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Queensland Judgments
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  • Unreported Judgment

R v Ryan

 

[2020] QCA 197

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v Ryan [2020] QCA 197

PARTIES:

R
v
RYAN, Matthew Andrew
(appellant)

FILE NO/S:

CA No 309 of 2019

DC No 1351 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 6 November 2019 (Rosengren DCJ)

DELIVERED ON:

11 September 2020

DELIVERED AT:

Brisbane

HEARING DATE:

28 July 2020

JUDGES:

Holmes CJ and Mullins JA and Boddice J

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 found guilty of one count of rape – where the Crown case at trial was that the complainant did not consent to sexual intercourse with the appellant and was too intoxicated to give consent – where the defence case was that the complainant gave consent – where the appellant argues that the complainant was an unreliable witness and that his evidence as to her consent should have been preferred by the jury given that it was supported by the evidence of his wife – where the appellant argues that the defence case at trial was disadvantaged by the failure of police to obtain certain evidence – whether the jury’s verdict was unreasonable

Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12, applied

COUNSEL:

The appellant appeared on his own behalf

S J Bain for the respondent

SOLICITORS:

The appellant appeared on his own behalf

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    HOLMES CJ:  The appellant, who is self-represented, appeals his conviction of one count of rape on the ground that the jury’s verdict was unreasonable.  At trial, he accepted that intercourse with the complainant had occurred, but gave evidence that it had been by consent.  His arguments are, in summary, that the complainant was an unreliable witness, as was another Crown witness; that his evidence as to consent should have been accepted, particularly as it was supported by the evidence of his wife (then his fiancée), who was credible and reliable; and that the defence case was disadvantaged by the failure of the police to obtain certain evidence.

The Crown case

  1. [2]
    The Crown case was that the complainant (to whom I will refer by the initial “Z”) did not consent to intercourse, and indeed, was too intoxicated to do so.  Z was a young woman of 20, who lived in a townhouse with her two year old son.  Her evidence was that on 14 October 2017, feeling upset after an argument with her ex-partner, she invited her friends, the appellant and his then fiancée (to whom I will refer as “Ms Ryan”; they married about six months after these events), to come around for drinks.  They did so and brought a friend, Mr Cope.[1]  Z had drunk about half a bottle of wine before their arrival at 9.30 or 10 pm, and was feeling tipsy.  After drinking some more wine and some tequila shots in their company she felt very intoxicated, tired and sleepy and wanted to go to bed.  She recalled going into her room, taking off her pants, so that she was left wearing a t-shirt and underwear, and falling onto her bed.
  2. [3]
    Z’s next recall was of lying on her stomach and feeling a pressure on her backside and hands on the inside of her thighs, followed by forceful penetration and intercourse.  She heard the words, “You can’t tell anyone.  This is our little secret”.  When she looked she saw the appellant’s face. She felt immobilised and could do no more than grunt.  The next thing she remembered was waking and feeling an intense pain in her vaginal area, as well as some nausea, the after-effects of the previous night’s drinking.  She telephoned her mother and told her that she had been sexually assaulted.  Her mother told her to seek medical assistance.
  3. [4]
    At 3.45 am the appellant sent Z a text asking her to message him when she woke so that they could talk.  At 4.07 am she responded with a message, “That wasn’t ok”.  There was then a series of texts between the two in which Z thrice repeated that statement and said she did not know what had happened, but she was afraid and physically in pain.  The appellant by text asked her to let him call her, saying “It’s bad but not what you think”.  Z said that she could not talk to him; she felt “sexually violated”.  The appellant continued to ask her to let him explain and assured her that they had not had sex.  In those texts, the appellant expressed his concern about Ms Ryan’s finding out what had happened before he could speak to her.  He said that he and Z had gone “way to [sic] far”, but reiterated that they had not had sex.  Z said that she had not consented to anything; she was drunk and could not remember “a hunk”.  She conveyed that she did not want to speak to him.
  4. [5]
    Later that morning, Z telephoned her ex-partner, who took her to a hospital where she was examined.  She was found to have vaginal injuries consistent with penetration by a penis and an abrasion to her left knee which looked like a carpet burn.  She could not recall how that was caused.  The physician who examined Z gave evidence that the vaginal injuries were consistent with penetration, but it was not possible to say whether they were the result of consensual or non-consensual intercourse.  The appellant admitted at trial that his semen was located in vulval and vaginal swabs taken from Z at the hospital, and was also found on the underwear she said she had worn to bed.
  5. [6]
    At 9.03 pm that night, Z received another text message from the appellant, purportedly to inform her of “what actually happened”.  In it, he gave an account of coming back to her house with Mr Cope to pick up things they had left behind.  In this text, the appellant claimed that the two men had cleaned vomit off her and that she was trying to get both of them to sleep with her, but they had refused; she had not been touched in any sexual manner.
  6. [7]
    In cross-examination, Z conceded that there were significant gaps in her memory because she had been drunk.  She readily agreed that a number of things were possible: that she had been flirtatious, touching Ms Ryan on the leg and arm, and repeatedly suggesting a “threesome” with her and the appellant, although she did not remember doing so.  It was put to her that she had asked the others in the group to help her inside her house (they were drinking in the garage) and she said it was possible, but she did not recall it.  Her memory was that they had said they were leaving and she had made her own way into her house.  She accepted the possibility that she had begun removing her clothes as she walked into the house and that by the time she reached her bed she was topless; she said, however, that she recalled wearing a t-shirt when she went to bed.
  7. [8]
    Z agreed that it was possible that the three visitors had been talking to her while she lay on the bed and made more flirtatious conversation.  She was asked whether they had tidied her house, putting away glasses and removing rubbish, but disagreed; that was not consistent with the state of the house the next day.  It was possible, she acknowledged, that all three stayed for about 90 minutes with her in the house, and that she had suggested to the appellant that he should return after he had taken the others home.
  8. [9]
    Another series of propositions was put to Z about what happened on the appellant’s return to her house.  She agreed that he came to her bedroom door and said that he had come back to look for his phone, although she also said that she was not awake; so the answer seems more an acceptance of what she was told than a recollection.  She said it was possible that on the appellant’s return she was masturbating, but she doubted it; it was also possible that she had asked him to sit for a while, asked him if he thought she was attractive and asked him if he liked her breasts, but she did not remember any of those things.  Z did not accept that there had been kissing, touching and an agreement to oral sex.  It was suggested that she might have given consent to intercourse, but no longer remembered doing so.  She answered in the negative; she said she did not recall giving consent or being in a position to give consent.  When she was challenged on that point, having regard to the gaps in her memory for other matters, she said that she was sure what she knew and did remember and she remembered never giving consent.
  9. [10]
    Z accepted it was possible that after intercourse the appellant had told her that the whole thing was a mistake and instructed her not to tell anyone, mentioning Ms Ryan in that context.  It was also possible that as he was leaving she said something to him to the effect of, “This is fucked”.  She agreed that she received the first of the text messages from the appellant shortly after he left her house.  It was put to her that her own first message was also sent shortly after the appellant’s departure, but she responded that it was at least two hours later.  It transpired, however, that she had based that timing on a misapprehension that the appellant’s first message arrived at 2.25 am, when it was in fact 3.45 am.
  10. [11]
    Z was cross-examined about her initial complaints of the incident.  Those relied on by the Crown consisted of the call to her mother after the appellant’s departure in the early hours of the morning and her account to two uniformed police officers later that day.  Z’s mother said that her daughter had rung her at about 3 am, frightened and upset, saying that she had been touched in a way she should not have been.  She had woken with pain in her vagina and hips, with a recollection of someone she thought was the appellant on top of her.  In cross-examination, Z’s mother agreed that in her statement the words she attributed to Z were, “I think someone touched me inappropriately”.  Her statement recorded Z saying that she thought it was the appellant but did not remember; it “just hurt so much”.  Cross-examined about this conversation with her mother, Z agreed that she had described waking with pain in her vagina and hips, and that she had said she thought someone had touched her inappropriately, but she maintained that she had also told her mother who it was and that she knew it had happened.
  11. [12]
    At the hospital, Z had a brief, recorded conversation with the two police officers.  Some parts of the tape, it seems, were inaudible.  In that conversation, she said that she remembered being clothed when she went to bed.  She could not recall “most of it”, but the one thing she did remember was “a flash of someone” over her, on top of her.  When she woke her hips and vagina were very sore.  (In cross-examination, Z confirmed that she had said these things.)  Asked if she suspected anyone, she told the police officers that it was the appellant; he had sent her a message.
  12. [13]
    Z was cross-examined about other early accounts she may have given.  She said she had told her ex-partner that she had been sexually assaulted by the appellant, but had not gone into detail.  At the hospital, she had given medical staff and a social worker some details of what had occurred.  Asked about a statement given to police two days later, she confirmed that in it she had said she remembered being touched around her knees and the back of her thighs, grunting in resistance before losing some degree of consciousness and then recalling the sensation of someone inside her and being unable to move.  She agreed that, although she had said in that statement that she remembered the appellant’s voice, and what he said to her, she had not mentioned seeing his face.  That was a detail which she revealed for the first time when she spoke to the prosecutor the week before trial.  On that occasion, she had also for the first time given more detail of the actual sexual act, saying that the penetration was forceful, that the appellant’s penis was hard, and that he was on his knees with his legs on either side of hers.
  13. [14]
    In re-examination, Z said that she had no “positive recollection” of the incidents she had agreed were possible.  She did however have a positive recollection of realising that the appellant was penetrating her vagina; before that, her recall was, she was asleep.
  14. [15]
    The Crown called Ms Ryan, not questioning her but making her available for cross-examination.  She said that she, the appellant and their friend, Mr Cope, had arrived at Z’s house between 9 and 10 pm and remained there till 1 or 1.30 am.  Ms Ryan had drunk cider, but was not intoxicated.  Z had drunk only wine and appeared mildly intoxicated by the end of the drinking session.  Mr Cope and the appellant, who had been drinking a vodka mix, were similarly mildly intoxicated.  Z had been flirtatious towards her, touching her arm and leg and making a comment to the effect that she would “go there” with her if she were keen.
  15. [16]
    As the party prepared to leave, Ms Ryan said, Z decided to go to bed.  They accompanied her into the house.  Between the garage and the bedroom Z took her top and brassiere off, getting into bed wearing only her pants.  The visitors stayed with Z in her bedroom, engaging in casual conversation.  Ms Ryan did not recall Z saying anything suggestive, or in particular, inviting her to join her in the shower.  However, she felt that her actions conveyed some sexual intent.  The two men fetched Z cordial, water and bread.  After a period of between an hour and an hour and a half, Ms Ryan announced that she wanted to go home, and it was “pretty much goodbye”; they left.
  16. [17]
    Asked about her relationship with the appellant, Ms Ryan said that it was not an open one and she regarded his having sex with Z as a betrayal.  He had revealed to her what happened about a week later.  After a good deal of stress, they went ahead with their marriage about six months later.  They already had a young child.
  17. [18]
    Mr Cope gave evidence of arriving at about 7 pm or after 7 pm (“it was definitely dark”) at Z’s house.  He thought his group was at the house for about two hours, but in cross-examination he admitted that time for him was “a complete blur”.  He agreed with the general proposition that his memory was not entirely accurate or was incomplete; he “remembered the best that [he] could”.  Z appeared to have been drinking before their arrival and was showing signs of intoxication: she was noisy, had some loss of balance and was “a bit all over the place”.  She was drinking wine; he did not see her drinking tequila.  He did not see her touching anybody, but he accepted in cross-examination that it was possible that she had touched Ms Ryan’s arm or leg.  There was no suggestion of a threesome, although Z was behaving in a flirtatious way.  He and the appellant walked her to her bedroom, where she fell on her bed and immediately fell asleep.  She was very drunk.  He did not recall Ms Ryan accompanying them, but he accepted that he could be wrong about that.  Z went to bed in the shorts and shirt she had been wearing; she was definitely not topless.  They fetched her a drink and some toast, but she was “passed out”, so they threw the toast at her.  Mr Cope described her as “down for the count”.  They collected their belongings and left.
  18. [19]
    After their return to the appellant’s house, where Mr Cope was staying for the night, the appellant came to him and said that he had left his phone at Z’s house and was returning to get it.  Mr Cope left early the following morning.  That night he was telephoned by the appellant, who asked him to “cover” for him.  He agreed to lie, not knowing what had actually happened, and in that context he received a text message from the appellant forwarding the message he had just sent to Z.  That was the message which claimed that the appellant and Mr Cope had returned to her house to collect their belongings, had cleaned vomit off her and refused her solicitations to have sex, while maintaining that she had not been touched in any sexual manner.
  19. [20]
    Mr Cope responded to that message by saying that Z was so drunk she would probably not remember and asked whether she had replied to the appellant’s text.  The appellant answered, in his text thanking Mr Cope for accompanying him to obtain his “stuff” and for helping clean Z up.  Mr Cope responded that he was “happy to help”.
  20. [21]
    Finally, the investigating police officer was called for cross-examination.  He had spoken with Z at the hospital, but his recording of their conversation had not worked.  He agreed that he had not obtained statements from Z’s ex-partner or the different people who had had contact with Z in the hospital emergency department and sexual assault ward.  He maintained that he could not take a statement from the social worker who had seen Z, because their dealings were subject to sexual assault counselling privilege.  Nor had he sought any testing to ascertain Z’s blood alcohol concentration at relevant times.

The defence case

  1. [22]
    The defence case was that Z had consented to intercourse; she was not too intoxicated to do so, but she was too intoxicated to remember doing so.  (There was no suggestion of an honest and reasonable but mistaken belief in consent.)  The appellant gave evidence.  Over the evening, he said, Z was drinking wine.  It was apparent that she had been drinking, because she was very talkative and forward, flirtatious in her behaviour and making sexualised jokes.  At the end of the evening, when Ms Ryan said she wanted to go home, Z asked the appellant and Mr Cope to help her inside.  All of them entered the house.  En route to the bedroom, Z took off her clothes down to her underpants.  In the bedroom, she lay down on the bed and was chatting in a flirtatious way to the appellant, Ms Ryan, and Mr Cope, asking Ms Ryan to “loosen up and join her in the shower”.  The conversation went on for an hour to an hour and a half.  He and the others brought Z water and cordial, and tidied the house a little before leaving.  Before their departure, which was at 2 or 2.30 am, Z had suggested he return after he had dropped everyone home, but he refused.
  2. [23]
    Once he arrived back at his house, the appellant said, he realised that he had left his phone behind and told Mr Cope that he was going to go back and get it.  He returned to Z’s house where he found some of his belongings in the garage, but not his phone.  He went into the house, calling to Z that he was looking for his phone.  Having found it on the kitchen bench, he looked into Z’s bedroom to see her masturbating.  She invited him to sit with her, asked him if he thought that she was attractive and drew attention to her breasts.  They progressed to kissing and foreplay and she helped him to undress.  At his request, Z willingly fellated him before they had sexual intercourse.  She made it clear that she was consenting to intercourse by positioning herself for the purpose.
  3. [24]
    After they had sex, he realised that he had cheated on his fiancée.  He told Z that what they had done was a mistake.  He asked if they could keep it between themselves; it would “destroy” his fiancée.  He left the house immediately, between 3 and 4 am.  Z’s response to his intended departure was, “This is fucked”.  On the drive home, in a panicked state, he began sending Z the series of text messages tendered in the Crown case.  His attempts to call her failed.  When he sent the various messages assuring Z that they had not had sex, he was relying on her apparent lack of memory.  Motivated by the fear that his fiancée would leave him if she had discovered what had happened, he made the statements about not having had intercourse; he was afraid that a screen shot would be taken of the text messages and given to Ms Ryan.  If Z had been prepared to speak to him over the phone, “it would have been different”.  He had included reference to Mr Cope in the last message to give his account more credence and so that the latter, seeing it, could give a consistent story.  It had not occurred to him that there could be criminal charges; his concern throughout was that he had been unfaithful, not that he had committed a rape.
  4. [25]
    The prosecutor’s cross-examination of the appellant consisted of putting the Crown case to him as a series of propositions, which he rejected.

The appellant’s submissions

  1. [26]
    The appellant contended that the evidence of the principal witnesses in the Crown case, Z and Mr Cope, could not be accepted because they were not credible or reliable.  Z could not be believed, because she herself said that she had a substantial amount to drink, accepted that there were gaps in her memory, and accepted the possibility of events occurring which would be inconsistent with her evidence in chief: that the three visitors had stayed with her for about 90 minutes, that she had suggested that the appellant should return, that she had been masturbating on his return and that she had asked him to sit with her and engaged in conversation about whether he found her attractive.  The appellant submitted that Z had not denied consenting but simply said that she could not remember.  (That, however, is not an accurate reflection of Z’s evidence, because she said, “I remember never giving consent”.)
  2. [27]
    That Z’s recollection was unreliable was further demonstrated, the appellant submitted, by the fact that she was wrong about the timing of the text messages which passed between them.  In addition, her evidence that she went alone to her bedroom was in conflict with that of Mr Cope.  She had admitted that she provided previously undisclosed details to the prosecution in the week before trial, two years after the offence, which reflected unfavourably on her credibility.
  3. [28]
    In relation to Mr Cope, the appellant pointed out that he had agreed with the suggestion that his memory was not entirely accurate or could be incomplete.  He had put the party’s arrival at Z’s house at 7 pm and their departure at 9 pm or 10 pm, when all the other witnesses had put both much later.  He had accepted the possibility that Z had touched Ms Ryan’s arm or leg, and that he no longer recalled it.
  4. [29]
    I should mention here that the appellant made two entirely speculative suggestions as to why Z and Mr Cope might have been unreliable.  He submitted that Z’s allegations might have been prompted by panic because of her own infidelity and the fear of domestic violence from her ex-partner.  Mr Cope, he said, suffered from a neurological disorder known to affect memory.  Nothing of the sort was put to either witness and there is no evidence to support either proposition, so these submissions must be disregarded.
  5. [30]
    His own version of the night’s events should have been accepted, the appellant said, supported as it was by the evidence of Ms Ryan.  Ms Ryan should have been believed when she said, consistently with his account, that Z was flirtatious and that she had seen her taking off clothes.  Her evidence should have been given greater weight, because she was a Crown witness; because she had testified that she was not intoxicated; and because it matched his own, theirs being  the only witness versions that coincided with each other.  Their version of events, with the party leaving in the very early hours of the morning, was supported by the time of the text messages exchanged, allowing for travel time between Z’s house and the Ryan residence; which, on the evidence, was about 20 minutes.  That was in contrast with the evidence of Z and Mr Cope, which did not accord with the text message timing.
  6. [31]
    Ms Ryan’s description of her response to learning of the appellant’s infidelity, regarding it as a betrayal, supported his account of acting through panic and a sense of guilt.  The text messages also demonstrated his panic and anxiety that Ms Ryan not learn what had occurred.  Z’s acceptance of the possibility that she had suggested his return and that after intercourse he had said that it was a mistake also supported his evidence.  His version of events was credible, and nothing in cross-examination had caused him to deviate from his account.
  7. [32]
    The investigating officer had deprived the defence of important evidence by failing to obtain statements from important witnesses, such as the medical staff at the hospital; failing to have Z’s blood alcohol level tested, which would have established whether her claimed level of intoxication was correct; and losing evidence in the form of the recording of his conversation with Z at the hospital.

Consideration

  1. [33]
    I will deal first with the claimed investigative failures.  It was a matter of speculation as to what the suggested preliminary complaint and blood alcohol investigations or a successful recording of the conversation with Z would have revealed; the outcomes may have helped or harmed the defence.  (As to the blood alcohol testing in particular, the question defence counsel raised for the jury’s consideration was not whether Z was intoxicated, but whether she was at a point of intoxication where she was too drunk to remember giving consent, but not too drunk to give it.  The prospect of a blood alcohol reading which could answer that delicate question satisfactorily for the defence seems minimal.)  More importantly, the jury was alive to the issue.  Defence counsel put the argument to them that disadvantage had resulted from the investigating officer’s alleged failings, but they evidently did not regard those matters as affecting their conclusion.  That view was open to them, and, indeed, is unsurprising.
  2. [34]
    The remaining submissions were arguments as to why the jury could not properly have accepted Z’s evidence.  This court proceeds on the assumption (which follows from the jury’s verdict) that the jury found Z’s evidence to be credible and reliable.  The question, then, is whether, nonetheless,

“…by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence…”

the court is satisfied that the jury should have entertained a reasonable doubt as to the appellant’s guilt.[2]

  1. [35]
    The recent addition of detail not given when Z first complained was arguably relevant to her credit.  However, on closer examination, most of that detail makes explicit what was already implicit in Z’s account: the position of the appellant, consistent with her description of her being on her stomach, and the description of his penis as erect and the intercourse as forceful, which aligns with the description in her statement of grunting in resistance.  More significant, perhaps, is her late account of seeing the appellant’s face.  However, given that Z had from the first identified the appellant as involved, and there was no dispute at trial that it was he, the jury might reasonably have thought that although the recollection was likely to involve an element of reconstruction, it was of little consequence.
  2. [36]
    Z’s concessions that it was possible various events had occurred did not amount to admissions by her that they had occurred.  They did throw into question her reliability, because there clearly were important matters in respect of which she could not be confident that her memory was correct.  But they did not mean that the jury could not have found her an honest witness; to the contrary, her willingness to make those concessions may well have impressed them as a mark of honesty.  Her failure to recall being accompanied to her bedroom, as Mr Cope described, similarly suggests a failure of memory, but is consistent with Z’s being, as both she and he said, very intoxicated indeed.  Her mistake as to how long elapsed between the appellant’s first text message to her and her response seems to have been based not on any claimed recollection as to time but on a mistaken reading of the message themselves.  In any case, confusion about timing was entirely consistent with her account of varying levels of consciousness throughout the events.
  3. [37]
    Still, if the Crown case had been confined to Z’s evidence as given before the jury, the appellant’s submission that the jury could not properly have been satisfied beyond reasonable doubt would have some force, particularly given the evident deficiencies in her memory.  But there was more evidence to support both Z’s credit and her recollection of the night’s events.  Firstly, preliminary complaint evidence was available to buttress her credit.  Probably the most powerful piece of preliminary complaint evidence was the text messages which Z sent within an hour of the event, saying “That wasn’t ok”, that she felt “sexually violated” and that she was not consenting.  Oddly, however, they were not relied on for that purpose; the text messages were left to the jury purely as evidencing lies by the appellant, an issue I will come to.  But the complaints which Z then made to her mother and to police officers that day were relied on.  Although those early accounts were not detailed, Z from very shortly after the incident consistently spoke of a sexual encounter with the appellant which, critically, was not consensual.
  4. [38]
    Secondly, Mr Cope’s evidence if, accepted, supported Z on important aspects: that she was very drunk and that she “passed out” immediately she was put to bed.  If the jury accepted him on those points, they were unlikely to believe the appellant when he said that Z had invited him to come back to the house after dropping off his fiancée and friend or that she had been alert and active on his return.  And nothing precluded the jury from accepting Mr Cope as honest and reliable as to the significant events of night.  His acceptance of the possibility that he might have forgotten Z’s touching Ms Ryan’s arm or leg did not relate to a matter of such consequence as to cast a doubt on his accuracy as to the more important and obvious issue of Z’s state of intoxication.  His more general agreement that his memory might be incomplete may reasonably have been regarded by the jury as an appropriate concession for any witness after a two year interval.  His acknowledgement that his memory for the timing of the events was poor was readily given, but it did not mean that he could not be accepted about what actually happened.
  5. [39]
    Thirdly, the jury was entitled to reach its own view as to whether what were admittedly lies told by the appellant in the series of text messages he sent Z were told out of a consciousness of guilt of rape or solely out of a concern to conceal his unfaithfulness to Ms Ryan.  That in turn depended very much on the view which the jury took of the appellant himself as a witness.  The verdict indicates that they did not accept him as truthful.  They were entitled to reach that view, assessment of credibility being entirely within their province.[3]  Of itself, that could not lead them to a conclusion of guilt, but if they regarded his explanation of the text messages as untruthful, it was open to them to reject as a reasonable possibility that the lies were told for any reason other than an acute consciousness on the appellant’s part that he had just committed the offence of rape on Z.  Regarded in that way, the lies were extremely powerful evidence corroborative of Z’s account.
  6. [40]
    The appellant relied heavily on the evidence of Ms Ryan as supporting his own.  The prosecutor fairly and appropriately called Ms Ryan as a witness in the Crown case,[4] given that she was present for the earlier part of the evening.  She was thus made available for cross-examination by the defence (as she would not have been, had she been called in the defence case).  That did not mean that the Crown accepted her evidence as reliable, as opposed to relevant, or that it should be regarded as having any greater weight by reason of her being a Crown witness.
  7. [41]
    But, in fact, the value of Ms Ryan’s evidence to the defence was limited.  While Ms Ryan described Z as flirtatious, all of the attentions she described were actually directed to her: Z’s touching her and suggesting that she would “go there” with her.  At no stage did she give evidence of any form of seductive remark directed to the appellant, and, in particular, nothing she said supported his account that Z invited him to return.  Her description, to the contrary, was that the three visitors “pretty much just said goodbye” and left.  Both Z and Mr Cope were cross-examined about whether the former had made some suggestion of a “threesome”, but Mr Cope denied it, and in the event, neither Ms Ryan nor the appellant gave evidence of any such statement.  The jury could have accepted every word Ms Ryan said, while still believing Z as to the non-consensual nature of the sexual encounter and rejecting the appellant’s account.
  8. [42]
    There is no basis for supposing that the jury did not appropriately exercise their function of deciding witness credibility and reliability.  Nothing has been identified which should have prevented the jury from accepting Z’s evidence on the critical issue of consent.

Conclusion

  1. [43]
    The jury’s verdict was not unreasonable, and the appeal against conviction must be dismissed.
  2. [44]
    MULLINS JA:  I agree with the Chief Justice.
  3. [45]
    BODDICE J:  I agree with the Chief Justice.

Footnotes

[1]  This gentleman’s surname was (unsatisfactorily) transcribed at some parts of the transcript as “Cope” and at others as “Pope”.  Since the transcript records him as agreeing that his name was “Cope”, I have adopted that version.

[2] Pell v The Queen (2020) 94 ALJR 394 at 402-403.

[3] Pell v The Queen (2020) 94 ALJR 394 at 401-402.

[4] R v Apostilides (1984) 154 CLR 563 at 576.

Close

Editorial Notes

  • Published Case Name:

    R v Ryan

  • Shortened Case Name:

    R v Ryan

  • MNC:

    [2020] QCA 197

  • Court:

    QCA

  • Judge(s):

    Holmes CJ, Mullins JA, Boddice J

  • Date:

    11 Sep 2020

Appeal Status

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