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  • Unreported Judgment

R v Kellett

 

[2020] QCA 199

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kellett [2020] QCA 199

PARTIES:

R
v
KELLETT, Damien James
(appellant/applicant)

FILE NO/S:

CA No 209 of 2019
DC No 1143 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 19 July 2019; Date of Sentence: 24 July 2019 (Reid DCJ)

DELIVERED ON:

15 September 2020

DELIVERED AT:

Brisbane

HEARING DATE:

12 June 2020

JUDGES:

Morrison and Mullins JJA and Jackson J

ORDERS:

  1. The appeal against conviction is dismissed.
  2. Leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant and the complainant were participating in an encounter of consensual sexual acts when, unexpectedly, the appellant penetrated the complainant’s vagina using a manoeuvre called “fisting” – where at trial what was in issue was whether the complainant had consented to it, and how the appellant had done it, i.e. one hand movement only as opposed to two movements, and gradual rather than sudden – where the appellant was convicted on two counts: count 1, rape, and count 2, unlawfully causing grievous bodily harm – where the appellant challenges his conviction on the rape count only – whether the verdict of the jury was unreasonable and cannot be supported having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where defence counsel deliberately adopted the tactic of eschewing reliance upon mistake of fact under s 24 of the Criminal Code – where defence counsel also specifically declined the opportunity of having the trial judge direct on s 24 when redirections were discussed immediately after the summing up – where the position adopted by defence counsel could not prevent the trial judge from raising s 24 in the summing up if there was evidence that raised it – whether the learned trial judge erred in failing to direct the jury as to the provisions of s 24 of the Criminal Code (mistake of fact) in respect of the issue of consent – whether there is evidence giving rise to a reasonable doubt that the appellant had a reasonable but honest mistaken belief as to consent to fisting – whether the issue of the appellant’s reasonable but honest mistaken belief as to the complainant’s consent should have been left to the jury

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the appellant attacked redirections given towards the end of the jury’s deliberations – where they arose after the jury sent a note, which asked for assistance because they were having difficulty reaching a unanimous agreement – where in the redirections, the jury were told not to speculate about the appellant’s state of mind – where the learned trial judge then turned to the issue raised as to withdrawal of consent – whether the learned trial judge erred in redirecting the jury that the appellant’s state of mind was irrelevant to their deliberations; and the redirections at 2.59 pm Friday 19 July 2019 lacked balance emphasising matters for the prosecution and resulting in a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCESENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced to concurrent terms of imprisonment: seven years on the rape count, and six years on the count of grievous bodily harm – where the appellant submits that the head sentence and the imposition of the serious violent offence declaration made the sentence excessive – whether the sentence for grievous bodily harm was manifestly excessive in the circumstances

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where in each case the sentencing judge declared the offence to be a serious violent offence under s 161B of the Penalties and Sentences Act 1992 (Qld) – whether the learned judge erred in declaring each conviction to be a conviction for a serious violent offence

Criminal Code (Qld), s 24
Penalties and Sentences Act 1992 (Qld), s 161B

Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited
Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12, cited
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited
R v Clarke [2017] QCA 226, followed
R v De Silva (2007) 176 A Crim R 238; [2007] QCA 301, cited
R v FAV [2019] QCA 299, considered
R v Free; Ex parte Attorney-General (Qld) [2020] QCA 58, applied
R v Makary [2019] 2 Qd R 528; [2018] QCA 258, applied
R v Millar [2000] 1 Qd R 437; [1998] QCA 276, followed
R v Sun [2018] QCA 24, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, applied

COUNSEL:

C Wilson for the appellant/applicant
D Balic for the respondent

SOLICITORS:

Hannay Lawyers for the appellant/applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    MORRISON JA:  The appellant and the complainant were participating in an encounter of consensual sexual acts when, unexpectedly, the appellant penetrated the complainant’s vagina using a manoeuvre called “fisting”.  This involved the insertion of his hand and then forming a fist inside the vagina.  That caused a sudden expansion of the vagina.  He then thrust his fist further in causing the complainant considerable pain.  Notwithstanding her screams and protests, and telling him to stop, he said “One, two, three” and thrust his fist even further.
  2. [2]
    The complainant experienced agonising pain, and said she felt as though her insides popped.  She continued to scream.  The appellant withdrew his hand and it became apparent that the complainant was losing a substantial quantity of blood from her vagina.  She was taken to hospital and underwent surgery.
  3. [3]
    The consequence of the fisting was that the complainant sustained two full thickness tears to the vaginal wall; that is, tears that went through the lining of the vagina into the muscle layer beneath.  One was 10 centimetres long at the back of the vagina.  The other was two centimetres long, near and to the left of the other tear, and closest to the vaginal opening.
  4. [4]
    At the trial it was uncontested that the appellant engaged in the fisting.  What was in issue was: (i) whether the complainant had consented to it, and (ii) how he had done it, i.e. one hand movement only as opposed to two movements, and gradual rather than sudden.
  5. [5]
    The appellant was convicted after a trial on two counts: count 1, rape, and count 2, unlawfully causing grievous bodily harm.  The convictions followed after two trials; at the first, the appellant was convicted of grievous bodily harm, but the jury could not reach a verdict on the count of rape; then, at the second trial the appellant was found guilty of rape.
  6. [6]
    The appellant was sentenced to concurrent terms of imprisonment: seven years on the rape count, and six years on the count of grievous bodily harm.  In each case the sentencing judge declared the offence to be a serious violent offence under s 161B of the Penalties and Sentences Act 1992 (Qld).  A total of 279 days of pre-sentence custody was declared as time served.
  7. [7]
    The appellant challenges his conviction on the rape count only.  The grounds are:
    1. (a)
      the verdict of the jury was unreasonable and cannot be supported having regard to the evidence;
    2. (b)
      the learned trial judge erred in failing to direct the jury as to the provisions of s 24 of the Criminal Code 1899 (Qld) (mistake of fact) in respect of the issue of consent;
    3. (c)
      the learned trial judge erred in redirecting the jury:
      1. that the appellant’s state of mind was irrelevant to their deliberations; and
      2. the redirections at 2.59 pm Friday 19 July 2019 lacked balance emphasising matters for the prosecution and resulting in a miscarriage of justice.
  8. [8]
    The appellant also seeks leave to challenge the sentences imposed upon him.  As articulated the proposed grounds are:
    1. (a)
      the sentence for grievous bodily harm was manifestly excessive in the circumstances; and
    2. (b)
      the learned judge erred in declaring each conviction to be a conviction for a serious violent offence.
  9. [9]
    The essence of that challenge is that the imposition of a serious violent offence declaration rendered each of the sentences manifestly excessive.  Alternatively, if the challenge to the rape conviction succeeds then the sentence on the grievous bodily harm count would need to be reconsidered.  If there were an acquittal on the rape count then the other sentence would have to be considered afresh.  Alternatively, if there were a retrial the sentence should be reconsidered once the retrial is completed.

The s 24 (mistake of fact) ground

  1. [10]
    Defence counsel deliberately adopted the tactic of eschewing reliance upon mistake of fact under s 24 of the Criminal Code.  He told the jury that in address:[1]

“Rape is about lack of consent. I mean, where is the, get out, go away, don’t you dare do that to me. It’s not a case of mistake either, by the way. It’s just a case of, her conduct is such that she was consenting.”

  1. [11]
    He also specifically declined the opportunity of having the trial judge direct on s 24 when redirections were discussed immediately after the summing up:[2]

“HIS HONOUR: I hadn’t specifically raised it with you. … that is, an honest and reasonable mistaken belief. That doesn’t arise in this case, does it?

MR NOLAN: Well, I said to the jury in my address that it didn’t. It was a case of just consent.

HIS HONOUR: Yes, I agree.

MR NOLAN: I wanted to keep away from mistake because of a number of reasons, not … the least being it’s not suggested.

HIS HONOUR: I don’t disagree. …

MR NOLAN: And I’d need evidence for a mistake.

HIS HONOUR: Yes. Yes, that’s right.

MR NOLAN: To raise mistake, you need evidence that it’s honest and reasonable.

HIS HONOUR: You can’t.

MR NOLAN: All right.

HIS HONOUR: I agree with you. I just wanted to confirm with you, but it didn’t look … as though it had slipped under the radar.

MR NOLAN: No, definitely not. … No, definitely not.”

  1. [12]
    Defence counsel’s course was deliberate and reflected at least that he did not consider that there was evidence sufficient to raise s 24.  The reference to “a number of reasons” suggests that one may have been the forensic decision to not let the jury be distracted from the case put by the defence, namely that there was clear consent.  To have s 24 addressed would be to have the jury consider that there may not have been consent in fact, but the circumstances were such that the appellant honestly and reasonably mistook the matter.
  2. [13]
    However, the position adopted by defence counsel could not prevent the trial judge from raising s 24 in the summing up if there was evidence that raised it.[3]
  3. [14]
    The appellant relied upon the following facts which “raised the issue of the [appellant’s] belief that at least some significant penetration … was contemplated”:[4]
    1. (a)
      the prior sexual history which included intercourse, including very shortly before the insertion of the appellant’s hand;
    2. (b)
      the complainant had sent him photographs showing her penetrating her own vagina with her fingers (not disputing up to four);
    3. (c)
      the complainant put lubricant into the hand of the appellant immediately prior to the insertion of his hand;
    4. (d)
      the description by the complainant in her 000 call (“my partner was fisting me”); and
    5. (e)
      the acceptance by the complainant's father that the complainant had told him that the penetration was consensual to begin with but that the appellant went crazy and that she passed out.
  4. [15]
    There are a few matters as to the asserted facts which must be noted at the outset.
  5. [16]
    The reference in subparagraph (a) to “prior sexual history” was a reference to the sexual intercourse which occurred on the same day, not to the first time they met.  So much was made plain in oral submissions to this Court:[5]

“There had been sexual intercourse which was consented to, quite clearly. There had been an interruption of that, a request or attempt that was refused and desisted from, then two-minute break where they were lying beside each other. There was no reclothing or anything of that nature. He then asked for lubricant and the complainant assisted him with the application of lubricant into his hand. That’s all uncontroversial evidence.”

  1. [17]
    As to subparagraph (b), the complainant only accepted that she had sent one photograph of her vaginal area with her fingers inserted, and she did not agree that it was four fingers as opposed to two.  As to subparagraph (d), the actual statement she made on the 000 call was: “Me and my partner were having sex and he was fisting me and now there’s blood everywhere”. As to subparagraph (e), the two pieces of the father’s evidence were:
    1. (a)
      “ … she told me that a man had raped her and I asked her if it was consensual and she said yes to begin with. And after a while, she said it was – she was getting hurt and she told him no, no, no – to stop.”[6]
    2. (b)
      when he was being asked about his police statement and the fact that he did not use the word “rape” in it: “And I said something like, “Was it consensual?” and [the complainant] said something like, “It was to begin with but he went crazy” and so on?---Yes.”[7]
  2. [18]
    The test that applies in respect of the minimum necessary evidential threshold before s 24 is engaged was referred to by this Court in R v Makary:[8]

“[54] It follows that before s 24 can arise for a jury’s consideration in connection with the issue of consent there must be some evidence that raises a factual issue about whether the accused believed that the complainant had a particular state of mind and also believed that the complainant had freely and voluntarily given consent in some way. Inevitably, that will require some evidence of acts (or, in particular circumstances, an omission to act) by a complainant that led the defendant to believe that the complainant had a particular state of mind consisting of a willingness to engage in the act and believed also that that state of mind had been communicated to the defendant, that is, that consent had been “given”.”

  1. [19]
    That passage refers to a belief that the complainant had a particular state of mind consisting of a willingness to engage in “the act”.  In this case “the act” is that of penetration by way of fisting.
  2. [20]
    Sofronoff P went on to note that the requirement was that “the evidence must fairly and realistically raise s 24 for consideration before it can become a matter that the jury must consider”.[9]  His Honour then said:[10]

“[56] In Webster & Co v Australasian United Steam Navigation Co Ltd Griffith CJ described s 24 (and s 25) as “rules of common sense as much as rules of law”. If that is to remain true, it is essential that evidence that is said to raise a requirement for a jury to consider s 24 does indeed raise that issue, both as to the defendant’s honest belief and as to the facts that reasonably may give rise to that belief.”

  1. [21]
    Sofronoff P contrasted cases where the defendant gives evidence of consent, which implicitly contains a belief as to consent, and those where the defendant does not give evidence, saying as to the latter:[11]

“[59] In cases like this one, in which the appellant alleges that the complainant consented but did not give evidence, the raising of s 24 is problematical because the element of the accused’s belief can arise only by way of inference. As always, inference must not be confused with speculation.”

  1. [22]
    In my view, what Makary requires in this case, where the appellant did not give evidence, is that there be evidence which raises for consideration the inference that he believed the complainant had a particular state of mind consisting of a willingness to engage in the act of fisting, and also believed that the complainant had freely and voluntarily given consent to the act of fisting.
  2. [23]
    Before considering the evidence by which it is contended meant that s 24 should have been left to the jury, two points can be made.  First, it is not incumbent on the defence either to establish that some inference other than guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference.[12]  Secondly, the evidence does not have to establish the inference of honest and reasonable but mistaken belief before that issue could be left to the jury.[13]
  3. [24]
    Consideration of the appellant’s contentions requires that the evidence relied upon be seen in proper context.
  4. [25]
    Before meeting the appellant for the first time the complainant and the appellant had exchanged messages and photos of a sexual nature.  That included images of themselves undressed, and in her case an image of her vagina with her fingers inserted.[14]  At his request she wrote fantasy stories which she sent to him.  These contained things he wanted to hear but which he knew she would not do, such as choking, hitting and anal sex.  She told him that expressly,[15] and the appellant knew, she did not like rough sex.[16]
  5. [26]
    There was no evidence, and it was not put to the complainant, that any of the stories involved fisting, nor that there had been any conversation between the appellant and the complainant about fisting.  In evidence in chief she was asked if any of the stories had anything about fisting, and her answer was: “No. No, like, I can’t say. I can’t re – I honestly can’t remember”.[17]  She went on to explain that the stories were just that, and the appellant “knew that that wasn’t me”.[18]
  6. [27]
    In cross-examination it was put to her that by the stories and photos she had held herself out as interested in rough sex, which she denied.[19]
  7. [28]
    The first time they met face to face the complainant and the appellant engaged in sexual intercourse that she described as “normal sex” which was “just nice. Normal”.[20]
  8. [29]
    The sequence and nature of the events on the occasion of the charged conduct, which was the second time they had met face to face, were described in the complainant’s evidence.
  9. [30]
    The appellant arrived at her house, “agitated and cranky” and “jittery”.[21]  As he came in the front door he put his hand around her throat and pushed her against the wall, starting to kiss her.[22]  The complainant told him to calm down, and he did.[23]  There was no challenge to her evidence as to this conduct.
  10. [31]
    They went to her bed to watch a movie on her TV but ended up having “normal” sexual intercourse, preceded by his performing oral sex on her.[24]  During this event they changed positions, she was on top of him at one point and at another he was behind her.[25]  While he was behind her he slapped her on her bottom.[26]  The complainant thought they might have used lubricant during this activity.[27]
  11. [32]
    While on the bed the appellant said he wanted to “put it in my arse”, and attempted to do so, but desisted when she told him it would not fit and she felt uncomfortable.[28]  She asked the appellant what it was about anal sex that men liked and he replied that it was because it was bad.[29]  The only part of this evidence that was challenged was that he attempted to insert his penis into her anus.[30]
  12. [33]
    They then lay back on the bed, side by side with the appellant on her right side.[31]  The appellant had not ejaculated at that point.[32]  The complainant thought it was finished and they were now going to watch a movie.[33]  This part of her evidence was not challenged.
  13. [34]
    At a point before the appellant inserted his hand, he hit her three times on the face, using an open hand.[34]  She again told him to “calm down”.[35]  This part of her evidence was not challenged.
  14. [35]
    After an interval of a minute or two, the appellant asked for “the bottle of lube that was on the table next to me”.[36]  She “squeezed it into his hand”.[37]
  15. [36]
    The appellant then “pressed … pushed down on top of me”.  He was pinning her in the area of her upper chest.[38]  This part of her evidence was not challenged.
  16. [37]
    In that position he “put his fist inside me”, saying at the same time “I’m going to fist you”.[39]  He pushed it in.[40]  There was no time between when he said that and when he inserted his hand into her vagina.[41]  This part of her evidence was not challenged, except that it was put (and denied) that he inserted fingers rather than a fist.
  17. [38]
    She felt a huge amount of pain and pressure, and “it popped”.  He pulled his hand out.[42]  She was not sure if his hand came all the way out.[43]  She denied that his hand went in slowly, two fingers, then three, then four.[44]
  18. [39]
    She cried and screamed from the pain, describing it as worse than child birth, and “it felt like my insides popped”.[45]  She told him to “stop it” and “no”, had her nails digging into his back, was crying and trying to get him off her.[46]
  19. [40]
    Then he said “One, two, three”, and did it again, pushing his hand up further.[47]  There was another pop feeling which was worse than the first time.[48]  It was not challenged that he said “One, two, three”, though it was challenged that he withdrew his hand and put it in again.[49]
  20. [41]
    There are, in my view, some significant features about that evidence and the sequence of events.
  21. [42]
    Firstly, on that day there were three particular occasions when the appellant had combined physical aggression with sexual activity, or might be said to have engaged in something like rough sex, and on each occasion the complainant had objected to it: the choking incident at the start (hands around her throat and pushing her against the wall); his expressed desire to have anal sex and the attempt to do so (including hitting her on the bottom); and hitting her on the face three times.  All of these occurred in the period shortly before the appellant inserted his hand.  None of these events, as described by the complainant, was challenged in any material respect.
  22. [43]
    Secondly, there was no discussion or warning that the appellant intended to insert his hand to engage in fisting.  As well, no such thing had been mentioned in the stories or in any of their previous conversations.  The defence case did not suggest so.  Self-evidently, fisting is a different thing from merely inserting a finger or fingers, as it involves forming a fist with the hand once the hand is inserted.
  23. [44]
    Thirdly, those considerations mean that the prior sexual history, and the photographic exchanges, offer no evidence capable of giving rise to a reasonable but honest mistaken belief as to consent to fisting.[50]  It is necessary to recall that Makary requires the postulated belief had to be as to penetration by way of fisting: see paragraphs [18] to [19] above.
  24. [45]
    Fourthly, for the same reasons, the complainant’s handing him the lubricant when he requested it, in circumstances where he had not ejaculated and had neither said nor indicated what he intended, offers no evidence capable of giving rise to a reasonable doubt that the appellant had a reasonable but honest mistaken belief as to consent to fisting.  His statement that he was going to fist her came simultaneously with the act and gave no opportunity for the complainant to respond.
  25. [46]
    Fifthly, that being the context in which the complainant was injured and suffering serious blood loss, the statement by her to the 000 operator (“Me and my partner were having sex and he was fisting me and now there’s blood everywhere”) says nothing more than what occurred.  They did have sex, and he was fisting her, but it says nothing that gives rise to a reasonable doubt about whether the appellant had a reasonable but honest mistaken belief as to consent to fisting.  In any event, her unchallenged evidence was that as a consequence of her injuries she suffered severe blood loss (two litres), was in shock, and thought she was going to die.[51]  That state of mind affects the evidentiary value of statements after the injury became apparent.
  26. [47]
    Sixthly, for similar reasons, reliance on the statement to her father is misplaced.  The passage was:[52]

“All I’m asking is this. I would suggest that in the statement you gave when you made reference to the second conversation you had – that’s the one where you asked her – she meant – you don’t record the word “rape” anywhere in that. I could read a bit out to you - - -?---She said, though, we’re having consensual sex and then it went wrong and - - -

Yeah, but – just let me put this to you. Two days later, according to the statement, you saw [the complainant]. [The complainant] came over to your place and you spoke about why she was in hospital?---Yep.

You remember saying that? And I said something like, “Was it consensual?” and [the complainant] said something like, “It was to begin with but he went crazy” and so on?---Yes.”

  1. [48]
    The statement is equivocal at best.  Indeed, the last response was as to the question of consent, and it drew a distinction between the beginning, when it was consensual, and then when “he went crazy”, when it was not.  The use of the word “but” makes clear that what was being said was that there was no consent to the crazy part.  In any event, it provides no evidence capable of giving rise to a reasonable doubt about whether the appellant had a reasonable but honest mistaken belief as to consent.
  2. [49]
    In my view, the evidence did not raise a case of s 24 belief.  This ground fails.

Unreasonable verdict ground

  1. [50]
    The principles governing how this ground of appeal must be approached are not in doubt.  In a case where the ground is that the conviction is unreasonable or cannot be supported having regard to the evidence, SKA v The Queen[53] requires that this Court perform an independent examination of the whole of the evidence to determine whether it was open to the jury to be satisfied of the guilt of the convicted person on all or any counts, beyond reasonable doubt.  It is also clear that in performing that exercise the Court must have proper regard for the pre-eminent position of the jury as the arbiter of fact.
  2. [51]
    The role of the appellate court was recently restated in Pell v The Queen:[54]

“The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.”

  1. [52]
    The High Court restated the pre-eminence of the jury in R v Baden-Clay.[55]  As summarised by this Court recently in R v Sun,[56] in Baden-Clay the High Court stressed that the setting aside of a jury’s verdict on the ground that it is unreasonable is a serious step, because of the role of the jury as “the constitutional tribunal for deciding issues of fact”,[57] in which the court must have “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”.[58]
  2. [53]
    The appellant’s contentions on this ground relied upon the same factors as were raised on the ground relating to mistake of fact: see paragraph [14] above.  The contention was that those factors “tended to indicate actual consent (even if such consent was not actually ‘given’)”, and therefore should have given rise to a reasonable doubt in the jury’s mind:[59]

“It is submitted that those features (listed below) indicate a consent to penetration by the appellant using at least his fingers, as well as the giving of prior consent by her actions - in particular lubricating his fingers/hand. The jury ought to at least have had a reasonable doubt about the issue.”

  1. [54]
    The appellant also submitted that the doubt should have been entertained because: (i) the allegation of rape only arose at the hospital and was not said to the ambulance officers; (ii) whilst the complainant did not consent to the pain or injury there was no suggestion the appellant was trying to cause those things; (iii) the complainant’s admitted limitations to her memory and her attempts to forget, as well as her evidence that “compared to today” she “might have remembered things differently”; and (iv) the confusion on her evidence about how long he persisted after specific withdrawal of consent.[60]
  2. [55]
    For the reasons set out above in paragraphs [14] to [49], none of those matters were such as to raise the question of belief in consent to the act of fisting.  In fact, it was open to the jury to infer that the way in which the act of fisting occurred (the announcement of his intention coinciding with the act itself, pinning her down, and the three incidents of rough sexual activity to which the complainant had already objected) was because the appellant knew she would object to it.  There is no reason, in my view, to conclude that those matters, seen in the context of the evidence overall and given that consent was the only live issue, were such that it was not open to the jury to be satisfied of the appellant’s guilt.
  3. [56]
    That the complainant first used the word “rape” at the hospital does not, of itself or in combination with other matters, raise such a doubt about her evidence that the jury could not have been satisfied as to guilt.  The complainant explained she was in shock and thought she was dying.  In the circumstances, the jury may well have reasoned that it was unrealistic to expect a perfect account of anything at that time.  In any event, there was evidence consistent with the assertion of rape before she got to the hospital.  The complainant told the ambulance officers that the appellant had inserted his fist and it caused the pain and bleeding.[61]  In the ambulance the officers asked her if that had been consensual, and her response was that she did not want to get the appellant in trouble.[62]  The jury could reason that he could only have been in trouble if it was without consent.
  4. [57]
    Further, the unchallenged preliminary complaint evidence was that she used the word rape.  The first such time was when she was on the way to the hospital.[63]  Others were shortly after when she was at the hospital.[64]
  5. [58]
    In my view, that the appellant did not intend to cause the injury takes the matter nowhere.  That fact might have some impact if there was a credible case of consent, but that is not this case.
  6. [59]
    I do not accept that the contention that the complainant’s memory issues are such as would have created a doubt that overcame the evidence otherwise.  The complainant was evidently under stress at the time she gave evidence,[65] and embarrassed at having to reveal such private matters.[66]  Her memory was generally good, but she admitted to the sort of memory limitations that are natural.[67]  Further, she said that she had been “trying to put all this behind me”,[68] she had undergone “a huge amount of therapy since ... to try and get this out of my head”.[69]  Indeed, that she admitted to such limitations may well have been seen by the jury as the hallmark of an honest and reliable witness.
  7. [60]
    Further, the quote relied upon by the appellant needs to be read in context.  In cross-examination the complainant was confronted with what she had said at the first trial, and it was suggested she had been less adamant on that occasion as to whether the appellant had attempted to insert his penis in her anus.[70]  Her response was:[71]

“I can only go off what I remember on that day. I have had a huge amount of therapy since this – since March until now, to try and get this out of my head.

I’m not going to question or challenge that?---So I’m just saying on that day - - -

All right?--- - - - compared to today, I might have remembered things differently but - - -

Well, let me help you to this extent. Do you think you might have been more accurate some months back than you are today?---I don’t know.

Because of the therapy?---I don’t know. Like I said, I don’t know.

Right?---I don’t want to remember this and I shouldn’t - - -

Shouldn’t what?---Shouldn’t have to remember something devastating like this. It was a - - -

Well, I can’t help you with that?---I’m not saying that. I’m just saying to you, like, from March until now, I can’t remember, like, I just want this - - -

Well, I asked you and I’ll say it again. Is it the case you think your memory would have been better then?---I don’t know.

And could you – are you prepared to say that things that you may not remember now are as a result of the therapy you’ve been having for pushing it out of your mind?---I don’t know.”

  1. [61]
    Plainly enough the complainant was freely accepting that her memory might have been better on a previous occasion.  That is hardly enough to cause a jury to doubt her evidence overall, especially as this went only to the attempted anal intercourse, and not the fisting.
  2. [62]
    In my view, there is no assistance to be gained from the last factor, i.e. the confusion on her evidence about how long he persisted after specific withdrawal of consent.  The appellant sought to make something of the fact that the complainant said that the insertion of the hand was simultaneous with the appellant stating “I’m going to fist you”, but then “appeared to implicitly accept that the penetration might have taken 15-20 seconds and that she “did tell him no” and “fight him off””, as betraying “confusion about how long he persisted after any specific withdrawal of consent”.[72]  There are considerable difficulties with the contention.
  3. [63]
    Firstly, it assumes initial consent to fisting, but the complainant was clear that she did not consent, and the evidence does not permit a case for a mistaken belief that she did.
  4. [64]
    Secondly, even if the complainant implicitly accepted that it lasted 15-20 seconds, that is still ample time within which to encompass insertion, telling him “no” and fighting him off.
  5. [65]
    Thirdly, the jury could well accept that people in stressful situations such as sexual assault are not necessarily reliable historians later as to the time things took.  The jury could conclude that the complainant is such an example.  When she was asked in her evidence in chief how long it was between initial insertion and when the appellant thrust deeper, she said: “ … it felt like forever. … I can’t tell you in minutes.  It just felt forever”.[73]  At no time did the complainant attempt to describe the duration of the fisting in seconds or minutes.  Instead she described the duration of the fisting by phrases such as “it felt like forever”, and the interval between the second feeling of popping and withdrawal of the hand as “not long”.
  6. [66]
    Having reviewed the whole of the evidence there is no reason, in my view, to conclude that the jury should have held such doubts about the evidence of the complainant, supported as it was by the medical evidence and the preliminary complaint evidence, that they could not be satisfied of the appellant’s guilt.
  7. [67]
    This ground fails.

The redirections ground

  1. [68]
    The appellant attacked redirections given towards the end of the jury’s deliberations.  They arose after the jury sent a note,[74] which asked for assistance because they were having difficulty reaching a unanimous agreement.
  2. [69]
    The two relevant features of the jury note were:
    1. (a)
      a request for “additional direction on the application of the granting consent and the withdrawal of consent once granted”; and
    2. (b)
      a request that the direction include examples of:
      1. the lack of cognitive capacity to grant consent and circumstances that might be applicable; and
      2. does the understanding of a defendant of the state of consent influence the application of the concept to a complainant.
  3. [70]
    In the course of discussing the matter with counsel, the trial judge proposed that he would tell the jury that in respect of the defendant’s understanding of the complainant’s state of mind, that was a matter on which no-one had addressed as it was not in issue, and the two relevant issues were whether the complainant consented and whether she communicated that by words or conduct.[75]  Defence counsel confirmed there was no issue of mistake.  Defence counsel also agreed that the real issues were consent and withdrawal of consent, and the material relevant to that issue was then explored, including examples that might assist.
  4. [71]
    In the redirections, the trial judge told the jury he would deal with each of their issues, though not necessarily in the order in which they were raised in the note.  He dealt first with the issue of lack of cognitive capacity.[76]  In the course of that direction, his Honour referred to the central issue on which all of the parties had addressed, which was did the complainant consent, and was that consent communicated.
  5. [72]
    The trial judge then turned to the appellant’s understanding of the complainant’s state of mind, directing the jury that no-one had addressed on that issue, and the questions that were directed for their attention were as to whether the complainant had consented.  The jury were told not to speculate about the appellant’s state of mind.[77]
  6. [73]
    The directions then canvassed, under the heading of consent and withdrawal of consent, examples that might assist the jury in determining whether consent was communicated.  Having done that, his Honour turned to the issue raised as to withdrawal of consent.  Here the jury were reminded that the Crown put its case on two bases, first that the fisting was without consent, but if they were in doubt about that, whether her opposition to the second thrusting movement was sufficiently clear so that it constituted rape.[78]
  7. [74]
    Towards the end of that exercise the trial judge gave the direction which is the subject of this ground.  It was in these terms:

“So you do not have to return two separate verdicts. You do not even have to all agree on the one episode, do you? Some agree that the initial entry was non-consensual and the others think that the subsequent acts occurred and were non-consensual and you find those things beyond reasonable doubt, that is sufficient to convict of rape. Okay, does that help you at all?”

  1. [75]
    The appellant accepted that as a matter of strict legal principle the redirection was correct.  However, it was said that:[79]

“ … it is unhelpful to tell this to a jury where no such difficulty has been indicated by them. Such a direction would be troubling enough in the summing up. It would almost always be unhelpful and confusing to a jury. Here, at a late stage on a Friday and after nearly 2 days of deliberations it sends the wrong message. It lacked balance. In the circumstances of this case, if the jury were to doubt the evidence of the complainant on one possible basis that could well call into question her credibility generally. The jury should have been reminded of this if suggesting such a path to a verdict of guilty. The redirection given in these circumstances may well have unwittingly conveyed an impression to the jury that a conviction was desirable.”

  1. [76]
    As the respondent submits, the redirection has to be assessed in the context of the entire summing up.  That contained these elements, none of which are criticised:
    1. (a)
      the issue for the jury was whether they were satisfied of the Crown case as particularised, which was, without her consent: (i) putting his hand in; and (ii) allowing his hand to remain and pushing further;[80]
    2. (b)
      as to those two bases, even if there were uncertainty about the issue of the initial penetration lacking consent, if the forcing of the hand further in was done without consent then the jury could convict on that basis;[81]
    3. (c)
      as to consent, the state of the complainant’s mind was elemental; consent could be given by words or actions, or in some circumstances a representation by remaining silent; the context had to be considered, including the prior consensual sex at the appellant’s house, and the conduct of the appellant and the complainant on the day in question, including the consensual sexual activity and the attempt at anal sex and her reaction to that;[82] and
    4. (d)
      consent had a double element, i.e. the state of mind of the complainant and whether that state of mind had been communicated in some way;[83] in that context the jury were reminded of the two competing cases; the first was that of the Crown, contending that because of the unusual nature of the fisting one could have expected a more lengthy discussion about it; the second was that of the defence, contending that it occurred sufficiently slowly for the complainant to have had every chance to demur if she had wanted to, and she only complained once she felt pain, at which point he withdrew.[84]
  2. [77]
    In my view, given what had preceded this particular redirection, there is no reason to conclude that the direction would have confused the jury.  The redirections as a whole addressed precisely the issues that the jury raised, dealing with them in a logical and clear way.  There was no lack of balance, in my view, as the jury were reminded in some detail about the matters which challenged acceptance of the complainant’s evidence, particularly on the issue of consent.
  3. [78]
    Given that the appellant accepts that the redirection was correct as a matter of legal principle, when seen in its proper context the redirection was not unbalanced or confusing.  This ground fails.

Leave to appeal against sentence – grievous bodily harm and rape

  1. [79]
    On the offence of causing grievous bodily harm, the appellant was sentenced to six years’ imprisonment and on the rape, seven years’ imprisonment.  Each offence was declared a serious violent offence, with the consequence that the appellant would be required to serve 80 per cent of each period.
  2. [80]
    The appellant contended that the finding of guilt on the grievous bodily harm count did not mean that the jury had rejected his evidence, because the sole issue on that count was foreseeability of injury in the context of an accident.  It was submitted that the sentencing judge did not appear to have made any finding about the appellant’s evidence at the trial, if it was considered at all.[85]  In saying that the appellant had a “lack of regard for her as a person”, the comment lacked evidentiary support, and the sentencing judge’s finding of the appellant’s indifference and brutality was influenced by the conviction on the rape count.
  3. [81]
    It was submitted that the head sentence and the imposition of the SVO made the sentence excessive.  At the least, the sentence was at the upper end of the range which rendered it manifestly excessive once the SVO declaration was taken into account.[86]
  4. [82]
    The appellant contended that there were factors which mandated a lower head sentence as well as the absence of an SVO declaration, which included:
    1. (a)
      it was not disputed that the appellant had offered to plead guilty to the grievous bodily harm count, at least if the rape count did not proceed;
    2. (b)
      the harm was inflicted as a result of negligence;
    3. (c)
      if there was no rape, then the harm was reckless and unintentional during consensual activity (or at least activity believed to be consensual);
    4. (d)
      if there was a rape, then the harm occurred shortly after consensual activity and in circumstances where the defendant may well have believed (reasonably or otherwise) that there was an element of consent given those factors referred to above; and
    5. (e)
      the declaration was not specifically sought by the prosecutor.
  5. [83]
    It was further contended that an SVO declaration was not appropriate because:
    1. (a)
      the offending was brief and not protracted;
    2. (b)
      no weapon was used;
    3. (c)
      lubrication was used;
    4. (d)
      it was negligence based;
    5. (e)
      the harm was not intended;
    6. (f)
      it occurred in the context of otherwise consensual activity and against the background of photographs of the complainant being penetrated with fingers; and
    7. (g)
      there was no evidence of long lasting or permanent physical injury.
  6. [84]
    The contention was that if the rape conviction stood, a sentence of no more than six years’ imprisonment was appropriate for both counts, with no SVO declaration.  For the offence of grievous bodily harm alone, the submission was that a sentence of three years’ imprisonment was appropriate.  On the basis that a plea of guilty had been offered, and there was little challenge to that count, a parole release date early on halfway could be made.

Approach of the sentencing judge

  1. [85]
    The learned sentencing judge was plainly aware of the nature of the injuries.  They can be summarised as follows.
  2. [86]
    The two tears were described in detail by the medical evidence, both as to their nature and the probable mechanism that caused them.
  3. [87]
    The large tear occurred on the back wall of the vagina, extending upward towards the cervix.  It was a full thickness tear, through the lining of the vagina and into the muscle layer underneath.  It was 10 centimetres long, nearly the full length of the vagina.  The smaller tear was near and left of the larger tear, but higher up the vagina wall, and closer to the vaginal opening (the introitus).[87]
  4. [88]
    The large tear injury would require fairly rapid and sudden, forcible dilation of the vagina.  To get a tear in the upper part of the vagina adjacent to the cervix would need “forceful dilatation of the vagina and then further stretching of it”.[88]
  5. [89]
    The mechanism was described as being if the appellant moved his hand in the vagina and then pushed it further up, i.e. if a fist was in the vagina, and if there was already an injury from that, and then movement of the fist occurred.  The area of the tear was a relatively more fixed part of the vagina, because of various ligaments which hold the vagina up.  The movement stretched that part of the vagina that is not really meant to be stretched to a large degree, except during childbirth, when the vagina has all sorts of hormonal preparations to make it more distensible, and the stretching occurs over hours, not suddenly.[89]
  6. [90]
    Dr Weaver’s opinion was that a fully formed fist could not be forced in so that the mechanism was that a cone of fingers would have to be inserted first, then a fist formed.[90]  He did not adopt the proposition that the same result could have occurred with just fingers inserted, because a fist would cause greater distension more consistent with the injury.[91]
  7. [91]
    The doctor’s opinion was that the length of the tear was indicative of force being used lengthwise, as in a hand being moved inside the vagina, and extending fully towards the back of the vagina.  And that there were, more probably than not, two separate applications of force, though he could not discount the possibility of one movement.[92]
  8. [92]
    The learned sentencing judge noted the age of the appellant (26 at the time of offending and 28 at sentencing), as well as the fact that he was the father of two children and had a good work history.  His Honour also noted his largely irrelevant criminal history both in Queensland and New South Wales.  His Honour indicated that he was sentencing on the basis that “while you are not a person with an unblemished record, you have no relevant criminal history”.
  9. [93]
    The learned sentencing judge then reviewed the circumstances of the offending.  His Honour noted that the choking incident involved the appellant displaying “immediate significant aggression”.  His Honour also noted that once the appellant had received the lubrication he effectively pinned the complainant to the bed.  The appellant said he was going to fist the complainant and “immediately and before she had any time to react in any way, you pushed your hand forcefully inside her”.  The learned sentencing judge proceeded on the basis that, as Dr Weaver said, the appellant formed his fingers into a cone and pushed it rapidly inside the complainant’s vagina.  His Honour then summarised what followed:[93]

“You then formed your hand into a fist causing a rapid distention of the vaginal walls and a consequent rupture.  She said in evidence that she felt a popping sound and great pain.  She cried out and scratched at your back, writhing to try to get away because of the fact that you had your hands on her upper chest.  She was unable to cause you to stop.

Your reaction was merely to say, “One, two, three” and force your fist further inside her vagina causing further pain, a further popping feeling and further rupture.  Ultimately, she suffered two tears to her vaginal wall, a 10-centimetre long tear to the full thickness of the wall at the back of the vagina.  That tear commenced two centimetres above the introitus.  She also suffered a smaller two-centimetre long tear to the left of the upper end of that 10-centimetre tear in the area closest to the cervix and away from the vaginal wall.”

  1. [94]
    As a result of the tears, the complainant lost two litres of blood, described by the sentencing judge as “a very significant amount”.  His Honour noted that the tears were repaired under general anaesthetic, but the complainant “has suffered very significantly”.  His Honour referred to the Victim Impact Statement and the significant effect the injuries had had on issues of confidence, degree of trust and a sense of fear.
  2. [95]
    The learned sentencing judge considered it important that there was no suggestion of prior discussion about the fisting and therefore no communication about whether the complainant might consent to it.  His Honour sentenced on the basis that the complainant’s evidence about a lack of time to respond to the statement “I am going to fist you” should be accepted.  The incident was therefore without consent.
  3. [96]
    Accepting the complainant’s evidence, the learned sentencing judge characterised the conduct in this way:[94]

“Your conduct was brutal, degrading, forceful, injurious and, as I have said in the course of discussion with counsel, contemptuous, in my view, of the complainant.  Your second thrust, knowing of her pain and of her lack of consent is, in my submission, especially appalling.  I accept you did not intend to cause the complainant grievous bodily harm, but the manner in which you performed this brutal non-consensual activity meant that such an injury was highly likely.  You simply did not care if she was injured and were instead interested in only completing an act that could give no one pleasure.”

  1. [97]
    The sentencing judge then explained the reasons for his conclusion that it was appropriate to make a serious violent offence declaration under s 161B of the Penalties and Sentences Act 1992 (Qld).  That explanation was in these terms:[95]

“It was and, in my view, must be seen only as a brutal and degrading act designed to humiliate and degrade the complainant.  In my view, the fact of the complainant suffering grievous bodily harm, the high probability of such an injury occurring due to the nature of your forceful actions and the force with which you undertook and your grotesque actions in forcing your fist further into her vagina when she cried out in pain after very clearly indicating her lack of consent, in my view, justify the making of a serious violence offence declaration under section 161B of the Act.”

  1. [98]
    The learned sentencing judge made it plain that he was very conscious of the serious aggravating effect on the sentence of such a declaration.  In particular, his Honour expressly referred to the fact that it would mean an inability to apply for parole until the appellant had served 80 per cent of the sentence.  His Honour also expressly noted the lack of criminal history, the appellant’s age, and rehabilitation in light of his good work history.  His Honour continued:[96]

“As I have said, I think it is irrelevant that you have a number of relevantly minor convictions.  In my view, however, the violence of your offending, your associated contempt of the complainant, your lack of remorse as evidenced by the fact that these matters proceeded to trial rather than a plea are all relevant to the assessment of appropriate penalty in this.  In my view, the brutality of that second act, in particular, is something that places this case in a special category, a special feature which demands, in my view, the making of an SVO.”

  1. [99]
    His Honour also noted that but for the making of an SVO the sentence imposed would have been higher and perhaps beyond the eight years sought by the Crown.[97]

Position of defence counsel

  1. [100]
    In the course of submission on the sentencing hearing, defence counsel made a number of points.  It was accepted that the fisting was a dangerous thing to do and that the appellant had to be sentenced on the basis of callous disregard for the consequences of the act.[98]  It was also accepted that the two counts merged for sentencing purposes, because the grievous bodily harm was caused in the course of the rape.[99]  When submitting that the case did not warrant an SVO, the submission was made that if it was imposed then “it’s got to [go] below eight”, and the range should be “six to seven”.[100]

Consideration

  1. [101]
    The learned sentencing judge made it plain that the imposition of an SVO declaration was warranted because of the nature of the offending.  It was accepted by both sides that the injuries met the definition of grievous bodily harm.  However, his Honour took the view that a feature which distinguished this case from the ordinary run of grievous bodily harm cases was the way in which the injuries were inflicted.  They occurred in the course of a rape carried out by the act of fisting.  In particular the injuries were caused because of the rapid distention of the complainant’s vagina by the appellant’s forming a fist and thrusting it into the vagina.  It was the second thrust which was the central factor leading to the imposition of the SVO.
  2. [102]
    The factual basis upon which the appellant was sentenced was that he gave no indication or warning of what he intended, his only statement coinciding with the insertion of his hand into the complainant’s vagina.  That took place without consent.  It caused immediate pain and the complainant cried out and started to resist.  Notwithstanding that unmistakable objection and resistance, and signs of considerable pain, the appellant made the second thrust with his fist, inflicting greater harm.
  3. [103]
    I respectfully agree with the learned sentencing judge’s characterisation of the conduct as brutal, degrading, forceful, injurious and contemptuous of the complainant.  I also agree that it was open to conclude, as his Honour did, that the act was designed to humiliate and degrade.
  4. [104]
    It is those factors upon which his Honour relied as warranting the imposition of the SVO.  In my view, it cannot be said that it was not open to his Honour to do so.
  5. [105]
    The appellant relied upon certain passages of his evidence at the first trial, to rebut the suggestion of contempt for the complainant and that he did not care.[101]  What he said was that he: asked her if she was OK when he pulled his hand out; got her a towel to put between her legs; put her singlet on her; got another towel; was worried about her; calmed her down; helped the paramedics to get in and stayed out of their way; and did not go to the hospital because he did not want to put her through more than had already happened.
  6. [106]
    There are difficulties accepting the contention that this could have been accepted as revealing that his conduct was not contemptuous of the complainant, and demonstrating that he cared.
  7. [107]
    First, it all relates to his actions after the injury occurred and the bleeding was apparent.  It says nothing about his attitude in performing the fisting without warning, by pinning her down on the bed, and in the face of the complainant’s objections and pain, which is what the learned sentencing judge was characterising.  In that respect, defence counsel submitted that the sentence should proceed on the basis that it was “gross – almost callous disregard … a callous disregard for the consequences of the act” and with “no regard for the consequences”.[102]
  8. [108]
    Secondly, most of those matters were not advanced as part of the considerations on the sentence for the rape count.  All that was submitted was that he stayed there, helped the paramedics, and “obviously didn’t want to attend the hospital”.[103]
  9. [109]
    Thirdly, the complainant’s evidence of his conduct afterwards was different: he said “You have your period”; she got towels off the floor, to put between her legs; he did not get the towels; he mentioned she might be having a miscarriage; and he did not open the door for the paramedics as it was already open.  The learned sentencing judge did not have to accept the appellant’s version of events.
  10. [110]
    The offer of the plea of guilty to grievous bodily harm does not take the matter very far, when one accepts that it was on the basis that the rape count would not proceed.  The grievous bodily harm was caused by the particular way the rape was carried out.
  11. [111]
    It is true to say that the harm was caused as a result of negligence, but it is equally true that this was not negligence by mere slip or omission.  The appellant embarked upon an act which he knew the complainant was likely to object to, being rough sex, and for which he had no consent, nor any belief in consent.  His disregard for the obvious pain he caused by the initial thrust, and the resultant objections by the complainant, take this case well beyond mere negligence.
  12. [112]
    It is true that the Crown did not expressly advocate for an SVO declaration.  However, that needs to be seen in context.  The Crown made a submission that the sentence should be “towards the upper end of a range of seven to eight years”,[104] at which point the learned sentencing judge raised the question of whether an SVO should be imposed.  The Crown’s response was in the affirmative, saying that ultimately the circumstances indicate that the acts were reckless in the extreme and indifferent.[105]  Immediately after that submission his Honour stated that it was his view that an SVO should be made, but that he was happy to hear submissions on it.[106]  In response to that announcement the Crown said “it’s certainly a matter that’s within your Honour’s discretion, taking that[107] into account and taking into account the continuation in the face of obvious pain being suffered by the complainant.[108]
  13. [113]
    I do not accept the appellant’s contention that because the offending was brief, and not protracted, and that harm was not intended, that an SVO was not appropriate.  As brief as the conduct was, it was violent, brutal, degrading and callous.  The appellant had no basis, in my view, for thinking that the complainant was willing to participate in the act of fisting, much less that she would enjoy it.  She had made it plain that she was not interested in what she called rough sex.[109]
  14. [114]
    The fact that the grievous bodily harm had occurred in the course of the commission of a violent rape takes both offences into the scope of an SVO declaration.
  15. [115]
    In R v Free; Ex parte Attorney-General (Qld)[110] this Court reviewed whether authorities supported the proposition that a serious violent offence declaration required the case to fall outside the so-called “norm” for that offence.  Having examined authorities from R v DeSalvo[111] and R v McDougall and Collas,[112] it was held that there is no such requirement, but rather:[113]

[49] In our respectful view, having regard to the analysis in McDougall and Collas, the submission of the Attorney-General should be accepted.  The exercise of the sentencing discretion in the present case was affected by error, in particular in relation to the exercise of the discretion whether to make a serious violent offence declaration, by focussing on a perceived need to find factors which take the case outside the norm for the type of offence; rather than considering more broadly whether there are circumstances of the case which aggravate the offence in a way which suggests the protection of the public or adequate punishment required a longer period in actual custody before eligibility for parole than would otherwise be required.

[50] We hasten to add that we apprehend the approach taken by the learned sentencing judge in this case is likely to have been the approach regularly taken by sentencing courts, when considering the exercise of the discretion to make a serious violent offence declaration.  That is, to focus on whether there are factors in the particular case which take it outside “the norm” for the type of offence.  That is a short-hand expression frequently invoked as a means of conveying the “test” to be applied.  It is the analysis invited on this appeal that has drawn our attention to the fact, and persuaded us, that such focus is too narrow.”

  1. [116]
    It is evident, in my view, that the learned sentencing judge was not addressing the issue of whether to impose an SVO declaration by reference to whether the case was outside “the norm” for grievous bodily harm, inflicted in a rape.  Rather, as is evident from the passages set out at paragraphs [97] to [98] above his Honour regarded the brutality of the second thrust as warranting greater condign punishment.  It was that which was “a special feature which demands … the making of an SVO”.[114]
  2. [117]
    The learned sentencing judge also explained the reason why he imposed six years on the grievous bodily harm count, and seven years on the rape.  It was a differentiation driven by the significant difference between the maximum penalties in respect of each count.  The maximum for grievous bodily harm was 14 years, and the maximum for rape was life imprisonment.  In my view, it cannot be demonstrated that that differentiation took the sentencing process beyond the bounds of appropriate discretion.  Indeed, the submissions made by defence counsel were that the range was from “six to seven”, which sits conformably with the sentences actually imposed, leaving aside the aspect of the SVO declarations.[115]  Indeed, defence counsel submitted what should be done if an SVO was made: “if you do do that, then its got to [go] below eight”.[116]  And so it was.
  3. [118]
    I am unpersuaded that it can be demonstrated that the sentences imposed in this case were beyond the bounds of proper sentencing discretion.  When reference is had to R v Clarke[117] that conclusion is not disturbed.  Clarke had a fact situation somewhat similar to the present case.  The complainant and Clarke met on a dating website and arranged to meet one evening where consensual sexual intercourse occurred.  They met a second time, again engaging in consensual sexual intercourse.  As they were lying side by side he said he wanted to “ruin [the complainant’s] pussy”.  He then started inserting his fingers into her vagina.  When that started to get a bit rough the complainant told him to calm down, and then, even when he had obtained some lubrication to put on his hands, the complainant did not object to the continuing insertion of fingers provided that he was more gentle.  It eventually got to the point where it was so painful she asked him to stop, but he did not and drove his fist into her vagina.
  4. [119]
    The complainant sustained some injuries in the form of abrasions and bruising to her labia and posterior fourchette.  One abrasion on the labia was at the point of a laceration.
  5. [120]
    The five year sentence imposed on Clarke was not disturbed by this Court.  Nonetheless, the rape was described as being “accompanied by extra brutality” because the number of fingers used, and the force, escalated to the point where Clarke’s entire fist or hand was inserted notwithstanding the complainant’s struggles and screams of pain.
  6. [121]
    In my view, Clarke does not suggest that the sentences in the current case are beyond discretion.  Clarke involved significantly less severe injuries, painful though they were.  Moreover, in Clarke there was a more gradual progression involving digital insertion, whereas here the entire episode of fisting was unannounced, sudden and brutal.
  7. [122]
    I would refuse the application for leave to appeal against the sentences.

Conclusion

  1. [123]
    For the reasons above I propose the following orders:
  1. The appeal against conviction is dismissed.
  2. Leave to appeal against sentence is refused.
  1. [124]
    MULLINS JA:  I agree with Morrison JA, but will add some observations in relation to the mistake of fact ground.
  2. [125]
    The prosecution’s case was that there were two movements of the appellant’s hand that penetrated the complainant’s vagina without the consent of the complainant and that, if the jury were not satisfied beyond reasonable doubt that the first penetration was without consent, the prosecution’s alternative basis for the count of rape was the second movement of the appellant’s fist inside the complainant’s vagina that occurred after the complainant had withdrawn her consent.  The defence case was that there was only one movement of the appellant’s fist that caused both injuries to the complainant’s vagina and that one movement was done with the complainant’s consent.
  3. [126]
    The ground of appeal based on s 24 of the Criminal Code (Qld) that there was an evidential basis for leaving mistake of fact to the jury was relevant only to the initial penetration of the complainant’s vagina by the appellant’s hand.  The consent that was in issue was whether the complainant had consented to penetration by “fisting”.
  4. [127]
    The analysis of the evidence undertaken by Morrison JA shows that there was no discussion between the appellant and the complainant prior to the act of penetration by fisting.  The squeezing of the lubricant by the complainant into the appellant’s hand, which the appellant asked the complainant to do, was not done in the context of any foreshadowing by the appellant of penetration by fisting.  For the penetration by fisting not to constitute the offence of rape, it had to be done with the consent of the complainant to penetration by that means.
  5. [128]
    The minimum evidential basis to justify a direction based on s 24 in respect of the consent of a complainant in the context of a charge of a sexual offence, was set out by McPherson JA (with whom McMurdo P and Ambrose J agreed) in R v Millar [2000] 1 Qd R 437 at [7]:

“To sustain [a failure to direct the jury in terms of s 24(1)], it is necessary for the appellant to show that there was material on which the jury could legitimately have entertained a reasonable doubt about that issue, which was whether the appellant honestly and reasonably believed that the complainant had consented to his inserting his finger in her vagina.”

  1. [129]
    After referring to that statement made by McPherson JA in Millar, Fraser JA in R v FAV [2019] QCA 299 at [6] then expanded on the aspects of the evidence that were required to establish the evidential basis for leaving s 24 to the jury in respect of a mistake of fact about the consent of the complainant.  That discussion focused on the aspect of “consent” that requires that it must be “given” by the complainant.  That was also emphasised by Sofronoff P in R v Makary [2019] 2 Qd R 528 at [54].  Relevantly, as Fraser JA explained in FAV at [6], there must also be evidence relevant to whether any belief by the appellant that the complainant had given consent was a reasonable belief.  See also Makary at [56].
  2. [130]
    There was insufficient evidence adduced at the trial from which the jury “could legitimately have entertained” a reasonable doubt about whether the appellant had a reasonable, but honest and mistaken belief, as to consent having been given by the complainant to the appellant’s penetrating her by fisting.
  3. [131]
    JACKSON J:  I disagree with Morrison JA’s conclusions and reasons, with which Mullins JA agrees, for rejecting the ground of appeal that the trial judge erred in failing to direct the jury as to the excuse of mistake of fact under s 24 of the Criminal Code.  In my view, the evidence did raise an issue whether the appellant did the “act” of penetrating the complainant’s vagina with the appellant’s fingers “under an honest and reasonable, but mistaken, belief as to the state of things”,[118] namely that the complainant consented to that act at the commencement of the action described in the evidence and in the reasons of Morrison JA as “fisting”.
  4. [132]
    My dissent is confined to whether the appellant was denied a fair trial for the offence of rape because the excuse of mistake of fact was not left to the jury by the trial judge.
  5. [133]
    Despite the alternative ways in which the offence of rape in this case was advanced by the prosecution and left to the jury by the trial judge, it appears that neither the trial judge nor counsel perceived that there might be any problem in not leaving the excuse of mistake of fact to the jury in respect of one of the factual alternatives upon which the jury were directed and re-directed that they might convict the appellant of rape.
  6. [134]
    Morrison JA treats the appellants counsel’s approach, in not raising mistake of fact as an issue, as deliberate, which it was, and made for a tactical purpose or purposes, which can only be speculated.  However, it is not up to counsel to make the choice as to whether an excuse from criminal responsibility must be left to the jury, even if that is counsel’s intent.  A trial judge’s duty to sum up and leave an issue of excuse from criminal responsibility to the jury arises from the evidence and is engaged even if defence counsel does not raise the issue or does not wish that issue to be left to the jury.[119]
  7. [135]
    The elements of the offence of rape under s 349 of the Criminal Code in the circumstances of this case were:
    1. (1)
      that the appellant “penetrate[d] the… vagina of” the complainant “with… a part of the [appellant’s] body that is not a penis…”; and
    2. (2)
      the penetration was “without the [complainant’s] consent.”
  8. [136]
    There was no issue at the trial that the appellant penetrated the complainant’s vagina with part of his body, namely his hand.  That element may be put to one side as proved to the standard of beyond reasonable doubt at the trial.  The remaining element of the offence and issue at the trial was that the act of penetration occurred without the complainant’s consent.  For the purpose of s 347, and to the extent relevant in the present case, “consent” is defined in s 348(1) as “consent freely and voluntarily given” by the complainant.  The jury’s verdict necessarily means that on the evidence they were satisfied, beyond reasonable doubt, that the complainant had not given consent.
  9. [137]
    The prosecution case was pleaded in the indictment as a single offence in general terms, namely that the appellant raped the complainant on a stated date at a stated place.  The appellant’s plea of not guilty created the general issue and there were no particular formal admissions relevant to the issue of consent.  However, the evidence led at the trial created some particular factual and legal issues for the jury to consider.
  10. [138]
    In summing up the case to the jury, the trial judge said:

“… the Crown has put it on two bases.  One is that the initial penetration was without consent, and they submit you should have no doubt about that.

But they say that [if] you did have a doubt about that… you could have no doubt that… after she had said no, scratched at his back, the things that [the prosecutor] described… that he then said, “One, two, three,” and forced his hand in further, and that that was an act without consent.  So in either case, if you are satisfied of either of those things beyond reasonable doubt, then you must convict.  If you have a doubt about both, then you must acquit.”[120]

  1. [139]
    It can be seen that the prosecution case was expressly advanced on alternative bases.  The first basis was that the complainant had not given consent when the appellant commenced to penetrate her vagina with his fingers.  The second basis was that, if the initial penetration was with consent, the complainant had withdrawn consent before the appellant said “one, two, three” and continued penetration of the complainant’s vagina with his hand.  The second basis is premised on the uncontroversial view that a person who continues penetration after withdrawal of consent is communicated[121] “penetrates… without consent” within the meaning of s 349.
  2. [140]
    The count on the indictment was not duplicitous on its face.  And because the prosecution case was that there was only one penetration, my view is that there was no real problem of latent duplicity requiring the prosecution to elect between one basis and the other,[122] and no question of that kind was raised either at the trial or on appeal.  However, because the prosecution case was expressly advanced and left to the jury on the alternative bases, it may be that the jury found the appellant to be guilty of either or both of those bases, but there is no way of knowing.
  3. [141]
    I have referred to the appellant commencing to penetrate the complainant’s vagina with his fingers.  The uncontradicted medical evidence was that the “idea that you could get a fully formed fist through an introitus quickly is a bit fanciful”[123] and to “insert [a] hand into a vagina”[124] a person would “form… almost like a cone with… fingers” and “would insert that”.[125]  And then “once [the] hand was… in the vagina… form a fist at that time”[126] that “as the fist was formed… would cause rapid and sudden dilation or stretching”.[127]
  4. [142]
    However, as is immediately apparent, the facts relevant to whether consent was not given on the first basis differ to those relevant to whether consent was not given on the second basis.  In particular, the facts referred to by the trial judge as “after she said ‘no’, scratched at his back, the things the prosecutor described” as briefly expanded upon by the trial judge later in the summing up,[128] were relevant to whether consent was not given to the further penetration after the appellant had said “one, two, three”, on the complainant’s evidence.
  5. [143]
    On the second day of the trial, the trial judge summed up to the jury from 3.14 pm, concluding at 4.11 pm and the jury were excused until the next morning.  At that point, the trial judge raised the question whether any direction under s 24 of the Criminal Code was required in the passage set out in at paragraph [11] of Morrison JA’s reasons.
  6. [144]
    On the third day, the trial judge summed up further from 9.45 am to 9.58 am, after which the jury retired to consider their verdict.  That afternoon, at 3.20 pm, the trial judge gave the jury further directions about the location of the physical injuries sustained by the complainant in the form of tears to the vaginal wall, and provided some extracts of the evidence and a document that the trial judge had typed as to his directions regarding consent.  The jury retired again at 3.27 pm until they separated for the evening at 4.13 pm.
  7. [145]
    On the fourth day, the jury resumed deliberations at 9.30 am.[129]  By 2.44 pm the jury had been deliberating for over 10 hours, since the conclusion of the summing-up on the morning of the third day, when they provided a note to the trial judge.  The note provided, in part:

“The jury is having difficulty in reaching a unanimous agreement.

Additional direction on the application of the granting consent [sic] and the withdrawal of consent once granted.

It would assist if the direction could include examples of:

1…

  1. Does the understanding of a defendant of the state of consent influence the application of the concept to a complainant?
  1. What would constitute a reasonable pattern of behaviour for consent to be considered as granted?”
  1. [146]
    The trial judge and counsel discussed the second question on the note as follows:

“HIS HONOUR: In respect of the defendant’s understanding of the complainant’s state of mind, I propose to tell them that no one addressed you on the issue of the defendant’s understanding.  The – they were directed by me and each of the counsel addressed them on the basis that the question to be considered is whether the defendant [sic] gave consent, which involves two issues; did she consent and did she give that – that is, communicate that in some way – by words or conduct to the defendant.  So do not be concerned with guessing the defendant’s understanding, what the understanding might have been.  It is not in issue and, in circumstances where the defendant did not give any evidence, it is entirely unknown.

[THE PROSECUTOR]: Yes.

[COUNSEL FOR THE DEFENDANT]: Yes, there is no issue of a mistake that - - -.”[130]

  1. [147]
    At 2.59 pm on the fourth day, the trial judge further directed the jury in relation to those parts of the note as follows:

“The next issue of a broadly similar vein includes the issue of the defendant’s understanding of the complainant’s state of mind.  No one addressed you and I did not sum up to you in respect of the issue of the defendant’s understanding.  The questions that were directed to your attention were whether or not the complainant in fact consented.

So do not go into such matters, particularly in circumstances where it is not only not an issue identified by the parties or by me but the defendant has not given any evidence.  You do not know anything about his state of mind.  It would be entire speculation.  Do not concern yourself with issues that are irrelevant.”[131]

  1. [148]
    That is, the trial judge directed the jury not to concern themselves with the appellant’s understanding of the complainant’s state of mind as it was irrelevant, particularly where it is not an issue raised by the parties or the trial judge, and the appellant has not given any evidence.
  2. [149]
    After summarising some of the evidence as to whether the complainant did not give consent to the appellant penetrating her vagina with any part of his hand, the trial judge turned to the reference to withdrawal of consent on the note, as follows:

“The last issue that you asked me to address you on was withdrawal of consent.  It is clear to you that the Crown has put their case on two bases.  First of all, that the whole of the fisting, involving two thrusting movements, was without her consent.  But they then say that even if you were left in any doubt about the first incident, you would not be left in doubt that his continuing to fist her after she had indicated her very clear opposition when he first did it would constitute rape.

A withdrawal of consent is a valid exercise of a woman’s rights.  She is entitled – in this case a woman.  She is entitled to say, “No, no more”.  If having done that, the defendant continued by pushing his hand back in the second time, as she describes, then that could constitute rape.  If you found beyond reasonable doubt that she had communicated that consent [sic] and he had nevertheless continued with his activities, that would constitute rape.  The passage – what was the page…?

[THE PPROSECUTOR]: One-dash-thirty-six.

HIS HONOUR: One – thanks very much.  I made a note and just – so if you go to the top of 1 – 36 and read down from there, she will say:

You say that you immediately reacted to the pain

That will be the earlier page, page 35, and she says, “Yeah”:

You screamed out? --- Yeah, and I told him to stop.  I remember my right hand digging into his back, nails digging into his back.

And you said to him, “No”, and, “Stop”?

And she said, “Yeah”.  She said:

I was really crying.  I was trying to get him off me.  He just didn’t move.

And she says:

He then said, “One, two, three”, and he pushed it up further.

Now, if you accept that evidence beyond reasonable doubt, then even if you were in doubt that the initial entry was by consent, that would constitute rape, okay?  So you do not have to return two separate verdicts.  You do not even have to all agree on the one episode, do you? Some agree that the initial entry was non-consensual and the others think that the subsequent acts occurred and were non-consensual and you find those things beyond reasonable doubt, that is sufficient to convict of rape.  Okay, does that help you at all?  Thanks.  I will let you go.  You let me know if you want to go home at any stage and we can resume again on Monday.”[132]

  1. [150]
    The jury retired again at 3.12 pm.  They returned a verdict of guilty at 4.19 pm.
  2. [151]
    In my view, an important feature of the trial was that as the last re-direction and  near the end of the jury’s deliberations, the jury were expressly directed that they could reach a unanimous verdict of guilty if some were satisfied of the absence of consent on the first basis, namely that the complainant did not give consent to any penetration of her vagina by the appellant’s fingers, while others were satisfied of the absence of consent on the second basis, namely that the complainant withdrew consent after some penetration of her vagina by the appellant’s  hand and the appellant pushed his hand further up.  It was not argued that was an incorrect direction,[133] but it necessarily entailed whether there was some evidence that raised an issue about whether the appellant acted under an honest and reasonable but mistaken belief that the complainant consented to the “initial entry” of penetration of the complainant’s vagina by the appellant’s fingers.
  3. [152]
    Morrison JA refers, with emphasis, to passages from the reasons in R v Makary[134] as to the evidential threshold before an issue as to an excuse of mistake of fact is raised.  The relevant passages include the following:

“It follows that there is a distinction between cases in which an accused charged with rape gives evidence admitting sexual intercourse with the complainant, asserting that the complainant had given consent, and cases in which the accused gives evidence that there was no sexual intercourse at all.  In the former class of cases, the accused’s evidence that the complainant gave consent is, ipso facto, evidence that the accused held a belief that the complainant had consented and had given consent.  A conclusion by a jury that the complainant had not actually consented may still require the jury to5consider whether the Crown has proved that the defendant’s belief about state of mind and giving consent was not held mistakenly or reasonably.

In the latter class of case, however, the accused’s answer to the charge may preclude any reliance upon s 24 because the denial that sexual intercourse had taken place may imply that the accused held no belief about consent, there being no reason ever to have formed any such belief.  However, it is not possible to deny the possibility that cases may arise in which the accused’s answer that there was no sexual intercourse will not preclude an issue arising under s 24 for the jury’s consideration.

In cases like this one, in which the appellant alleges that the complainant consented but did not give evidence, the raising of s 24 is problematical because the element of the accused’s belief can arise only by way of inference.  As always, inference must not be confused with speculation.”[135] (footnotes omitted)

  1. [153]
    It does not follow from that reasoning that in deciding whether the evidence raises a an issue about whether the appellant believed honestly and reasonably that the complainant gave consent, the question of significance is whether the appellant did or did not give evidence.
  2. [154]
    Morrison JA concludes that in a case where the defendant does not give evidence, Makary “requires… that there be evidence which raises for consideration the inference that he believed the complainant had a particular state of mind consisting of a willingness to engage in the act of fisting, and also believed that the complainant had freely and voluntarily given consent to the act of fisting.”
  3. [155]
    In my view, that is not what the reasoning in Makary requires.  It requires that “there must be some evidence that raises a factual issue about” whether the appellant had that state of belief.  If there is some evidence, the law requires that the question be left to the jury and it is for the prosecution to negative beyond reasonable doubt that either the appellant honestly held that belief or that the belief was reasonable.
  4. [156]
    Morrison JA reasons that consideration of the appellant’s contentions requires that the evidence relied upon be seen in proper context.  In a detailed analysis, his Honour discounts or answers the evidence that arguably satisfies the requirement that there must be some evidence that raises the relevant factual issue by reference to other evidence that supports the inference that a belief was not honestly or not reasonably held.  In my view, in principle, that is an erroneous reasoning process.  This court is not the constitutionally appointed body whose function it is to decide the facts.  That was for the jury.  The question for this court is whether there was enough evidence to require the trial judge to direct the jury to consider the question.
  5. [157]
    The appellant relied on five particular items of evidence as raising the issue that the appellant believed honestly and reasonably that the complainant gave consent, as follows:

“In respect of the issue of the appellant’s belief as to consent being raised, consent was clearly in issue...  It was clearly put to the complainant that she did consent and did nothing to withdraw it.  The following facts raised the issue of the defendant’s belief that at least some significant penetration by the appellant was contemplated (and thereby discharged the defence burden):

  1. (a)
    prior sexual history which included intercourse, including very shortly before the insertion of the defendant’s hand;
  1. (b)
    the complainant had sent him photographs showing her penetrating her own vagina with her fingers (not disputing up to four);
  1. (c)
    the complainant put lubricant into the hand of the appellant immediately prior to the insertion of his hand;
  1. (d)
    the description by the complainant in her 000 call (“my partner was fisting me”); and
  1. (e)
    the acceptance by the complainant’s father... that the complainant had told him that the penetration was consensual to begin with but that the appellant went crazy and that she passed out.”
  1. [158]
    Morrison JA concludes that a few matters must be noted at the outset as to the evidence of those matters, as follows:
    1. (a)
      the reference in (a) to prior sexual history was a reference to intercourse which occurred on the same day as the events subject to the charges, not the first time they met.  I disagree, because the submission is that “the prior sexual history included intercourse, including very shortly before the insertion of the appellant’s hand” (emphasis added).  There is no logical basis to read that as excluding the sexual intercourse between the appellant and the complainant on the earlier occasion dealt with in the evidence;
    2. (b)
      as to (b) the complainant only accepted that she had sent one photograph of her fingers inserted into her vagina and that it was not four fingers as opposed to two.  In evidence, the complainant said:  “I can’t say how many… photos there were, but I would have sent him a photo of that, yes.”[136]  The question was pressed: “I’d suggest you sent him two: one with four fingers in it and one with two fingers in it.  Two separate photos.” The complainant answered: “There wasn’t – I don’t know”;[137]
    3. (c)
      as to (d), the evidence was that: “[m]e and my partner were having sex and he was fisting me and now there’s blood everywhere;” and
    4. (d)
      as to (e), the evidence was that:
      1. “… she told me that a man had raped her and I asked her if it was consensual and she said yes to begin with.  And after a while, she said it was – she was getting hurt and she told him no, no, no – to stop.  And then she told me she passed out”;[138] and
      2. “… and I said something like: ‘Was it consensual?’ and [the complainant] said something like: ‘It was to begin with but he went crazy.’[139]
  2. [159]
    Morrison JA refers to “significant features” about the evidence that his Honour sets out and the sequence of events in support of his Honour’s conclusion that the evidence did not raise a case of s 24 belief.
  3. [160]
    Among them, Morrison JA identifies “three particular occasions when the appellant had combined physical aggression with sexual activity”, as follows: 
    1. (a)
      the first was when the appellant “came into the front door”,[140] “put his hand around [the complainant’s] throat and pushed [her] against the wall”[141] and “started kissing [her]”,[142] she “told him to calm down or stop it”[143] and he said “okay”[144]  and he “stopped” and was “normal again”.[145]
    2. (b)
      the second was during the subsequent consensual penile/vaginal sexual intercourse, when the appellant was behind the complainant, and he said “he wanted to put [his penis] in my arse and he tried to but it didn’t fit”,[146] the complainant said “it won’t fit”[147] and then “he was fine; he just stopped”.[148]
    3. (c)
      the third was that the appellant “hit [the complainant] across the face a few times”[149] “with an open hand”[150] at a time that was “before he put his fist in [her],”[151] although she was “not sure when it happened”[152] and the complainant said to him “calm down”.[153]
  4. [161]
    Further, Morrison JA reasons that there was “no discussion or warning that the appellant intended to insert his hand to engage in fisting”.  The evidence was that after the appellant had attempted anal sex with the complainant they lay on the bed with the complainant on her back and the appellant positioned to the right of her on his side, facing her, when “he asked [her] for a bottle of lube that was on the table next to [her]”[154].  She did not remember any other discussion at that point.[155]  She “squeezed [the lubricant] into his hand.”[156]  After that, the appellant “moved his body so… his arm and shoulder [were] across [her] upper chest area”,[157] “pressing on [her]”,[158] and “put his fist inside [her]”[159]  while saying “pretty much at the same time: ‘I’m going to fist you”.[160]
  5. [162]
    In my view, Morrison JA’s reasoning process is based on the implied premise that the evidence had to establish a possible inference of a belief reasonably and honestly held before that issue could be left to the jury.  The leading cases as to the error in reasoning in that way are Barca v The Queen[161] and Stevens v The Queen.[162]  The principles are set out in the reasons of Henry J in R v FAV.[163]  Although his Honour was in dissent in the result in that case, in my view, his statement of the principles is accurate.  The relevant passage is of some length:

“The trial judge’s task of determining whether an exculpatory defence ought be left to a jury will invariably be simpler where a defendant gives direct evidence in support of the defence. However, it must not be overlooked that evidence can be indirect, that is, circumstantial. Taking the example of a mistake of fact defence under s 24, such a defence requires consideration of the defendant’s belief as to consent and a jury is entitled to draw inferences about a person’s belief. There may be cases in which such a defence arises even though the defendant denies intercourse. That is because even though there is no direct evidence of the defendant mistakenly believing the complainant consented to intercourse, the prosecution’s own case may include evidence providing circumstantial evidence of the existence of such a belief. A defendant’s denial of intercourse and the consequent absence of direct evidence of a mistaken belief are of course matters the jury may weigh up in assessing whether the defence of mistake of fact has been excluded. But that is the jury’s concern. It is no concern of the judge. It is well established a trial judge must direct a jury on any defence fairly raised on the evidence, even where it has not been raised on the defence case.

Where an exculpatory defence is circumstantially based on the prosecution’s own evidence the defence may be based on an accumulation of innocent inferences, each having competing inferences unfavourable to the defence. If so, in assessing whether the defence should be left to the jury, the trial judge must not disregard available innocent inferences merely because the judge thinks the competing inferences, less favourable to the defence, are stronger. That is because, as was emphasised by the High Court in Barca v The Queen, it is for the jury to determine whether they are satisfied a hypothesis consistent with innocence has been excluded…

Barca was not itself a case in which the judge had failed to put an exculpatory defence to the jury but the principle for which it stands was relied upon by the majority in Stevens v The Queen, which did involve a failure to put an exculpatory defence. Stevens allegedly shot his business partner, Mr Brockhurst. Stevens’ account to police and at trial was to the effect the deceased was holding the gun as if preparatory to committing suicide and the gun discharged as Stevens grabbed for it. The trial judge declined to leave a s 23 defence of accident to the jury and Stevens was convicted of murder. The majority in the High Court concluded there existed evidence which required a s 23 defence of accident to be left to the jury. In summary, that evidence was the men were friends, the gun could fire without the trigger being pulled and Stevens had told the ambulance he was “going to call it an accident for the moment”. McHugh J observed:

‘A jury is entitled to refuse to accept the cases of the parties and ‘work out for themselves a view of the case which did not exactly represent what either party said’. As Barca makes clear, the appellant was not required to establish by inference that Mr Brockhurst died by accident. Nor was he required “to prove particular facts that would tend to support such an inference”. …

With great respect to the majority judges in the Court of Appeal, much of their reasoning was based on the express or implied premise that the evidence had to establish a possible inference of accident before that issue could be left to the jury. Barca denies that proposition. Juries cannot take into account fantastic or far-fetched possibilities. But they ‘themselves set the standard of what is reasonable in the circumstances’.’

Those observations highlight three points of importance in the present case. The first is that, while the potential inference of mistake of fact arose from the complainant’s evidence, it was a matter for the jury what aspects of her evidence were accepted and what inferences they were prepared to draw from that evidence. The fact the potential defence was based upon the complainant’s evidence did not mean the assessment of whether it ought be left to the jury had to be premised on the jury interpreting the complainant’s evidence, and the inferences which might be drawn from it, on the bases most favourable to the prosecution. To the contrary, as explained in the earlier quoted passage from Masciantonio, it is on the version of the complainant’s evidence most favourable to the defendant that the assessment was to be made.”[164] (footnotes omitted)

  1. [163]
    As well, in my view, his Honour’s reasoning process does not conform to the approach that for this purpose the “evidence should be analysed in the way that is most favourable to the appellant”.[165]
  2. [164]
    It follows, in my view, that the evidence did raise an issue whether the appellant did the “act” of penetrating the complainant’s vagina with the appellant’s fingers “under an honest and reasonable, but mistaken, belief as to the state of things”,[166] namely that the complainant consented to that act, at least when he commenced penetrating the complainant’s vagina with the appellant’s fingers.
  3. [165]
    It further follows that because the issue of the appellant’s honest and reasonable belief as to the complainant’s consent was not left to the jury, at least on the first basis of the prosecution’s case as to the criminal responsibility of the appellant, the appellant was denied a fair trial.
  4. [166]
    In my view, the appeal against conviction on the offence of rape should be allowed, the conviction should be set aside and there should be a re-trial of the rape charge.
  5. [167]
    However, if I am wrong in that view, I agree with Morrison JA’s conclusion that the ground of appeal that the verdict of guilty for the offence of rape was unreasonable and cannot be supported having regard to the evidence must fail and I need not consider that question further, subject to one observation.
  6. [168]
    That observation concerns the appellant’s submission that the trial judge should have directed the jury that if they were to doubt the evidence of the complainant on one of the bases on which the prosecution case was left to the jury that could well call into question her credibility generally.  That submission alludes to a Markuleski direction,[167] although I note that case was concerned with the problem of potentially inconsistent verdicts for multiple offences, whereas this case is concerned only with a single verdict.  Whether a Markuleski direction is required is a matter of discretion, and depends on the facts.  In this case, the failure to give such a direction, which was not requested at trial, did not result in an unfair trial, in my view.
  7. [169]
    Further, on the basis of the facts found by the trial judge as the sentencing judge, which were not challenged upon the application for leave to appeal against sentence, I also agree in Morrison JA’s conclusion that the application for leave to appeal against sentence for the offence of rape should be dismissed.
  8. [170]
    Lastly, also on the basis of the facts found by the trial judge as the sentencing judge, I too would not interfere with the exercise of his Honour’s sentencing discretion for the offence of grievous bodily harm.

Footnotes

[1]Appeal Book (AB) 33 lines 31-33; emphasis added.

[2]AB 53 line 11 to AB 54 line 7.

[3]R v De Silva (2007) 176 A Crim R 238; [2007] QCA 301 at [28]; citing Dhanhoa v The Queen (2003) 217 CLR 1 at [38], [49].

[4]Appellant’s outline, paragraph 22.

[5]Appeal transcript T1-6 lines 40-45.

[6]AB 223 lines 30-32.

[7]AB 224 lines 21-22.

[8][2019] 2 Qd R 528 at [54] per Sofronoff P, Bond J concurring; emphasis added.

[9]Makary at [55].

[10]Makary at [56]; internal citation omitted.

[11]Makary at [59]; internal citation omitted.

[12]Barca v The Queen (1975) 133 CLR 82 [1975] HCA 42, at 105 [12].

[13]Stevens v The Queen (2005) 227 CLR 319, [2005] HCA 65, 331 [30], 344 [75] and 370 [160].

[14]AB 138, 164.

[15]AB 141-142; AB 159-160.

[16]AB 161 lines 1-7; AB 174.

[17]AB 159 line 44.

[18]AB 160 lines 1-4.

[19]AB 164 lines 25-28; AB 174 lines 16-19.

[20]AB 139.

[21]AB 142 lines 39, 46.

[22]AB 143 lines 9-23; AB 158 line 42 to AB 159 line 2.

[23]AB 143 lines 37-46; AB 159 line 2.

[24]AB 144 lines 21-39.

[25]AB 145 lines 5-21.

[26]AB 159 lines 7-25.

[27]AB 147 line 3.

[28]AB 145 line 25 to AB 146 line 4.

[29]AB 171 lines 18-31.

[30]AB 167-169.

[31]AB 146 lines 9-16.

[32]AB 146 line 13.

[33]AB 146 lines 26-40.

[34]AB 158 lines 3-40; AB 159 line 4.

[35]AB 159 lines 27-36.

[36]AB 146 line 46 to AB 147 line 11.

[37]AB 147 line 16.

[38]AB 147 lines 26-40.

[39]AB 147 line 28; AB 148 line 2.

[40]AB 165 lines 25-36.

[41]AB 148 lines 3, 8-14.

[42]AB 148 lines 16-17.

[43]AB 148 line 44.

[44]AB 165 line 42 to AB 166 line 3.

[45]AB 148 lines 31-42.

[46]AB 149 lines 13-30; AB 170 lines 1-8; AB 171-172.

[47]AB 148 line 18; AB 149 lines 36-38.

[48]AB 150 lines 18-22.

[49]AB 166.

[50]See R v FAV [2019] QCA 299 at [5].

[51]AB 153 line 21; AB 154 lines 28-35; AB 155 lines 5-7, 30-32; AB 170 lines 32-36.

[52]AB 224 lines 11-22; emphasis added.

[53](2011) 243 CLR 400 at [20]-[22]; [2011] HCA 13; see also M v The Queen (1994) 181 CLR 487 at 493-494.

[54](2020) 94 ALJR 394 at [39]; internal footnote omitted.

[55](2016) 258 CLR 308 at [65]-[66]; [2016] HCA 35; internal citations omitted.

[56][2018] QCA 24 at [31].

[57]Citing Hocking v Bell (1945) 71 CLR 430 at 440; [1945] HCA 16.

[58]Baden-Clay at 329, citing M v The Queen at 494, and MFA v The Queen (2002) 213 CLR 606 at 621-622 [49]-[51], 623 [56]; [2002] HCA 53.

[59]Appellant’s outline, paragraphs 13-14.

[60]Appellant’s outline, paragraphs 15-18.

[61]AB 210 lines 4-7; AB 213 lines 19-21.

[62]Mr Roebig, AB 211 lines 1-3; Ms Wright, AB 214 lines 38-40.

[63]AB 219 lines 1-5.

[64]AB 219 lines 13-18; AB 221 line 26.

[65]She was asked whether she needed a break several times (AB 141 line 39, AB 144 line 41, AB 161 line 36) and at one point was urged to stay calm (AB 177 line 23).

[66]For example, AB 141 line 24 (when the topic of anal sex was mentioned, “this is so embarrassing”).

[67]For example, she could not recall: what was on her Tinder profile; precisely how long it had been planned that they meet a second time; the detail of the fantasy stories; precisely what the appellant said as to what he liked; whether he had started kissing before he choked her; the precise length of time that the fisting episode lasted; precisely when the appellant made the miscarriage comment; the details of her conversations with the paramedics; the texts she sent after she was taken to hospital; and the precise sequence of events after she was bleeding and calling the ambulance.

[68]AB 158 line 17.

[69]AB 169 lines 11-14.

[70]AB 167 line 30 to AB 168 line 11.

[71]AB 169 lines 12-39.

[72]Appellant’s outline, paragraph 18.

[73]AB 150 lines 1-3.

[74]Exhibit MFI “D”.

[75]AB 90 lines 20-28.

[76]AB 99 lines 4-18.

[77]AB 99 lines 20-29.

[78]AB 101 line 38 to AB 102 line 34.

[79]Appellant’s outline, paragraph 24.

[80]AB 40 lines 18-22.

[81]AB 45 lines 28-40.

[82]AB 70 lines 1-26.

[83]AB 70 lines 39-46.

[84]AB 70 line 42 to AB 71 line 5.

[85]Appellant’s outline, paragraph 30.

[86]In that respect reliance was placed on R v McDougall and Collas [2007] 2 Qd R 87.

[87]AB 196 lines 38-39; AB 198 lines 36-40.

[88]AB 197.

[89]AB 199 line 32 to AB 200 line 4.

[90]AB 197 lines 40-47; AB 198 lines 24-29; AB 199 lines 4-13; AB 205 lines 13-20.

[91]AB 204 lines 21-33; AB 207 lines 23-27.

[92]AB 200 lines 27-40; AB 201 line 45 to AB 202 line 11; AB 203 line 42 to AB 204 line 2; AB 205 line 1.

[93]AB 265 line 44 to AB 266 line 8.

[94]AB 266 lines 38-45.

[95]AB 266 line 47 to AB 267 line 5.

[96]AB 267 lines 25-31.

[97]AB 267 lines 37-41.

[98]AB 257.

[99]AB 252 line 47 to AB 253 line 20.

[100]AB 260 lines 34, 46.

[101]Supplementary AB 193 line 1 to 195 line 8; 203 line 33; 205 line 12; 210 line 11; 214 lines 18-36; 216 line 1; 217 lines 3-15; 219 lines 24-33; 220 lines 10-24; 225 line 38 to 226 line 2; and 227 lines 1-13.

[102]AB 257 lines 23-33, 46.

[103]AB 261 lines 16-35.

[104]AB 245 line 41.

[105]AB 246 lines 1-15.

[106]AB 246 line 25.

[107]A reference to the sentencing judge’s characterisation of the conduct as “brutal”.

[108]AB 246 lines 28-30.

[109]She said she had written to the appellant that she was a romantic person and “only like love sex.  I don’t like rough sex”: AB 161 lines 3-4.

[110][2020] QCA 58 at [49].

[111](2002) 127 A Crim R 229; [2002] QCA 63.

[112][2007] 2 Qd R 87.

[113]Free at [49]-[50].

[114]AB 267 line 30.

[115]See R v Frame [2009] QCA 9 at [6].

[116]AB 260 line 34.

[117][2017] QCA 226.

[118]Criminal Code (Qld), s 24(1).

[119]R v FAV [2019] QCA 299, [99]; R v HBQ [2017] QCA 134, [22]; Stevens v The Queen (2005) 227CLR 319, 331 [29], 342 [68] and 369-370 [160]; Pemble v The Queen (1971) 124 CLR 167, 117-118, 137 and 140-141.

[120]AB 1/45 lines 31-40.

[121]R v OU [2017] QCA 266, [12]; R v Johnson [2015] QCA 270, [22], [30], [56]-[58].

[122]Cf R v RAD [2018] QCA 103, [21]-[22].

[123]AB 2/198 line 27.

[124]AB 2/197 line 39.

[125]AB 2/197 lines 40-42.

[126]AB 2/197 lines 42 - 43.

[127]AB 2/197 lines 47 to AB 2/198 line 1.

[128]AB 1/48 line 20; AB 1/49 line 20.

[129]AB 1/88 line 7.

[130]AB 1/90 lines 20-33.

[131]AB 1/99 lines 20-29.

[132]AB 1/101 line 38 – AB 1/102 line 34.

[133]R v Leivers and Ballinger [1999] 1 Qd R 649, 662-663.

[134][2019] 2 Qd R 528.

[135]R v Makary [2019] 2 Qd R 528, 544- 545 [57]-[59].

[136]AB 2/164 lines 15-16.

[137]AB 2/164 lines 21-22.

[138]AB 2/223 lines 29-33.

[139]AB 2/224 line 22.

[140]AB 2/143 line 9.

[141]AB 2/143 lines 11-12.

[142]AB 2/143 line 22.

[143]AB 2/143 lines 37-38.

[144]AB 2/ 143 lines 40 and 45.

[145]AB 2/143 line 46.

[146]AB 2/145 lines 25-26.

[147]AB 2/145 line 31.

[148]AB 2/145 line 4.

[149]AB 2/157 line 37.

[150]AB 2/158 line 27.

[151]AB 2/157 line 36.

[152]AB 2/158 line 40.

[153]AB 2/159 line 29.

[154]AB 2/146 line 45.

[155]AB 2/147 line 14.

[156]AB 2/147 line 16.

[157]AB 2/147 line 45.

[158]AB 2/147 line 32.

[159]AB 2/147 line 28.

[160]AB 2/148 lines 2-3.

[161](1975) 133 CLR 82, 105.

[162](2005) 227 CLR 319, 331.

[163][2019] QCA 299.

[164][2019] QCA 299, [99]-[102].

[165]R v FAV [2019] QCA 299, [6] and [102].

[166]Criminal Code (Qld), s 24(1).

[167]R v Markuleski (2001) 52 NSWLR 82, 121-122 [185]-[191].

Close

Editorial Notes

  • Published Case Name:

    R v Kellett

  • Shortened Case Name:

    R v Kellett

  • MNC:

    [2020] QCA 199

  • Court:

    QCA

  • Judge(s):

    Morrison JA, Mullins JA, Jackson J

  • Date:

    15 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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