R v DAK[2005] QCA 211

SUPREME COURT OF QUEENSLAND

[1]  de JERSEY CJ:  I have had the advantage of reading the reasons for judgment of Keane JA.  I agree that the appeal should be dismissed, for those reasons.

[2]  KEANE JA:  The appellant has been convicted of one count of burglary at night with violence and one count of rape.  The offences were found to have been committed on the evening of 11 May 2004.  He was sentenced to six years imprisonment.  An application for leave to appeal against sentence was not pressed and was dismissed at the hearing of the appeal against conviction.  The appeal against conviction is put on the basis that the verdict is unsafe and unsatisfactory.  I shall examine the appellant's contentions in this regard in detail after summarizing the evidence which supported the Crown case and the appellant's evidence.

The Crown case

[3] The Crown case depended on the evidence of the complainant.  According to the complainant, shortly after 9.30 pm on 11 May 2004, she was alone at her home.  Her partner was working on night shift.  The complainant went to bed at approximately 9.30 pm, and was reading when she heard a car pull up at the front of her house.  She answered a knock at the door and, opening the door, found the appellant outside.  He asked if he could come in and talk to the complainant "because he was having trouble with his relationship with his de facto wife".

[4] The complainant noted that he seemed to be drunk and was carrying two stubbies of mid-strength beer.  She invited him in.  After the complainant and the appellant had chatted for some time and had each drunk some beer, the appellant approached the complainant, sat on the arm rest of her chair, put his arm around her and told her that he had had a crush on her ever since the first day that he had met her at a social occasion on which he said she had been wearing "tiny little shorts".  The complainant responded by telling him to "Stop being ridiculous and go home to his wife and children".  The appellant said that he was "going to do whatever he wanted to" the complainant whether she liked it or not.  He then got up and dragged her up with him.  He pressed her head against a wall and commenced kissing her.  He said "I'm going to rape you, [name of complainant] girl".  And she said:  "No, you're not".  She told him to "Just go home".

[5] The appellant then held his hand around the complainant's neck and mouth and told her to make no noise.  He threatened to hurt her if she disobeyed.  The complainant asked to go to the toilet.  The appellant allowed her to do so but remained in close physical proximity and stood in the doorway of the bathroom.  After she had finished, he took her back to the lounge room and asked to see her muscles.  She lifted her shirt exposing her back and arms.  He then took her to the bedroom where the appellant lay down on the bed and told the complainant to perform oral sex on him.  He grabbed her head and pushed her down, forcing her to put his penis into his mouth for a short time.  He then half pulled her track suit pants off and made her help pull them off the rest of the way.  He then pulled her over on top of him and began to have intercourse with her.  After a short time he pushed her off onto her back, rolled over on top of her and continued to have intercourse.  When he had finished he rolled off and pulled her to him so that her head was against his chest and he tried to cuddle her.  She said:  "Look, you've got what you wanted, just go".

[6] According to the complainant, the appellant said that he wanted to stay all night and asked her if he left his de facto wife whether the complainant would "be with him".  She said "No".

[7] The appellant then said he did not "want to go home stinking of sex".  He then went into the bathroom and had a shower.  While he was having a shower, the complainant sat on the edge of the bed for some time and then wandered around, for a short while before walking into the bathroom.  The appellant then got out of the shower at which time he suggested that, because his de facto wife was going away for a forthcoming weekend, they could "do this again".  The complainant said:  "Don't even think about it, [my partner] will be here".  Before he left, he sought the complaint's assurance that she would not tell her girlfriend of what had occurred and she said that she would not tell anybody.  The appellant then said, "If you do, I'll deny it because I've too much to lose".

[8] After some further conversation, he left.

[9] The complainant did not complain to her partner when he came home from work the following morning.  The complainant had an appointment with her doctor for a Pap smear test that same day.  She kept the appointment;  but on that occasion she made no complaint to the doctor as to what had occurred.  The complainant first complained to a friend of what had occurred two days later.

The appellant's evidence

[10]  The appellant gave evidence to the effect that he went to the complainant's house at about 10.00 pm, knocked on the door and was asked in by the complainant.  He said that together they drank a small amount of beer and, while they were talking, the complainant noticed a tattoo on the appellant's shoulder.  They talked about that, and then the appellant asked the complainant if she had any tattoos at which point she took off her top and showed him.  His evidence was that he saw tattoos on her shoulder blades but that he was unable to recall the detail of the tattoos.

[11]  The appellant said that the complainant then sat on the lounge chair beside him and started playing with the inside of his leg before undoing his jeans and performing oral sex on him on the lounge.  The appellant's evidence was that they then went to the bedroom and had consensual sexual intercourse.  He denied grabbing her and pushing her up against the wall.  He said that he was at the complainant's house for two and a half to three hours.  He said that before he left the house he had a shower and that the complainant showered with him.  He then walked home.  He denied forcing the complainant to have sexual intercourse or oral sex with him.

[12]  The appellant was interviewed by the police.  In that interview he denied that he had had sexual intercourse with the complainant.  At trial his evidence was that he lied because he was frightened of his de facto wife finding out and that he did not wish to lose his sons.  He said that he had "played up on her" before and that he was concerned that if his de facto wife found out she would take the kids away from him and leave him.

[13]  He admitted that he told his de facto wife that he had had intercourse with the complainant on the way home from the interview at the police station.

The appellant's contentions on appeal

[14] Apart from the offences of burglary and rape, the appellant was charged with one count of sexual assault in relation to the allegations of oral sex, count 2 on the indictment.  The jury were unable to reach a verdict on that count.  The principal basis for the appellant's contention that the verdict is unsafe is that this circumstance suggests that the jury returned a compromise verdict.  It may be said immediately that the jury did not return any verdict at all on count 2.  Whether or not the appellant's argument was built upon a firm foundation at its commencement in that there were not inconsistent verdicts,[1] it seems to me that a consideration of the course of the trial allays any concern one might otherwise have had as to the safety of the verdict by reason of the jury's failure to return a verdict on count 2.

[15]  During the jury's deliberations, they indicated that they were unable to reach a verdict on any count.  The learned trial judge then administered a Black direction[2] to the jury and asked them to retire again to see whether they could reach a verdict.  After retiring for about an hour and a half, the jury sent the learned trial judge a note which asked "If we achieve a guilty verdict for counts 1 and 3 can we deliver a not guilty verdict for count 2?".

[16]  The learned trial judge then directed the jury that he was concerned that the question which had been asked was framed in a way which:

"… suggests that there may be some discussion within the jury in the course of your deliberations about a compromised verdict, about some of you resolving your differences by agreeing on a particular verdict for one count or counts in return for others agreeing on a different verdict for another count or counts."

[17]  His Honour went on to say to the jury:

"That is not the correct way for a jury to approach a case where there is more than one count on the indictment.

…

… you must consider each count separately and you must consider whether in respect of the elements of that count you are satisfied beyond reasonable doubt in respect of each of those elements for that particular count on the basis of the evidence which is relevant to that count.  Now, either you can or you can or you can't reach unanimous decision in relation to that issue, and as I said it may be that after discussion of the evidence you may be able to resolve your differences on that issue, but a juror - no particular juror can consistently with his or her oath join in a verdict if you do not honestly and genuinely think it is the correct one, and you particularly can't do that on the basis that you are agreeing to a verdict in relation to one count in return for a particular verdict being delivered in relation to a different count.  So it would not be right for there to be any deals done within the jury for particular verdicts for some counts or one count in return for particular verdicts in relation to another count or counts.

If the situation arose in this case where because of - on a consideration of the evidence in relation to count 2, for example, you had some reasonable doubt about the evidence of the complainant and on that basis you were not satisfied beyond reasonable doubt in respect of all of the elements of count 2, then you would have to consider carefully whether a particular matter which caused you to have some reasonable doubt in relation to the evidence of the complainant in respect of count 2 also affected whether you were satisfied beyond reasonable doubt on the basis of the evidence of the complainant in relation to counts 1 and 3, and if there was something which made you doubt, made you think that perhaps the evidence of the complainant was not entirely reliable or not sufficiently reliable to satisfy you beyond reasonable doubt in respect of one of the counts, then you would need to think very seriously about whether you were satisfied beyond reasonable doubt in relation to any of the counts.

Ultimately of course it is a matter for you to decide whether or not you are satisfied beyond reasonable doubt on the evidence that you have heard in relation to any particular count.  I could point out that if - although I cannot take a verdict in relation to any particular count unless you are unanimous in relation to that count, if a situation arose where you could agree upon a proper unanimous verdict in respect of one or two but not three counts, then I could take a verdict in relation to the one or the two counts on which you are agreed and you simply not return a verdict and be discharged without returning a verdict in relation to the third count.  If that were the situation, if you could reach a unanimous verdict on one or two counts but not in relation to the others or the other, then I can take a verdict on the count or counts on which you agree but not in relation to the others.  You would be discharged without returning a verdict … "

This direction made it clear that the jury was under no obligation to deliver a verdict.[3]  This Court should proceed on the assumption that the jury understood and followed the clear direction given by the learned trial judge.[4]

[18]  In light of this direction, and of the circumstance that the jury was simply unable to agree in relation to a verdict on count 2, a rational explanation for the jury's verdict on the count of rape is that the jury was not unanimously satisfied beyond reasonable doubt that the incident of fellatio occurred without the complainant's consent but was not unanimously prepared to acquit the appellant.  While both complainant and appellant agreed that there was an incident of oral sex, their accounts as to the circumstances in which it occurred were different.  It is possible that the jury was unanimously satisfied beyond reasonable doubt that the offence of rape had occurred, that is to say, that sexual intercourse without the consent of the complainant occurred, but that they were not so satisfied beyond reasonable doubt that the incident of oral sex occurred without the complainant's consent.  The two charges were not based on the same facts.  The indecent assault did not form part of the rape.  It is possible that one or more jurors may have regarded the case of rape as made out beyond reasonable doubt by reason of the complainant's evidence of the appellant's expressly stated intention in that regard and the complainant's expressly stated objection, whereas in relation to count 2 there was no express refusal by the complainant to comply with the appellant's wishes, and it may be that one or more jurors took the view that the possibility that the plaintiff consented to the request for oral sex - even perhaps grudgingly in the hope of avoiding being raped - meant that a want of consent to the appellant's demand for oral sex had not been established beyond reasonable doubt.  The existence of plausible explanations for why the jury may have acted as they did means that it cannot be said that the convictions on counts 1 and 3 and the failure to convict on count 2 "represent, on the public record, an affront to logic and common sense".[5]

[19]  The appellant also argued, in written submissions in support of his contention that the verdict of the jury was unsafe, that during the police interview with him, the full statement of the complainant was read to him so that when the appellant's record of interview was placed in evidence, the full text of the complainant's statement to the police was also included.

[20]  The learned primary judge directed the jury to ignore that part of the appellant's record of interview in which the complainant's statement was read out.  Nevertheless, the appellant submitted that the mere circumstance that the jurors heard the complainant's statement read out was unfair and may well have played a role in their deliberations.

[21]  In this regard, it is difficult to see how the appellant was prejudiced in any material way.  The circumstance that the jurors heard the complainant's statement read out was not likely to have made a real difference to the strength of the Crown case.  It is not surprising that, on the hearing of the appeal, this complaint was explicitly not pressed.

[22]  The other basis on which the appellant seeks to found his contention that the verdict of the jury was unsafe is that the complainant's evidence was inherently unreliable.  In this regard, the appellant refers to the evidence concerning the complainant's failure to complain of the rape to her partner and to her doctor, as well as to the circumstance that the complainant, according to her own evidence, voluntarily went into the bathroom with the appellant for some time after the rape had occurred.

[23]  The complainant explained her reluctance to complain to her doctor of the incident because she was aware that "this was going to affect lives in an incredible way and I wanted to be sure I had the strength to go through with it".  The jury may well have found that explanation compelling.  The jury may have found equally compelling her explanation that she was reluctant to complain to her partner for fear of "what [he] would do".

[24]  As to the complainant going into the bathroom while the appellant was still there, the complainant's evidence was that she "wandered around" for a while before doing so.  The jury may well have taken the view that she was confused or that she no longer felt threatened.

[25]  In my opinion, whether or not these circumstances were such as to diminish the reliability of the complainant's testimony was entirely a matter for the jury.  The jury was directed that there was no other evidence that confirmed the complainant's version of events in the crucial respects.  The jury was directed to scrutinize the complainant's evidence carefully, and to ensure that they were confident that they could rely upon it, in order to convict.

[26]  It was very much a matter for the jury to determine what should be made of the complainant's failure to complain of the appellant's conduct earlier than she did, and of the complainant having visited the bathroom while the appellant was there.  As I have said, the jury may well have regarded the complainant's behaviour as an understandable product of confusion and diffidence.  It is certainly not open to this Court to second-guess the jury on such matters.

[27]  The appellant also complains that there was no medical evidence to support the complainant's evidence in relation to the difficulty she experienced when the Pap smear test was performed.  The complainant said that the "normal speculum would not go in because of swelling inside her vagina".  The medical practitioner who performed the test said that the test appeared to cause no abnormal amount of discomfort to the complainant.  But at the trial it was common ground between the complainant and appellant that intercourse took place;  and it is difficult to see that this difference between the recollection of the complainant and that of the medical practitioner has any significance.  Certainly the doctor was not asked by the appellant's counsel at trial to comment on the complainant's claim that the normal speculum was unsuitable.

[28]  In summary, the jury were required to decide which of two versions of events should be accepted.  They resolved the conflict of testimony largely in favour of the complainant.  It cannot be said that their decision in this regard, when considered in the light of the whole of the evidence, was unreasonable.[6]  The appellant had initially denied that intercourse had occurred.  This was a lie.  The reason he gave for the lie may well have been thought by the jury to be unsatisfactory and to have regarded the appellant's evidence as unworthy of belief.  The jury's acceptance of the truth of the complainant's evidence does not necessarily mean they must also be assumed to have considered that her evidence enabled them to find the appellant guilty beyond reasonable doubt on all charges.  There is nothing to suggest the jury acted unreasonably in returning the verdicts that they did or that anything else that occurred in the trial amounted to a miscarriage of justice.

Conclusion

[29]  In my opinion the appeal should be dismissed.

[30]  MULLINS J:  I agree that the appeal should be dismissed for the reasons given by Keane JA.