R v Josiah[2004] QCA 63

SUPREME COURT OF QUEENSLAND

[1] McMURDO P: I agree with Mackenzie J that the appeals against conviction should be dismissed for the reasons he gives.

[2] McPHERSON JA: I agree with the reasons of Mackenzie J, which I have had the advantage of reading.

[3] The appeals against conviction must be dismissed

[4] MACKENZIE J:  These are appeals against conviction.  The appellant Josiah was convicted of offences of rape and indecent assault; the appellant Lovell was convicted of rape.  The offences arose out of circumstances where the complainant, having had an argument with her boyfriend at about 8pm one evening, went for a walk.  After spending some time sitting in a park, she was walking down the road when the appellants, who were in a motor vehicle, saw her and engaged in conversation with her.  The appellant Lovell was the driver of the vehicle and the appellant Josiah his passenger.

[5] After about 10 minutes the complainant agreed to accept a lift to a soccer club in the neighbourhood.  However the vehicle was driven to a soccer field where she alleged a series of sexual acts were committed upon her.  Her complaint resulted in a variety of charges, comprising counts 1 to 8, being brought in respect of the acts at this location. 

[6] After these acts had finished, she and Josiah remained in the back seat while Lovell drove the vehicle from the scene.  As he did so he expressed the wish to get drugs.  The complainant mentioned a name and Lovell said that they would go there.  She said she was relieved at this development because she thought she would get help at that house.  As they got near the address, however, it was realised that no-one had money so they did not stop.  The complainant asked to be driven back to the football club but the driver, saying he had to see someone, drove past it.  At a location near a truck depot the vehicle was stopped.  There, she said further acts of a sexual nature were committed upon her, which formed the basis of counts 9 to 12.  After events at that location, she was let out of the vehicle near an hotel.  She walked back to the house from which she had originally departed but found no-one there.  She went to a neighbouring house and was picked up by her boyfriend.  She made a complaint of rape to him and then to her parents, following which the police were called.  She was examined by a doctor who found scratches on her left shoulder, other marks and other tenderness, as well as evidence consistent with sexual intercourse having occurred. 

[7] Traces of Lovell’s DNA were found in vaginal swabs from the complainant and DNA consistent with hers was found on his penis.  Samples taken from Josiah’s penis were too weak for conclusive identification.  No sperm from either man was found on the complainant’s clothing. 

[8] Josiah’s grounds of appeal are, firstly, that the verdicts on counts 6 and 8, those for which he was convicted, were:

(a)unreasonable and could not be supported having regard to the evidence;

(b)unreasonable having regard to the verdicts of not guilty on counts 1 and 11.   

[9] The second ground is that the learned trial judge failed to give an appropriate warning of a kind recognised by s 632(3) of the Code, in relation to the complainant’s evidence. 

[10]  Lovell’s grounds of appeal are, firstly, that the verdict of guilty on count 7, the only count upon which he was convicted, is unsafe, unsatisfactory and unreasonable because:

(a)the verdict and those in respect of Josiah on counts 6 and 8 are inconsistent with the not guilty verdicts on counts 1, 4, 5, 10, 11 and 12;

(b)the jury was unable to agree on verdicts on counts 2, 3 and 9. 

[11]  The second ground is that the verdict is unsafe and unsatisfactory and cannot be supported having regard to the evidence for a number of reasons particularised with regard to aspects of her evidence.  The third ground is that the evidence of the complainant was unreliable on the issue of non-consent, because she did not communicate that she was not consenting and admitted that she was unsure whether consent was given by her.  The fourth is that the case was prejudiced and the jury decision was significantly affected because Lovell was handcuffed in view of the jury on one occasion when they were departing during an adjournment. 

[12]  To gain an appreciation of the grounds of appeal, it is desirable to set out the nature of the offences charged and the outcomes.  Counts 1 to 8 relate to events at the football field.  Counts 9 to 12 relate to those at the truck depot.  They are as follows:

[13] The directed acquittals occurred immediately after the prosecution had closed its case.  The reasons why acquittals were directed, which were explained by the learned trial judge to the jury at the time, were:

Count 1   – lack of evidence that Lovell had touched the complainant’s breast;

Count 4   – lack of evidence of penetration; evidence of licking only;

Count 5   – aiding in count 4 alleged;

Count 10 – lack of evidence of penetration; evidence of licking only;

Count 12 – uncertainty whether finger penetrated anus.

[14] In the cases of counts 4, 10 and 12, there was an insufficiency of evidence to establish the precise act necessary to prove the offence particularised in the counts, but acts not markedly dissimilar were described by the complainant.  It would be unlikely for the jury’s view of the honesty of the complainant’s account to be affected by those deficiencies.  Nor would acquittal on count 5, which alleged aiding a principal offence that was not proved.  Failure to give evidence with regard to an act by Lovell alleged in count 1, while it may have been relevant to reliability would not necessarily have reflected upon her honesty. 

[15] With respect to the acquittal of Josiah by the jury on count 1, there was evidence elicited in cross-examination of the complainant suggestive of some confusion in her recollection as to which of the appellants was the person who pulled down her singlet top and fondled her breasts.  She accepted that at committal she had nominated the driver (Lovell) as the person.  Notwithstanding her nomination of Josiah as the person at trial, it was not surprising that he was acquitted in the circumstances.  It may also be the case that, at that early stage, the jury may have had a doubt whether mistake as to consent had been excluded.      

[16] The other verdict of not guilty is in relation to count 11 alleging that Josiah raped the complainant by penile penetration.  Because of the forensic scientist’s findings, there was no scientific evidence corroborating the complainant’s assumption that Josiah had ejaculated.  This assumption was based on something that Josiah said but the complainant’s evidence indicates that she was not sure that he had.  In that respect count 11 differs from count 7 where there was both an admission by Lovell of sexual intercourse (although he claimed it was consensual) and forensic evidence that tended to prove that Lovell had had sexual intercourse with her.  The only issue was consent.  Counts 6 and 8, of which Josiah was convicted, were contemporaneous with count 7.  While there was no direct evidence other than that of the complainant supporting the commission of the two offences in counts 6 and 8, the verdicts of guilty can be explained rationally on the basis that the jury was satisfied beyond reasonable doubt of the complainant’s account of what happened to her at that time.  That account included involvement of Josiah in the ways alleged. 

[17] Because of the nature of arguments addressed with regard to the alleged inconsistency of the verdicts, it is necessary to recall what the High Court said in MFA v The Queen (2002) 193 ALR 184 about the proper approach to cases  involving sexual offences where it is alleged that verdicts are inconsistent.  The authorities of M v The Queen (1994) 181 CLR 487, MacKenzie v The Queen (1996) 190 CLR 348, Jones v The Queen (1997) 191 CLR 439 and R v Markuleski (2001) 52 NSWLR 82 were reviewed in the course of the respective judgments. 

[18] Gleeson CJ, Hayne and Callinan JJ said the following:

“In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant.  This may not be unreasonable.  It does not necessarily involve a rejection of the complainant’s evidence.  A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt.  The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution.  A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant.  It may simply reflect a cautious approach to the discharge of a heavy responsibility.  In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant’s evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others.  Thirdly, there is the consideration stated by King CJ in R v Kirkman [(1987) 44 SASR 591 at 593], and referred to in later cases: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only.  And there may be an interaction between this consideration and the two matters earlier discussed.”

[19] McHugh, Gummow and Kirby JJ said the following at 203-204:

“[85] …. In judging suggested inconsistency, this court said in MacKenzie that “if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted.”  The court cited with approval the remarks of King CJ in R v Kirkman to the effect that juries may not always act “in accordance with strictly logical considerations” or even “in accordance with the strict principles of the law which are explained to them”.  Juries sometimes give effect to “their innate sense of fairness and justice” as well as to their sense of proportion and compassion.

[86]Nevertheless, cases do arise where different verdicts returned by a jury represent “an affront to logic and commonsense” and suggest a compromise in the performance of the jury’s duty.  Such a conclusion “depends upon the facts of the case”.  There can be no “hard and fast rules” except that the obligation to demonstrate inconsistency in jury verdicts rests upon the person making the submission.”

[20] Later on the same page they said the following:

“[89] … We would dissent from the proposition that Jones stands for a rule that, in cases of complaints of a number of sexual offences, a jury must either accept or reject the lot.  It always remains for a court of criminal appeal whose jurisdiction is invoked to examine any differentiation in the verdicts to see if it can be justified.”

[21] There is no basis in this case for concluding that the mix of verdicts is an “affront to logic and commonsense”.  The passages from MFA v The Queen set out the principles according to which it may be seen that there is a rational explanation for the verdicts.  For the same reasons, the fact that the jury was not able to reach verdicts on some counts cannot be logically used to attack the integrity of the verdicts in this case. 

[22] In my judgment the grounds of appeal of both appellants in so far as they relate to inconsistency of verdicts are not made out.

[23] The submission that the verdicts were unsafe and unsatisfactory focussed on discrepancies between the complainant’s evidence at trial, her evidence at committal and what was in her statements.  One aspect upon which particular emphasis was placed was her consumption of drugs.  She admitted that she had consumed speed of which she had one gram.  It was an issue whether she had consumed it on the day before the incident, as she maintained in her evidence, or on the day of the incident.  This dispute turned on a reference in her statement to the police taken on the morning after the incidents to taking the drug “yesterday morning”.  The proper interpretation of this evidence was for the jury.  The evidence was linked to a submission that she may have been influenced by drugs when she got into the vehicle with the appellants.  It should be noted that it is not correct, as was argued, that she accepted that the drug was still in her system.  The question relied on by the appellant Lovell used the words “may have been”, not “were”, and her answer that it “might have been” in her system reflected that.

[24] Another aspect upon which emphasis was placed was whether the fact that no ejaculate was found on the complainant’s skirt although she said that she had wiped her vagina with it and had referred in her statement to ejaculate being on her skirt, which was wet, after Josiah had had sexual intercourse with her.  However, her evidence, as it became more detailed, was apparently based on an inference that he had ejaculated rather than any personal observation.  The effect that the evidence had was a matter for the jury to evaluate. 

[25] A number of other matters such as who took off her underpants, who removed the straps of her top off her shoulders, her acceptance of a cigarette that may have had cannabis in it and a number of other matters of detail about where the accused were and what was done at various times were raised as instances of conflicting evidence.  These were also fully explored before the jury.  None, in my view, separately or in combination, required the jury to have a doubt on the counts upon which the appellants were convicted.  I should also say that reading of the transcript of her evidence, allowing for the fact that there are differences between what she said at various times, does not give rise to the kind of misgivings that often arise after doing so in some cases in this category. 

[26] It was also submitted that what the doctor recorded as her history at the time he examined her was inconsistent in some respects with her subsequent accounts.  Some matters not found in his notes are inconsequential detail for the purpose of a medical examination.  It is not surprising that the account given to the doctor is less comprehensive than her statement to the police.  As counsel for the respondent pointed out, the complainant was not cross-examined about one alleged discrepancy, about being threatened with a baseball bat.  In any event she did refer to a baseball bat but in the context of Lovell saying that she was getting off lightly because they had sexually assaulted other women with baseball bats.  If the jury gave consideration to this evidence, they may well have thought that if there was a difference it was of no consequence.  It is also inaccurate to say, as counsel for Lovell did in his written submissions, that the doctor had said that the condition of the complainant’s vagina was consistent with consensual sex.  The question he assented to was that it “could be consistent with consensual sex”.

[27] With regard to the ground relating to inadequacy of evidence of lack of consent, this was based on a passage of cross-examination of the complainant about a period when Josiah was out of the vehicle and she was on her back in the back seat in the presence of Lovell.  While the precise time to which the question was directed is not clear it clearly enough relates to a period preceding counts 6, 7 and 8.  In evidence-in-chief the complainant gave evidence that at the time counts 6, 7 and 8 were being committed Josiah had his knees on her shoulders and she could not move the top half of her body.  She said she was trying to close her legs to keep them together.  When Lovell was committing the act alleged in count 7 she was crying.  She did not consent to the two men having sex with her. 

[28] In cross-examination she was asked about a passage in her interview with a police officer in which he asked about whether it was “consensual at this stage”.  The complainant said that she did not remember the questioning but accepted that, if it was recorded that she said “it was but it wasn’t”, then that was what she had said.  In re-examination, the Crown Prosecutor put that answer in context by getting her confirmation of the whole passage of conversation with the police officer on the subject.  The effect of what she said was that she had said neither yes nor no to the men but that she was, as she put it, “…. trying to sort of move up, you know, kept myself up so that I could cover up again ….”. She was asked about her understanding of the word “consensual”.  She replied “Did I say yes or no”.  The police officer then asked “…. did you want them to be doing that?”.  She replied “no”.  Earlier she had given evidence that at an early stage when her top was being pulled down she said “You said you weren’t going to hurt me” and Lovell said “If you do what we want, we won’t”.

[29] The learned trial judge gave a comprehensive direction as to honest and reasonable but mistaken belief in relation to consent.  It was plainly open to the jury, in my view, to reject the existence of such a belief and find that the complainant had not consented to the act of intercourse by Lovell.  If they were satisfied that Josiah had contemporaneously committed the acts which the complainant alleged he had committed, it was open to them to find that they were done without consent. 

[30] Having reviewed the evidence as a whole I am satisfied that it was open to the jury to find beyond a reasonable doubt that each appellant was guilty of the offences for which he was convicted. 

[31] Each appellant complains that an appropriate warning authorised under s 632(3) was not given.  On behalf of Lovell it was submitted that because of the discrepancies and confusion revealed by the cross-examination of the complainant and the evidence concerning consumption of drugs, a strongly worded direction that it was dangerous to convict should have been given.  On behalf of Josiah it was submitted that such a warning should have been given because of the inconsistencies in her accounts (particularly those referred to above), the state of the medical evidence, the scientific evidence and the evidence of consumption of drugs.

[32] It was submitted that failure to give such a direction amounted to an error of law in the circumstances of the case.   Reliance was placed on Robinson v The Queen (1999) 199 CLR 162 and R v V [2002] QCA 124.  The essence of these decisions is that a warning emphasising the need for the jury to scrutinise a complainant’s evidence before convicting should be given whenever it is necessary to do so to avoid a miscarriage of justice arising from the circumstances of the case. 

[33] The learned trial judge gave a direction that the complainant’s evidence was “critical and had to be scrutinised very very carefully indeed”.  He said that it was not enough to be persuaded that the witness was honest; she also had to be reliable.  He also observed that if the jury thought that a witness was being dishonest they would probably not be prepared to act on his or her evidence or at least would want some other evidence to support what the witness was saying before they would be prepared to act on it.  He then gave a conventional direction on prior inconsistent statements.  Later he said that the Crown case depended very much upon whether the jury was persuaded that the complainant was an honest witness and perhaps more importantly one whose evidence was reliable, “one whose word you can act on”. 

[34] To give directions in that way was a deliberate decision on the learned trial judge’s part since it is apparent from the record that the question of an appropriate direction had been raised in discussion of issues to be covered in the summing up, prior to addresses.  There was an application for a redirection in not significantly different terms from what the learned trial judge had said.  He declined to give the redirection.

[35] Then in the first of two separate redirections after the jury had been deliberating for some hours and had reached a verdict on some counts but could not agree on others, the learned trial judge gave a Black direction and a further direction that the case depended on the jury’s assessment of the evidence of the complainant and whether they felt she could be regarded as an honest and reliable witness.  He repeated that they had to scrutinise her evidence very carefully.  A further redirection was sought by the jury about an hour later, in the form of a request for the complainant’s evidence to be read to them.  The next morning when that was done, the learned trial judge concluded by saying:

“As I have emphasised to you a number of times, it is for you to make your assessment and to decide how you go about making your assessment of the evidence, and clearly if the Crown is to persuade you of the guilt of either accused on any count, you must be persuaded and that (the complainant) is not only an honest witness but a reliable one, one on whose evidence you can rely, and how you go about making that assessment of her evidence clearly it being critical.  Clearly you have got to scrutinise her evidence very carefully”.

[36] The series of directions given could have left the jury in no doubt that the evidence of the complainant had to be given very careful consideration and a conclusion reached that she was an honest and reliable witness before they could act on it.  A jury applying itself to that task would have clearly understood that they could not act on her evidence unless satisfied about the honesty and reliability of her evidence.  In my view the direction was sufficient in the circumstances of the case.

[37] During argument of this ground but also with some connection with the issue of whether the verdict was unsafe and unsatisfactory, it was submitted that the learned trial judge had erred in his direction about the use that could be made of a reasonable doubt about one count in relation to other counts.  The complaint essentially was that the learned trial judge had said that a doubt “may carry forward to another count” when considering another count involving the same accused.  Two particular aspects were complained of.  Firstly, it was submitted that the notion of carrying forward a doubt implied that if a verdict of not guilty had been found on a later count that could not be taken into account by the jury in assessing an earlier count.  It is literally true that the learned trial judge did not refer to the matter in the way contended for by counsel.  However, in the case where there had been considerable emphasis on the credibility of the complainant it is unlikely that the jury would have taken such a direction literally.  The same may be said for the second point, that the reference to carrying forward a doubt to another count involving the same accused was unduly restrictive since a doubt as to credibility could be applied in the case of each accused.  In my view there is nothing in this point, in the context of this case.  It may be noted that no application for redirection was made and that probably reflects the impact that the comments of the learned trial judge complained of had on a listener. 

[38] It was submitted on behalf of Lovell that a direction in terms of R v Markuleski (2001) 52 NSWLR 82 should have been given.  It was accepted that the learned trial judge had given a direction that if the jury had misgivings about the honesty or reliability of the complainant he “would have thought that (they) would have difficulty convicting the accused of any charges”.  It was submitted, however, that the impact of this direction was affected by a passage that followed, to the effect that notwithstanding this, as a matter of law all various combinations of verdicts were open. 

[39]  Markuleski recognises the difficulty in formulating principles as to when the jury should conclude that a reasonable doubt on one count, notwithstanding the complainant’s evidence on the matter, means that the jury ought to have had a reasonable doubt about other counts about which the only evidence is from the complainant.  Whether or not the failure of the jury to accept the complainant’s version in one respect ought to have led the jury to have a reasonable doubt with respect to other matters must depend upon the full range of relevant circumstances that go to an assessment of credibility.  The direction given by the learned trial judge is not unlike the first of the three, albeit in a more compressed form, formulated by Spigelman CJ at 122, as follows:

“It will often be appropriate to direct a jury that where they entertain a reasonable doubt concerning the truthfulness or reliability of a complainant’s evidence in relation to one or more counts, that must be taken into account in assessing the truthfulness or reliability of the complainant’s evidence generally.”

I am not persuaded that the direction given was inadequate. 

[40] The remaining ground is whether the applying of the handcuffs to Lovell while the jury were preparing to leave court created impermissible prejudice.  Counsel for the respondent submitted that in the circumstances of such serious charges a jury may ordinarily expect that the accused would not be on bail and the fact that he was apparently a prisoner would not of itself lead a jury to expect that the appellant was serving a sentence.  It was all but conceded by counsel for the appellant that the authorities did not suggest that this ground was strong.  There was no submission at trial that the jury should be discharged; the incident was not raised with the learned trial judge.  However, counsel pointed to the fact that the case was one where the jury was having difficulty making a decision and, in the circumstances, slight prejudice might be enough to result in conviction of the appellant.  He submitted that the jury would not necessarily have expected him to be in custody.  He conceded that, had an application to discharge the jury been made, it was unlikely that it would have been successful and that experienced counsel would not have agitated the matter further by requesting a specific direction not to make any assumption about the appellant being a prisoner.  I am not persuaded that the jury would have been affected by the occurrence or that any miscarriage of justice has been caused in the way alleged in this ground.

[41] None of the grounds of appeal are made out.  Accordingly, the appeal by each appellant must be dismissed.