R v Phillips[2017] QCA 147

SUPREME COURT OF QUEENSLAND

1. FRASER JA:  The appellant was found guilty by a jury of six offences: torture (count 1), rape (counts 3, 6 and 7), and attempted rape (counts 4 and 5).  He was acquitted of one count of rape (count 2).  The appellant has appealed against his conviction on three grounds:

Ground 1: the verdicts of guilty are unreasonable in that they are irreconcilably inconsistent with the verdict of acquittal on count 2.

Ground 2: the trial judge erred in failing to discharge the jury after a juror informed the court that another juror had pre-determined the verdict before hearing all the evidence.

Ground 3: the verdict of guilty on the count of torture (count 1) is unreasonable and against the weight of the evidence.

The trial

2. The complainant gave the following evidence.

3. On 12 February 2015 the complainant was introduced to the appellant at a house in Thornlands but she did not have much to do with him then. On the following day, the complainant had an appointment to see a solicitor at Bracken Ridge at about 4 or 4.30 pm.  The appellant asked her to give him a lift to Caboolture.  The complainant and the appellant left Thornlands at about 3.15 pm.  The complainant did not know the area and the appellant gave her directions.  The complainant lost her way and missed her appointment with the solicitor.  She agreed to the appellant’s request to stop at a house at North Lakes, where the appellant’s ex-wife lived, before going on to Caboolture.  They stayed there until about 6.30 or 7.00 pm.  After they left North Lakes the appellant was driving.  The complainant told him that she knew that they were not on the Caboolture route and asked where they were going.  The appellant replied that he was going to get her lost.  At one stage they were in Redcliffe.

4. The complainant gave evidence that her boyfriend, Trevor, sent messages to her trying to find out where she was and why she was with another man. The sound of the phone was annoying the appellant. The complainant’s phone was new. She did not know how to silence the phone and had difficulty working out how to send messages. The appellant yelled at her to turn the phone onto silent or put the phone down. The appellant stopped the car at a fast food outlet at Kippa-Ring and went inside while the complainant stayed in the car. When the appellant returned to the car he complained about having lost his phone. The complainant drove and the appellant starting getting angrier because he could not find his phone. They stopped near lights in a carpark so the appellant could search for his phone. He paced a lot outside the car, and swore and yelled at the complainant. The complainant agreed to look for the phone.  They argued about who should drive.  The appellant insisted on driving.

5. The appellant accused the complainant of stealing his phone. They arrived at the North Lakes address, for the second time, about 8 or 8.30 pm. When they got out of the car the appellant told the complainant to hurry up because the police were coming. Inside the house the appellant became very angry towards the complainant. He told his ex-wife and his son that the complainant had stolen his phone, abused her, and she needed to pay for what she had done. The appellant mimed a punch, indicating to his ex-wife that she should punch the complainant. His ex-wife did not do so. The appellant angrily abused his ex-wife. The appellant told the complainant to stand in the corner of the room. His ex-wife told her to ignore the appellant. The appellant became angrier and kicked his foot into the wall. He complained that he had broken his foot and blamed the complainant. The appellant angrily yelled at the complainant to find his phone and complained that she had lost or stolen it. Eventually the appellant’s ex-wife found the phone in a pocket of the appellant’s bag.

6. The appellant took the complainant’s phone and her cigarettes and threw them away. The appellant yelled at the complainant that she had to take him to the hospital. The complainant asked for her phone back. The appellant looked for the phone before saying they would get it later and they had to go. The complainant drove, following the appellant’s directions. He directed her to make many turns. She complained that it had not taken as long to get into North Lakes.  The appellant replied that he was trying to get the complainant lost so that she did not know where his ex-wife lived.  The appellant calmed down a lot and apologised for the way he had behaved at the house.

7. The appellant asked the complainant to stop so that he could go to the toilet. They were at the end of a cul-de-sac, where there was a housing development in progress. The appellant told the complainant he was meeting someone there. There were no other people or houses around next to the car. The complainant stayed next to the car. At the appellant’s request, the complainant helped him get out of the car. The complainant remarked that she was going to be shot when she got home for being so late. The appellant put his hands high on either side of the complainant, blocking her next to the car, and asked her if she was wired or if she was an undercover cop. The complainant did not understand and asked the appellant what he had said. He asked, “are you wired, bitch?”. She said she wasn’t. The appellant told her that he was going to have to pat her down, and once he had done that she could go. The appellant told her to “turn around, bitch”. He said that he was going to make her stand “like they make me stand”, and that he was referring to the police. The complainant was required to face the car and put her hands on the roof above the window frame. The appellant grabbed the complainant’s hair, put her hair pretty roughly into a pony tail, and shook her head. He patted the complainant down without touching her inappropriately. After he had patted her down twice he sat down on the edge of the car seat, holding the complainant’s wrist.

Count 2: rape (not guilty)

8. The appellant asked the complainant to have sexual intercourse or to fellate him. She refused. The appellant said, “bitch, you’re going to pay for what you did to my foot” and “it’s your call, either a head job or sex.” The complainant again refused. The appellant threatened the complainant that, “you need to see death”. He asked if she had seen death. When the complainant referred to having seen her grandparents when they died the appellant said, “no … someone else who didn’t listen to me. Do you want to see how they end up?” She stood, frozen. The appellant put his feet back into the car. The appellant pulled his pants down a bit and had his penis out. While the appellant continued to hold the complainant’s wrist, he pulled her pants down and dragged her into the car on top of him. He said that if she yelled or screamed he would shoot her and he had a gun in his bag. The appellant reached down. The complainant did not see a gun but thought there was one. The complainant’s pants were down around her ankles. The complainant was crying and begged the appellant to stop. He said to “Do this or die”. The complainant gave evidence that the appellant forced his penis into her vagina. The complainant said that it “wouldn’t have even lasted probably – maybe a minute and a-half, if that … may be a minute and a half maybe. He tried a few times … tried to manoeuvre me into different spots, and I just – like, I was just frozen, basically.” The complainant agreed with the suggestion that the appellant’s penis “actually penetrated into your vagina”.

9. The complainant did not consent. The appellant threatened that if she told anyone he would hold her down and kill her and her children. When asked whether the appellant ejaculated inside her, the complainant said that after he let her out of the car the appellant kept saying that he didn’t get to finish.

10. In cross-examination the complainant denied that: she entered the car by straddling the appellant, she put her left leg over him; she assisted him to a position where his penis would enter her vagina; or she otherwise co-operated. The following exchange occurred:

“… He had me by the wrist the whole time.

And he was inside the car sitting down, was he, and he pulled you very forcefully by the wrist? --- Yeah.

…

Why didn’t your face go straight into the top of the car? --- Because I didn’t have it – I ducked.  Like, I could feel it coming and, you know – it’s hard to explain, I guess, but ---

I take it you were ---?  --- I am saying I do get that.

I take it you were resisting at this point?  --- I was telling him to stop and let go.

Were you physically resisting? --- I was too scared to proper fight, if that’s what you’re asking.

Were you physically resisting? --- How do you mean?  Pulling back? If that’s ---

Yes? --- physical resisting, yes.

Yes? --- But obviously not hard enough.  He grabbed me harder.

…

And as I understand your evidence, you say that he pulled you with great force at that point? --- Forceful enough.

But the only way you could get your leg over him to straddle him was if you did it voluntarily, was it – wouldn’t it? --- No.

Well, how did he force you to get --- ? --- Because I – because I landed, like, with both legs – it’s hard to explain it.  It’s really hard to explain it.  I didn’t have my leg over him.  No.  He grabbed my leg and put it over him, once I got – once he put me in the car.

But if he? --- ? --- If you understand what I mean.  It’s hard to explain that.

If he just pulled you with your left wrist, surely you would’ve just – and you’ve gone into the car, surely you just would’ve ended up with your chest on his lap? --- No.

Well, how did your left leg end up on the far side of him? --- Because he put it there.”

11. The complainant said that, “I was trying to pull away from him and I was crying and I was asking him to stop. And I said to him I wouldn’t say anything. I just wanted to go home. I was begging him to stop.”

Counts 3 – 7: attempted rape and rape (guilty)

12. The appellant told the complainant that they were going back to his ex-wife’s place again. First they went to a fast food outlet. During the drive the appellant said that it was not rape. When they arrived at the house the appellant said that it was not rape because he did not have to beat up the complainant. The appellant said that the complainant had to finish him off because he hadn’t got to finish. After the complainant refused to choose between the appellant’s ultimatum of fellatio or sex, the appellant said he would pick for her. The appellant forced her head down into his lap whilst he abused her and threatened to kill her if she woke up his children. He said that if anyone came out of their houses, the complainant was dead. The appellant unzipped his trousers and forced the top of his penis past her lips and on to the front of her teeth; his penis ground against her front teeth for “a couple of seconds, probably 30 seconds” (count 3 – rape).

13. The appellant said that one way or another the complainant was going to finish him. The complainant remained pretty frozen. She was scared by appellant’s threats to her and her children. The appellant took the keys, got out of the driver’s side of the car, and moved pretty quickly around to the passenger’s door. He instructed the complainant to turn around so that she was on her knees with her feet out of the door and her head pointing towards the driver’s side. The appellant pulled her pants down and tried to put his penis into her. She felt his penis close to her vagina so she kept her legs clamped together and the appellant’s penis did not go inside her at that stage (count 4 – attempted rape). The appellant flipped the complainant around and told her to get her legs inside the car, shut the door and got on top of her. He ripped her legs up and threaten that if anyone found or saw them he would kill her. The complainant described the appellant unsuccessfully attempting to penetrate her (count 5 – attempted rape).  The appellant digitally penetrated the complainant really hard for about two minutes, and it hurt a lot (count 6 – rape).  The appellant penetrated the complainant’s vagina with his penis for about five or six minutes, it hurt the complainant a lot, she asked him to stop because it was hurting, the appellant said she had to pay and he had to be finished off, the appellant attempted to kiss the complainant, and he forced her top down and roughly grabbed her breasts (count 7 – rape).  The appellant told the complainant that if she got pregnant he would kick her in the guts if he found out.  If she told anyone he would kill her and track down her children and kill them one by one.  After threatening the complainant, the appellant gave her the keys to the car.

14. The complainant drove to the house where her boyfriend was staying. She thought it was around midnight when she left the North Lakes address. When she arrived at the house she was so tired she fell asleep in the car. Her boyfriend woke her up and they went inside at 12.46 am.

Count 1: torture (guilty)

15. The Crown relied upon the alleged sexual acts and threats of which the complainant gave evidence as particulars of count 1. The Crown also replied upon the evidence that during the second visit to the appellant’s ex-wife’s place the appellant angrily abused the complainant, accused her of stealing his phone, and attempted to persuade his ex-wife to hit the complainant. That was submitted to be relevant evidence of the appellant’s state of mind shortly before he made the threats and did the acts alleged to constitute the offence of torture.

Other evidence

16. The appellant’s ex-wife gave evidence of the appellant and the complainant visiting her house on two occasions. Her evidence was generally consistent with the evidence of the complainant. On the first occasion the appellant and the complainant arrived at around about 4.30 or 4.45 pm and stayed for half an hour. When they arrived there was no conflict between the appellant and the complainant but the appellant became angry and asked his ex-wife to “smash its jaw”. The appellant became erratic. He told the complainant to stand in the corner and face the wall. During the second visit to the house it was dark. The appellant said, “this bitch has stolen my phone”. The appellant’s ex-wife opened the appellant’s bag, saw his phone and gave it to the appellant and told him to leave. The complainant was “dumfounded” and “didn’t know whether she was coming or going”.

17. The appellant’s ex-wife’s partner gave evidence about the two visits to the North Lakes house that was generally consistent with the evidence given by the complainant. The first time he saw the appellant at the house the woman with him was pretty distressed and fearful of the appellant, who was aggressive and upset. During the second visit the appellant was ordering her around. He asked his ex-wife to punch the woman in the head and told the woman to stand at the wall. The appellant was looking for his phone.

18. The complainant’s boyfriend gave evidence that he telephoned the complainant after 4.35 pm.  The complainant was blasé, would not talk and hung up.  Later he sent a message asking where she was.  The boyfriend received a message abusing him and telling him that the complainant had been kicked out of the house where she had been staying.  He went to that house and saw some things he had previously taken there.  He sent a text message to the complainant stating that she still lived there.  She replied that the housing people saw her in the morning, not long after he left to go to work, and she had to move out.  He asked where the complainant was going.  She replied that, “I have my stuff in the car.  I’m driving around, trying to find somewhere to stay.”  Early on the morning of the 14th he found the complainant asleep in her car.  He woke her up and assisted her to bed.  The complainant was very upset.  On the following morning she was crying and hysterical.  When he said he had to go to work she went with him.  He pulled the car over on the side of the road because the complainant was hysterical and crying.  She agreed that something had happened to her.  He asked her whether she had been raped.  She agreed.  The complainant described the area where that had occurred.  She said that new houses were being built.  The appellant had threatened to shoot her, pretended to pull a gun out, threatened to hurt her children, and made her have sex with him.  The complainant did not want to tell him anymore and said that if she did the appellant would kill her children.  He took the complainant to the police station.  In cross-examination the complainant’s boyfriend said that the complainant told him that the appellant had reached into a shirt or a bag and was going to pull a gun out; the complainant said he had a gun.  The complainant said that she did not want to be taken to the police station because the appellant had threatened to blow her feet off and harm the children.

19. The appellant did not give or call evidence.

Ground 1

20. Ground 1 of the appeal raises the question whether the guilty verdicts are unreasonable because they are irreconcilably inconsistent with the acquittal on count 2.  In MacKenzie v The Queen^[1] Gaudron, Gummow and Kirby JJ expressed the principles that this Court is bound to apply in considering that question:

“…the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that the verdicts are inconsistent in the relevant sense.  Thus, if there is a proper way by which appellate courts may reconcile the verdicts, allowing it to conclude that the jury performed their functions 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.  In a criminal appeal, the view may be taken that the jury simply followed the judge’s instructions 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.

…

Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty. … It is only where the inconsistency rises to the point that the appellant court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside.”

21. The appellant advanced the following arguments under this ground of appeal. The complainant had given unequivocal evidence of each element of the offence alleged in count 2. The verdict established that the jury was not persuaded of the truth and reliability of that evidence. Therefore it was not open to the jury on the whole of the evidence to be satisfied of the appellant’s guilt on the remaining counts. The quality of the complainant’s evidence on the counts upon which the appellant was convicted was no better than the quality of her evidence upon count 2. In particular, the complainant clearly explained the mechanism of the offence alleged in count 2 - the appellant grabbed her leg and put it over him - and that explanation was implausible only if the complainant did not co-operate in consensual sex. Any difficulty in the appellant effecting penetration in relation to count 2 applied equally in relation to the other alleged offences, which were also alleged to have been committed within the confines of the car. The appellant also argued that counts 2 to 7 were presented as an all or nothing case, so that an acquittal on count 2 required an acquittal on all counts.

22. The respondent argued that the jury might have accepted the complainant was a truthful witness who gave generally reliable evidence but found in relation to count 2 that the Crown had not excluded a doubt arising from the complainant’s admitted difficulty in explaining the mechanism by which the appellant was able to effect penetration whilst he was seated, facing the front of the car, and pulling on the complainant’s wrist whilst she stood outside the car.

Consideration

23. At the trial defence counsel submitted that the Crown case on counts 2 – 7 was an all or nothing case.  That argument was reflected in statements by the trial judge in summing up to the jury: the defence did not dispute that the sexual acts in counts 2 to 7 occurred; the challenge and issues in the trial concerned consent; defence counsel submitted that this was a case where it was all or nothing; the evidence of lack of consent depended upon the reliability and truthfulness of the complainant and the crux of those matters came down to count 2; defence counsel submitted that if the jury were not satisfied that the act charged as rape in count 2 was rape, then the jury could not be satisfied that any of the sexual offences were committed.

24. The trial judge’s directions made it clear, however, that the jury were not obliged to adopt that approach. The trial judge directed the jury that when they were considering the charges of the sexual offences, they had to consider each rape allegation and each of attempted rape allegation separately: “you consider each of those charges separately, evaluating the evidence relating to that particular allegation to decide whether you’re satisfied beyond reasonable doubt whether the complainant did not consent, as well as the other elements of rape.”  The trial judge directed the jury that: if they had a reasonable doubt concerning the complainant’s truthfulness or reliability in relation to any charge, that must be taken into account when the jury were assessing the truthfulness or reliability of her evidence generally; to prove guilt the prosecution must prove beyond reasonable doubt every legal element of the particular offence; if the jury were left with a reasonable doubt about any one of the elements in respect of a charge, their duty was to acquit; and for the offence of rape the jury could not convict unless they were satisfied that the appellant’s penis penetrated the complainant’s vagina without the complainant’s consent.

25. The verdicts are sensibly reconcilable upon the basis that the jury conscientiously obeyed those directions, particularly the direction to consider each rape allegation separately. The jury presumably found the complainant to be a credible and generally reliable historian. The jury might readily have accepted the complainant’s apparently persuasive evidence that she did not consent to any of the acts alleged against the appellant. The jury could find further support for accepting that evidence in the testimony of the appellant’s ex-wife and her partner concerning the appellant’s anger and his threats to the complainant during the second visit to the house, shortly after which the appellant was alleged to have committed the offences alleged against him. The jury nevertheless might have been unpersuaded that the Crown excluded a reasonable doubt that penetration was effected, because the complainant herself struggled to articulate the mechanism by which the appellant effected penetration in the particular circumstances she described in relation to count 2.  Because the complainant did not encounter any similar difficulty in explaining the mechanisms by which the appellant committed the other offences, the jury could conclude that the Crown’s failure to exclude a reasonable doubt on count 2 did not require the jury to harbour a doubt about the complainant’s credibility or the reliability of her evidence upon the other counts.  It was reasonably open to the jury to regard the complainant’s evidence upon the others counts as being more cogent in this respect than her evidence upon count 2.  Such a reconciliation of the differing verdicts is not illogical or an affront to common sense.  The verdicts are not inconsistent in the sense required by the present ground of appeal.

26. The appellant referred to some issues relied upon by defence counsel at trial as impacting adversely on the complainant’s credibility or the reliability of her evidence. Consistently with the terms of ground 1, the appellant did not argue that these issues were themselves capable of rendering any of the guilty verdicts unreasonable if, as I have concluded, those verdicts were not inconsistent with the acquittal in count 2.  Nevertheless, I will briefly explain my conclusion that the guilty verdicts on the sexual offences (other than count 2) are reasonable upon the whole of the evidence, applying the principles summarised in [36] of these reasons.

27. I will first summarise the appellant’s submission on each credibility issue and explain why the issues did not require the jury to have a reasonable doubt about the appellant’s guilt:

1. The complainant denied that she took drugs but was described by the appellant’s ex-wife as being drug-affected and drugs had been seized from her the previous day.

The jury may have preferred the complainant’s evidence; alternatively, if the jury harboured a doubt about this issue, they might have found that the complainant’s evidence of the elements of the offences was accurate and reliable notwithstanding the suggested lie.

2. The complainant denied that she or the appellant had taken drugs or had gone to a needle exchange to get syringes, but a syringe was found in the car the following morning.

The evidence did not require the jury to find that the syringe was obtained or used by the complainant.

3. The complainant gave evidence that she was frustrated by her difficulties in using a new mobile phone and for that reason could not send text messages to her boyfriend, but her boyfriend referred to messages that he said he had received from her during the night; in addition, messages sent by the complainant revealed that she lied to her boyfriend about driving around and trying to find somewhere to stay.

The jury nevertheless could accept that the complainant did have difficulties in using her new phone.  As to the inconsistencies or contradictions in the evidence, the complainant’s evidence of the long journey with the appellant in the car conveys the impression that she was confused and under stress at various times from before the appellant committed the offences and the transcript of her evidence suggests that giving evidence about the events was itself stressful for the complaint.  It would be unsurprising if the complainant’s memory on collateral matters of this kind had deteriorated with the passage of time before she gave evidence.  Defects in memory of the kind suggested by the points raised by the appellant are not inconsistent with the complainant having accurately related the events that occurred during the offences.

4. The complainant gave evidence that when her boyfriend said he was going to work she opened the driver’s side of the car door and saw the appellant’s wallet on the floor, she flicked the wallet open and threw it at her boyfriend, and she “pretty much … lost it again at that stage”.

The complainant’s and her boyfriend’s evidence was to the effect that at this time the complainant was distraught and sobbing.  The jury could conclude that this aspect of the complainant’s behaviour was not inconsistent with her account of the offences being honest and reliable.

5. The complainant’s repeated explanation for not driving away during the second visit to the house that she did not have the keys to the car was inconsistent with the complainant’s statements to the police that when she asked the appellant if he had locked the car, he said that the keys were in the car, and she said she would go back and lock up the car and grab the keys.

The complainant gave evidence that, “in reality my plan was to go but again, I got an angry reaction and he was heading towards me so I shut up and followed”.  The jury could reasonably accept that the complainant felt powerless to escape.

28. The complainant’s evidence was not contradicted by any other evidence. In light of the clear and apparently persuasive account given by the complainant upon counts 3 – 7, and the support for aspects of her account the jury could find in the evidence of the appellant’s ex-wife and his son and (in relation to the complainant’s credibility) the complainant’s boyfriend’s evidence of her complaint to him, it was reasonably open to the jury to be satisfied beyond reasonable doubt of each element of those offences.

Ground 2

29. After the jury had retired to consider their verdicts, the jury sent a note enquiring whether their verdicts had to be unanimous and whether there was no majority verdict. Shortly afterwards, a juror sent a note:

“I feel that my question’s and answer are not valued by on of the jury’s also this person has stated the he is guilty before all the fact’s

upon questioning this she has lied, saying she did not say or rember say it ” [sic]

30. The trial judge gave the following directions to the jury:

“Now, I gather that there is also a concern that some jurors may feel as though their contribution is not being valued by other members of the jury.  Working through the issues in a trial with people that you have never met before can be very difficult.  So and I want to say something about that process of deliberating.  Each of you has sworn to conscientiously try the charges and to decide them according to the evidence.  That is an important responsibility, and you must fulfil it to the best of your ability.  You must judge the evidence fairly and impartially in light of your individual experience and wisdom.

At the same time, you have a duty to listen carefully and objectively to the views of every one of your fellow jurors.  Your deliberation should involve weighting up one another’s opinions about the evidence and testing those opinions by discussion.  That’s a process that often leads to a better understanding about the difference of opinion.  It may convince you that your original opinion was wrong.  Now, obviously, you can’t join in a verdict that you do not honestly and genuinely think is correct.  If, after calmly considering the evidence and listening to the opinions of the other jurors, you cannot honestly agree with the conclusion of the other jurors, you must give effect to your own view of the evidence.

As I said, often juries do agree in the end, and for that reason I’m going to ask you to re-examine the matters on which you are in disagreement and to make a further attempt to reach a verdict.”

31. The transcript records that the jury then retired, but it is apparent that juror number 10 remained in court.  That juror informed the judge that, “someone’s said an allegation and I confronted it.  They’ve lied about it, and me – I feel that it’s not the truth that is coming out, and I still think this person is not going to change on it, and we’ll never be in agreement, this person and myself, since they’ve already made their judgment.”  The juror asked to be excused, “because I know for a fact that this person has made their decision and it’s not going to change”.  The juror stated that, “everyone has a right to be proven as innocent before proven guilty.  And this person has already made the decision before the facts – all the facts [indistinct] through.  … I don’t know the case.  I’m listening to both cases.”  The juror agreed with the trial judge’s statement that the juror believed that a member of the jury “has decided the way in which the verdict should be before hearing all the evidence.”  The juror observed that it had been said numerous times and there was not a chance that she had misunderstood:

“… it feels like my words mean nothing.  I feel bullied.  I feel that I have to do what they’re saying.  I’m not going to do it.  I am not going to bullied into something what I believe”. [sic]

32. Defence counsel applied for the jury to be discharged. The trial judge rejected that application. The trial judge recorded that both counsel submitted that this was not a case in which a juror was incapable of continuing as a juror, within the meaning of s 56(1)(b) of the Jury Act.  The trial judge held that juror number 10’s own statements, in which she affirmed her commitment to the presumption of innocence and her stand against the alleged bully, did not suggest that the juror was no longer capable of adhering to her oath.  The trial judge then considered the question whether the juror’s complaint meant that justice could no longer be reasonably seen to be done by this jury.  The trial judge observed that the juror had been highly emotional, there had been no indication of concern from the other juror, the bailiff had not noticed any animosity or tension between the jurors as a group, the jury as a whole were relatively mature aged and reasonably educated, and conscientiously taking notes during the evidence, the addresses and the summing up.  The trial judge referred also to the instructions to the jury about their obligation to decide the case only on the evidence, free from bias, and to keep an open mind.  The trial judge concluded that a fair minded observer would not perceive a real risk of bias from the jury, there was no perceptible risk of an unfair trial, and continuation of the trial was not likely to undermine public confidence in the administration of justice.  The trial judge held that this was not a true case of apparent bias and the trial should continue.

33. The jury were brought back into the courtroom and the trial judge gave these directions:

“…this case must be decided on the evidence and only on the evidence. You will remember that I stressed the importance of not allowing any external factors to play a part in your deliberations.

So you must put aside any personal feelings that you might have, whether they are feelings towards the accused or the complainant or in relation to particular types of offences. Any personal feelings that you have are irrelevant here, and you have to put them to one side. You must dismiss all feelings of sympathy or prejudice for or against anyone. Emotion has no part to play in your decision, and you have to approach your duty dispassionately, deciding the facts upon the whole of the evidence. Remember I told you at the outset that you had to keep an open mind until you had heard all of the evidence. If anybody has a concern that that process is not being followed or a concern that my instructions are not being adhered to, then you should let me know.

Ultimately, the question in relation to each charge is whether you are satisfied on the evidence and only on the evidence that all of the elements for that offence have been proved beyond reasonable doubt. If you are satisfied on the evidence that that offence has been proved beyond reasonable doubt, then it is your duty to convict the accused, but equally, if the evidence does not satisfy you beyond reasonable doubt that he is guilty, then you must find him not guilty.”

34. The transcript records that the jury then retired. Juror number 6 evidently remained. The trial judge told her that she needed to go back with the jury. Juror number 6 said that she wanted to be excused. The trial judge repeated that juror number 6 needed to go back with the jury. That occurred. Defence counsel made a further application to discharge the jury. During the course of submissions, the trial judge asked the bailiff for his observations of the jury, at a time when they had left the jury room for a cigarette break. The bailiff stated that juror number 6 was mixing with the other jurors and the bailiff did not observe any difficulties. Defence counsel accepted that was so. The trial judge refused the further application for discharge of the jury on the basis of apprehended bias. The trial judge considered that the additional incident confirmed that the juror wished to be excused, but did not add to the circumstances known when the ruling was made. The trial judge also referred to the observation by the bailiff that juror number 6 was mixing with the other jurors and there was no sign of animosity between them.

35. The appellant argued that the incident gave rise to a reasonable apprehension on the part of a fair minded and informed member of the public that the juror, and the jury, had not discharged the task of a juror and jury impartially. It was submitted that a juror had pre-judged an issue of fact before hearing all the evidence.

36. I accept the submission for the respondent that there was no error in the trial judge’s decision not to discharge the jury. The question is whether, despite the trial judge’s directions to the jury, the event gave rise to a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that one of the jurors, or the jury, has not discharged or will not discharge the task impartially: R v Czajkowski, citing the judgment of Mason CJ and McHugh J in Webb v The Queen.  The directions given by the trial judge clearly and comprehensively dealt with the concern expressed by juror number 6.  Those directions appropriately and repeatedly emphasised that the jury’s obligation was to decide the case only on the evidence and to find the appellant not guilty if the evidence did not satisfy the jury beyond reasonable doubt that he was guilty.  There is in this case no sufficient reason to depart from the usual assumption that the jury obeyed the trial judge’s directions.  It was not submitted, and there is no basis for thinking, that juror number 6 should have been discharged.  There was no ground warranting the discharge of the jury as a whole.

Ground 3

37. The appellant argued that, if the verdicts could be reconciled, the verdict on count 1, torture, was unreasonable and against the weight of the evidence. The offence of torture was created by s 320A(1) of the Criminal Code.  The provision describes “torture” as “the intentional infliction of severe pain or suffering on a person by an act or series of acts done on 1 or more than 1 occasions”.  Under appeal ground 3, the question is whether, upon the Court’s independent assessment of the sufficiency and quality of the evidence at trial, upon the whole of the evidence it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of that offence.^[2]  In considering that question, the Court must take into account the advantage enjoyed by the jury in having seen and heard the witnesses called at trial.^[3]

38. There was certainly evidence upon which the jury could reasonably find that the Crown had proved beyond reasonable doubt that the complainant had suffered severe pain or suffering by a series of acts done by the appellant; the complainant gave evidence of being constantly and extremely fearful throughout the events charged as sexual offences in counts 2 – 7 and, on her account, the statements and acts of the appellant could reasonably be regarded by the jury as being likely to produce severe psychological or emotional pain or suffering.  The appellant did not argue to the contrary.  The appellant argued that, in the absence of direct evidence of the appellant’s subjective intention, it was not reasonably open to find upon the whole of the evidence that the appellant intended to inflict severe pain and suffering on the complainant.  The appellant submitted, accurately, that knowledge or foresight of a possible, probable, or certain result was not a substitute in law for requirement of proof of the specific intent in s 320A(1).^[4]  The appellant argued that the evidence of the complainant was to the effect that the appellant’s threats to the complainant during the sexual offending were designed to force her to submit to the appellant’s unwanted sexual conduct, and that the reasonable inference therefore was that the appellant’s purpose or object was to obtain sexual gratification.  Whilst a person might engage in conduct with more than one object or purpose, the Crown did not prove that the appellant intended to inflict severe pain and suffering.

39. Section 320A(1) makes proof of the intention to produce a particular result, the infliction of severe pain and suffering upon another person, an element of liability for that offence. Accordingly, the Crown was required to prove beyond reasonable doubt that the appellant meant to produce that result by the conduct relied upon in the prosecution.^[5]  As the appellant acknowledged, a person may engage in conduct with more than one object or purpose.^[6]  The following evidence of the complainant supports a conclusion that the appellant meant his conduct and statements to cause the complainant severe pain and suffering:

1. The complainant’s evidence (important aspects of which were corroborated by the evidence of the appellant’s ex-wife and her partner) that during the second visit to the appellant’s ex-wife’s place, the appellant angrily abused the complainant, accused her of stealing his phone, and attempted to persuade his ex-wife to hit the complainant.  Whilst the complainant gave evidence that after they left the house the appellant calmed down a lot and apologised for his behaviour at the house, the jury could place some weight upon the events at the house as an indication of the appellant’s state of mind when he shortly afterwards committed the sexual offences.

2. Upon the complainant stopping the car in compliance with the appellant’s direction, the appellant behaved in a way that was redolent of disciplining the complainant: he questioned her about whether she was wired or acting as an undercover police officer, he abused her, and stood over her, he ordered her to stand in a particular way and he patted her down as though searching her.

3. The appellant told the complainant that she needed to see death.

4. The appellant mentioned a gun and reached down or as though he was going to pull out something, whilst he asked the complainant whether she wanted to see it.

5. After the appellant dragged the complainant into the car on top of him, he said that he would shoot the complainant in her feet: “I needed to pay for what I’d done to his foot”.

6. During the sexual offences of which the appellant was convicted, when the complainant asked the appellant to stop, “he said you’ve got to pay.  You’re going to pay one way or another”.

7. When the complainant asked the appellant to stop because of the pain he was causing her, the appellant said “you’ve got to pay, and I’ve got to be finished off”.

8. The appellant’s threat that, “if I got pregnant he’d kick me in the guts if he found out”.

40. The jury could accept that evidence notwithstanding the issues about the complainant’s credibility to which the appellant referred under appeal ground 1: see [26] of these reasons.  The respondent submitted that it was a reasonable view of the evidence taken as a whole that the appellant engaged in the sexual and associated conduct and threats as a way of intentionally punishing, degrading, humiliating, and controlling the complainant.  I accept that, although the appellant’s purposes may well have included obtaining sexual gratification and discouraging the complainant from complaining to police or others, the jury could safely conclude upon the evidence that the appellant engaged in his sexual and associated conduct and threats quite deliberately meaning thereby to cause the complainant severe pain and suffering.  That conclusion finds support in the evidence that the appellant threatened the complainant before and while he committed the sexual offences that she had to “pay” for the loss of his mobile phone and the damage he did to his foot when he kicked the wall.

41. I conclude that upon the whole of the evidence, it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence of torture charged in count 1.

Application for leave to appeal against sentence

42. The appellant was sentenced to concurrent terms of nine years imprisonment upon each of counts 1, 3, 6 and 7 and four years imprisonment for each of counts 4 and 5. The sentencing judge declared that each of counts 1, 3, 6, and 7 was a serious violent offence.

43. The appellant was also sentenced for offences he committed on the same day, 14 February 2015, to which he pleaded guilty after the trial.  The circumstances of those offences of significance for present purposes are that: after committing the offences against the complainant, the appellant returned to his ex-wife’s house in breach of a domestic violence order; he had a knife and he punched his ex-wife’s partner in the face; he took his ex-wife’s car and he used it as a weapon by reversing it into his ex-wife’s partner, hitting his legs and knocking him backwards; the appellant then drove the car at the house and damaged it; and he then threw concrete displaced from the house at his ex-wife’s partner, twice hitting him in the chest.  The appellant was given lesser, concurrent terms of imprisonment for three counts of common assault, unlawful use of a motor vehicle to facilitate the commission of an offence, wilful damage and contravention of a domestic violence order, and failure to take reasonable precautions in respect of a syringe.  Concurrent terms of imprisonment were also imposed for unrelated offences of stealing and fraud.

44. For one count of dangerous operation of a motor vehicle whilst adversely affected by an intoxicating substance committed on 14 February 2015, the appellant was disqualified from driving absolutely and he was sentenced to a term of one year imprisonment, cumulative upon the other terms. That offence was declared to be a serious violent offence.

45. The appellant has applied for leave to appeal against sentence on the grounds that the sentencing judge erred by sentencing the appellant on the basis that he had committed the offence of rape in count 2, inconsistently with the jury’s acquittal on the count, and that the sentence is manifestly excessive.

Ground 1

46. In relation to the first ground, the appellant argued that the sentencing judge wrongly sentenced the appellant upon the basis that the conviction upon the torture offence comprehended non-consensual sexual intercourse charged as count 2.  The respondent contended that the sentencing judge did not sentence the appellant upon that basis.  Rather, consistently with the acquittal on that count, the sentencing judge found that the offence of torture commenced at the first isolated location where the appellant patted the complainant down to search for a wire, held her wrist, and asked if she wanted to see death; that offence continued until the appellant left the complainant with threats against her children and telling her that he was part of a bikie gang.  I accept the respondent’s submission.

47. The sentencing judge observed at the outset of the sentencing remarks, that it was necessary to determine the facts underpinning the convictions and that those facts could not be inconsistent with the verdicts of the jury. It is an extremely improbable conclusion that the sentencing judge nevertheless sentenced the appellant upon the basis that he was guilty of the rape alleged in count 2. As the appellant pointed out, the sentencing judge noted that the issue at trial was consent, but the sentencing judge went on to observe that, “The focus of the defence challenge to count 2 was the plausibility of the mechanism or rape: the physical difficulty of forcing [the complainant] into the car and effecting penetration in the way she described. [The complainant] said it was hard to explain … it was very quick … penetration … lasted only a few seconds”, and the jury was not left with the alternative offence of attempted rape. The sentencing judge observed that, “given the jury’s acceptance of [the complainant’s] allegations for the other counts, it seems more likely to me that the acquittal on count 2 was related to the nature of the allegation rather than doubt about the credibility of the complainant.”

48. These remarks convey that the acquittal on count 2 was related to the fact that the events the subject of count 2 were charged as rape rather than as attempted rape; in view of the apparent difficulty of the appellant effecting penetration in the way the complainant described, her difficulty in explaining how that occurred, and the fact that upon her description it was very quick, the jury was not prepared to conclude beyond reasonable doubt that penetration had been effected.

49. The sentencing judge then observed:

“It may be that the jury considered that this was more fairly characterised as an act of torture rather than rape, given the brevity of the sexual act alleged.  I think that is the most reasonable reconciliation of the verdicts.  The jury had been instructed that the sexual acts and threats were particulars of the torture.  They were also instructed that they must convict if the elements were proved.  Nonetheless, juries sometimes take a merciful view where there is a multiplicity of charges.  I do not think that that can be discounted here by the argument that a merciful jury could have acted in a different way.”

50. That is capable of being understood as meaning that the jury accepted that penetration had occurred, but that the jury took a merciful view by deciding not to convict the appellant of both rape and torture in relation to count 2. The appellant argued that this mode of reconciling the verdicts assumed that the jury had disregarded instructions to them to convict of the offence if they found that the elements were proved.  The respondent replied that the reference by the sentencing judge to a “merciful view” comprehended a merciful view of the evidence; the jury were not prepared to find the appellant guilty when the complainant herself was unable to explain precisely how the offence occurred.  It will be apparent from my discussion of ground 1 of the appeal against conviction that I prefer that view.

51. Whichever constitution of that passage of the sentencing remarks is correct, I would not accept the appellant’s submission that the appellant was sentenced upon the basis that he was guilty of the rape alleged in count 2. After considering the matters already discussed, the sentencing judge referred to the evidence of the appellant’s ex-wife and her partner, and the evidence of the complainant, concerning “the objectification or degradation of the [the complainant] at the [appellant’s ex-wife’s] house”. The sentencing judge found that their evidence that the appellant was irrationally angry at the complainant made the defence proposition of consent improbable. The sentencing judge then found the facts relevant to the torture offence: it began at the first isolated occasion; there was no consensual intercourse; the appellant patted the complainant down to search for a wire, held the complainant’s wrist, asked if she wanted to see death, offered to show her his gun, dragged her into the car and threatened to shoot her, repeatedly threatened to hunt her down and kill her children; after driving her to the fast food outlet the appellant took the complainant back to the parking spot near the appellant’s ex-wife’s place; and “This is where the sexual offences were committed.”  The sentencing judge went on to describe those offences and the appellant’s abuse of and threats to the complainant.  The only sexual offences the sentencing judge attributed to the appellant were those that occurred after the appellant and the complainant had left the first isolated location where the events charged as count 2 allegedly occurred.

52. The appellant also referred to an exchange between defence counsel and the sentencing judge during the sentence hearing. Defence counsel submitted that the acquittal on count 2 must mean that the jury rejected the complainant’s evidence about the threats by the appellant to her at the isolated location and her evidence that she did not consent at that isolated location. The trial judge observed that juries were known to act sometimes of their own accord and that there can be merciful verdicts, the rape alleged in count 2 was said to be a very short episode, and the jury were instructed that they could have regard to the sexual offences as part of the torture. The sentencing judge enquired whether it was possible that the jury considered that what happened on the first occasion “was more probably torture than … a substantial rape”. Defence counsel argued that there was no doubt of penile penetration for quite some time. The sentencing judge remarked that penetration was not in issue, “but when one talks about merciful verdicts that’s a recognition of a verdict that might be contrary to the evidence in favour of the accused.” Defence counsel argued that a jury concerned about overcharging would have acquitted the appellant of torture but convicted him of rape.  Defence counsel repeated the submission that the jury must have had a real doubt about whether the complainant consented, and that doubt must involve a rejection of the complainant’s evidence about the threats.

53. The purpose of the sentencing judge’s remarks in that exchange was not to make findings of fact but to indicate possible views to facilitate submissions upon issues concerning the sentencing judge. In any event, the topic was the way in which the verdicts should be reconciled. Nothing said by the sentencing judge indicated an intention to sentence the appellant upon the basis he was guilty of an offence of which he had been found not guilty by the jury.

Ground 2

54. The remaining question is whether the sentence is manifestly excessive. The appellant was 35 years old when he offended and 36 when sentenced.  He had an extensive criminal history commencing in 1997.  He had committed many drug related offences and, of more direct relevance, he has committed serious offences of violence.  He had been convicted of breaches of domestic violence orders and he also had been sentenced to imprisonment for offences involving violence in 2003 (four months for common assault, followed by probation), 2006 (two years and six months for grievous bodily harm and two years for assaults occasioning bodily harm, wholly suspended for 30 months), 2008 (four months imprisonment with parole release after two and a half months for breach of a domestic violence order), and 2014 (12 months for threatening violence and assaults occasioning bodily harm, with immediate release on parole after 92 days pre-sentence custody).

55. The sentencing judge found that the appellant committed the offences against the complainant in the dark on a street late at night, he was a powerfully built man, much bigger and stronger than the complainant, his graphic threats at secluded locations were designed to terrorise the complainant, he succeeded in terrorising the complainant, and her distress and revulsion were obvious under cross-examination. The complainant’s victim statement referred to numbness and daily nightmares, with impacts upon the whole of her family. The sentencing judge stated that for the offences against the complainant, her Honour would have imposed a sentence of nine years imprisonment and made a declaration that they were serious violent offences, with the consequence that parole eligibility would be deferred until after the appellant had served 80 per cent of the term. The sentencing judge considered that the appellant’s imposition upon the complainant of protracted terror, sexual degradation, and associated physical suffering elevated the offences beyond the usual seriousness of similar offences and that, having regard to the appellant’s criminal history involving violence, it would have been an appropriate case for a declaration that those offences were serious violent offences.

56. Her Honour would have imposed a moderated sentence of two years imprisonment cumulative upon the nine year sentence for the subsequent offending to which the appellant pleaded guilty but, taking into account the automatic serious violent offence declaration in such a case and because the delay in parole eligibility would apply to the whole period of imprisonment, it was appropriate to deduct a further 12 months to ensure that sufficient credit was given for the appellant’s pleas of guilty. The sentencing judge was persuaded that the effective sentence of 10 years imprisonment with the automatic serious violent offence declaration was a just reflection of the totality of the appellant’s offending.

57. The appellant argued that concurrent terms of imprisonment of between seven and eight years should have been imposed for each of the three offences of rape (counts 3, 6 and 7) and the offence of torture (count 1) warranted a lesser concurrent term.  Together with the cumulative term of 12 months, the effective head sentence therefore should be between eight and nine years imprisonment.  The appellant submitted that the circumstances did not justify a declaration that the offences were serious violent offences.  The appellant argued that those offences did not involve gratuitous violence beyond that inherent in the offending, the appellant was not armed, although he threatened the complainant such threats were not uncommon in rape offences, and the sexual offences all occurred within a short period and were not protracted.

58. In oral argument, the appellant acknowledged that the suggested sentence of seven to eight years imprisonment was based upon a finding that the period of offending was continued to the second occasion, during which the appellant committed the offences charged in counts 3 – 7, near the appellant’s ex-wife’s house . For the reasons already given in relation to the appeal against conviction, however, the application should proceed upon the sentencing judge’s finding that the offence of torture in count 1 commenced at the isolated location and continued thereafter until the last of the threats made by the appellant after he committed the sexual offences of which he was convicted. The sentencing judge did not err in sentencing upon the basis that the sexual offences were part of a protracted episode that had the dual objectives of the appellant’s sexual gratification and suffering for the complainant.

59. In R v Willey,^[7] Keane JA observed that in a case of “multiple rapes involving violent and protracted abuse of a victim unknown to the offender, and the offender has shown no remorse and is not entitled to the benefit of a discount for a plea of guilty, there can be no real prospect that this Court would conclude that, for these offences, a sentence of 11 years imprisonment was excessive”.  That offender had subjected a young woman to a two and a half hour ordeal, assaulting her and binding her with duct tape in her hotel room, threatening to kill her if she attempted escape, and choking her to the point where she was short of breath.  The offender forced the complainant to engage in oral sex on five occasions Keane JA remarked that decisions in R v Newman,^[8] showed that for violent sexual offences of that kind the proper range of the sentencing discretion was in the order of 10 to 14 years imprisonment.

60. As the appellant argued, the offending in this case is less serious than the offending that attracted 11 years imprisonment in Willey and in the cases cited in it, including R v Cosh,^[9] in which a sentence of 12 years imprisonment for offences including torture, deprivation of liberty, and five counts of rape was found not to be manifestly excessive.  So much is reflected in the appellant’s term of imprisonment of nine years, with the associated serious offence declarations, for the offence of torture and the sexual offences committed by the appellant.  Bearing in mind the serious circumstances of the appellant’s offences, his bad criminal history, and the absence of evidence of remorse, it was within the sentencing judge’s discretion to impose nine years imprisonment with serious violent offence declarations for the offence of torture and the rapes and other sexual offences.  For the reasons of the sentencing judge summarised in [55] of these reasons, this was an unusually serious example of those sexual offences.

61. There was no challenge to the sentencing judge’s methodology, or to the cumulative term of 12 months imprisonment for dangerous operation of a vehicle while adversely affected by an intoxicating substance to which the appellant pleaded guilty. There is also no ground for finding that the sentencing judge erred in concluding that 10 years imprisonment with serious violent offence declarations was a just reflection of the totality of the appellant’s offending.

62. The sentence imposed upon the appellant is not manifestly excessive.

Proposed orders

63. I would dismiss the appeal against conviction and refuse the application for leave to appeal against sentence.

64. PHILIPPIDES JA:  I agree with Fraser JA.

65. McMURDO JA:  I agree with Fraser JA.