R v Douglas[2014] QCA 187

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P:  I agree with North J’s reasons for this Court’s orders on 16 June 2014 allowing the appeal against conviction and setting aside the verdicts of guilty on counts 3 and 4.  I also agree with his Honour’s reasons for now further ordering that verdicts of acquittal be entered on counts 3 and 4.

[2] MUIR JA:  I agree with the reasons of North J and with the order he proposes.

[3] NORTH J:  The appellant appeals from his conviction on two counts of rape after a trial before a jury.  At his trial he was charged with four counts, three of rape[1] and one of sexual assault.[2]  The jury, by its verdict, convicted the appellant on two counts of rape[3] and acquitted on a third count[4] and the count of sexual assault.

[4] In the opening address at the trial the prosecution particularised the four counts respectively:

(1) Penile penetration of the vagina.

(2) Squatting on top of the complainant’s face and masturbating.

(3) Penile penetration of the mouth.

(4) Penile penetration of the vagina.

The appeal against conviction was pressed on four grounds:

1. The verdicts on counts 3 and 4 were unreasonable and cannot be supported by the evidence.

2. The jury’s verdicts of guilty on counts 3 and 4 are inconsistent with its verdicts of not guilty on counts 1 and 2.

3. That the learned primary Judge erred in failing to adequately direct the jury on the defence case in his summing up to the jury.

4. The learned trial judge erred in failing to redirect the jury that they could have regard to the appellant’s level of intoxication when considering whether he honestly held a mistaken belief as to consent.[5]

[5] There was evidence at the trial that during the evening before the alleged events both the appellant and the complainant consumed a deal of alcohol and both were intoxicated.  In both written submissions and at the hearing of the appeal the respondent frankly, and quite properly, acknowledged that the appellant was entitled to have the jury properly directed upon intoxication and the issue of mistake of fact[6] with the result that the failure to give a direction was an error or law which, in the circumstances, required that the conviction on counts 3 and 4 be quashed and that a new trial be ordered.  The consequence was that at the hearing argument focussed upon grounds 1 and 2 and whether a verdict of acquittal should be entered.[7]  At the conclusion of the hearing of the appeal the court ordered:

1. Appeal allowed.

2. The verdicts of guilty on counts 3 and 4 are set aside.

3. Reserve the decision as to whether a retrial or direct verdict of acquittal be ordered on counts 3 and 4.

4. The appellant granted bail, pending delivery of this Court’s reasons for judgment and further orders, on the same terms and conditions as before his trial.

[6] The foregoing are my reasons for joining in the orders made and the following are my reasons upon the remaining issues of retrial or acquittal.

Factual background

[7] The appellant and the complainant met in late 2011 and in November that year commenced a sexually intimate relationship.  In about April 2012 they moved to Townsville.  Between the time they met in late 2011 and their move to Townsville in April 2012 they had moved from Central Queensland to the Sunshine Coast, split up and reconciled.  At the start of the intimate relationship the complainant sent a text message to the appellant, “Don’t worry about hurting me.  I’m a bigger player than you”.[8]  Other evidence suggested an active, even adventurous, sexual relationship between the two.[9]  On the evening of 25 August 2012 the complainant and the appellant planned to go to the nightclub strip in Flinders Street in Townsville and before they went out that evening they had consensual sexual intercourse.[10]  That evening the complainant drank bourbon and by the end of the outing she was “feeling pretty drunk”.[11]  The couple left Flinders Street and returned home by taxi when, on their return, the complainant went upstairs, disrobed and went to bed.  The complainant agreed that when she got home and took her clothes off she and the appellant were kissing before she went to bed.[12]

Complainant’s evidence Counts 1 - 4

[8] The complainant’s evidence concerning count 1 included:

“Now, did anyone get in that bed with you?---Cory came in a short time later, yeah.

And when he was in the bed did he do anything to you?---Yeah, he started touching me.

Touching you where?---On my vagina. And I was flicking him away and I said stop, like, not in the mood. I wasn’t - - -

What did you flick away?---His hand.

And what did you say?---I said I’m not in the mood, like, stop. But he kept going.

And what happened then?---His – he just got a little bit rougher and that’s when I just went, like, what is he doing, like, no. And I kept pushing his hand away and he just kept coming back. And I said Cory, stop it. Cory, stop it. And he’s like oh, I’m not Cory. I said what and he said I’m Michael Baker.

Did he do anything then?---No, he was just still trying to touch me and then he hopped on top of me.

And did he do anything when he hopped on top of you?---Yeah, he put his penis in me and I got to fight because I wasn’t - - -

What do you mean he put it in you?---He hopped on top of me and put it inside me in my vagina.

Yes?---And then I said stop, stop, that that hurt me and I kept saying Cory, stop. And he just kept saying shut the eff up.

…

And what was Cory doing to you when you were having this exchange?---Having sex with me and holding my arms down.

And, look, just so we’re clear when you say having sex what do you mean?---He was raping me.

What do you mean by that?---Putting his penis in my vagina.

And was there any – was he moving at all when he had his penis in your vagina?---Yeah, in and out.

Sorry?---Yeah, he was going in and out.

…

And did you say anything?---I just kept saying stop, stop”.[13]

[9] According to the complainant after this event the appellant left the bed and walked to the doorway of the bedroom but after about ten seconds[14] he returned to the bed where he squatted over her placing his knees over her shoulders and started masturbating in her face.  Her evidence in relation to count 2 on the indictment included:

“Right. What happened?---He started masturbating in my face and I kept saying stop but I couldn’t - - -

When you say masturbating can you just tell us what you saw?---He was pulling his penis. And I was telling him to stop but I couldn’t get my arms around him to try and pull him off me and his weight was too much for me to do anything.

Were you doing anything with your hands at that - - -?---I was trying to get around to, like, push him off me but I couldn’t. His legs were in the road. I couldn’t get my arms round”.[15]

[10] With respect to count 3 her evidence was that after the event alleged in count 2:

“Yes, what happened then?---He hopped off me and he pulled me and he grabbed the back of my head and he was putting his penis in my mouth and, like, choking me.

Did he do anything to your head?---No, he just grabbed my head to put it on him.

And you’ve just indicated something there with your hand?---Yeah, sorry, that’s what he was doing. Like, that’s my head. He was - - -

So is that – what part of your head was his hand touching you?---The back of my head.

Right. And, sorry, what was happening when he did that?---He was putting his penis in my mouth.

And did it actually go in your mouth?---Yeah.

And what position were you in when this occurred?---He sort of sat me up and he was, like, just over the top of my, like, standing up.

And what were you doing?---Trying to tell him to stop. I was trying to push away but I couldn’t get him to go away.

Did you say anything?---I just was trying to say stop but I couldn’t really speak”.[16]

[11] And concerning count 4:

“And what happened from that point?---He stopped because he kept saying suck it. Yeah, I know you want to suck it. And I was saying no, no. And then because I wasn’t doing what he wanted me to do he just stopped and then he pushed me back on the bed and held my arms up against, like, up above my head. Like, held me down and then had sex with me again.

Was it both arms or one arm?---Both arms.

And where did he hold you?---My hands were like above my head when I was laying down.

And do you recall where on your arms he held you?---Like there.

And what part of the body is that?---The forearm.

And you indicated before you raised both your arms up. So - - -?---Yeah, he had them above my head.

And did you say anything at that time?---I just kept saying no, stop, stop. No, Cory, Cory, please stop.”.[17]

[12] After these events the complainant left the bed but later returned to bed with the appellant at which time she said, that she wanted him to cuddle her.[18]  The complainant said that after the offences the appellant took her keys and her mobile phone from her[19] and that when she went back to bed she tried to cuddle the appellant but he pushed her off and told her to go to sleep.

[13] The foregoing excerpts from the transcript are the essential passages of the complainant’s evidence upon the counts alleged against the appellant.  She gave evidence that as these events occurred the appellant said that he was not Cory but another.[20]  The evidence was lead as a part of the transaction between the two as alleged by the complainant.  When the appellant gave evidence he said that he said to her he was another in response to a question from the complainant thus putting her statements in a slightly different context.[21]  Whatever the significance of this aspect of the versions upon this issue, which was a matter for the jury[22], it was not lead as part of any case (nor was it submitted) that the complainant mistakenly consented thinking the appellant was someone else.

[14] When cross-examined the complainant accepted that she attempted to take an overdose of medication, potentially self-harming behaviour.  She accepted that she threatened to take the overdose of medication after the appellant denied raping her.[23]

Other Evidence

[15] The next morning the appellant took the complainant to her aunt’s house where she made a preliminary complaint after which she went to the police.  The complainant made two pretext calls to the appellant[24] in which the appellant made admissions to “raping his girlfriend” and when the police inspected the residence they found numerous notes from him begging forgiveness.  The evidence of preliminary complaint to the complainant’s aunt and later to her mother included, with respect to her aunt, the matters particularised in count 2.  She told her mother that she had been “legless” and thought that her drink had been spiked.[25]  A medical examination revealed the presence of some bruising or marks consistent with injuries, some pre-dating the events, the most significant injury being a “rectangular shaped linear bruising to her right upper arm”.[26]

The Appellant’s Case

[16] The appellant gave evidence.  He admitted having consensual sexual intercourse and performing other sexual acts with the complainant[27] and said that during intercourse she asked “Cory, is that you?” to which he replied, “No, it’s Alex” and then told her that she had “left Cory at the club strip”.  He said that a little later in response to a similar question he sarcastically said he was “Michael” and he denied the complainant had ever said, “No”.  He gave evidence that later the complainant started crying and when he asked her what was wrong she said that she’d “had sex with Alex and Michael”.  The appellant said that he told the complainant that it had been him all along however she denied that, that she had then said “I faked the whole thing.  You fucking raped me”.  The appellant said that by this time the complainant was angry and upset.  The appellant explained that on occasions when they had arguments he would write the complainant apologetic notes and poems, texts for which he found using Google.  He said that he made admissions during the pretext call because he thought that that was what the complainant wanted to hear and he wanted to reconcile with her.[28]

The Rival Contentions

[17] The appellant submitted that notwithstanding that the trial judge gave a “Markuleski direction”[29] that the jury cannot have heeded it in light of the inconsistent verdicts.  The appellant pointed to the circumstance that all counts relied upon the version of the complainant but that there was no discernible reason as to why counts 2 or 3 should have been distinguishable from one another, nor why the jury might have had a doubt concerning for example consent in relation to counts 1 and 2 as opposed to counts 3 and 4.  The counts on the indictment represented different acts within a continuum of events that occurred in the bedroom sequentially within a short time frame with only brief interruptions.  Further the appellant pointed to the circumstance of the intoxication of both, the evidence of the consensual kissing immediately prior to the alleged offending, the circumstance that say for the bruising on the right upper arm there was no physical evidence supporting the injury, the past relationship between the complainant and the appellant of intimacy and the complainant’s threat of self harm together with the appellant’s evidence of his desire to reconcile (which explained the admissions in the pretext calls and the remorseful notes) pointed to inconsistent and unreasonable verdicts.

[18] The respondent submitted that when considered in context the evidence concerning count 1, in light of the complainant’s evidence that she used words such as “go on Cory” and “I want Cory” could distinguish count 1 from her evidence in relation to count 4.[30]  With respect to count 2 it was submitted that as there was a difference between the complainant’s account to the police officer and the prosecution case as particularised concerning the placement of the knees this could explain why the jury might rationally not have entertained a doubt.  The respondent contended that the evidence, in contrast with respect to counts 3 and 4 was unequivocal with the consequence that the verdicts were neither inconsistent nor unreasonable.

Consideration

[19] The principles and considerations to be evaluated when it is submitted that a jury verdict by reason of its inconsistency is unreasonable were considered by the High Court in MacKenzie v The Queen[31] and reaffirmed and applied in Jones v The Queen[32] and have been followed and applied in many cases since.[33]  A useful summary of these principles and considerations is contained in the judgment of Applegarth J in R v SBL[34] where his Honour said:

“[28]In MacKenzie v The Queen Gaudron, Gummow and Kirby JJ stated that where alleged inconsistency arises in the case of jury verdicts upon different counts, the test is one of “logic and reasonableness”. Their Honours stated:

‘…if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their function as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.’ (citations omitted)

[29]Various matters of principle have been settled about the assessment by appellate courts of claims of inconsistent verdicts by a jury.  In R v CX  Jerrard JA stated:

‘1.Where inconsistency is alleged as to verdicts of acquittal and conviction on different counts, the onus is on the party alleging that inconsistency to persuade an appellate court that the different verdicts are an affront to logic and commonsense which is unacceptable, and which strongly suggests a compromise in the performance of the jury’s duty, or confusion in the minds of the jury, or a misunderstanding of their function, or uncertainty about the legal difference between specific offences, or a lack of clarity in the instruction on the applicable law. Where that inconsistency rises to the point that the appellate court considers that intervention is necessary to prevent possible injustice, the relevant conviction will be set aside.

2.Whether the verdicts are inconsistent as so described is a test of logic and reasonableness; has the party alleging inconsistency satisfied the court that no reasonable jury, who had applied their minds properly to the facts in the case, could have arrived at the various verdicts?

3.Respect for the function of the jury requires appellate courts to be reluctant to accept submissions that verdicts are inconsistent in the sense described, and if there is a proper way by which an appellate court can reconcile the verdicts, allowing the court to conclude that the jury performed their functions as required, that conclusion will generally be accepted. It is not the role of an appellate court to substitute its opinion of the facts for one which was open to the jury, if there is some evidence to support the verdict alleged to be inconsistent.

4.The view may properly be taken in a criminal trial that different verdicts, claimed to be inconsistent, reveal only that the jury followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count, and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, an appellate court can conclude that a jury took a merciful view of the facts on one or more counts, a function which is open to a jury.

5.Verdicts of guilty and of acquittal will show the required inconsistency where a verdict of acquittal necessarily demonstrates that the jury did not accept evidence which they had to accept before they could bring in the verdict or verdicts of guilty which they did; or when it follows that when acquitting on a particular count, the jury must have accepted evidence that required them to acquit on a count or counts on which they convicted the defendant…’. (citations omitted)

[30]In R v Smillie Holmes J (as her Honour then was) summarised some of the factors that are relevant in considering how verdicts may rationally differ:

‘1.The quality of the evidence

The jury may have found the quality of the crucial witness’ evidence variable while accepting it as generally truthful. For example, the witness may have exhibited faulty recollection on some points or been able to provide more particularity about the details of some events than others. A complainant may have failed to mention some offences in his or her original complaint, giving rise to a question about the accuracy of later recollection. The witness may have been given to exaggeration in some instances, or there may have been an inherent unlikelihood to some aspect of the evidence, which casts doubt on its accuracy in those respects, but not of the witness’ general honesty. Or the circumstances in which the offence is alleged to have occurred may raise the real possibility of mistake by the complainant as to the nature of what has occurred.

2.The existence of contradictory evidence on some matters

There may in respect of some counts be evidence contradicting the crucial witness’ account such as to explain a variation in the jury’s verdict. Whether the force of the contradictory evidence goes beyond demonstrating a discrepancy explicable as mistake and warranting a doubt on the part of the jury, so that it must be regarded as undermining the credibility of the witness (as was the case in Jones v The Queen (1997) 191 CLR 439) is a question of fact in each case.

3.The existence of corroboration on some counts

Different verdicts may be explicable on the basis that the witness’ evidence was supported in respect of some counts but not others, by, for example, admissions by the accused.

4.The “merciful” verdict

As recognised in MacKenzie v The Queen (1996) 190 CLR 348 at 367 and R v P [2002] 2 Qd R 401 at 410, a jury may have decided that it would be oppressive to convict on all charges; that, for example, in a case where there are multiple counts, conviction on a number may sufficiently reflect the culpability of the accused.’

[31]The appellant submits that the jury “clearly did not accept the complainant’s version of events over the two days”, and “could not have been reasonably satisfied of the truth of her evidence concerning either alleged incident”. He submits that their “total rejection of counts 3, 4 and 5 means that it was not logically open” to them to convict on the offences that were alternatives on counts 1 and 2. These submissions interpret the not guilty verdicts on counts 3, 4 and 5 as reflecting a “fundamental lack of confidence in the complainant as a reliable historian”. However, the circumstances of the case do not justify these submissions. The verdicts on counts 3, 4 and 5 do not demonstrate that the jury did not accept evidence which they had to accept before bringing in the verdicts of guilty on counts 1 and 2. It does not follow from their acquittal on counts 3, 4 and 5 that they must have accepted evidence that required them to acquit on counts 1 and 2. Their verdicts do not demonstrate that they did not find the complainant a credible and reliable witness. Their verdicts are reconcilable on the basis that they found the complainant to be an honest and reliable witness, followed the instruction that each count was required to be proved beyond reasonable doubt and concluded that counts 3, 4 and 5 were not proved to the required standard.

[32]A jury’s verdicts of acquittal on some counts do not amount to a positive finding by the jury that the events as recounted by the complainant did not occur. They show no more than that the jury was not satisfied to the requisite standard that the acts alleged in those counts occurred or occurred at the times or in the circumstances particularised in them.

[33]The appellant relies upon passages from the joint judgment of Gaudron, McHugh and Gummow JJ in Jones v The Queen. In that case their Honours observed that it was difficult to see how it was open to the jury to be convinced beyond reasonable doubt of the guilt of the appellant with respect to the first and third counts, when there was “nothing in the complainant’s evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count”. The decision in Jones’ case was that in the circumstances of that case the acquittals reflected upon the credibility of the complainant’s evidence on all counts. In R v KET Winneke P observed:

‘…it would be wrong to draw from the decision of Jones’ case the general proposition that, in cases where multiple sexual offences are alleged involving the one complainant, the jury’s acquittal on some of those counts should compel an appellate court to conclude that the jury must necessarily have regarded the complainant generally as an untruthful witness or that her credibility was impacted upon in respect of the counts upon which they had convicted.’

As Wood CJ at CL stated in Markuleski:

‘There may well be cases where the fact of acquittal on one or more counts will support an argument that the jury looked with real disfavour upon the credibility of the complainant or central witness... In many cases, conversely, it will be possible to identify a possible basis for a differentiation between verdicts...’

[34]The circumstances of a particular case may lead to the conclusion that a jury which has found that it had a reasonable doubt with respect to a complainant’s evidence on one count, ought to have such a doubt with respect to other counts. However, it does not follow that that must necessarily be the case. As Jones, Markuleski and later cases establish, whether or not a not guilty verdict involves a diminution in a complainant’s credibility or reliability so that the jury ought to have had a reasonable doubt with respect to other counts depends on the complainant’s evidence and the surrounding circumstances. The issue remains one of fact and degree in the circumstances of the particular case as to whether the difference in verdicts is such that, as a matter of logic and reasonableness, the verdicts should be regarded as inconsistent. There may be an acceptable explanation for divergent verdicts in a case in which there is not “an integral connection between the counts” or where there are circumstances present which do not compel the conclusion that the complainant’s overall credibility was so diminished that the jury should have acquitted on the other counts. The essential issue is whether the acquittal so affects the credibility or reliability of the complainant that, in combination with other factors, a conviction was not open to the jury on other counts”.

(Footnotes omitted)

[20] According to the complainant’s account the four offences occurred sequentially in a course of conduct at night in their joint bedroom punctuated by only a ten second interval between the event or acts encompassing count 1 and those alleged in count 2.  In evidence the complainant was emphatic that each of the four sexual acts occurred without her consent and notwithstanding her unambiguous objections.  This is not a case of a series of discreet sexual acts alleged to have occurred at different times or places or in different circumstances or occurring hours, days or weeks apart.  There is nothing in the circumstances alleged of timing or place that suggest a basis for distinguishing the quality of the complainant’s evidence concerning any one of the acts from another.

[21] On each count the prosecution case depended entirely upon the evidence of the complainant.  But for the appellant’s evidence, there is no evidence from any person or of any circumstance that suggests a lack of support for the complainant’s evidence or a contradiction of the complainant on any one count but leaving her evidence intact and supported in other respects on the other counts.

[22] There is no basis for distinguishing the complainant’s recollection of the events concerning any one count from the others.  The complainant’s evidence was clear and emphatic upon each count and there are no indications distinguishing her evidence on any one count on the basis of mistake, exaggeration or inherent unlikelihood.

[23] The suggestions by counsel for the respondent that the complainant’s evidence in respect of counts 1 and 2 could be distinguished from her evidence concerning counts 3 and 4 must be rejected.  The issue of where the complainant alleged the appellant placed his knees when he performed the acts alleged in count 2 is a minor matter.  On any view the complainant’s evidence and the prosecution case was consistent, that the appellant restrained her, placed his body over her and performed the acts alleged in count 2.  The reliance concerning the complainant’s evidence in relation to count 1 upon her evidence that she engaged in some banter with the appellant concerning the name or identity of her assailant cannot be viewed, in light of  the entirety of her evidence, of any equivocation as to identity or consent.  In the context of the complainant’s evidence these matters provide a thin and unsatisfactory basis for distinguishing the evidence of the complainant upon counts 1 and 2 from her evidence on counts 3 and 4.

[24] Nor can the jury’s verdicts in the circumstances be reconciled or interpreted as a “merciful verdict”.  The evidence was of a series of sexual acts performed in one transaction over what might be inferred was a relatively short period of time.  If the appellant’s evidence were to be accepted to the standard required  to convict there is no basis for supposing that a jury might have considered that to convict on all counts would be, in the circumstances, oppressive or that to convict on only two would sufficiently reflect the culpability of the appellant.  Rather the jury’s verdict suggests compromise.  I can detect no proper or rational basis, in either the complainant’s evidence or the surrounding circumstances, for concluding beyond reasonable doubt that the appellant was guilty on counts 3 and 4 while entertaining a doubt concerning counts 1 and 2.[35]  In the circumstances the convictions on counts 3 and 4 were unreasonable and should be quashed.  The appellant should be acquitted on counts 3 and 4.