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- Unreported Judgment
- Appeal Determined (QCA)
 QCA 57
SUPREME COURT OF QUEENSLAND
Court of Appeal
Appeal against Conviction & Sentence
20 March 2009
2 December 2008
Holmes JA, White AJA and McMurdo J
1. Appeal against conviction in respect of counts 1 and 3 dismissed;
2. In respect of count 4, appeal against conviction allowed, conviction of rape set aside and conviction of unlawful carnal knowledge substituted;
3. In respect of count 4, sentence of two years imprisonment imposed, and a period of 378 days from 8 March 2008 to 20 March 2009 declared to be imprisonment already served under that sentence;
4. Endorsement on District Court Indictment No 139 of 2007 amended in respect of counts 1 and 3 by deleting the order for imprisonment for a period of two years and six months and substituting an order for imprisonment of two years;
5. Verdict and judgment record amended to reflect the foregoing orders.
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – OTHER MATTERS – where appellant went to trial on four counts of rape – where, on counts 1 and 3, appellant acquitted of rape but convicted of the lesser alternative of unlawful carnal knowledge; on count 2, appellant acquitted absolutely; and, on count 4, appellant convicted of rape – where appellant appealed his conviction and sentence – where, after Crown prosecutor finished addressing the jury, trial judge’s associate gave the prosecutor a ‘thumbs up’ signal and mouthed words of encouragement – where a juror or jurors may have seen the conduct attributed to the associate – whether conduct attributed to the associate influenced decision of jury – whether appellant deprived of a fair trial
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF TRIAL JUDGE – where trial judge indicated to jury they were entitled to take as long as they wished to reach a verdict, but he could discharge them from doing so, and proposed to discharge them in a short time – whether jury felt pressure to reach verdicts – whether miscarriage of justice
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where consent was in issue – where, in relation to counts 1 and 3, complainant gave evidence that she resisted the appellant but gave no such evidence in relation to counts 2 and 4 – where trial judge directed jury on the excuse of mistake of fact as to consent on counts 2 and 4 only – where jury acquitted of rape on counts 1 and 3 in favour of convictions of unlawful carnal knowledge but returned a verdict of rape on count 4 – whether rape conviction was unreasonable because it was inconsistent with the acquittals of rape on counts 1 and 3 in favour of unlawful carnal knowledge – where appellant sentenced to five and a half years imprisonment on the rape count and two years imprisonment on each count of unlawful carnal knowledge, to be served concurrently – whether verdict unsafe and unsatisfactory – whether same sentence imposed on counts 1 and 3 should be imposed on substituted conviction of unlawful carnal knowledge
Criminal Code 1899 (Qld), s 668F(2)
Duff v The Queen (1979) 39 FLR 315, considered
P E Smith for the appellant
Bernard Bradley & Associates for the appellant
 HOLMES JA: The appellant went to trial on four counts of rape. He was convicted of one count of rape; in respect of two others, he was convicted of the lesser alternative of unlawful carnal knowledge; and he was acquitted absolutely on the remaining count. His appeal is brought on the grounds that the conviction of rape was unsafe and unsatisfactory because it was inconsistent with the jury’s returning of the unlawful carnal knowledge verdicts on two counts; that the trial miscarried because the jury was left to continue its deliberations “in such a way that they may have been put under pressure to reach agreement”; and that the judge’s associate made a gesture of encouragement to the prosecutor after the latter’s address.
The Crown case
 The complainant was a 13 year old girl, K. The appellant, who was 21 years old at the time of the alleged offences, was a friend of K’s stepbrother and often stayed the night at their home. The four offences were said to have occurred on four such overnight stays. K was interviewed on 9 September 2005 by a police officer, and the record of interview, as a s 93A statement, was tendered at trial. In it, K described the four rapes, although the sequence in which she described them was not adhered to by the Crown in charging.
 On the first occasion, K said, the appellant had come into her room at night when she was asleep. He pulled down the covers and took down his shorts and boxer shorts, put his penis in her vagina and raped her (count 1). At some stage he had said to her, “Come on baby”. She tried, unsuccessfully, to push him off. When he finished, he went into the toilet and got some toilet paper which he used to wipe her vaginal area and to wipe ejaculate off the sheets. K did not tell anyone what had happened because the appellant was close to her family, and she did not think she would be believed. The appellant was convicted of unlawful carnal knowledge on this count.
 On the second occasion, K said, all of her family was at home except for her mother. The appellant came into her room and woke her. He offered her $10 to give him a “head job”. When she refused, he pulled down his pants and penetrated her vagina with his penis (count 3). Again, she tried to push him off. She reached behind her for a “metal pole” with which she slept for protection, but her hands became wedged underneath her. She “kneed him in the gut”, with no apparent effect. On this occasion, he wiped her vagina again, but not the sheets. Again, the jury returned a verdict of unlawful carnal knowledge on this count.
 The third rape occurred, K said, on her stepfather’s birthday when a number of family members as well as the appellant, his girlfriend, and his son, were staying at the house. The appellant had had a good deal to drink and had become belligerent. After everyone was asleep he came to her room, and again raped her in the same fashion as before (count 2). Afterwards, he pulled his pants up and seemed to have dropped something, searching the floor until, apparently, he found it. Then he went and got toilet paper and again wiped the sheets and her vagina before throwing the paper in the toilet. The jury acquitted in respect of this count.
 The fourth occasion occurred about two weeks later. The appellant slept over again because he had had a fight with his girlfriend. He went out that evening with some of his mates. K did not know what time he came into her room; she had taken some tablets which made her go straight to sleep. The appellant woke her up and again penetrated her, pushing up hard with his hands on the wall (count 4). Afterwards, K noticed bleeding from her vagina and blood stains on her doona. On this count, the jury convicted the appellant of rape.
 K gave evidence at a pre-recorded hearing at which the tapes of her police interview were tendered. Nothing of any substance was added in examination-in-chief to her evidence. In cross-examination, K rejected the proposition that the appellant had not stayed at her house in the period when her mother was away, that is, between 20 July 2005 and 13 August 2005. She was questioned about the details of the four incidents. K said that on the first occasion she had been on her side and the appellant rolled her over onto her back to have sex with her. On the second occasion, she recalled that her mother was back and that there was a party to celebrate her return. As to the third occasion, K said she did not remember the appellant’s girlfriend and son staying at her house. She had only bled on the fourth occasion; at that time she had not begun menstruating. She did not say anything to the appellant on any of those occasions, nor did she yell out. She had first revealed what happened to a guidance officer at a youth group camp she attended.
 The guidance officer to whom K spoke confirmed that at a youth camp between 2 and 4 September 2005, K had told her she was raped in the night by a family friend. K’s mother, stepfather and stepbrother gave evidence confirming that the appellant had slept at the family’s house on various occasions. K was examined on 8 September 2005 by a general medical practitioner who found that her hymen was not intact. A paediatrician also examined her on 12 December 2005; he said that there were a number of partial transections in her hymen which could be the result of a number of causes, one of which was repeated penile penetration.
 Police officers took a carpet sample from K’s bedroom and also took possession of her sheets and doona. A stain on the carpet sample tested positive for seminal fluid, and further testing detected spermatozoa. The major DNA profile taken from the stain matched a DNA profile obtained from a reference sample for the appellant. Similarly, two stains on the sheets produced spermatozoa, the DNA profile for which matched the appellant’s, while DNA analysis of a blood stain on the doona matched K’s profile.
The defence case
 The appellant gave evidence. He said that he had not visited K’s house at all during her mother’s absence. On the day her mother returned, there was a birthday celebration for the mother’s husband which the appellant attended with his de facto wife and child. They stayed downstairs in the area of the house in which K’s stepbrother slept. Everyone woke early in the morning, and the appellant and his partner and child left at around 8.30 am. He was next at the house some two weeks later with his de facto wife’s brother, Matthew. They stayed there until about 10.00 pm when K’s mother told them to leave. That night he stayed at Matthew’s house, although he returned to K’s house early the next morning because Matthew had to go to work. He had never had any sexual contact with K.
 On one occasion between June and July 2005, the appellant said, he had met a girl in a park nearby and invited her to K’s house to smoke cannabis with him. This was at about 10.30 pm. K’s stepbrother was asleep. He noticed that K was not in her room so he and the girl went into it, smoked cannabis, and had sexual intercourse twice. On the first occasion, he was wearing a condom which he removed after ejaculation and dropped on the floor, retrieving it later. He wiped his penis on the sheet on this occasion. On the second occasion, he ejaculated without wearing any condom. Afterwards, he left the house with the girl and walked her to the main road. Then he returned to the house and fell asleep beside K’s stepbrother.
 In cross-examination, the appellant agreed that he had spoken to the police about the allegations made by K and did not tell them anything about meeting the girl. Instead, he had claimed that he had once masturbated in K’s bedroom and ejaculated. He said that he invented that story so that his partner did not become aware that he had had a “one night stand”.
 The appellant’s de facto wife gave evidence that she and the appellant and their son had gone to the house on K’s stepfather’s birthday. They slept downstairs in the area occupied by K’s stepbrother. She had very little to drink. After midnight the appellant went to sleep. She stayed awake all night because she suffered from gallstones and it was too uncomfortable for her to lie flat. While sitting up, she kept looking at the appellant because she was angry with him. Around daylight, as people were starting to move about, she dozed very lightly, waking at about 6.30 am.
 The brother of the appellant’s de facto wife gave evidence that on 27 August 2005 he had spent the evening with the appellant at K’s house until her mother asked them to leave. The appellant had slept in the witness’ bedroom in his house, leaving at about 6.30 am.
The associate’s behaviour
 The appeal record shows that the prosecutor’s address concluded at 3.56 pm and the trial judge immediately adjourned the court. The appellant, his sister and his de facto wife all swore affidavits to the effect that, immediately after the prosecutor concluded her address, the judge’s associate gave her a “thumbs up” signal and mouthed the words, “That was great”. That evidence is largely confirmed by the trial prosecutor who has also provided an affidavit; she says that she recalls the judge’s associate raising her hands at waist level with clenched fists and both thumbs raised in a “thumbs up” gesture, and mouthing words to the effect, “That was awesome”. At the time that occurred, she deposes, the jurors had filed past the bar table towards the courtroom door behind her and behind the dock.
 It was common ground on this appeal that a juror or jurors might have seen the associate’s gesture and mouthed words. The appellant’s counsel, Mr Smith, contended that there was a reasonable possibility that the behaviour operated as an influence on the jury in arriving at its verdict. The associate occupied a position of importance in the court, empanelling the jury, swearing in the bailiff and managing the exhibits. The jury might identify her with the judge and regard her as manifesting the judge’s authority; so that her endorsement of the prosecutor’s submissions, with that authority, raised the possibility that the appellant was deprived of a fair trial.
 No affidavit was obtained from the associate concerned. I proceed on the basis that her conduct was as deposed to in the affidavits, while recognising that she has not had the opportunity to dispute what is said of her. Assuming, then, that the conduct was as described, it need hardly be said that it was grossly improper. The first question is what test should be applied in considering its possible effect on the jury. Perhaps reassuringly, no like instance of misconduct on the part of an associate was able to be found, either by counsel or my own researches.
 Mr Copley SC, for the respondent Crown, pointed to Duff v The Queen as a case in which an associate’s conduct gave rise to a question about the jury’s verdict. In that case, an associate had unwittingly fallen into conversation with a juror at a party and continued to chat to him after realising his status. The Full Federal Court, on an appeal in which it was argued the jury should have been discharged, identified the relevant question as whether the contact with the juror could “give rise to a reasonable suspicion as to the fairness of the trial”.
 Webb v the Queen also offers some assistance, although it concerned the conduct of a juror, not an associate, and the trial judge in that case, made aware of the conduct, was able to give appropriate directions. (The juror, empanelled in a murder trial, had given the dead man’s mother a bunch of flowers through an intermediary). The High Court articulated this test for juror bias:
“It follows that the test to be applied in this country for determining whether an irregular incident involving a juror warrants or warranted the discharge of the juror or, in some cases, the jury is whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially.”
 In R v Szabo, this Court was considering a complaint that the appellant had suffered injustice because of an association between his counsel and the Crown prosecutor. Thomas JA observed that tests relating to apparent bias on the part of decision makers were not to be transposed directly to such a case, but some analogy could be drawn. Adapting the Webb test, he formulated the question as:
“whether, with knowledge of all relevant circumstances, an ordinary fair-minded citizen in the position of the appellant would entertain a reasonable suspicion that justice had miscarried.”
The present case involves something of a blend of the issues in Webb and Szabo. The ultimate question is whether a fair-minded observer would hold a reasonable suspicion that the appellant was deprived of a fair trial by reason of what happened; and the trial would be rendered unfair if the jurors’ impartiality were impaired by reason of the associate’s conduct.
 In this case, a fair-minded observer would accept that one or more of the jurors might have seen the associate’s conduct and might perceive it as reflecting a view of the appellant’s guilt, possibly even attributing that view to the trial judge because of the associate’s position. But the observer would also take into account the effect of the judge’s summing up, which was given the following morning, starting at 9.35 am. Although unaware of what had occurred, and thus of any particular need for directions, his Honour gave standard directions making it clear to the jury how it should approach its task. Of particular importance are these:
“You must consider each of these charges separately and look at the evidence relating to each of them. You must reach your verdict on the evidence and only on the evidence, not on any speculation or guesswork or thoughts not related to the evidence.
The evidence is what the witnesses say from the witness box and, of course, there is other evidence in this case including photographs and they will be with you in the jury room.
If you have heard or read anything about this case or cases of this nature, you should put it out of your memory and exclude it from your consideration. You should have only regard to the testimony in this case and the exhibits in this case before you and external influences should play no part in your deliberations.
Now, what I am saying now is not evidence. Counsel addressed you and put submissions to you. That is not evidence. However, we may refer and they did refer to some evidence in the case which you may remember and which you are prepared to act upon.”
 Later, after having explained the need to be satisfied of guilt beyond reasonable doubt before convicting, his Honour said:
“You should dismiss all feelings of sympathy or prejudice, whether it be for one party in this case or the other. No such emotion has any part to play in your decision. You should not allow public opinion, for example, to influence you. You must approach your duty dispassionately, deciding the facts upon the whole of the evidence.
The consequences for the defendant or for the complainant in this case are irrelevant. You have to decide, in accordance with your oath, on the evidence and put any feelings of sympathy or prejudice to one side to do your duty.”
 Those directions were apt to remind the jury of the need to act only on the evidence, disregarding the views of others. I do not think a fair-minded observer would readily suppose that the jury members ignored the directions or, indeed, their oath (or affirmation) to “conscientiously try the charges against the defendant and decide them according to the evidence”. As Spigelman CJ observed in R v Philip Harold Bell, albeit in a different context (the effect of pre-trial publicity):
“[I]n recent years the prior tendency to regard jurors as exceptionally fragile and prone to prejudice has not carried the day in appellate courts. This is based on a considerable body of experience by trial judges in the criminal justice system which has convinced trial judges that the jurors approach their task in accordance with the oath they take, that they listen to the directions they are given and implement them”.
 An ordinary fair-minded observer would, I think, have some confidence in the jurors’ observance of their oath and the directions given them; and that confidence would be reinforced by consideration of the outcome. I think there is considerable force in the point made by Mr Copley, that the verdicts returned were strong evidence for the jurors’ having been unaffected by the associate’s behaviour. Reprehensible though it seems to have been, it does not seem to have swayed them to accept the Crown case as put by the prosecutor in her submissions. The acquittal of rape on the second count, and the acquittals of that offence on the first and third counts in favour of the lesser offence of carnal knowledge, demonstrate that the jury properly applied itself to the task of deciding whether it was satisfied beyond reasonable doubt of all the elements of the offence in each case.
 Having regard to the directions given and the outcome of the jury’s deliberations, I do not think that a fair-minded member of the public would entertain a reasonable suspicion that the appellant was deprived of a fair trial by reason of the behaviour attributed to the associate. This ground of appeal fails.
Pressure on the jury’s deliberations?
 The jury retired to consider its verdict at 10.50 am on the fifth day of the trial. No redirections were sought. At 9.20 pm the jury was brought back into court and the spokesperson indicated that it was not likely it would complete its deliberations that night. At 10.13 pm, after an indication that that was still the case, although it had made progress, the jury was sent away for the night. The court reconvened at 2.03 pm the following afternoon and the jury was brought back in. The judge asked whether it had reached a verdict on “any one or more matters”. The spokesperson replied, “Yes”. His Honour continued:
“I don’t want to know which ones, all right. You’re at that stage, all right. Now, for this type of matter, and given your deliberations, it’s not an endurance test, as it were, but in the realm of things I’ve reached the view that you’ve had more than an amount of time to reach verdicts in the matter, but I don’t want to shut you off if there’s any prospect of reaching a verdict in the next hour or so.
But I want to say this to you: that you are entitled to take as long as you wish to reach a verdict, but because of the time that has been taken, I have the power to discharge you from giving a verdict. But, of course, in this case if you have reached a verdict in one or more matters, I have a discretion to take that verdict or verdicts.
Now, what I’ll do is I’ll take submissions from counsel, so if you would leave us for a short time, say – I’ll bring you back say at 2.30 and we’ll further discuss the matter.”
The jury returned to its deliberations at 2.09 pm and some discussion ensued between counsel and the learned judge about whether a Black direction should be given. However, at 2.31 pm, the jury indicated that it had reached verdicts; those verdicts were delivered at 2.39 pm.
 Mr Smith, for the appellant, submitted that the jury may have felt pressure to return a verdict on counts in respect of which they had not reached an agreement because of the learned judge’s indication that they had had more than sufficient time already, and that he proposed to discharge them within a short time. Counsel relied on some statements by Dowsett J in R v Rabout the undesirability of making enquiries of the jury as to whether it will return a verdict soon, because it will otherwise be sequestered for the night:
“Experience suggests that some people, understandably, feel that overnight sequestration may be an undue imposition upon themselves or others. A juror who would not compromise for the sake of his or her own convenience might feel greater pressure to meet the convenience of others by departing from a view which has not found general favour. That pressure may increase if the jurors are given a period of time to think about it. If they are asked to consider the matter for another hour and then to report on the state of their deliberations, against the background of their possibly being sequestered overnight, there is a real risk that a juror or jurors may feel pressed to find a speedy resolution.
To say this does not necessarily reflect upon the conscientiousness of jurors. It merely recognizes the reality that many people feel obliged to meet the convenience of those around them. It is undesirable that members of a jury should have this additional pressure placed upon them in the course of their deliberations or that there should be a perception of any such pressure. A trial Judge must often address this problem. It may sometimes be inappropriate to raise the question with the jury before making the decision. It is the Judge’s responsibility to ensure that extraneous pressures are not brought to bear upon a jury. This is best done by acceptance of that responsibility and of the fact that avoidance of undue pressure on jurors may, on occasions, involve some inconvenience to them and to the court.”
 In my view, however, what was said in the present case was not likely to make the jurors feel pressured to reach verdicts; it was more designed to reassure them that they were not obliged to do so. His Honour told them it was “not an endurance test”; that they were entitled to take as long as they wished to reach a verdict, but he could discharge them from doing so. He made it clear that he was prepared to take a verdict on only those counts on which a decision had been made. It is perfectly possible that the jury had, in fact, reached a verdict on most of the counts at the time the spokesperson was questioned and was close to finalising its decision as to what remained. At any rate, there was nothing in the direction that would have conveyed the impression that it ought to hurry into a decision about any count on which it was not satisfied beyond reasonable doubt. I would not uphold the appeal on this ground.
 At the close of the defence case, some discussion took place between the learned judge and counsel as to what direction should be given on the topic of mistake of fact as to consent. The learned judge took the view, which counsel did not challenge, that where K had specifically said she tried to push the appellant away, mistake could not arise. Consistently with that view, he directed the jury on the excuse of mistake of fact on counts 2 and 4 only. However, the jury acquitted of rape in respect of counts 1 and 3, returning instead verdicts of guilt of carnal knowledge on those counts. It follows that they considered, in respect of those counts, that the Crown had not ruled out one of two possibilities: that K was consenting, or that the appellant honestly and reasonably believed that K was consenting. On count 4, however, on which the mistake of fact direction had been given, the jury returned a verdict of rape; it must, on that count, have been satisfied beyond reasonable doubt that K was not consenting and that the appellant was not labouring under any mistake in that regard.
 For the appellant, Mr Smith made the point that the evidence of lack of consent was weaker on count 4 than on counts 1 and 3. There was no rational basis for distinguishing between the evidence on those counts and that on count 4. It was also submitted that there was insufficient evidence to support a conviction of rape on count 4, given K’s evidence that she did not try to resist on that occasion. That of itself would not, in my view, prevent the jury from being satisfied beyond reasonable doubt that the appellant did not reasonably believe she was consenting. But the argument on inconsistency raises different questions.
 Nothing in the evidence explains why the jury, at the least, considered that the Crown had not ruled out mistaken belief in consent in relation to counts 1 and 3, despite K’s evidence of having offered physical resistance to the appellant, yet convicted of rape on count 4, in which there was no equivalent evidence of any resistance. While corroborative evidence did exist in this case, in the form of the DNA analysis, it did not assist on the question of consent, or mistake as to consent, so as to furnish any explanation for the different verdicts. There was nothing more inherently likely in K’s account in respect of count 4, and there was no basis for considering the quality of her evidence any different in respect of it.
 Mr Copley, for the respondent, suggested that the answer might lie in K’s having said that on the fourth occasion of intercourse she had taken tablets which made her drowsy. The trial judge, when seeking to explain what consent meant, said this:
“Someone who’s drowsy, perhaps affected by alcohol or sleeping tablets or whatever may not know what’s happening and therefore does not have the capacity to consent.”
It was suggested that K’s evidence as to her drowsy state combined with that direction might have led the jury to suppose she did not have the capacity to consent. Another possible reason for the jury’s having distinguished count 4 arises also from the summing up: his Honour said,
“The complainant said that she bled after count 4; that is, she said that he had forceful sex with her.”
 If either of those was the reason for the jury’s distinguishing count 4, they misunderstood the significance of the evidence. What his Honour said about drowsiness and consent was merely intended to be illustrative; it was not related to anything in the evidence. There was nothing to suggest that K’s drowsiness had any effect in rendering her unable to give consent; to the contrary, the effect of her evidence was that on all four occasions she was well aware of what was happening and was consciously not consenting. The learned judge’s reference to the appellant’s having “forceful sex” with K on the last occasion somewhat over-stated what K had actually said. Importantly, she did not suggest that there was any difference in the amount of force the appellant used on the last occasion; simply, that after the incident she had discovered she was bleeding. While one of those two hypotheses may indeed explain how the jury arrived at its conclusions, neither would provide a rational basis for doing so.
 The evidence could not explain a conclusion that the Crown had both established the lack of consent and ruled out the possibility of mistake so as to lead to conviction on count 4, while failing to do so in relation to counts 1 and 3, so as to lead to acquittals on those counts. The verdict on count 4 was, therefore, unreasonable.
 Mr Copley acknowledged that if that were the conclusion reached, the proper course was to act under s 668F(2) of the Criminal Code: to substitute a verdict of guilt of carnal knowledge on count 4, and pass the sentence warranted for it. Mr Smith agreed with that course; and it is, in my view, the correct approach.
 That raises the question of what sentence ought to be imposed on count 4. In this connection, White AJA’s associate, with a conscientious attention to detail not shown by his counterpart below, brought to our attention a discrepancy between the sentence actually imposed by the learned sentencing judge on counts 1 and 3, of two years imprisonment, and that which the associate endorsed on the indictment, which was two years and six months. The latter sentence also appears in the amended verdict and judgment record. Both counsel agreed that the record should be rectified to reflect the sentence which was duly passed by his Honour pursuant to s 650 of the Criminal Code. In light of that agreement, I have thought it unnecessary to embark on an enquiry into the court’s powers to correct the record and propose simply to make the necessary orders.
 As to the sentence to be imposed on count 4, Mr Copley submitted that this Court, exercising the sentencing discretion afresh, ought to impose a sentence in the order of three and a half years imprisonment. He relied on R v HZ as a guide to the appropriate sentence. In that case, the appellant was convicted after a trial of unlawful carnal knowledge of a 14 year old girl in his care, a friend of his stepdaughter. Aged 52, he was the only adult present at a sleepover party attended by the two girls and some of their friends. He provided the girls with alcohol and took advantage of the teenager’s intoxication to have carnal knowledge of her. There was no prior intimacy between them of any kind.
 I think, however, there is some basis for distinguishing HZ. Although it involved only one count, the discrepancy in age was very much greater, almost 40 years, and the appellant there took advantage of a girl whom he did not know and whom he had encouraged to become intoxicated. Here, the age difference was not great, and the appellant and K were more or less in the same social group through the medium of K’s stepbrother. More importantly, however, it seems to me significant that there was no Attorney-General’s appeal against the sentences of two years imprisonment on the other carnal knowledge counts. To impose a greater sentence on this count would be, in effect, to treat the sentences on those counts as inadequate without any appeal having been heard in respect of them. The proper course, in my view, is to impose the same sentence on count 4 as that imposed on counts 1 and 3.
 I would make the following orders:
- Dismiss the appeal against conviction in respect of counts 1 and 3;
- In respect of count 4, allow the appeal against conviction, set aside the conviction of the offence of rape and substitute a conviction of the offence of unlawful carnal knowledge;
- Impose a sentence of two years imprisonment in respect of count 4, and declare that a period of 378 days from 8 March 2008 to 20 March 2009 is to be taken to be imprisonment already served under that sentence;
- Order that the endorsement on District Court Indictment No 139 of 2007 be amended in respect of counts 1 and 3 by deleting the order for imprisonment for a period of two years and six months and substituting an order for imprisonment of two years;
- Order that the verdict and judgment record be amended to reflect the foregoing orders.
 WHITE AJA: I have read the reasons for judgment of Holmes JA and agree with the orders her Honour proposes and her reasons for them.
 I would observe that while the conduct of the District Court associate was particularly irresponsible the jury, by its verdicts, demonstrated that it was faithful to the Judge’s charge to “dismiss all feelings of sympathy or prejudice, whether it be for one party in this case or the other”. It is therefore, possible to be satisfied that no miscarriage of justice occurred.
 I agree with her Honour’s analysis of the evidence about the charges and, in light of the verdicts on the other counts, accept that a verdict of guilty of rape cannot stand for count 4.
 I also agree with her Honour that there is no reason to impose a greater sentence for count 4 than was imposed below in respect of the other counts of unlawful carnal knowledge.
 McMURDO J: I have reached a different conclusion on the ground of appeal which involves the associate’s behaviour. I would allow the appeal against conviction on all three counts and order that he be retried upon three counts of unlawful carnal knowledge.
 The facts are set out in the judgment of Holmes JA at . The appellant’s argument is that this conduct resulted in a miscarriage of justice within s 668E(1) of the Criminal Code 1899 (Qld). As Gleeson CJ said in Nudd v R, in this context there are two different but related aspects: outcome and process. His Honour there cited a passage from Davies & Cody v R, where the High Court said:
“From the beginning [the English Court of Criminal Appeal] has acted upon no narrow view of the cases covered by its duty to quash a conviction when it thinks that on any ground there was a miscarriage of justice, a duty also imposed upon the Supreme Court of Victoria … It has consistently regarded that duty as covering not only cases where there is affirmative reason to suppose that the appellant is innocent, but also cases of quite another description. For it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court’s view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled.”
Upon the appellant’s argument, there was a miscarriage of justice of the second kind referred to in that passage, or, as Gleeson CJ described such cases in Nudd, “a failure of process of such a kind that it is impossible for an appellate court to decide whether a conviction is just”. There could be no doubt that what occurred here was a failure of process, or, as the same thing is often described, a material irregularity in the trial. And that failure of process was certainly serious, in that the endorsement of the prosecution case by the associate as an officer of the court was irreconcilable with the court’s duty to be impartial between the prosecution and the defendant and to be seen to be so.
 The question is whether this failure of process might have affected the outcome.
 It is common ground that what was done might have been seen by one or more jurors. The impact upon that juror or jurors, upon other jurors who might have been told of it, and upon the verdicts is difficult to assess. It is possible that the jurors who saw the associate’s conduct were not affected by it because they diligently applied the trial judge’s instructions to disregard anything they heard of the case beyond the evidence, or because for some other reason the associate’s opinion of the merits simply did not matter to them. However, the particular role of a judge’s associate in the conduct of a criminal trial might have tended to make the associate’s behaviour influential. The jury had been empanelled by the associate, and had seen her swear in the bailiff and perform other tasks in the course of the trial. And the jury would have seen the associate as an officer of the court having functions in closely assisting the judge as her title implied. Those circumstances might have made this conduct significant, where the same conduct by someone in the public gallery would not have been consequential. In particular, the opinion about the merits apparently expressed by the associate might have been regarded as that of the trial judge.
 The respondent has argued that this court can conclude that there was no impact upon one or more of the verdicts because of the directions given to the jury and because the jury did not accept all of the prosecution’s arguments. The jury was given the usual directions as to the necessity to decide the case dispassionately, uninfluenced by public opinion and on the basis only of the evidence. Of course, these directions were in general terms and did not specifically address the need to disregard what occurred here. The trial judge was unaware of the associate’s conduct. The fact that the jury was directed in these general terms does not persuade me that the jury must have been uninfluenced by what occurred. Indeed, if a juror did see what happened and would otherwise have been influenced by it, I think it is unlikely that the juror would have then considered the conduct against the judge’s directions and put the associate’s conduct entirely out of his or her mind. That is not to say that the juror would have been unconscientious; rather, the point is that the juror might not have identified the relevance and particular importance of those general directions to the specific circumstance of this conduct.
 I am unable to accept the submission that the verdicts demonstrate that the jury was unaffected by the conduct. Clearly the jury did not accept each of the prosecution arguments. But they accepted many of them, and, for example, they were persuaded to reject, at least for the most part, the appellant’s version of events. The fact that their verdicts did not reflect the associate’s enthusiastic approval of the prosecution case did not mean that the associate’s conduct had had no influence upon the jurors or at least upon some of them. Further, this submission is more difficult to accept in the light of the lack of a rational basis for the verdict on count 4. If anything, the error in the jury’s reasoning, as explained by Holmes JA, tends to heighten the suspicion that the jury was affected by irrelevant matters and in particular by this conduct.
 The question is whether this serious departure from the required process of a criminal trial makes it unsafe to allow the verdict to stand or, alternatively expressed, whether there was a significant possibility that it affected the outcome. This is the same question which was identified in R v Jackson & LeGros where, in considering the consequence of an impermissible communication between a bailiff and the jury, the Court said that the conviction should not be disturbed because there was no possibility that the jury had been influenced against the accused.
 In this case, I am unable to exclude that possibility. Accordingly, I would allow the appeals against conviction, set aside the three verdicts and order a retrial, leaving it to the prosecution to decide whether to proceed further, given the period for which the appellant has been in custody.
 Had I not been persuaded to allow the appeals on this basis, I would have agreed with the other members of the Court in dismissing the appeal against conviction in respect of counts 1 and 3 and in allowing the appeal on count 4 with the substitution of a conviction for the offence of unlawful carnal knowledge. I would also have agreed with the imposition of a sentence of two years’ imprisonment in respect of that offence and with the order for the amendment of the endorsement of the sentence for counts 1 and 3.
 Evidence Act 1977 (Qld).
 (1979) 39 FLR 315.
 At 338.
 (1994) 181 CLR 41.
 At 53.
  2 Qd R 214.
 At 228.
 s 50 Jury Act 1995 (Qld); s 22 Oaths Act 1867 (Qld).
 BC 9805451, NSWCCA, 8 October 1998.
 Black v The Queen (1993) 179 CLR 44.
  QCA 83.
 Criminal Code Act 1899 (Qld)
 As r 61 of the Criminal Practice Rules 1999 requires.
 Made pursuant to r 62 of the Criminal Practice Rules.
  QCA 468.
 (2006) 225 ALR 161, 162.
 (1937) 57 CLR 170, 180 (Latham CJ, Rich, Dixon, Evatt and McTiernan JJ).
 (2006) 225 ALR 161, 164.
 See the passage set out above from Davies & Cody v R.
 TKWJ v R (2002) 212 CLR 124, 135, 149, 157, 158; Nudd v R (2006) 225 ALR 161, 170.
  1 Qd R 547.
  1 Qd R 547, 551.
- Published Case Name:
R v Phillips
- Shortened Case Name:
R v Phillips
- Reported Citation:
 QCA 57
Holmes JA, White AJA, McMurdo J
20 Mar 2009
|Event||Citation or File||Date||Notes|
|Primary Judgment||DC139/07 (No citation)||-||Having been charged with four counts of rape, Mr Phillips was convicted of one count of rape and two counts of the alternative of unlawful carnal knowledge. Relevantly, he was sentenced to 2 years’ imprisonment for the unlawful carnal knowledge convictions.|
|Appeal Determined (QCA)|| QCA 57  2 Qd R 263||20 Mar 2009||By majority (Holmes JA and White AJA), the appeal against the rape conviction was allowed on the ground that it was inconsistent with the other convictions, the conviction quashed, a conviction of unlawful carnal knowledge substituted, and a sentence of 2 years’ imprisonment imposed. McMurdo J dissented, allowing the appeal against conviction on all counts on account of the trial judge’s associate’s behaviour.|