R v Grimley[2017] QCA 291

SUPREME COURT OF QUEENSLAND

1. FRASER JA:  I agree with the reasons for judgment of McMurdo JA and the orders proposed by his Honour.
2. GOTTERSON JA:  I agree with the orders proposed by McMurdo JA and with the reasons given by his Honour.
3. McMURDO JA:  The appellant was charged with five counts of rape, all occurring on the one occasion and involving the same complainant, a 15 year old girl.  The jury convicted the appellant on three of those counts (counts 2, 3 and 4 on the indictment) and acquitted him on the others, instead finding him guilty of indecent treatment.
4. He appeals against his convictions of rape.  He argues that the verdicts were unreasonable, in that it was not open to the jury to be satisfied that the complainant had not consented, or that he had not honestly and reasonably believed that she was consenting.  Secondly, he argues that the trial judge did not adequately direct the jury on the issue of consent.  Thirdly, he says that there was a miscarriage of justice by the complainant’s victim impact statement not being disclosed to him before he was convicted.  It is said that this statement contained material from which he might have more successfully challenged the complainant’s credibility.

The evidence at the trial

5. The complainant’s evidence in chief consisted of what she said when interviewed by police on 24 July and 28 August 2015.^[1]  She was cross-examined prior to the trial and the recording of that was played to the jury.
6. The complainant met the appellant through a friend, whom I will call J.  He was a young man who was two or three years older than the complainant.  It seems that he had not been her boyfriend, although there had been one episode of sexual contact between them, not long before the events in question, when there was oral sex between them.
7. On the day in question, which was a Saturday, by arrangement the complainant met J in the Brisbane CBD.  They walked to a car where she was introduced to the appellant, and the three then travelled to the appellant’s house.  She described the trip from the CBD, with a stop at a service station, as taking about 20 minutes.  The appellant’s house was in an area near the Brisbane airport.  This was far from the complainant’s house which was in a western suburb.
8. There was some evidence of things said during this car trip which indicated the likelihood of sexual conduct when the group reached the appellant’s place.  She said that there was discussion about the complainant being aged 15 and in grade 10 at school and that the appellant was asking her questions such as “do you think the day’s going to get any better?” and “what do you think we will do when we get to my house?”  Consequently, she said, she began to feel scared.
9. At this time, the complainant was being treated by a psychiatrist.  There was preliminary complaint evidence from the psychiatrist, about what she was told during a consultation on 9 July 2015, three days after the events in question.  In notes made of the consultation, the psychiatrist recorded the complainant, speaking about J, saying the words “wanted to have a threesome”.  It was suggested, in the cross-examination of the complainant, that J had said this to her during the trip to the appellant’s house.  That was not accepted by the complainant, although she agreed that, during the trip, she expected that there would be some sexual conduct between the three of them.  Her evidence was as follows:

“And you got close to [J] - - -?---Yes.

- - - at the school camp but you had known him for some time before the school camp?---Yes.

And he was an older boy?---Yes.

A couple of years older than you?---Yeah.

You had sent him topless photos?---Not fully topless.

Had he asked you whether you would participate in a threesome?---No.  He never asked me.

I suggest – what I want to ask you about is something you said to the psychiatrist on the 9^th of July 2015, that is, three days after the incident we are concerned about.  And the note reads this, I’m suggesting:

Got close to [J] on church camp.  Asked her for photos last year.

That you’d made some mistakes, you’d given him a blowjob.  That you went back from church camp in his car and the next note is - - -?---Yes.

- - - wanting to have a threesome.  Was a virgin.

?---He never asked me to have a threesome with them.

Do you know how the word threesome came up in your conversation with the psychiatrist?---Maybe because there were two boys and me in the incident and he, obviously, did want to have one.  I knew that when I got in the car.

So you knew when you got in the car that [J] wanted to have a threesome?---Yes.  When I asked can I go home and they said until you deserve it; that’s when I knew.

But that happened at the house?---Yeah.

You said - - -?---As well as, like, in the car.  I also knew.

You said when you got in the car you knew they wanted to have a threesome?---Yes.”

10. When the three arrived at the appellant’s house, they went to an area which she described as a basement.  It consisted of a lounge room, a bathroom and a bedroom.  The three sat on a couch and watched a movie.  At the appellant’s suggestion, the complainant sat between the two men.  After a while the appellant rubbed her leg.  She said she asked when she could go home and the appellant replied that she would be dropped home only if she “deserved” it.  Further on in the same interview, the complainant was asked: “When he said something like … he’ll take you home but you have to earn it … what did you think that meant?”  The complainant answered that “I definitely knew when he first said that I was going to have sex with him to get home and I was just really scared.  I didn’t want to be there.  I just wanted to run.”  She was asked whether she had her mobile phone with her and she said that she did, but it had no credit left.
11. Count 1 on the indictment was a charge that the appellant raped her by placing fingers in her vagina when they were sitting together on the couch.  The complainant said that he did this for about 15 minutes.  At the same time he put her hand on to his penis (outside his clothing) which she could feel was erect.  She said that the appellant used one or two fingers and said that this “really hurt but it was still kind of bearable so I didn’t really kick up a big fuss or anything”.  She compared that experience with the subject of count 3, where the appellant used three fingers which “really, really hurt”.  Of this first count, she told police that, when this was occurring on the couch, she told the appellant that “it hurts”, but did not tell him to stop.
12. She said that the appellant then suggested that the three of them should go into the bedroom to watch a movie there.  She asked to use the bathroom and the appellant followed her there.  She said that she told him that she was virgin and said to him “please don’t do anything, I don’t want to do anal or any of that”.  She said that she was “trying to act casual”.  His response was to say “yeah we won’t do that”.  She then went to the bedroom because she believed that the only way in which she would be able to return home was if she “earnt it”.  She lay down next to J, but the appellant pulled her towards the middle of the bed.  The men started taking their clothes off and then her clothes as well.  She told police that as this was occurring, she “was just like joking along, like flirting and taking my clothes off and stuff”.  At another point in her (first) interview, she described what was then occurring as follows:

“Then [the appellant] started tugging my top off and my pants off and I was fine with that and … then he started taking my bra off and I was like no I don’t really want to take my bra off and then he’s like no you have to and I was like no.  And then he’s why not why not and he kept like going up to me and like why not why not why not.  So then I was like ok I will do it and he then like took my underwear off and I was like yeah fine I kind of gave in at that, at everything after that.”

13. The appellant then began to move in a way which made her apprehensive that there would be anal sex.  She then said words to him to the effect of “no anal”.  She told police that the two men were then “like fooling around touching [her] for a bit” before the appellant “put his … dick up in my butt”.  She said that she was saying “no, no”, whilst J was holding her still and telling her to “just go along with it, just do it”.  She said that she then “yelled really loud … stop”, but the appellant continued.  She was protesting that “this really hurts”, but the appellant did not stop.  She then said that she “took his dick out”, saying “no, I’m not doing that”.  She estimated that there was anal intercourse for about five to seven minutes and perhaps for as long as 10 minutes.  She said that during this time, J was telling her that she would have to do it because “when you’re at parties … you’re going to have to do it eventually”.  She told police that she then felt “embarrassed that I couldn’t do it, like, that it was hurting so much …”  When asked why she felt embarrassed, she told police “because I like the things that I’m good at like everything and because I do lots of sports and things … and I like to kind of put on the show that I’ve got everything kind of wrapped around my fingers but this was something that I’ve never really done before…”.  That event of anal sex was the subject of count 2 on the indictment.
14. The parties then remained in the bed when, the complainant said, the appellant penetrated her vagina with the use of three fingers.  At one point in the interview, she said that “they were both doing it”, but then immediately added that “[J] wasn’t doing it”.  She said that she “was sick of … getting poked and prodded and nothing really felt nice … so I just kind of had enough and grabbed his hand and [said] stop.”  She said that the appellant’s response was “ok then”, and that he did then stop.  That became the subject to count 3.
15. What next occurred was the penetration of her vagina by his penis.  She said that he put his penis “up there and started trying to get it as far as he could”.  She said that she was “ok, whatever, I just kind of went with that.  I did say like ‘stop’ a few times but I was just sick of the [indistinct]”.  She described this vaginal sex as “really, really painful” and said that she told the appellant to stop, but that “he was like just kind of pulling me the whole time so I couldn’t … get away.”  She described this episode as taking about 10 minutes.  It became the subject of count 4.
16. She again went to the bathroom, where the appellant asked her to suck his penis.  Her response was “I was like ok”.  She said that everything which had been done to her “really hurt”, so “I was fine with that”.  She sucked his penis, whilst she was being forced, by his hands on her head.  She said that she was “choking and … wanted to stop”. He ejaculated over her face.  This incident was the subject of the fifth count on the indictment.
17. She then said that she had to go home and the two men drove her across town to the suburb where she lived with her parents.  She asked to be dropped off some distance from the house.
18. Towards the end of her first interview, the complainant was asked “was your intent to get away from them?” And she answered:

“I just kind of wanted it to stop hurting, that was all I really had in my mind.  I didn’t really want to get away from them, particularly.  I just wanted them to stop hurting me.”

In cross-examination she said that this statement was true.  There was then this evidence:

“And the fact that things were hurting you was causing you embarrassment, wasn’t it? – Yes.

And embarrassment in a sense that you weren’t doing this sex thing very well; it was hurting too much? – Yes.

And you were embarrassed about that because you said to the police you liked to think you were good at everything that you do.  You know, you’d been a cheerleader, you’d been really good at that …? – Yes.

…[T]his was a bit different because this having sex was – you felt you weren’t doing it very well because it was hurting you? – Yes.

And that was going through your mind, wasn’t it? – Yeah.”

19. As I have mentioned, it was three days later that she told her psychiatrist what had happened.  What she said to the psychiatrist was substantially consistent with what she told police, when first interviewed about a fortnight later.  The complainant was taken to the police by her mother immediately after telling her that she “got raped”.  There was evidence from the complainant’s mother of that conversation.
20. Evidence was given in the prosecution case by J.  He said that on that morning, the appellant had asked him to get some girls, so he sent a text message to the complainant arranging to meet her in the CBD.  He recalled that at the appellant’s place, the three were watching a movie as they sat on the couch.  There was a blanket over their laps and something was occurring between the appellant and the complainant under the blanket.  He also recalled that they went into the bedroom and took their clothes off.  He remembered the appellant saying that the complainant’s vagina was “really tight” and he recalled hearing the complainant say “no anal” and “can you please stop it.  It hurts”, which the complainant said many times.  He heard her ask if she could leave and the appellant replied “only if you deserve it”.  He said that when the complainant asked J to intervene, by saying “please stop it”, J replied to the effect that she should “[j]ust go along with it.  You’ll be okay.”  He recalled that at one point she went to the toilet, after which she returned saying that the appellant had ejaculated all over her face and hair.  J said that his purpose in going to the house was to have a “threesome”, but that he was not sure that he had told the complainant about that.

The first ground of appeal

21. It is submitted that it was not open to the jury to be satisfied beyond reasonable doubt that the complainant did not consent to the acts relied on for counts 2, 3 and 4 or to be satisfied that an honest and reasonable mistake about consent had been excluded.  The argument relies particularly upon the complainant’s evidence that the appellant had discontinued the conduct relied upon for count 3 as soon as the complainant told him to stop.  The complainant’s evidence that as her clothes were being removed, she “went along with everything” and “without complaining” is also emphasised.  The complainant’s statement to police that she did not really want to get away from the appellant and J, but just wanted to stop it hurting, is also said to be significant.  The argument points out that the complainant agreed in cross-examination that she had known what rape was.
22. It is further submitted that it was telling, or should have been regarded as so, that the complainant had been untruthful about two aspects of what occurred on that day.  The first of those matters is in what she said to police about the place where she met J and the appellant.  In her initial interview, she said that they met near her house; in the second interview, she corrected that to say that they met in the city.  But that was not, of itself, a reason to doubt the substance of her evidence.  The second untruth is said to be in what she said about the conduct of J on the day.  She told police that there was nothing from him beyond minor touching.  At one point in the cross-examination, she appeared to concede that this wasn’t the truth, thereby indicating that there had been some more serious conduct by J.  But as that cross-examination continued, it became clear that she was referring to the previous occasion, when there had been oral sex between them.
23. Overall, the evidence provided a substantial basis for the arguments by defence counsel about consent and mistake as to consent.  Just a few days prior to these events, there had been the sexual conduct between the complainant and J, with her consent.  And by arrangement, she then met him on that Saturday morning.  She travelled to where the appellant lived, believing that they intended that there be sexual conduct between each of them and her.  The sexual episodes began with that which occurred on the couch, in which she did not tell the appellant to stop.  Notably, the jury acquitted the appellant of that count of rape.  Not long afterwards she was “trying to act casual” and, when her clothes were being removed, she was “just … joking along [and] flirting”.  The jury may well have considered that her conduct was not indicative of someone who was agreeing to sex only because she believed that she had no choice about the matter.  Indeed the jury’s verdict on count 5 suggests that the complainant did not accept that she was effectively trapped in the house and had to comply with the appellant’s demands.
24. However, for counts 2 and 4, the complainant’s evidence was that she voiced her strong objections and told the appellant, many times, that he should stop.  The jury was not obliged to reject that evidence.  There was no particular reason why they would do so: it was not inherently unlikely and it was supported by J’s evidence. And on count 2, there was also the complainant’s evidence that before the events in the bedroom, she had clearly told the appellant that there was to be no anal intercourse.  Again, J’s evidence supported her evidence on that count: he recalled hearing her saying “no anal”.  Therefore, on count 2, it was open to the jury to conclude that she had not consented to anal intercourse and that the appellant could not have honestly and reasonably believed otherwise.  Even with a doubt as to whether she had refused anal intercourse in the conversation before the three went into the bedroom, it was open to the jury to conclude that she was not consenting, and that he was not mistaken that she was consenting, as this episode continued over her protests.  Similarly, upon count 4, it was open to the jury to accept her evidence, and that of J, that she frequently told him to stop, in circumstances where he could not have honestly and reasonably believed that she was consenting.
25. The evidence about count 3 was different, in that it did not appear to involve a claim by the complainant that she had protested against this conduct, except once, after which the appellant immediately desisted.  It was conduct of the same kind as that which had occurred on the couch, when she had made no protest.  In my view, the jury should have been left in doubt about whether she was consenting to the conduct the subject to count 3, or alternatively about whether the appellant honestly and reasonably believed that to be the case.  The setting aside of a jury’s verdict on the ground that it is “unreasonable” is, as was said in R v Baden-Clay,^[2] a “serious step” and a “court of criminal appeal is not to substitute trial by an appeal court for trial by jury”.  However at its highest, the prosecution evidence, if accepted by the jury, did not exclude the possibilities of consent or mistake as to consent in relation to this count. The conviction of rape on count 3 should be set aside.  Subject to the third ground of appeal, this Court should substitute a conviction for the offence of the unlawful and indecent dealing of a child under the age of 16 years.

The second ground of appeal

26. The trial judge gave these directions about the question of consent:

“Consent is defined in our law in the following way.  It means consent, freely and voluntarily given by a person with the cognitive capacity to give consent, and secondly, that definition – freely and voluntarily given – is illustrated in this way: a person’s consent to an act is not freely and voluntarily given if the consent is obtained, relevantly for this case, by threats or intimidation.  And what largely is said here by the prosecution is, particularly in relation to all the counts apart from count 2, that there was – but including count 2 – there was intimidation by the introductory statement, “You’ll be taken home,” I forget the terminology, “if you behave,” something to that effect.  I’ll return to the precise word.  And that intimidation, so it is argued by the Crown, overlays all of the conduct from there on.  And as the complainant has often said, she thought that, “I wasn’t going to get taken home unless I had sex.”  So that is the way in which any consent that might be said to factually arise on the accounts given by the witnesses, is not a consent – so says the prosecution – which is sufficient for the purposes of any of the counts of rape to be proper consent, freely and voluntarily given.  Of course, the defence says quite the contrary …

Now, in relation to that aspect of consent, there is, as you’ve already heard from counsel, a second aspect to it.  If you are satisfied beyond reasonable doubt that, factually, the complainant did not consent, in other words, she was not consenting party, in the legal sense, to what was happening there, there is nevertheless another matter that you must consider.  Our law provides that a person who does an act which would otherwise be a criminal act, under an honest and reasonable but mistaken belief in the existence of any state of things, is not criminally responsible for the act to any greater extent than if the real state of things had been such as the person believed to exist.  Therefore, in the context of this case, that means you must consider, even though the complainant was not, in truth, consenting, if the defendant, in the circumstances he was confronted with, honesty and reasonably believed that she was consenting – I’ll return to the details of this – but the two sides of the argument are, as I’ve said, the Crown says to you, “Look, everything has to be seen in the light of her perception that, unless she went along with this, she wasn’t going to get taken home;  she was in a relatively remote location from her house, and didn’t know, otherwise, how to get home.”  Conversely, the defence point to a number of matters, such as her willingness to go along with some of the acts, particularly count 5, and that she really was voluntarily removing clothing, joking and laughing along some of the evidence at some stages, generally behaving as though anything that had been said earlier was not affecting in terms of lack of consent, and in truth she was giving the impression, at least, of someone that, in truth, was consenting.

…

The complainant says that she did not consent, and made that clear to the defendant.  If you accept the complainant’s evidence that she was told by the defendant, whom she had just [met] and who had driven her far from home without other support for her being present, that she would be dropped off only if she deserved it, you might think the defendant could not have honestly and reasonably believed the complainant was consenting to the sexual activity thereafter.

Alternatively, she goes further, particularly in relation to count 2, on consent generally and touching on this issue about mistake, where she says that she said to the defendant, “I’m a virgin and I don’t want to do anal.”  She was told, nevertheless, the only way she would get back home was to earn it.  She wasn’t comfortable with the defendant, she said.  She again said no to anal, but he said, “You’ll have to do it eventually, so you may as well do it now.”  She yelled at one point, “Please stop.”  She also complained that the vaginal sex hurt as well.”

27. The directions were based upon the meaning of consent in this context, according to s 348 of the Criminal Code (Qld), which provides that consent means consent freely and voluntarily given, which is not the case if it is obtained by a threat. The judge characterised the evidence by the complainant, that she would not be taken home unless she consented to these acts, as raising a question of whether there had been such a threat.  He told the jury that if they accepted her evidence in that respect, they might think that the defendant could not have honestly and reasonably believed that she was consenting.
28. The appellant’s argument is not critical of what the judge said; rather, it is submitted that this case required something more to be said.  The appellant’s argument, at least in the written outline, was that a direction such as the following should have been given:

“A consent could not be regarded as not freely and voluntarily given unless in all the circumstances the complainant was left in a position where she was unable to exercise the freedom to choose whether to be penetrated in the ways alleged.  A careful assessment of the effect of the appellant’s alleged statement upon the will of the complainant is called for.  Factors relevant to this assessment include the physical circumstances that the complainant was in, her age, her level of maturity and her emotional state.”

29. In my view, such a direction would have been incorrect.  The complainant’s consent may not have been freely and voluntarily given, although she was able to leave the house.  In this case, of course, there was no suggestion of any physical restraint upon her.  She was in part of a house, which it seems was not locked, during daylight in a suburban area.  The appellant’s father had been in the vicinity, just outside the house, at one point.  The suggested direction would have diverted the jury from considering whether her consent had been freely and voluntarily given.
30. The jury had to consider whether it accepted the complainant’s evidence that such a threat was made.  They were directed to consider that question.  If satisfied that the threat was made, they had to consider whether her actual or apparent consent (if any) was the result of her being threatened in this way.  In my view the directions made that clear to the jury.  Notably, the jury distinguished between the various charges in their verdicts.  This ground of appeal should be rejected.

The third ground of appeal

31. The complainant provided a victim impact statement, which was dated 1 February 2017.  Her cross-examination was recorded in a hearing on 17 November 2016.  The trial itself began on 4 April 2017.  The statement was disclosed to the defence just minutes before the verdicts were returned three days later.
32. The statement, in many respects, was inconsistent with some of the complainant’s testimony.  These were not inconsistencies about the events in question; rather, they were inconsistencies about the complainant’s life before those events which, it is submitted, would have provided material for more effectively challenging the complainant’s credibility.
33. In this statement, the complainant wrote that prior to these events, she attended school regularly and did not get into any trouble, got along well with her parents and did not engage in any risky behaviour such as using drugs or alcohol.  She said that she had had some previous relationships with boys, but the level of sexual contact was only kissing.  She said that she had a “lot of self-confidence and was living a positive life.”
34. As I have discussed, in her cross-examination she agreed that there had been a recent episode of oral sex with J.  She agreed that there had been an incident, in May 2015, when there was such a heated argument with her parents that she tried to burn the family house down.  In cross-examination, also she agreed that she had engaged in shoplifting, as the ringleader of a group, and that at sleepovers she had consumed alcohol until she was drunk.  More generally, she was then being treated by a psychiatrist, to whom she was referred because she had been self-harming and talking about suicide.  She also agreed that she had used cannabis.
35. The respondent accepts that the statement should have been disclosed to the defendant pursuant to s 590AB of the Criminal Code.  It accepts that there was not a timely disclosure of the statement.  The non-disclosure, it should be said, was the result of an administrative oversight.
36. The question is whether this non-disclosure has resulted in a miscarriage of justice.  In R v Cox,^[3] McMurdo P said that the test to determine whether there has been a miscarriage of justice in this context is an undemanding one, namely it is whether the material which was withheld could have made a difference to the verdicts.  Similarly, in R v HAU,^[4] Keane JA said that “even a relatively slim possibility that the defence has been forensically disadvantaged by the non-disclosure” cannot be ignored.
37. The respondent agrees that had the statement been disclosed earlier, it would have been appropriate for the defendant to be given leave to further cross-examine the complainant.  However the respondent argues that the statement could not have made a difference to the outcome of the trial, because it would not have significantly affected the weight of the material which was adverse to the complainant’s credibility.  The respondent points out that the complainant did concede that she had not told the truth to police in her statement as to the location where she had met the men.  She admitted that she had not told the truth in her statement as to the sexual conduct between herself and J.  She agreed in cross-examination that she had been a ringleader in shoplifting, having denied earlier in her evidence that she had been involved in shoplifting.  She admitted in cross-examination that she had forged notes from her mother for her school.  In cross-examination, it also emerged that, after the events in question, she had been charged with an offence of hindering a police investigation, by taking photos of a police officer’s investigative notes about an incident of drug dealing by a school friend.
38. The evidence which came from the cross-examination of the complainant must have substantially damaged the complainant’s credibility.  However there was no challenge by the cross-examiner to the fact that these episodes occurred.  Significantly, she was not specifically challenged on her evidence that she protested the acts the subject of counts 2 and 4, as they were occurring.  And there was the evidence of J which supported her evidence that she was protesting during some of the events.
39. As the verdicts demonstrated, the jury was not persuaded by the entirety of her evidence.  Her credibility must have been substantially diminished by what was revealed in her cross-examination.  The appellant was convicted upon that part of her evidence which was not specifically challenged and which was supported by other evidence.  In my conclusion, the availability of the victim impact statement could not have made a difference to the outcome.

Conclusion and orders

40. I would allow the appeal, limited to the conviction on count 3, which was not a verdict which was reasonably open on the evidence.  I would otherwise dismiss the appeal.  I would order as follows:

1. Allow the appeal against the conviction of rape on count 3 on the indictment.
2. Acquit the appellant of rape on that count.
3. Convict the appellant on count 3 of an offence of unlawfully and indecently dealing with the complainant, being a child under the age of 16 years.
4. Dismiss the appeal against the convictions on counts 2 and 4.

41. It will then be for the District Court to sentence the appellant upon the substituted offence for count 3.