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- Unreported Judgment
SUPREME COURT OF QUEENSLAND
R v Thomas  QCA 280
THOMAS, Adam Craig
CA No 346 of 2019DC No 192 of 2019
Court of Appeal
Appeal against Conviction
District Court at Rockhampton – Date of Conviction: 21 November 2019 (Burnett DCJ)
11 December 2020
7 September 2020
Sofronoff P and McMurdo JA and Jackson J
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty of an offence of rape – where it is argued that the complainant’s evidence was so affected by a number of inconsistencies, both with the evidence of other witnesses and with previous statements by the complainant, that the jury should have been left in doubt about the appellant’s guilt – whether the jury’s verdict should be set aside
M v The Queen (1994) 181 CLR 487;  HCA 63, cited
R v Baden-Clay (2016) 258 CLR 308;  HCA 35, cited
A M Hoare with M Heelan for the appellant
S J Bain for the respondent
RK Law for the appellant
Director of Public Prosecutions (Queensland) for the respondent
- SOFRONOFF P: I agree with McMurdo JA.
- McMURDO JA: The appellant was found guilty of an offence of rape, after a trial by a jury in the District Court. His sole ground of appeal is that the verdict is unreasonable or cannot be supported having regard to the evidence. More specifically, his case is that it was not open to the jury to be satisfied of his guilt beyond reasonable doubt, because there was a significant possibility, which could not be excluded, that the sexual intercourse between the appellant and the complainant was with the complainant’s consent.
- The prosecution case was dependent upon the complainant’s evidence. It is argued that her evidence was so affected by a number of inconsistencies, both with the evidence of other witnesses and with previous statements by the complainant, that the jury should have been left in doubt about the appellant’s guilt.
The evidence at the trial
The complainant’s evidence
- The appellant shared accommodation with two other persons in a house in Rockhampton. It was in that house that the offence was said to have occurred. The other man who lived there, whom I will call A, had been a friend of the complainant for a few years. The other person who lived there was A’s partner, whom I will call S.
- The complainant did not live in Rockhampton. She had gone there for a few days where she visited friends, including A. There was an issue as to whether the complainant had been to the house prior to the night on which the incident occurred. The complainant said that she had not been there before a social event which began that afternoon. The apparent relevance of this issue was that, on her account, she had had little to do with the appellant prior to his coming into the room where she was sleeping on the night in question. She also denied in cross-examination that she had met the appellant (with A at a shopping centre) in the days before the incident.
- She said that, on the day in question, she was at the house, socialising with A and S, as well as two men whom she described as close friends, whom I will call W and H. She said that during the afternoon, this group was socialising around the swimming pool, and she had a number of drinks. On that afternoon, A introduced her to the appellant, but he stayed upstairs inside the house during the afternoon so that she did not see him much at all. At around 5.30 pm or 6.00 pm, the group, apart from H who had gone home, moved upstairs. The appellant was still present in the house, but she said that he did not join the group as they sat and talked.
- The complainant said that she drank three or four vodka and lemonade drinks, over a four to five hour period. She said that she mixed the drinks herself, except for one which the appellant made for her. Her evidence in that last respect was strongly challenged and I will return to it.
- At around 6.30 pm or 7.00 pm, the complainant said that she started to feel dizzy, and she took up A’s suggestion to have a shower. This did not seem to revive her, so A showed her to a spare room in the house where there was a bed and told her she could rest there before driving to where she was staying. She said that she had not been intending to stay the night at the house.
- She described falling asleep almost immediately, before waking up briefly when A came into the room. A told her that the fan in her room was hitting one of the cupboard doors, and that this was making a noise which was disturbing other people in the house. He shut the cupboard door and as he left her room, he told her that he was locking the door behind him.
- The complainant said that she then went back to sleep and that the next time she awoke, the appellant was having penile intercourse with her.
- She had gone to bed wearing a dress and bikini bottoms. When she was awakened by the appellant, the bottoms were around her ankles and her dress had been pulled down so that her chest was bare, and also pulled up around her waist. She described the position in which she found herself, when she awoke, as “an awkward position with my knees under my chest on my stomach”. The appellant was behind her and had one hand around her breast. His penis was in her vagina and he was thrusting. Very soon afterwards, he ejaculated. She said that she could feel the ejaculate running down her leg.
- Her evidence was that he said nothing at this time, until after he had ejaculated and stood up. He then asked her if she was using contraception before he went for a shower.
- Whilst the appellant was in the shower, the complainant said, she left the house, having gathered a few of her belongings and found her car keys and her phone. She estimated that the time was then about 3.00 am.
- From there she drove to another friend’s house. She said that she told him what had happened. He was not a witness at the trial.
- On the following day, she spoke to A by phone and told him what had happened. Subsequently she went back to his house, to collect some other items, and “went through details” with A and S.
- She also told W what had happened in a telephone conversation with him on that day.
- She also rang her step-sister, whom I will call N, and told her of what had occurred. She was also visiting Rockhampton at the time, and the complainant said that she went to where N was staying, to rest. N rang the complainant’s father and reported the matter to him.
- The complainant said that at this time she had severe and painful bruising to her ribs. She was subsequently diagnosed with internal swelling and bruising. On that same day she went to a hospital where she was assessed by a doctor. Soon after that, she went to the Rockhampton Police Station and reported the matter.
- In her evidence in chief, the complainant said that she had not had a one-on-one conversation with the appellant at the house, before the event in the bedroom. They had met only briefly, she said.
- In cross-examination, as noted already, she disputed that she had met the appellant, when she had encountered A at a shopping centre earlier in that week. She also disputed having been at the house prior to the day in question.
- She was adamant that the appellant had mixed one of her drinks. She was reluctant to accept that in her statement to police, when she reported the matter, she had made no mention of that occurring. It appeared that she had not mentioned this matter until speaking to the prosecutor, years later and a few months before she gave her evidence for this trial (although she did not accept that either).
- She rejected a suggestion that the appellant had been socialising with the group at the house. She also rejected a suggestion that she had left the house for a while on that afternoon, to go for a drive with A, S and W.
- She rejected the defence case, as put to her in cross-examination, which was as follows. After others had gone home, A and S went to bed, and the complainant stayed up with the appellant in the lounge room of the house. They began to cuddle and kiss before the two of them went to the room where sexual intercourse took place. The intercourse was consensual.
- In her evidence in chief, she had said that she was then menstruating and as she was awoken by the appellant’s thrusting with his penis, she could feel the tampon quite deeply inside of her. She was cross-examined at some length about the tampon. She agreed that it must have been “extremely difficult” for her to remove it. She said that she removed the tampon when she was in her car, about to drive from the house, and she then threw it out of the car. She accepted that she had told the prosecutor, in conference, that she had removed the tampon and left it at the house, but claimed that this was the same as throwing it out of her car before driving away. She was not prepared to accept that at an earlier trial of this charge, held a few months prior to this testimony being given, she had said that she removed the tampon when she was still inside the house. However, after further cross-examination, she agreed that “possibly” she had given that earlier evidence.
- It is convenient to discuss the evidence of other witnesses by reference to the suggested inconsistencies between their accounts and the complainant’s evidence.
- The first of these matters is the state of the evidence about when the complainant and the appellant first met. A gave evidence, in cross-examination by defence counsel, that when he encountered the complainant at a shopping centre in the days before the party, he thought that the appellant had been with him. However he was unsure about this: A accepted no more than that the appellant “might have been” with him on that occasion.
- As to whether the complainant had been at the house earlier in the week, S agreed with the suggestion, in her cross-examination by defence counsel, that the complainant was “coming and going from that house” throughout that week. A was not sure about that fact: he said that the complainant might have dropped in at some point.
- The next issue is whether the appellant had been socialising with the group during the party. Both A and S gave evidence that he was doing so. W gave evidence to the same effect, adding that the appellant seemed to be directing conversation towards the complainant.
- As to whether the appellant mixed a drink for the complainant, A gave evidence that no one was mixing any drinks, because everyone present was drinking premixed cans of bourbon. A police officer, who met the complainant when she first reported the matter, testified that the complainant did not tell her that the appellant had mixed any drinks for her.
- There was an issue of whether the complainant left the party at some stage. As I have said, she denied that she had gone for a drive with A, S and W. W’s evidence was that she did take them for a drive around town, at about 5.00 pm. A recalled that about half an hour after the complainant arrived, she drove him (and possibly the appellant) to buy a carton of cans of bourbon.
- The complainant’s evidence had only limited support from A on the question of whether, during the night, A came into her room. A recalled that there was a noise which he could hear when he was in his bedroom, which made him get out of bed and walk to the hallway. But he said that he did not go into the room where the complainant was resting and that he certainly did not tell her that he was going to lock the door to her room.
- A did not accept the cross-examiner’s suggestion that when A went to bed, the complainant and the appellant were in the lounge room together. He rejected (as had the complainant) the suggestion that at one stage A had come out of his bedroom as the appellant and the complainant were seated on the sofa, close to each other.
- In cross-examination, the complainant denied driving W home. However, W’s evidence was that she drove him home, at around 5.30 pm or 6.00 pm.
- The complainant gave evidence recalling A telling her about an argument between A and S on the night of the party, in the course of which S left the house and A followed her down the street. A and S each said that there was no such argument.
- The complainant recalled that another of her close friends, H, was at the party. A said that H was not present. A’s evidence was supported by that of W in that respect. H was not called as a witness at the trial.
- On the question of the removal of the tampon, the complainant also gave evidence that she was still bleeding heavily when she arrived at the hospital. She was adamant that she told the doctor who examined her about the tampon being pushed up inside her, during intercourse with the appellant. That was inconsistent with the hospital notes of the doctor’s examination.
- There is also said to be an inconsistency between when and where she made her preliminary complaint to A. She testified that she told A and S of the incident when they were all together inside the house on the following day, when she returned to collect her belongings. A was “positive” that they did not go inside the house at this time, but rather went for a drive. Moreover, the complainant’s version then given to A, he said, did not include a specific complaint of rape. However, A said, the complainant told him that “she woke up in the middle of the night with [the appellant] on top of her, kissing her and stuff”. A said that “I didn’t really ask too many questions” but “just said ‘okay’, gave her options, like, you can either go to the police or I said we can get a few fellas to come around here and sort him out.” On A’s recollection, the complainant had not specified that the assault upon her involved penile penetration.
- There is said to be some discrepancy between the complainant’s evidence and that of her step-sister. The complainant had said that N allowed her to sleep at her room. In cross-examination by defence counsel, N had said that the complainant did not “stay with” her at all. It is far from clear that this was inconsistent with the complainant’s evidence that she was allowed to sleep for a while on that day at N’s room.
- The appellant did not give or call evidence. Nor was there an out of court statement made by him which became part of the evidence.
An unreasonable verdict?
- Under this ground of appeal, the Court is bound to set aside the verdict if the evidence upon which it is based contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force such as to lead to a conclusion by the appellate court that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted.
- The argument for the appellant relies upon each of the suggested inconsistencies and discrepancies which I have discussed. It is argued, correctly, that it is necessary to consider the effect of these points in combination. However, in their oral submissions, counsel for the appellant identified three of these points as having a paramount importance.
- The first is the inconsistency between the complainant’s evidence and A’s evidence on whether A came into her room and then left, saying that he would lock the door. If the complainant was to be believed on this point, the appellant could not have been in her room at the time when A entered, woke her up and spoke to her. However, A was adamant that this did not occur. His evidence was consistent with a fan in the complainant’s room creating a noise during the night. But it otherwise provided no support for her evidence about such an incident. The jury could have preferred the complainant’s evidence, upon the basis that A may not have recalled precisely what he did to investigate the noise when, after several drinks at the party, he woke up in the middle of the night and set out to investigate.
- The second point which is emphasised in the appellant’s argument is the inconsistent evidence given by the complainant about the removal of the tampon, taken together with her evidence that she had reported extensively bleeding when she was at the hospital. It is apparent that the complainant did provide, at various times, differing recollections about the removal of the tampon. However there was no significance which was likely to be attributed to whether the tampon was removed when she was still in the house, or instead when she was in her car. In other words, there was no reason for the complainant to change her testimony in this respect.
- The other matter which is emphasised is the complainant’s refusal to accept that she had not raised with police the fact that the appellant had mixed one of her drinks. This is said to be something which appeared to have been constructed by her only shortly before the trial. The appellant’s argument in this respect has substance. However this is an inconsistency in her testimony which is on a subject of little significance, because it was never part of the prosecution case that the complainant had been affected by a spiked drink.
- All of the matters raised by the appellant’s argument, most importantly the three to which I have just referred, provided some basis for the defence case which was argued to the jury, namely that the complainant was such an unreliable witness that the jury should not convict in a case which depended upon her testimony. However, none of these points involves a part of the evidence which was essential, or particularly important, in the proof of the prosecution case. The jury did not have to find that A had come into her room, or that the complainant had been menstruating and wearing a tampon, or that the appellant had mixed one of her drinks, for the offence to be proved. The prosecution case could be proved by the jury being satisfied, beyond reasonable doubt, that sexual intercourse took place without the complainant’s consent, by the incident in the bedroom which she described, and the various things identified in the appellant’s argument were ultimately relevant only to the complainant’s credibility.
- The jury had to consider other circumstances in assessing the prosecution case, and the argument for the respondent identifies three matters, in particular, which supported it.
- The first was that on A’s evidence, he did suggest to the complainant that she rest in the empty room of the house, directly supporting the complainant’s evidence that she went to that room alone, to go to sleep. This was markedly at odds with the suggestion, in the cross-examination of the complainant, that she had stayed up with the appellant after the others had left, and that a sexual interaction between them commenced in the lounge room before the couple went together to the bedroom.
- Secondly, whether or not the appellant was socialising with the group, there was no observed flirtation from the complainant towards the appellant.
- Thirdly, there was a considerable body of preliminary complaint evidence from A, S, N, the police officer and the doctor who examined the complainant at the hospital, which supported the complainant’s credibility on the essential parts of her complaint.
- The setting aside of a jury’s verdict on this ground is a “serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial”. Ultimately I am unpersuaded that such a step should be taken in this case. In my conclusion, it was open to the jury to find that, although the complainant’s recollection was not reliable in all respects, and it was prone to some reconstruction, her evidence was nevertheless truthful in her account of retiring to this room, affected by a long afternoon and evening of alcohol, before waking to find the appellant having intercourse with her without her consent.
- I would order that the appeal be dismissed.
- JACKSON J: I agree with McMurdo JA.
- Published Case Name:
R v Thomas
- Shortened Case Name:
R v Thomas
 QCA 280
Sofronoff P, McMurdo JA, Jackson J
11 Dec 2020