R v Carney[2016] QCA 2

SUPREME COURT OF QUEENSLAND

[1] PHILIP McMURDO JA:  By a majority verdict the appellant was convicted of two counts of rape.  He appeals against those convictions ultimately upon two grounds.  The first is that the essential preconditions for a majority verdict were not satisfied.  The second is that the jury was not directed about the use that might be made, or not made, of evidence about the complainant’s distressed condition after the events in question.  His original ground of appeal, which was that the verdicts were unreasonable, was abandoned.

[2] The appellant and the complainant had been in a relationship during which they had lived together.  But after an argument in which the complainant said that the appellant was violent, she moved to another house about four months prior to the events in question.  Some weeks later she began a relationship with another man, J, but she remained on speaking terms with the appellant who wanted her to return.  A month or so later, when the appellant went away for his work, the complainant was given the keys to his house and asked to look after his plants.  On his return the appellant was looking to resume their relationship and there was an occasion of consensual intercourse.

[3] The complainant worked late hours in a restaurant and was asleep when the appellant telephoned her on a Sunday morning, leaving a voicemail message.  She sent a text message saying that he should not call and wake her up again.  Shortly afterwards he arrived at her house.  This was about five days after they had had sex at his house.  She said that she was tired and wanted him to leave.  He asked her to have sex and she resisted.  Then her phone rang and he asked who was calling her.  This led to her telling him about her relationship with J.  He reacted angrily and smashed her phone.  He then slapped her across the face before grabbing her and repeatedly pushing her against the bathroom wall.  He damaged other items in the bathroom before punching her to the head many times.  He hit her head against the wall and several times she was knocked down.

[4] The events which I have just described were the subject of Counts 1 and 2 on the indictment, to which he pleaded guilty at the commencement of the trial.  Count 1 was that he wilfully and unlawfully damaged her phone and the items in the bathroom.  Count 2 was that he unlawfully assaulted her and did her bodily harm.

[5] The complainant’s version of what then happened became the subject of counts 3, 4 and 5, each an allegation of rape.  She said that she wanted to flee the house but was too scared to do so in case he followed her.  She said that he pulled her pants and panties off, took his pants off and then put two of his fingers in her vagina.  This was the subject of count 3.  She said that she was so afraid that he would again become angry and hit her that she did not resist.  The appellant then moved her head to his penis and she fellated him, again because, she said, she was too scared to resist.  This was the subject of count 4.  He told her to get into a position for them to have intercourse which then occurred.  This was the subject of count 5.  Again the complainant said that she was too terrified to resist.

[6] The appellant gave evidence at the trial.  A recording of his police interview was also played.  In the interview he admitted that he “threw her around or roughed her up” and that he “pushed her and threw her against the wall”.  But in the interview and in his evidence he denied raping her.  He said that after he assaulted her they calmed down and the argument ended with her apologising for her relationship with J and promising to do anything for the appellant.  At this point, the appellant said, they undressed, she fellated him and intercourse followed.  The acts which were the subject of counts 4 and 5 were said to be consensual or at least the appellant believed that to be the case.  On his evidence, the act the subject of count 3 did not occur.

[7] At least some of what occurred that morning attracted the attention of neighbours.  One neighbour, upon hearing yelling and banging noises from the complainant’s house, had his wife call the police.  In his evidence he described hearing a female voice calling out “stop it” and “that’s enough” and yelling which continued for 15 minutes before the noise stopped and five minutes later resumed.

[8] Police arrived at the house soon after and knocked on the door, calling out that they were police.  A female voice was heard to cry “help, help”.  As police ran towards the back of the house, the complainant ran past them.  She was crying and very upset according to one of the police officers.  Another policeman arrived a few minutes later and in his evidence described the complainant as distraught.  He found it difficult to get answers from the complainant but she did say that she was made to have sex with the appellant.  Another police officer who was at the scene described the complainant as distressed and crying and said that the complainant had told her that she had been raped and another police officer described the complainant as “crying a lot” and “visibly shaking [with] her breathing … quite distorted as in someone had been crying for some time, so trying … to get her breath back.”

[9] Later that day the complainant was examined by a doctor.  She had a number of injuries including a significant number of bruises to the face and one of her arms, wrists, hips, both of her knees and behind both ears.

[10] By majority verdicts, the appellant was acquitted of count 3 and convicted of counts 4 and 5.

The first ground

[11] Majority verdicts were permitted in this case only according to s 59A of the Jury Act 1995 (Qld) which is as follows:

“59AVerdict in criminal cases for other offences

(1)This section applies to a criminal trial on indictment other than the following trials—

(a)a trial for an offence mentioned in section 59(1)(a); or

(b)a trial before a jury as mentioned in section 59(1)(b).

(2)If, after the prescribed period, the judge is satisfied that the jury is unlikely to reach a unanimous verdict after further deliberation, the judge may ask the jury to reach a majority verdict.

(3)If the jury can reach a majority verdict, the verdict of the jury is the majority verdict.

(4)For the definition in subsection (6), prescribed period, paragraph (a), the periods mentioned in subparagraphs (i), (ii) and (iii) are the periods reasonably calculated by the judge.

(5)A decision of the judge under subsection (4) is not subject to appeal.

(6)In this section—

majority verdict means—

(a)if the jury consists of 12 jurors—a verdict on which at least 11 jurors agree; or

(b)if the jury consists of 11 jurors—a verdict on which at least 10 jurors agree.

prescribed period means—

(a)a period of at least 8 hours after the jury retires to consider its verdict, not including any of the following periods—

(i)a period allowed for meals or refreshments;

(ii)a period during which the judge allows the jury to separate, or an individual juror to separate from the jury;

(iii)a period provided for the purpose of the jury being accommodated overnight; or

(b)the further period the judge considers reasonable having regard to the complexity of the trial.”

[12] This was not a trial for an offence mentioned in s 59(1)(a) or a trial before a jury as mentioned in s 59(1)(b).  Therefore s 59A had a potential operation.

[13] In the ultimate argument for the appellant, it was accepted that the “prescribed period” had expired by the time the jury was instructed that it could reach a majority verdict.  A calculation of the prescribed period by reference to the appeal record was set out in the respondent’s outline of submissions and its accuracy was accepted by counsel for the appellant.  Some eight hours and nine minutes had expired when the possibility of a majority verdict was explained to the jury.

[14] The appellant’s argument, however, is that the jury was unable to give a majority verdict, because s 59A(2) required the trial judge to be satisfied that the jury was unlikely to reach a unanimous verdict after further deliberation, after a decision by the judge that the prescribed period had expired.  It is argued that the judge reached her conclusion as to the unlikelihood of a unanimous verdict without having first decided that the period had expired.  Therefore the majority verdicts could not have been taken because an essential precondition of s 59A had not been met.  The argument cited what was said by Chesterman JA (with the agreement of Keane and Fraser JJA) in R v McClintock:[1]

“A majority verdict may only be taken where the preconditions have been satisfied.  A trial judge must turn his or her mind to the terms of s 59A and the evidence relevant to the preconditions.  No a priori rules can be laid down as to what will constitute sufficient materials for their satisfaction.”

[15] The appeal record was originally incomplete, in that it did not contain a transcript of all of what was said in court about the possibility of majority verdicts.  Counsel for the appellant helpfully produced his own transcript, having listened to the recording of the relevant part of the trial.  After that recording was played in this court, it was agreed by counsel and accepted by the court that with one modification, the transcript should form part of the appeal record.

[16] At 2.58 pm on the fourth day of the trial, the judge received a note from the jury saying that they could not reach a verdict and asking for advice on “how to proceed”.  At that stage the prescribed period of eight hours had just expired.  Her Honour discussed the note with counsel and said that there were three options:  a Black direction[2], a direction about majority verdicts or the discharge of the jury.  Her Honour said that a Black direction would be pointless “after all this time”, with which defence counsel agreed.  Then he enquired of her Honour as to how much more time would have to pass before the point for a majority verdict was reached, to which her Honour responded “I think it’s gone”.  Defence counsel said that this was his belief but he thought that the bailiff had a different view.  The bailiff is then recorded as saying that “just short” of the required period had passed.  Defence counsel asked her Honour to discharge the jury.  The prosecutor said that she thought “it is permissible to give them an intimation that there is a majority verdict possible, but it hasn’t …”, at which point her Honour said “but it has to be 11-1 and it’s not up for an hour”.  After some further things were said her Honour then asked for the jury to be brought into court.  Before the jury returned there was a short exchange with defence counsel in which there was again agreement that a Black direction would not be appropriate.

[17] The transcript as added to the appeal record contains this passage immediately before the jury’s return:

“HER HONOUR:  When is that time up?

BAILIFF:  Just checking into that. (whispered)

HER HONOUR:  What does the Jury Act say?  They take out time for meals do they?  Yeah.  It must be eight hours, it’s got to be eight hours.  It’s got to be eight hours.  I’ll just get the bailiff.  It’s got to be eight hours.

PETER NOLAN:  Yeah, yes.

BAILIFF:  I think it is now.

HER HONOUR:  We sat - the jury retired at 12 o’clock yesterday.  Take it ‘till one take it from 2.15 to 4.15 there’s four hours there and they’ve been here since 9.00 o’clock this morning - it has to be.

BAILIFF:  It’s got to be.

HER HONOUR:  Right.”

[18] At that point the jury returned and her Honour directed them as to a majority verdict in the course of which she said this:

“You said you cannot make a decision.  Quite commonly what would happen is the judge would give a direction saying go back and think about it and talk to each other.  I think you have tried very hard, so I’m not going to do that to you.  I do need to tell you, however, that under our law a majority verdict’s permitted in certain circumstances and that it is for certain charges, and this is one of them, after eight hours of deliberation have lapsed and that eight hours does not include meal breaks and things or overnight, but a majority verdict is one where 11 of you agree so it’s only available where there’s 11-1.  Is there any prospect if I ask you to retire again that that could be achieved?  All right.  Well, I will ask you to retire again and resume your deliberations …”.

[19] With the benefit of listening to the recording of the passage which I have set out above at para [17] it is clear that when her Honour said, several times, that “it’s got to be eight hours” her Honour was expressing her conclusion that eight hours had passed, rather than saying what was the period prescribed by the Act.  That is confirmed by the passage where she performed something of a calculation out loud and concluded “it has to be”.  And that is also confirmed by the fact that almost immediately she then directed the jury upon the premise that the eight hours had passed.  In my conclusion her Honour did decide whether the prescribed period had passed and at that point was satisfied that the jury was unlikely to reach a unanimous verdict after further deliberation.  The preconditions prescribed by s 59A(2) were met.  Majority verdicts were able to be given and this first ground of appeal must be rejected.

The second ground

[20] The jury heard much evidence about the complainant’s distressed state both at her house and subsequently when receiving medical treatment.  On her evidence she was distressed throughout the events at the house, including the acts which constituted the alleged offences of rape.  In the course of her cross-examination, she was asked whether she had given any indication to the appellant that she did not wish to have sex with him.  She said that she did not say anything because she was too scared to provoke him.  There was then this exchange:

“So in other words, anyone watching this, if there was a movie of it - correct me if I’m wrong here - would not be able to point to any particular action on your part to convey to him that you weren’t - - -?---Maybe me crying.

- - -interested.  Maybe you were crying?---Mmm.

Okay.  What else?  That’s it?---I just did what he told me to do, because I didn’t want to get hit again.”

[21] I have discussed the evidence of several police officers about the distressed state of the complainant when they arrived at the house.  On any view their arrival was very close in time to the sexual acts.  The appellant’s evidence was that the complainant had been crying during and perhaps immediately after the time in which she was assaulted, but then before the sexual acts, the complainant “sort of stopped being as emotionally upset as what she was before, crying and what not.”  He said that after they had had intercourse “she was still a little bit upset but she wasn’t anywhere near as upset as earlier.  She started to become a bit more upset again.”  It was shortly after this that the police arrived.  In cross-examination he agreed that he had told police that the complainant was upset after they had had sex.  His evidence was:  “she did start to get upset again.  I don’t believe that was because of the sex, I believe that was because of the whole incident.”

[22] In the judge’s summing up, there was a reference to a submission by the prosecutor about that statement to police that the complainant was upset after the sexual acts.  The judge was then summarising the prosecutor’s argument that there could not have been an honest and reasonable mistake as to consent.  But it seems that this was the only argument made by the prosecution as to the use which the jury could make of the complainant’s distressed condition.

[23] After counsel had addressed the jury but before the summing up commenced, in the absence of the jury the prosecutor said that she had been considering “the evidence about the complainant’s condition when police arrived” and noted that her Honour had not indicated that she would be making any direction about that condition.  Her Honour said that she was not intending to mention the condition, saying that the bench book suggested “don’t go there … unless you can isolate it … in some way to [something] other than - some other thing” and that in this case the condition was simply “part of the evidence”.  Her Honour then said:

“But I certainly would not direct the jury that they could use that to support the rape allegations.  But what do you want - what do you say?  Maybe I should give a direction the other way.  I don’t think I should refer to it … I think it’s just part of the evidence.”

The transcript does not record what defence counsel said at this point except he said something which was “indistinct”.  In context, it is clear enough that counsel was not objecting to the absence of a direction.

[24] The appellant’s argument is that a direction in the following terms, or terms to this effect, should have been given:

“Evidence has been placed before you of the distressed condition of the complainant as observed by the police after their arrival at her house.  The prosecution have led the evidence of their observations as part of the narrative of events which it alleges surrounds the acts of rape.  It is not led in support of the complainant’s evidence that she was raped and must not be used by you for that purpose.  It has no relevance to the defendant’s guilt of rape.  There may be another reason for the condition that the police observed: the complainant had been, as the defendant has acknowledged, assaulted shortly before whatever occurred in the bedroom.  You should therefore disregard the evidence of distressed condition except to the extent that it is part of the narrative of events of that day.”

[25] The appellant’s argument does not complain about the use which the prosecution did seek to make of the evidence that the complainant’s condition, which was that it negatived a defence of honest and reasonable mistake.  There is no complaint about the summing up in that respect.  At least for that reason, evidence of the complainant’s distressed condition was relevant to the defendant’s guilt of rape, contrary to the terms of the direction which the appellant now says should have been given.

[26] The state of the complainant’s condition during the sexual acts was in issue.  The complainant’s evidence was contradicted by the appellant’s evidence.  The complainant’s distressed state as described by the police was not in issue.  They observed the complainant very soon after the sexual acts.  In my view their evidence was relevant to the defendant’s guilt in two ways.

[27] The first is that because they saw the complainant so soon after those events, it was relevant to her condition during them.  One police officer described the complainant as visibly shaking with her breathing distorted as in someone who had been crying for some time.  Considered together, the accounts of the police officers described a much more distressed state of the complainant than the appellant had conceded when interviewed by police.  If they accepted the evidence of the police officers, the jury was not bound to find that the complainant was distressed and crying during the sexual acts.  But it was relevant to their consideration of that question.  Nevertheless, the evidence was relevant.

[28] Secondly, the evidence about the complainant’s highly distressed condition, so soon after the sexual acts, in my view was relevant to the question of whether those acts were consensual.  Again, if the evidence of the police officers was accepted, it did not follow that the complainant had been raped.  There was another possibility for the jury to consider, which was that she was upset about the traumatic events which preceded the sexual acts.

[29] Therefore no direction was required to the effect that the evidence of the complainant’s condition had no relevance to the defendant’s guilt of rape.  And it is not suggested that in this case there should have been a direction that the complainant’s distress was feigned or exaggerated.

[30] The appellant’s argument seeks support from the judgment of this court in R v Rutherford.[3]  On the facts of that case, the court concluded that the absence of a direction that the complainant’s “troubled mood” might have been attributed to some other cause than distress caused by being raped, could have affected that jury’s reasoning, such that a conviction of rape should be set aside.  But there is no general requirement that evidence of a rape complainant’s distressed condition be the subject of a specific direction.  Whether some direction is required or appropriate, and whether the absence of a direction leads to a miscarriage of justice, are matters which turn on the particular facts and circumstances of the individual case, including the way in which each side conducted its case at the trial.

[31] The question here is whether there was a real risk that the jury might assume, in the absence of a direction, that the complainant’s distress as observed by the police officers, was due to her being raped.[4]  The jury was directed about the issue of the complainant’s condition during the events in question.  This was a comparatively short trial and they could not have overlooked the appellant’s evidence and his statements to the police, in which he had attributed her distress to the earlier events.  Experienced counsel for the appellant at the trial did not seek a direction about the evidence of the complainant’s condition.  That is of some relevance in considering now whether the absence of a direction which reminded the jury of a possible explanation for the complainant’s condition, according to what the appellant had said, has caused a miscarriage of justice.  In my conclusion a direction was not required in this case.

Order

[32] I would dismiss the appeal.

[33] JACKSON J:  I agree with Philip McMurdo JA.

[34] BOND J:  I agree with McMurdo JA.