bed. The appellant joined them both. He was naked.
- The appellant said to her, “At least take your shorts off.” She refused. He began to remove them. Ms Jackson resisted. She crossed her legs but “he was stronger than [her]”. She said words to the effect that she did not want him to do that. He successfully removed her shorts and underwear. The appellant put his hands between Ms Jackson’s legs and she squeezed her thighs together in response. He touched her vagina and anus. Ms Jackson continued to say that she did not want him to do that. She said that she then felt wetness and realised that she was bleeding although she was not menstruating. The appellant inserted his fingers into her vagina, this was count 2, and her anus, count 3, using an uncomfortable degree of force. Ms Jackson said that the appellant asked, “Is this rape?” She answered in the affirmative and he said, “Well, then … if I’m going to take the blame, I may as well go all the way.” He continued his act of penetration. Photographs of Ms Jackson’s shorts were tendered, showing blood stains. Ms Jackson had put her shorts back on but not her underwear. She went and had a shower. The appellant offered to wash her sheets. Later, she saw sheets in her washing machine. The appellant asked her if she was upset, angry or disappointed. She said that she was disappointed. The appellant said that he had to get home to his girlfriend. Ms Jackson immediately texted her friend, telling her that she had been raped. In the following days, her friend encouraged Ms Jackson to report the matter to the police and she did so on 21 November 2016.
- Police arranged for a pretextual phone call. The call did not go well for Ms Jackson. The appellant denied all her allegations. The following gives the flavour of the exchange:
“[MS JACKSON]: Why did you say that to me…
POLLARD: I didn’t say that to you, [Ms Jackson]. You’re making this up, man. Why are you doing this?
[MS JACKSON]: Why did you finger me in my vagina and in my bum when I told you I didn’t want you to?
POLLARD: What kind of, no, fucki-, [Ms Jackson], this conversation needs to end and you need to have a serious think about what you’re fuckin' saying, ‘cause this is rot and you have no idea the amount of fuckin’ shit that you can cause and you actually probably do know the amount of shit that can cause, all for nothing.
[MS JACKSON]: I just wanna know why you did it.
POLLARD: Nothing happened. No, man. No.
[MS JACKSON]: Just tell me why you did it.
POLLARD: I didn’t do anything.
[MS JACKSON]: You did.
POLLARD: And I'm not gonna fuckin’ say that I did.
[MS JACKSON]: You did. And Tim was there.
POLLARD: Yeah, well I’ll go and get Tim up and ask him what happened, shall I? Because that’s a load of crap, [Ms Jackson]. The only thing that happened was we walked you home after you got your boobs out for fifteen dollars because you’ve been blind rotten drunk and then you were crying, saying that you thought you might be pregnant because your vagina won’t stop bleeding. Those were your exact words. So I don't understand after everything that I fuckin’ done for you, why you would be like this to me.”
- In cross-examination it emerged that, on the night of the alleged offences, Ms Jackson had joined some friends. Together, they drank at two pubs and at the home of these friends. Ms Jackson consumed at least two stubbies, a cocktail and smoked some marijuana. She could not remember how much she drank. This drinking continued from about 8.30 pm until about 1.30 am. A taxi then took Ms Jackson to Mr Spreadborough’s home, which was next door to the appellant’s home and near Ms Jackson’s home.
- Counsel for the appellant, Mr Reilly, attacked Ms Jackson’s credit. He put to her that upon her arrival at Mr Spreadborough’s home, she sat with him and the appellant on the patio where she took a position on Mr Spreadborough’s lap. There she lifted her shirt to expose her breasts to him. Ms Jackson denied that she had done this. Yet, almost immediately she had to recant her denial because it emerged that she had previously given evidence on oath that she had done just that.
- Ms Jackson admitted that on that night she was mixing alcohol with the anti-depressant medication that she was taking. She also admitted that after she had her shower, the appellant brought her a pair of Mr Spreadborough’s board shorts to wear after which she lay down on Mr Spreadborough’s bed.
- Ms Jackson described the appellant’s attempt to put his penis into her mouth as follows:
“Did he have a hand holding his penis?---He could have.
You don’t remember?---No.
He certainly wasn’t using them to hold you?---No.
He wasn’t trying to force your mouth open?---He was pushing his penis in ---
No, with his hands?--- when my lips were closed. No, with ---
With his hands?---With his penis.
But he wasn’t using his hand – your hand - - -?---No.
--- to try and – he didn’t put his hand over your nose to make you open your mouth?‑‑‑No.”
- A little later there was this exchange:
“Does he get it in?---Yes.
Or are you unsure - - -
HIS HONOUR: Just ask the question.
MR REILLY: Are you unsure about that - - -?---No.
- - - or are you certain?---When I was saying no, he was getting part of his head in – head of his penis.
What, between your lips or into your mouth?---Between my lips. That’s in my mouth, isn’t it?
Now, my note of what you said in – when you gave your evidence-in-chief about this [indistinct] he had his penis against your lips and he did get probably the head of it in a couple of times?---Yes.
Is that really – that’s the best you can say, is it?---Yes.
Okay. So do you accept there’s a degree of uncertainty as to whether he did or didn’t get the head in, but you think he probably did?---No, he did.”
- The three of them then walked to the complainant’s house. There, Mr Spreadborough lay on the complainant’s bed with her and the appellant then joined them, he being naked. Ms Jackson accepted that she did not reach out to Mr Spreadborough for aid when the appellant was inserting his fingers into her. When she asked the appellant to stop what he was doing, she used a normal tone of voice at a volume that Mr Spreadborough could have heard.
- It was put to Ms Jackson that while she was at Mr Spreadborough’s house she asked, “Is something going to happen tonight?” and made a joke that she should “compare dicks”. She denied that. It was put to her that she did not ask the appellant to stop what she was doing. She denied that. It was put to her that she had done nothing to show that she did not agree to what the appellant was doing. She denied that.
- Mr Spreadborough gave evidence for the prosecution. He recalled that Ms Jackson had said, “Is something going to happen tonight?” which, in context, was a reference to whether or not the three of them would have sex together. Mr Spreadborough showed her a photo of his partner and said, “That won’t be happening”. He said that sometime after Ms Jackson went inside his house to have a shower, the appellant emerged and said that he had “tried to put his dick in her mouth” but that the complainant would not let him. He confirmed Ms Jackson’s evidence that the three of them lay on her bed together when they had gone to her house. He recalled hearing the appellant complaining that Ms Jackson had “her legs … squeezed tight together”. He could feel the bed moving with “short jabs” and he heard Ms Jackson call out, “Tommy, Tommy”. That was the name with the young man with whom she had a relationship. In cross-examination he said that he did not hear Ms Jackson saying “no” nor did he hear the word “rape” being used.
- A friend of Ms Jackson’s gave evidence of fresh complaint. It is not necessary to recite the terms of what was said. It was sufficiently similar to the evidence that Ms Jackson gave about the events that she said happened and the complaint was made very soon after the appellant left Ms Jackson’s home that morning.
- The appellant gave evidence in his own case. He admitted inviting Ms Jackson to allow him to insert his penis into her mouth but denied that he tried to penetrate her mouth or that he did so. He admitted telling Mr Spreadborough that he had tried to put his penis in the complainant’s mouth but that she would not let him. Undoubtedly this admission that the complainant had refused to give her consent to penetrative sex on count 1 would have figured in the consideration that the jury gave to the complainant’s credit when she gave evidence about refusing to give consent on the other two counts.
- The appellant said that when he lay in bed together with the complainant and Mr Spreadborough he regarded Ms Jackson’s position against him as “a bit of a hint” that she was willing to have sexual intercourse and, spurred by that belief, he penetrated her vagina with his finger. He denied penetrating her anus. The appellant denied the truth of Ms Jackson’s evidence about her voicing of opposition.
- During the pretext phone call the appellant had denied any kind of sexual conduct on his part. He explained this false denial by saying that he thought that the sound of her voice had a quality that suggested that she was using a speaker so that somebody else could hear the conversation. He was worried that Tom or, perhaps, his own partner, Katrina, might have been listening.
- The appellant submits that the jury’s guilty verdict on count 2 was unreasonable having regard to the acquittals on counts 1 and 3. Differing verdicts in trials of multiple counts are to be expected. Juries are warned about the dangers of mere propensity reasoning and they take those warnings seriously so that it is common, in cases of multi-count indictments of sex offences in particular, for there to be some verdicts of guilty and some acquittals. To succeed on this ground the appellant must demonstrate, by reference to the evidence, that the different verdicts are irrational, not that they might be. Sometimes, in a case that depends largely upon the evidence of a single complainant, this can be shown by demonstrating that there is no qualitative difference that the complainant has given about each distinct count yet the jury has acquitted on some but not on others. A successful demonstration would show that, having regard to the evidence given, there can be no rational distinction made on the question of guilt. The logic is, then, that, having entertained a doubt on one of the counts, there being nothing to distinguish the cogency of the evidence on each count, the jury should have entertained the same doubt on all counts.
- The appellant has failed to demonstrate that kind of illogicality in this case.
- The acquittal on count 1 is understandable. The evidence of penetration was very slight to the degree that a conviction based upon Ms Jackson’s evidence about that crucial fact, described in paragraphs  – , would have been unsafe.
- The evidence about the appellant’s digital penetration was not in issue. Indeed, the appellant’s counsel put to Ms Jackson two questions that were both based upon her recollection of whether the appellant used one or two of his fingers to penetrate her vagina. The issue here was consent and, as to that, the jury was entitled to accept the complainant’s evidence that she had voiced her opposition to having sexual relations with the appellant. As to the anal penetration, the case put on behalf of the appellant in cross-examination was that that kind of penetration might have happened but, if it had, it had been inadvertent. The complainant did not assert that the action she described in that respect had been deliberate and the appellant had denied that he had done that.
- It follows that the factual issue that was clear throughout the case was that the appellant had put his finger into the complainant’s vagina because, in the end, that fact was common ground. The evidence on count 1 was vague and the evidence on count 3 was not as clear as the evidence on count 2. There remained the evidence concerning consent.
- The complainant’s credit was broken down to some extent by Mr Reilly’s cross-examination but that did not mean that the jury was obliged to reject her evidence totally. The jury was entitled to accept her evidence that she protested against the appellant’s actions. Indeed, as has been pointed out, the appellant accepted that, at least at the earliest stage of this encounter, the complainant expressly refused his advances.
- I would reject the submission that the guilty verdict was unreasonable.
- The appellant also contends that the learned trial judge erred in failing to give a “Robinson direction”. That expression has come to comprehend a direction to the effect that, for particular reasons that a judge would identify, a jury must “scrutinize the evidence of [a witness] with care” or, as is sometimes insisted, “with great care”.
- The problem presented when this argument is raised is the problem that a jury has when invited to convict upon the evidence of, usually, a single witness. At issue is the degree of reliability that the jury ought to demand from the evidence before announcing itself satisfied beyond a reasonable doubt of the guilt of the accused. The long experience of judges and lawyers who practise criminal law, an experience that jurors cannot be expected to possess, teaches that there are recurring factors in the cases that can render testimony suspect. When factors exist in a case that affect the reliability of evidence, whether for reasons to do with the possible dishonesty of a witness or for reasons to do with sheer reliability, it is the duty of the judge to give the jury the benefit of judicial experience by instructing a jury about the known risks.
- The real question for a trial judge is whether, in the case at hand, there are such features and whether these features warrant judicial instruction. If such features exist and the conduct of the case dictates such a course, the judge ought to warn the jury about the existence of these factors so that the jury is armed with the necessary knowledge to consider the evidence in its true forensic context. This is simply a matter of ensuring that the jury has the necessary mental equipment with which to deal rationally with the evidence.
- In this case defence counsel asked for “a Robinson-style direction in relation to the complainant’s evidence”. He pointed to the factors that might bear upon the reliability of the evidence given by the complainant. These were: hers was the sole evidence to prove the charges, she had been drinking alcohol and smoking cannabis, she was mixing medication and alcohol, she was having mood swings, she had actually initiated sexual conduct by exposing her breasts, she had raised the question of sexual intercourse by asking, “Is this really happening?” and there were several inconsistencies in her evidence that were remarkable. Mr Reilly asked the judge to direct the jury to “simply scrutinize her evidence with some care before accepting it as truthful and reliable beyond a reasonable doubt”. Reid DCJ accepted that submission and instructed the jury as follows:
“…I would direct you that you need to consider the complainant’s evidence with great care, because it’s on her evidence that you must convict if you’re going to. You must accept her evidence, and that makes it necessary consider it very carefully.”
- Then, over the course of almost two pages of transcript, his Honour gave a summary of the problems in the evidence that Mr Reilly had argued were matters that the jury should regard as reasons to reject the complainant’s evidence.
- The submission that his Honour failed adequately to direct the jury about the problems in the complainant’s evidence cannot be accepted.
- It follows that this appeal should be dismissed.
- MORRISON JA: I have read the reasons of the President and agree with those reasons and the order his Honour proposes.
- PHILIPPIDES JA: I agree with the order proposed by Sofronoff P for the reasons given by his Honour.
- Published Case Name:
R v Pollard
- Shortened Case Name:
R v Pollard
 QCA 188
Sofronoff P, Morrison JA, Philippides JA
04 Sep 2020