SUPREME COURT OF QUEENSLAND

[1]  McMURDO P: The appellant was initially charged with six counts of rape arising out of events concerning the complainant at Bowen on 19 May 2004.  After a trial in May 2005 he was acquitted of four counts and convicted of two counts and sentenced to four years imprisonment.  He successfully appealed against those convictions and a new trial was ordered: R v LR.[1]  He was re-tried in the Bowen District Court on 29 and 30 May 2006 on the remaining two counts of oral rape.  He was found not guilty on the first count but guilty on the second.  He has appealed against his conviction on a number of grounds including that the evidence of the complainant's distressed condition should have been excluded; that the guilty verdict is inconsistent with the not guilty verdict; and that the guilty verdict is unreasonable.

[2] The primary judge adjourned his sentence and granted him bail until the determination of this appeal.

The evidence

[3] Before turning to consider the grounds of appeal it is necessary to briefly set out the evidence.

[4] In early May 2004 the complainant travelled to Bowen to visit her female friend and the friend's three year old daughter.  Whilst in Bowen, she became friendly with a man called Justin who worked with other young men who were neighbours of her female friend. 

[5] The complainant gave the following evidence.  On Wednesday, 19 May 2004 the complainant's female friend went out while the complainant looked after her young daughter in the flat.  Justin left a bottle of Wild Turkey bourbon at the flat and went out for a drink with neighbours.  Later in the afternoon and before dark, another neighbour, Johnno, came over.  Johnno and the complainant ate pizza.  He drank rum and she drank three or four glasses of bourbon.  Later in the afternoon, Johnno went outside and the appellant arrived carrying a plastic bag with XXXX "heavies".  She introduced herself and explained she was in Bowen visiting her best friend.  The appellant introduced himself and sat down.  Johnno was initially present, but left shortly after the appellant arrived.  She drank a few more bourbons.  The appellant drank his beer.  She told him she was Justin's girlfriend. 

[6] The little girl was crying and "chucking little tantrums".  The complainant picked her up, put her over the right side of her chest and carried  her into her mother's bedroom to put her to sleep.  She told the appellant what she was doing.  She entered the bedroom.  The bedroom light was out but some light was thrown from the bathroom and lounge room lights.  She heard footsteps immediately before she was shoved from behind in the middle of her back.  She fell on a corner of the bed.  She was still holding the child and used her arm to avoid falling on the child.  The appellant pinned her on her back to the bed by holding her arms above her head.  When asked if there was any conversation she said, "I can't remember that much."  The child was crying.  The appellant picked up the child and placed her in the cot.  The child continued to cry.  He moved his legs in between the complainant's legs.  He pinned her down with his left hand holding her two hands above her head whilst he used his other hand to remove her underwear and shorts.  He had already removed his clothing with his free hand.  He started moving up on her towards her chest.  He forced his erect penis into her mouth.  She could not remember whether he said anything.  She was unable to say anything because she "had a mouthful of penis and … was choking".  He moved his penis in and out of her mouth.  She could not remember for how long this occurred but it was "[n]ot for that long".  He removed his penis and moved down past her chest (the first count of rape). 

[7] He stayed in that position for a little while.  He "[m]ay have been laughing, like, it was some sort of joke".  She was asked "When he withdrew his penis, were you able to speak then or did you speak then? – I said, 'No.' I just can't remember what I said after that." 

[8] He then moved down to her knees before coming back up and putting his penis in her mouth again.  She could not recall how long his penis was in her mouth the second time.  He moved it up and down.  She remembered him laughing.  He said, "Isn't this funny that you're Justin's girlfriend and I'm his cousin."  She could not remember if he said anything more.  She wanted to get up and run out but she was pinned down.  The incident ended with the appellant getting up, putting on his clothes and walking out the door (count 2).  During the incident the three year old was sitting in the cot crying and the appellant told the child to shut up. 

[9] After he left she at first lay on the bed.  She put on her underwear and pants, grabbed the child and went to Johnno's neighbouring flat.  She was in shock.  She told Johnno what happened.  He rang Justin.  Another male neighbour, BJ, came from a nearby flat.  Justin arrived with some male friends who lived in the flats and the complainant's female friend also returned home.  The complainant did not give the appellant any permission to do what he did. 

[10]  In cross-examination she agreed that she drank most of a standard bottle of bourbon and two tins of premixed rum and cola during the afternoon.  She denied that she was very drunk but conceded she was affected by alcohol.  She agreed that at the committal proceedings she said she was feeling tired, "slack, like, just wanted to sit down and don't want to move type of thing".  She conceded that since she was in Bowen she had been "hitting the grog a bit"; she also had some cannabis earlier in the week.  At no stage whilst the appellant was in the bedroom did she tell him "No, don't do it."  She could not remember whether she told him not to put his penis in her mouth before he first did so.  She was in shock.  She then said that she did not tell him "no" because she was concerned about the child in her care.  The appellant did not make threats against her or the child.  She could not remember whether on the second occasion when the appellant began to place his penis into her mouth she told him "no".  She then agreed that she did not tell him that she did not want to do this as he went to put his penis back in her mouth.  She could not remember whether he threatened her in any way because she was in shock.  She agreed that at the committal proceedings she said that he did not threaten her.  He did, however, tell her to "shut up".  She denied encouraging or agreeing to any sexual intimacy with the appellant.  She denied the child was outside the bedroom during the acts of oral sex.  She could not remember whether she was crying at any time in the bedroom but agreed that at the committal proceedings she said she was not crying because she was in shock.  At the committal proceedings she said that whilst she was certainly crying after he left, she was not crying in his presence.  Neither her clothes nor bedroom items were damaged.  She could not remember whether she took pizza into the bedroom.  She had no recollection of how pizza may have got into the bedroom.  Prior to the incident she and the appellant had been drinking and chatting together in a friendly polite way.  She said nothing at all to the appellant throughout the events in the bedroom.  She did not confront him about his actions because of the three year old child.  She agreed they were both drunk.  She denied that when she had had too much to drink she was prone to have a sexual affair with someone whom she would not otherwise.  She agreed that when drunk she was prone to burst into tears when she would not otherwise.  She again conceded that she did not ask the appellant to stop and nor did she tell him that she did not want to participate.  She knew there were people close by in neighbouring flats and that the front door to her unit was open.  She did not scream or yell because she was in shock.  He did not tell her not to talk to anybody about what happened.  She repeated her evidence in chief that she said "no" to the appellant after the first act of oral sex and before the second.  She did not put this in her statement to police dated 22 May 2004, a few days after the incident.  She agreed she valued her relationship with Justin and at the time it was important for her that the relationship continue.  She denied realising that there was every likelihood that the appellant might tell Justin what happened in the bedroom.  She denied feeling remorse about having consensual oral sex with the appellant.

[11]  The issue as to whether or not the complainant had said "no" to the appellant between the first and second act of oral sex was not canvassed in re-examination.

[12]  The complainant had a blood alcohol level of .156 per cent and her urine sample showed cannabis use within a couple of days.

[13]  Johnno gave evidence that he was going to bed and sober on the evening of 19 May 2004 when the appellant knocked on his door and asked for a drink.  He told him he had none and the appellant left.  About 15 minutes later the complainant knocked on his door holding the child and crying.  She was just about beating the door down.  She came into his flat and sat on the couch. 

[14]  Another neighbour, BJ, called the police.  BJ, who was also sober, said the complainant was curled up on Johnno's couch crying hysterically.  He also phoned the complainant's female friend with whom she was staying.   

[15]  The appellant did not give or call evidence.

Was the evidence of distressed condition admissible?

[16]  The appellant contends that the evidence of the complainant's distress shortly after the alleged rape should have been excluded because its prejudicial effect far exceeded its probative value.

[17]  The evidence of the complainant's distressed condition shortly after the alleged rape was relevant and admissible: R v Sailor.[2] Whether it was genuine because of the closeness in time between the alleged rape, her complaint and her obvious distress (as the prosecution submitted) or feigned because she had time to consider and regret the impact of consensual sexual intercourse with the appellant on her newly formed relationship with Justin (as the defence submitted) was a central question for the jury.

[18]  The judge in his directions to the jury even-handedly explained to them the use they could make of this evidence, the competing contentions, and warned them that sometimes people make false complaints of a sexual nature. 

[19]  The judge was not required to exercise his discretion to exclude the evidence of distressed condition in this case.  The judge's very fair and balanced directions ensured the jury understood the competing contentions in respect of the evidence and the use that could properly be made of it.  This ground of appeal fails.

Inconsistent verdicts and the redirection

[20]  The appellant contends that the verdict of guilty on the second count of oral rape is inconsistent with the verdict of acquittal on the first count of oral rape and constitutes a miscarriage of justice requiring the setting aside of the guilty verdict.

[21]  The issues raised on the evidence were whether the complainant consented to each act of oral sex and, if so, whether the appellant was not acting under an honest and reasonable mistake of fact as to her consent.  It is common ground that the trial judge gave fair and adequate directions on these issues to the jury. The jury retired to consider their verdict at 1.01 pm. 

[22]  At 3.56 pm the court reconvened because the jury had sought a redirection.  Unfortunately, the jury's apparently written request for a redirection was not read into the trial record and nor was it kept on the court file.  Trial judges should ordinarily treat juries' written requests for redirection in this way so that the requests are stated in open court and then preserved intact for appellate purposes.  It is a simple matter for trial judges to read the requests out in court and to then mark them for identification, directing that they be placed on and remain on the court file until the expiry of the appeal period or the determination of any appeal. 

[23]  The trial transcript does, however, reveal the following relevant statement by the trial judge as to the jury's request for redirection:

"I have a request for some transcript to be read to the jury, which appears to be after Exhibit 3[3] was tendered.  They have asked for the prosecution evidence to be read."

The jury returned at 3.58 pm and the judge's associate read to them the transcript of the complainant's evidence in chief as to the acts constituting the alleged offences.[4]  Included in this was the complainant's statement that she said "no" after the first act of oral sex.  The judge then asked: "Do we need to go any further, members of the jury?  Jurors:  No."   At 4.05 pm the jury again retired to consider their verdict.  Neither counsel sought any redirections.  The jury returned with their verdicts at 4.25 pm.

[24]  The guilty verdict on the second act of oral rape suggests that the jury's acquittal on the first count arose, not out of a doubt about whether the complainant actually consented, but rather whether the prosecution could prove that the appellant was not acting under a honest and reasonable mistake of fact under s 24 Criminal Code. 

[25]  The judge rightly told the jury that there were two separate trials for their consideration, pointing out that both counts were "extremely similar" and adding:

"If you have a reasonable doubt about the truthfulness and reliability of the complainant's evidence in relation to one of the counts, whether by reference to her demeanour or inconsistency or any other feature of her evidence, you must take that into account in assessing – whether you assess her in relation to the other counts.  But you don't proceed on the basis automatically that because you find the accused guilty or not guilty on one count that that is the result that must follow in relation to the other."

[26]  As Mr M J Copely for the respondent rightly points out, the only rational basis explaining the differing verdicts here was the complainant's evidence in chief that she said "no" after the first episode of oral sex and before the second: see Mackenzie v The Queen.[5]

[27]  That contention is persuasive but problematic because the complainant appeared to resile from her evidence in chief that she said "no" in cross-examination.  With hindsight, it is now clear that her evidence in chief that she said "no" between the two acts of oral sex, which was read over to the jury immediately before they reached their verdicts, must have been central to the jury's determination of the issues of both actual consent and honest and reasonable belief as to consent.  Unfortunately, the judge did not refer to the very significant apparent inconsistency on this point between her evidence in chief and her evidence in cross-examination, either  in his own directions to the jury, or when summarising the defence case, or when giving the jury's requested redirection shortly before they returned their verdicts.  It is true that no such redirection was sought by defence counsel and nor did the jury ask to hear anything but the prosecution evidence.  But I am concerned, now knowing the verdicts returned by the jury, that the judge did not bring this inconsistency to the jury's attention.  When juries request to hear crucial evidence read over to them, trial judges must be astute to ensure balance and fairness.  This will usually be achieved by also reading any relevant portions of cross-examination or, at least in a general way, at the conclusion of the requested reading of the transcript of evidence, reminding the jury of any competing evidence and the defence submissions in respect of it: cf R v H.[6]  What is required will always depend on the circumstances of each case.  The overriding consideration for a trial judge in directing a jury, especially in emotive sexual cases particularly likely to arouse feelings of prejudice in the jury,[7] is always fairness and balance.

[28]  Although there is a rational and logical way in which this Court may reconcile the different verdicts on the two counts, I am persuaded for the reasons I have stated there is a real risk there has been a miscarriage of justice in this case arising from the redirection.  The appeal must be allowed.

Unsafe and unsatisfactory?

[29]  That makes it unnecessary to consider any of the remaining grounds of appeal other than the contention that the verdict was unreasonable on the evidence.  A retrial should be ordered on the sole remaining count of rape unless the appellant is successful on this ground.  In deciding whether the verdict was unreasonable on the evidence, the question for this Court is whether the jury could, on the whole of the evidence before them, have been satisfied beyond reasonable doubt of the appellant's guilt: MFA v The Queen.[8]

[30]  I have earlier set out the relevant evidence.  There were some inconsistencies in the complainant's evidence at trial and between that evidence, her evidence at committal and her statement to police.  She was intoxicated at the time of the alleged offence.  She was, however, consistent in her claim that she did not consent to oral sex with the appellant.  Her account in this respect appeared convincing.  It was capable of being seen as consistent with her timely complaint and her distressed condition.  The relatively short lapse in time (about 15 minutes) between when the appellant left the flat and when she complained to neighbours was capable of being seen as consistent with her having time to compose herself, look after the young child in her care and decide what course she could take, especially if she was in shock and affected by alcohol.  The implausibility of the complainant consenting to these acts in the presence of her best friend's three year old daughter whom she was babysitting was an important factor supporting the complainant's evidence that she was not consenting.  This was also a factor which tended not to support the possibility that the appellant had an honest and reasonable belief that she was consenting.  Of particular significance to the jury here must have been the complainant's evidence in chief that she said "no" to the appellant after the first act of oral sex on which he was acquitted and before the second on which he was convicted.  Although the complainant seemed, at least at times, to resile from that statement in cross-examination and did not tell the police she said "no" in her initial statement of complaint, the matter was not clarified in re-examination.  The jury may have considered she was confused in cross-examination and preferred her evidence in chief.  There was no positive evidence of the appellant's mistaken belief as to consent.  Although a jury could well have acquitted the appellant on the evidence, I am not persuaded that a properly instructed jury could not have been satisfied beyond reasonable doubt of the appellant's guilt on the evidence as it emerged in this trial.  This ground of appeal fails.  A new trial must be ordered.

[31]  The appellant has been acquitted after two trials and two appeals of five of the original six charges.  Material placed before this Court shows that the complainant did not give evidence in the first trial that she said "no" to the appellant in between the two acts of oral sex.  She was not cross-examined about this in the second trial.  These factors do not seem to suggest that the interests of justice support a retrial but ultimately this is a question for the prosecution. 

ORDERS:

1.Appeal against conviction allowed.

2.Conviction and verdict set aside.

3.New trial ordered in respect of count 3 on the                              indictment.

[32]  HOLMES JA:I agree with the reasons of the President and the orders she proposes.

[33]  MULLINS J:I agree with the President.