R v Young[2017] QCA 207

SUPREME COURT OF QUEENSLAND

1. FRASER JA:  I agree with the reasons for judgment of Boddice J and the order proposed by his Honour.
2. MORRISON JA:  I have read the reasons of Boddice J and agree with those reasons and the order his Honour proposes.
3. BODDICE J:  On 30 August 2016, the appellant pleaded not guilty to three counts of indecent treatment of a child under 16 years and one count of rape.  All counts related to the one female complainant.
4. On 31 August 2016, a jury found the appellant guilty of three counts of indecent treatment of a child under 16 years and not guilty of the count of rape.
5. The appellant appeals his conviction of the counts of indecent treatment of a child under 16 years.  The sole ground of appeal is that there has been a miscarriage of justice because the verdicts of guilty are inconsistent with a verdict of acquittal on the count of rape.

Background

6. The indecent treatment offences were all committed on 9 April 2005.  The alleged rape was committed on 17 April 2005.  On both occasions the complainant was living with her family at a residence in Narangba.  The appellant was also living there.  He left that residence on 21 April 2005.
7. The appellant was born on 25 November 1983.  He was aged 21 at the time he committed the offences.  The complainant was born on 9 February 1991.  She was aged 14 years at the time of the offences.
8. The complainant did not tell her mother of the offending until some days later.  In early June 2005, the complainant’s mother took the complainant to the police to make a complaint.  A formal investigation commenced on 26 June 2005.  The appellant was subsequently charged with the offences.
9. Indictments were presented in the District Court at Brisbane on 4 May 2007.  The appellant failed to appear in accordance with his bail undertaking.  A warrant was issued but the appellant was not apprehended until late April 2016.

Offences

10. The offences of indecent treatment were all committed on the night of 9 April 2005.  The first two offences were committed whilst the complainant was lying on the appellant’s bed watching a movie.  The appellant gave the complainant a “nipple cripple”.  A short time later the appellant slid his hand inside the complainant’s pyjama pants but outside her underwear.  The last of those offences was committed later that night whilst the appellant and the complainant were in the kitchen.  The appellant grabbed the complainant’s breast through her clothing and squeezed it.
11. The offence of rape was alleged to have been committed on 17 April 2005.  Again, the complainant was lying on the appellant’s bed watching movies.  The appellant inserted his finger into the complainant’s vagina, moving it in and out for one or two minutes.

Complainant’s evidence

Section 93A statement

12. The complainant was interviewed by police for the purposes of a s 93A statement on 26 June 2005.  She told police that on the night of 17 April 2005 the appellant “raped me in a way”,^[1] with his finger.  The rape occurred on a bed in a garage the appellant was sharing with Stewart Warren.  Warren was asleep on another bed at that time.  The complainant described him as “a pretty deep sleeper”.^[2]
13. The complainant said after she had returned from her grandmother’s birthday party she watched movies with the appellant in the garage. They had watched “Millers Crossing” and were half way through “Cruel Intentions 3”.  They were both lying down on the bed.  The complainant was wearing a green singlet top and blue shorts.  The top had a built-in bra.  The shorts were loose.
14. The complainant said the appellant initially laid on his side and commenced talking to her.  She told him to be quiet as she was trying to watch the movie.  The appellant then put his upper body onto her upper body and started kissing her on the mouth.  The appellant was occasionally trying to slip in his tongue.
15. The appellant then held her mouth with one hand so she could not scream.  The appellant put his other hand down her shorts, under her underwear.  He put his index finger into her vagina.  She could not describe how far into her the finger went but said it was inside for a minute or two and it really hurt within a couple of seconds.  It continued to hurt for a day or two afterwards.  The appellant’s hands were big hands.
16. The complainant said she was trying to push the appellant off but it was impossible as he was “like the four time the size me and mum”.  The complainant hit and pushed the appellant until he stopped everything.  After one or two minutes, the appellant told her “we’ll keep this a secret”, rolled over and went to sleep.  The complainant did not say anything.  She cried, went to her room and cried some more.  When asked whether she was going to scream the complainant replied “I would have yeah, I was going to, I was tempted to and I was trying to but it couldn’t”.^[3]
17. During the interview, the complainant was asked if the appellant had touched her breasts at all.  She replied “about a week before when he tried to the first time and I said no, he did”.  The complainant said a week before the rape she had been lying on the floor whilst the appellant was lying on his bed.  The appellant told her to get onto the bed.  He started to give her “like nipple cripples”.^[4]  It hurt a lot.  The appellant pinched her left nipple for a second through her clothing using his thumb and two fingers.  The complainant said “stop it”.  She said “that was it, don’t even really think I should have done anything it was just a harmless little nipple cripple”.  After the complainant said “stop”, the appellant said “alright” and went and lay on his back waiting for the complainant’s younger brother Corey to come back.
18. The complainant said about five minutes later, the appellant started to rub the complainant’s stomach and moved his hands inside her pyjama pants.  He did not go into her underpants at that time.  The complainant moved the appellant’s hand out and said “don’t I’ll tell mum”.  The appellant replied “alright, alright”.  The complainant said “I’ll also tell dad”.  The appellant replied “fine I won’t touch you again”.^[5]
19. The complainant said the appellant felt her breast later that evening, at about 7.30 or 8 o’clock, whilst they were in the kitchen.  He grabbed her left breast with his right hand.  The complainant walked away.  The complainant said she did not give the appellant permission to touch her in any way.  The complainant said she trusted the appellant during the week leading up to 17 April.  The complainant had fallen asleep in the appellant’s room on his bed one night and the appellant did not do anything.

Trial

20. The complainant gave evidence at trial as a special witness.  In that evidence, she agreed the garage had a double bed and a single bed, roughly a metre apart.  Warren was asleep very close by on the single bed at the time the appellant put his finger inside her.  Warren was outside her reach.  She could not call out to him because her mouth was being obstructed.^[6]  She did not run over and wake him up or ask for his help because she did not know what to do.
21. The complainant agreed her mother and father were also home at the time.  She did not go and tell them or anybody straight away about the rape.  She did not know what to do.  After the rape, she left the room and went for a shower.  She stayed in the bottom of the shower for an hour and a half.
22. The complainant accepted that her version of events was that she had been held down against her will whilst the appellant inserted a finger into her vagina and that although her parents were home she did not tell them about the incident until about six days later.  She disagreed it was two weeks later, after the appellant had moved out of the residence.  The appellant was still living in the house.  The complainant told her mother the appellant held her down and inserted his fingers into her.  At first, her mother did not believe her.  After a couple of days she started to believe the complainant.
23. In evidence, the complainant said the appellant moved his finger in and out whilst it was in her vagina.  She accepted she did not tell the police that when she gave her s 93A statement.  She agreed she had told police about an earlier occasion.  The complainant could not, in evidence, remember what happened on that earlier occasion.  She did not remember much from the weeks leading up to that night.  She just remembered the night the appellant put his finger in her vagina, which “has haunted me for the rest – for the last 11 years”.^[7]
24. The complainant denied she had a crush on the appellant when she was 14 years of age.  He was like a brother who came into the household.  He was treated like a brother.  The complainant never wanted the appellant to touch her.  She never gave permission for him to touch her in a sexual way.  She did not like the appellant in any sort of romantic way.  After these events, she definitely did not like him, “even worse”.^[8]
25. The complainant denied the appellant was in a relationship during the time he was living at her home.  When they first met the appellant he was homeless.  He lived with them for months.  The complainant knew the appellant had “a chick” he was seeing but that was it.^[9]  The complainant did not know the appellant had a girlfriend or a fiancé.  The appellant never mentioned names and never brought anyone over.
26. The complainant denied making up the rape and other complaints because she had a crush on the appellant and was jealous of his fiancé, Gail.  The complainant knew the appellant was friends with a person named Gail.  She was one of the complainant’s old neighbours.  She denied knowing they were engaged; she knew them as just friends.
27. The complainant was shown a drawing she had made of the appellant.  She agreed she had written in the bottom left hand corner “To Tye, I heart you so much”.^[10]  She did not agree she had written the date 20 April 2005 which appeared in the top left hand corner.  She could not say when she had made the drawing.  Initially, she accepted it must have been on that date, which was after the rape allegedly had taken place.  Later, she said that could not have been the date she drew the drawing because she did it in class.
28. The complainant was shown another drawing.  She said it was not of the appellant.  It had nothing to do with the appellant. It was of a boy at her school.   She agreed the drawing bore a similarity to her other drawing but said most of her pictures had the same features.  The drawing had the words “Mr Perfect” written underneath.  It was not written Mr Perfect for that reason.  The complainant denied regularly giving drawings to the appellant.
29. The complainant accepted that when she made the complaint to the police the appellant was no longer living at her house.  She told her mother and her mother’s friend Dave about the rape before the appellant left the residence.  As far as she knew, the appellant left because Dave told him to leave.  She was glad the appellant left the residence.  She denied ever speaking to the appellant after the night of the rape.  She denied making the complaint up because she was upset the appellant left the residence.
30. The complainant accepted there were things she had forgotten over time.  She accepted she had been diagnosed with bipolar disorder and anxiety.  She was officially diagnosed with bipolar disorder two or three years ago.  The complainant had been prescribed lithium, Seroquel and Valium.  She was not taking lithium at the time of giving evidence.  The complainant accepted she had made personal choices which had affected her memory.  She had started smoking marijuana.

Other evidence

31. MST, the complainant’s mother, met the appellant when he helped them move house in January/February 2005.  The appellant came to stay with them after he had a fight with his fiancé Gail.  Gail lived next door to them at their earlier residence.  The appellant remained with them until mid to late April 2005.  He moved with them to Narangba.  The appellant shared the garage with Stewart Warren.  The garage was set up as a bedroom with makeshift beds and a television.  The door to the garage led into a communal living family area.  It was common for other adults in the house to spend time in that room.  The door between the garage and that room was generally open.
32. MST did not notice any reaction from the complainant when the appellant left the house in late April 2005.  MST first heard of the complainant’s allegations a couple of weeks after the appellant moved out.  The complainant told her the appellant had touched her and she needed to talk to her about it.  When they spoke later the complainant was really upset.  The complainant said the appellant had kissed and cuddled her and fingered her.^[11]  It happened on her grandmother’s birthday, 17 April.
33. MST said she did not want to hear any more about it.  At the time she was fighting a lot with the complainant.  The complainant was a troubled teenager.  MST took the complainant to police a week or two later.  The complainant was crying and not wanting to leave the house when she first told her mother about what had happened to her.  The complainant said she had told the school about it.
34. David Campbell first met the complainant and her parents in early 2005.  At the time, Campbell was living with the appellant, who he had known for six to 12 months.  Campbell became friends with the complainant and her parents.  He assisted them to move house, initially to Kallangur and then to Narangba.  For a time, he lived with the complainant and her family, both at Kallangur and Narangba.  The appellant also lived with them.
35. Campbell said at around the time the appellant was moving out of Narangba or had just moved out, the complainant was talking to him and looked upset.  He asked her what was wrong.  She told him the appellant had fingered her and “one of those times she wanted it to happen and the other time she didn’t.”^[12]  Campbell was not sure which was first.  He believed the complainant said it happened in the garage whilst “watching a movie or playing a game or something.”  He told the complainant she had to tell her parents.
36. Campbell was unsure whether the appellant had moved out of the house at the time of his conversation with the complainant.  It was quite possible he had already moved out.  The appellant moved out to go back to live with his fiancé Gail.  The appellant did not move out because he was asked to leave.  Campbell agreed at the time of the conversation with the complainant he was good friends with the appellant.
37. Stewart Warren lived with the complainant and her parents at Narangba in 2005.  The appellant also resided there for some time.  Warren did not ever recall noticing anything unusual between the complainant and the appellant whilst they were living at the house.  He did not have any recollection of ever seeing the complainant lying on the appellant’s bed in the garage.  There were two beds in the garage.  He said the complainant fought with her parents, just as normal kids and parents fight.
38. Brett Long, a police officer sought information from the school the complainant was attending at the time in 2005.  Those inquiries revealed that no person presently at the school had any recollection of the complainant mentioning the matters involving the appellant.  There was also no record of such a complaint being made.

Appellant’s Submissions

39. The appellant submits the only evidence of the commission of the offences by the appellant was from the complainant.  Whilst the complainant’s evidence in relation to the alleged rape was specific, the evidence in respect of the indecent treatment offences was very limited in scope.
40. On the complainant’s account, there was no doubt the appellant inserted his finger into her vagina without her consent and despite attempts to get him to stop by hitting the appellant.  On her account, that offence occurred with Stewart Warren asleep a short distance away in the same room.  Her complaints to her mother and Campbell were consistent with that account, as was her statement to police and evidence at trial.  The only complaint evidence supportive of the complainant’s account was in relation to the count of rape.
41. The appellant submits there was, on all of that evidence, no issue as to whether the complainant could have been mistaken as to what had occurred, no doubt as to penetration having taken place and no doubt as to the lack of consent.  Against that background, the only conclusion available from the jury’s verdict of not guilty of rape was that the jury did not believe the complainant’s account.  As that was the only account on which the jury could make a full assessment of the complainant’s credibility and reliability, there was no rational, logical basis upon which the jury could disbelieve her account of the rape but be satisfied beyond reasonable doubt of her account in relation to the counts of indecent treatment.
42. Once a conclusion is reached that the only reasonable and rational conclusion for the acquittal on the count of rape is a complete rejection of the complainant’s reliability and credibility, verdicts of guilty of the remaining counts were an affront to logic and common sense and ought to be set aside on the basis they are inconsistent verdicts.

Respondent’s submissions

43. The respondent submits there was a logical, rational explanation for the jury’s acquittal of the count of rape but conviction on the remaining counts.  The four counts on the indictment arose from two separate incidents.  Each of the indecent treatment counts arose out of the first incident.  The alleged rape arose out of the second incident.  Consent was only an issue in the rape count.  The natural alternative of indecent treatment was not left for the jury’s consideration in respect of the count of rape.
44. The respondent submits the verdicts can be reconciled on the basis the jury was satisfied both events occurred but was not satisfied beyond reasonable doubt about the element of consent in the count of rape.  That consent was an issue for the jury was supported by the jury’s questions relevant to the count of rape.  Those questions were unnecessary if the jury had rejected the evidence of the complainant about the rape as unreliable.
45. The respondent submits there were factual matters which raised a doubt as to the account that the rape occurred without consent.  The complainant failed to make an immediate complaint.  When she did complain to her mother, she was silent on the issue of consent.  Her complaint to Campbell included a statement that on one of the occasions she wanted the appellant to do it.  The complainant did not indicate which occasion.  Her description of the act of rape in her interview with police was equivocal.  Further, the complainant had adopted a drawing of the defendant, endorsed with her love for him only days after the alleged rape.

Relevant principles

46. Verdicts of guilty of some counts but not guilty of others, in circumstances where all counts relied upon the reliability and credibility of a complainant, do not of themselves justify the intervention of an appellate court.  The relevant principles were summarised in R v GAW:^[13]

“… Where alleged inconsistency arises in the jury verdicts upon different counts affecting an accused, the test is one of “logic and reasonableness”; that is, whether the party alleging inconsistency has satisfied the court that the verdicts cannot stand together because “no reasonable jury, who had applied their mind properly to the facts in the case could have arrived” at them.

However, respect for the jury’s function results in a reluctance in appellate courts accepting a submission that verdicts are inconsistent in the relevant sense, so that:

“... if there is a proper way by which the appellate court 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 that regard, “the view may be taken that the jury simply 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, the appellate court may conclude that the jury took a merciful view of the facts on one count; a function which has always been open to a jury.

It is only where the inconsistency rises to the point that the appellate court considers intervention is necessary to prevent possible injustice that the relevant conviction will be set aside. While it is impossible to state hard and fast rules, the following provide examples of relevant inconsistency; where the different verdicts returned by the jury are an affront to logic and common sense which is unacceptable, and strongly suggests a compromise in the performance of the jury’s duty, or which suggests 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.

In R v CX, Jerrard JA, referring to Osland v The Queen, stated:

“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.””

Discussion

47. Contrary to the appellant’s submission, the jury’s verdict of not guilty of the count of rape does not require a conclusion that the jury found the complainant to be lying when she said the appellant inserted his finger in her vagina.  That verdict is consistent with the jury having accepted that the appellant inserted his finger in her vagina but not being satisfied beyond reasonable doubt that he did so without her consent. 
48. Whilst the complainant gave a consistent account to police and in evidence of the appellant having inserted his finger into her vagina on 17 April 2005 without her consent, aspects of the evidence presented at trial raised issues as to her consent to that act.
49. The jury had before it evidence from Campbell that when the complainant complained to him about the appellant having inserted his finger into her vagina, she expressly said that on one occasion she wanted it to happen.  That evidence, if accepted by the jury, raised a doubt as to whether the act of inserting the finger into the vagina on 17 April 2005 occurred without the complainant’s consent.  The doubt raised by that evidence was plainly a reasonable doubt.
50. That doubt was further enhanced by the lack of any assertion by the complainant in her complaint to her mother that the appellant did the act without her consent.  The jury may also have thought it was consistent with the complainant’s failure to complain immediately to others in the household.
51. The existence of a reasonable doubt was further supported by a consideration of the complainant’s account of the events on the evening of 17 April 2005.  That account was of kissing, with no act by the complainant to positively resist those kisses.  Further, the complainant said she was tempted to scream suggesting an aspect of voluntariness in her conduct.  There was also evidence of the drawing made shortly after the alleged rape.
52. Once regard is had to all of the evidence, there was a reasonable basis for the jury to find, notwithstanding the complainant’s categoric assertion that she did not want the appellant to touch her whatsoever, that whilst it accepted the complainant’s account that the appellant had inserted his finger into her vagina on 17 April 2005, the jury could not be satisfied beyond reasonable doubt that event occurred without consent.
53. The fact the jury did not accept the complainant’s assertions that she did not consent was not fatal to the complainant’s credibility overall.  The complainant’s evidence was of a magnitude which allowed the jury to reach a conclusion as to her reliability in relation to the sexual acts she alleged had been committed on her by the appellant.  That conclusion is not affected by the fact the jury had little evidence from the complainant at trial in relation to the offences of indecent treatment.  There was an account in the s 93A statement.  That conclusion is also not affected by the fact there was no direct evidence of any motive to lie.  There was no requirement for such a motive to be identified in all the circumstances.
54. Once that conclusion is reached, there is a logical, rational basis for the jury having drawn a distinction between the counts of indecent treatment and the count of rape.  The jury accepted the complainant’s account that each of the acts had occurred, but were not satisfied beyond reasonable doubt as to the absence of consent.  Only the count of rape had, as an element, consent.

Conclusions

55. There is a logical, rational basis for the jury having found the appellant guilty of each of the counts of indecent treatment but not guilty of the count of rape.  The different verdicts are not an affront to logic and common sense.  They do not suggest a compromise in the performance of the jury’s duty or confusion in the minds of the jury.  There is no basis for this Court to intervene in all of the circumstances.

Order

56. I would order that the appeal be dismissed