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- Notable Unreported Decision
SUPREME COURT OF QUEENSLAND
R v Vico  QCA 73
VICO, Alan George
CA No 189 of 2020
DC No 285 of 2019
Court of Appeal
Appeal against Conviction
District Court at Brisbane –  QDC 176 (Dick SC DCJ)
16 April 2021
18 February 2021
Holmes CJ and Fraser JA and Boddice J
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – OPINION OF TRIAL JUDGE – where the appellant was found guilty of one count of rape after a judge alone trial – where the issue at trial was consent – where the appellant submits the Crown failed to establish that the complainant had an inability to consent and failed to exclude that the appellant had an honest but mistaken belief that the complainant had given consent – where the appellant submits the trial Judge erred in the approach to Dr Griffiths’ expert evidence, such that there was a miscarriage of justice – where the respondent submits that the verdict is not unreasonable – where the respondent further submits the trial Judge correctly rejected a submission that there was evidence of mistaken belief – whether it would be dangerous in the circumstances to permit the verdict to stand
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the appellant submits that none of the post offence conduct was capable of establishing a consciousness of guilt – where the appellant submits the trial Judge erred in having regard to the appellant’s answers to police where the appellant was entitled to exercise his right to silence; erred in her directions as to the use to which the alleged post offence conduct may be used in demonstrating a consciousness of guilt; erred in making no determination whether the alleged lies were, in fact, lies and, if so, whether they were Edwards’ lies or credit lies – where the respondent submits that the trial Judge correctly directed herself in respect of consciousness of guilt – whether there was a miscarriage of justice
Criminal Code (Qld)
Edwards v The Queen (1993) 178 CLR 193;  HCA 63, cited
Pell v The Queen (2020) 94 ALJR 394;  HCA 12, cited
S J Keim SC, with A J Kimmins and M L Longhurst, for the appellant
D Nardone for the respondent
O’Reilly Stevens Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent
- HOLMES CJ: I agree with the reasons of Boddice J and with the orders his Honour proposes.
- FRASER JA: I agree with Boddice J’s reasons and the orders proposed by his Honour.
- BODDICE J: On 25 August 2020, the appellant was found guilty of one count of rape after a judge alone trial. He was sentenced to five and a half years’ imprisonment.
- The appellant appeals his conviction.
- The appellant relies on two grounds of appeal. First, that the verdict is unreasonable and cannot be supported having regard to the evidence. Second, that the trial Judge did not direct herself in accordance with the law or otherwise did not consider the following issues according to law:
- (a)the appellant’s interview with police;
- (b)alleged lies;
- (c)alleged post offence conduct;
- (d)expert evidence,
which resulted in a miscarriage of justice.
- The offence was committed in a motel room in Cairns on 21 September 2018.
- The complainant was a Norwegian national, studying in Brisbane, who had travelled to Cairns for a short visit. She was aged 20 years at the date of the offence.
- The appellant was a resident of Cairns. He did not know the complainant prior to the events, the subject of the offence. He was aged 52 at the date of the offence and 54 at sentence.
- The Crown case was that carnal knowledge occurred at a time when the complainant did not have the cognitive capacity to give consent and that, accordingly, consent had not been given freely and voluntarily as required by s 348 of the Criminal Code. The complainant lacked the cognitive capacity to consent because the complainant was in a state of severe intoxication at the relevant time.
- The defence did not contend that carnal knowledge did not take place. The issue at trial was consent.
- In September 2018, the complainant was an exchange student, studying in Brisbane. She lived at 174 Grey Street, South Brisbane.
- On 20 September 2018, the complainant travelled from Brisbane to Cairns with two of her flatmates. They had arranged to stay at a hostel.
- The complainant spent the first day in Palm Cove. She returned back to Cairns late that afternoon. After purchasing a box of 10 ciders (eight per cent alcohol), she returned to her hostel. Whilst there, she consumed at least four ciders. She then attended a party at a nearby venue where she consumed some free “goon”, which she described as cheap wine. The complainant was, by now, starting to get a bit drunk, and only remembered bits and pieces. Her last meal was a bread roll with fetta cheese just after she arrived back from Palm Cove. The complainant was a regular drinker of alcohol.
- The complainant could not recall what time she left the party. She travelled to the Woolshed. She could not recall whether she consumed more alcohol. She did not have food. The Woolshed was her last memory of that night. Her next memory was the following morning. She recalled feeling really cold, which she thought was strange because the air conditioning in their hostel was not working. She did not know where she was, but determined it was a hotel room.
- There were two beds in the room. She saw a $20 note and a condom wrapper on the table next to her. She noticed that she was naked in the bed and smelt a lot like male perfume. The complainant went to the bathroom and saw another condom wrapper on the sink. She looked into the mirror, started crying, dressed and took the $20 note. She had no other personal belonging. Her phone and purse were gone. The complainant went to reception. Police were called and she was taken to the Cairns Hospital for a sexual assault examination.
- In cross-examination, the complainant accepted she had “a really good day” with her friends. They were looking forward to having fun that night. The complainant had very little memory about what happened at the party, other than playing football “with some guy”. The complainant remembered smoking a cigarette on the way to the Woolshed. Whilst there, she has a memory of standing at a table with her friends and some men. She did not remember dancing that evening. She did not remember kissing anyone that evening. When she awoke the next morning, she had a wristband on saying Woolshed. That was how she knew that was its name.
- The complainant accepted that, upon seeing the condom wrapper beside the bed, she was concerned she had sexual intercourse but could not remember doing so. She did not recall feeling any pain. The complainant said the first occasion she recalled drinking too much and having no memory at all was when she was aged about 15. She had experienced black outs in the past, but never as bad as this one. She accepted it was not unusual for her to drink to an extent where she had memory loss.
- The complainant did not accept an account put to her by the appellant’s counsel. She did not recall entering the appellant’s vehicle that evening. She did not recall remaining in that vehicle for a period of 20 to 30 minutes. She did not remember the man suggesting he would take her to a motel room. She did not remember arriving at that motel room. She did not remember vomiting in the bed or being taken to the bathroom to clean up. She did not remember kissing and cuddling the man or having intercourse with him. She did not recall telling the man “Fuck me”.
- EH, a 22 year old Norwegian national undertaking an exchange year, was living with the complainant at 174 Grey Street, South Brisbane. She travelled to Cairns with the complainant and another friend, MS. They returned to their hostel from Palm Cove at around 5.30 that afternoon. They purchased some food and drink. The complainant purchased 10 cans of strong ciders “like, seven per cent alcoholic per cents”. EH did not recall the complainant buying any food.
- Whilst in their room, they each consumed alcohol. EH estimated the complainant consumed four or five ciders. EH and MS also consumed some food. They did not share it with the complainant. After a while, the three of them went to the party. Whilst her memory was blurry, EH thought they left the hostel at about 7.30 that evening. It was still light and it was only a short eight minute walk. The complainant consumed a cider whilst walking to the party. EH described the complainant as in a good mood, happy and bubbly.
- Whilst at the party, EH consumed three small cups of a wine mixed with soda or cordial. The complainant was also drinking, but EH could not say how many drinks. EH did not know whether the complainant had eaten anything. After a couple of hours, they travelled to the Woolshed. The complainant was still in a good mood, but obviously affected by alcohol. Her speech was not slurred but she was unsteady on her feet and was talking more than usual.
- When they arrived at the Woolshed, both she and the complainant had a free beer or cider. EH could not remember how long they remained at the Woolshed. They planned to leave together to meet up with friends. EH did not, however, leave with the complainant. EH and MS went to the bathroom. When they returned, they could not find the complainant. EH assumed she had already left for Gilligan’s Nightclub.
- Both EH and MS then travelled to Gilligan’s. They did not see the complainant at Gilligan’s. EH tried to make contact with the complainant. Several telephone calls and text messages went unanswered. EH did receive a telephone call from a male on the complainant’s phone at around midnight. EH returned to the hostel at between one and two o’clock in the morning. She did not see the complainant back at the hostel. She next saw the complainant the following morning, in the company of police. When EH last saw the complainant on the night of 20 September 2018, she was “drunk like all of us were, but, like, not – not that I considered it, like, being too much, if you understand what I mean”.
- In cross-examination, EH accepted she told police they left at about 9.30 pm and walked to the Woolshed and that the complainant seemed to be walking and talking fine, but that she could tell she was a bit drunk. The complainant’s demeanour did not change at the Woolshed.
- MS, a Norwegian national studying as an exchange student, was also living at 174 Grey Street, South Brisbane, with the complainant. She travelled to Cairns with the complainant and EH. After spending the day in Palm Cove, they returned to their hostel. They consumed alcohol at the hostel before leaving for the party. It was a short walk. She did not observe anything out of the ordinary in the complainant’s behaviour at that time. MS did not recall how much alcohol the complainant consumed but noticed the next day there were only five out of 10 cans of cider left in the box purchased by the complainant.
- MS said they each consumed alcohol at the party. She could not remember if the complainant had any food. They remained there for a couple of hours before walking together to the Woolshed. The complainant was “pretty normal” for a night out. MS could not remember observing whether the complainant appeared to be affected by alcohol on the walk but MS was herself probably affected by alcohol at that time.
- When they arrived at the Woolshed, they sat down talking to friends. MS could not recall consuming drinks at the Woolshed. She could not remember whether the complainant had any drinks. She does not believe there was any food consumed at the Woolshed. After a time, MS and EH went to the bathroom. The complainant did not want to come with them. When they returned, the complainant was not at the Woolshed. They assumed she walked over to the next nightclub. At that stage, they were all beginning to be drunk.
- When they arrived at the next nightclub, Gilligan’s, MS did not see the complainant. She did not see the complainant again that night. She next saw the complainant on the following morning, in the company of police.
- In cross-examination, MS accepted that, when the three of them walked, they were all in about the same condition so far as alcohol consumption and possible intoxication. All three were quite capable of walking. She could not recall the complainant having any difficulties.
- JS was staying at the same hostel as the complainant and her friends. He also attended the Woolshed on the evening of 20 September 2018. He had drunk approximately four cups of cask wine prior to arriving at the Woolshed. He was not intoxicated at that time. When he met the complainant, it was apparent she had “a whole lot to drink that night. She was slurring her words. Having difficulty walking and standing”. He did not believe the complainant was drinking at the Woolshed. He remained with her during his entire time at the Woolshed, approximately an hour and a half or a couple of hours.
- Whilst at the Woolshed, JS observed the complainant dancing “very promiscuously with various men”. The complainant was trying to kiss them. At one point, she tried to kiss JS. JS left the Woolshed with the complainant. He had noticed the complainant was alone. He was concerned her friends would leave her alone in that state. He saw her have a confrontation with one of the bouncers, who was asking the complainant to leave. JS offered to reunite her with her friends.
- JS tried to make his way to Gilligan’s as he was told by the security guard that was where the complainant’s friends had gone. The walk to Gilligan’s was “a bit of a chaotic journey”. The complainant was going in the wrong direction. He had to constantly persuade her to follow him. At one point, they were walking in circles. The complainant was having difficulty balancing. He had to hold her hand as she was having trouble staying upright. JS tried to encourage the complainant to call her friends. At one point, the complainant telephoned one of her friends. JS was able to speak to the girl.
- JS said, during the walk to Gilligan’s, the complainant kept wanting to wander off. He had an altercation with two men who thought he was trying to take advantage of her. At one point, a security guard crossed the street and intervened, trying to let the complainant leave in a taxi. JS did not think that was a good idea. The complainant did not know where she was and could not provide her address in Cairns. The complainant attempted to enter Gilligan’s but was refused entry. JS’s last interaction with the complainant was when she was getting into a taxi. She could not give an address. She kept saying somewhere in Grey Street.
- During the night, JS took possession of the complainant’s keys and phone as he did not want her to lose them. When she was getting into the taxi, he returned her phone to the complainant. He forgot to return the key. He later realised he still had possession of that key and came to determine that she was staying at the same hostel.
- In cross-examination, JS agreed the complainant was grabbing men by the hands to dance. He also saw her kissing a number of men on the dancefloor. It could have been about four different men throughout the night.
- PH was a security guard at the Woolshed that night. At around 10.30 that evening, he observed a female near the main bar stumbling and knocking into other patrons. He checked on her welfare. Her words were slurring, although she seemed to understand what he was saying. It was obvious to PH that she had consumed a bit too much alcohol. He asked her to accompany him to the front door. As he went past a set of tables, a male stood up and said he would be happy to escort her out the front and put her in a taxi. PH asked the woman if she knew the man. She replied they were staying at the same hostel and she was happy to leave with him.
- In cross-examination, PH accepted he observed the complainant dancing that night. He saw the woman in the company of another male person earlier that night. He observed the woman kissing that man.
- KW was working as a security guard on the evening of 20 September 2018. He was patrolling the city centre, dealing with intoxicated people. He was continuously foot patrolling through the city centre. At approximately 10.50 that evening, he observed a female outside Gilligan’s. She was staggering and looked intoxicated. She seemed to be having an argument with a male person, who was preventing her from leaving the premises. It looked like the female was trying to enter a taxi in the nearby taxi rank. The male was preventing her from doing so.
- KW approached the woman. She was able to communicate with him. She spoke Swedish, as did KW. KW explained that he considered she was too intoxicated to go into any other nightclubs and she should go home. The woman’s speech was “slightly slurry”. She also had the other normal signs of a highly intoxicated person, stumbling, bloodshot eyes and a smell of alcohol. Eventually, the woman left in the taxi by herself. KW was reluctant to let the male go with her, because he did not know anything about him.
- EL was driving a taxi on the evening of 20 September 2018. He was sitting outside Gilligan’s nightclub when two men and a female approach his taxi. One was a security guard. He asked if he could take the woman home. EL could not find the address given to him by the woman. The address did not match. At one point, the woman used her telephone. She was speaking in another language. The woman then said “…stop here, stop, stop.” It was in Sheridan Street, Cairns North. The woman paid him with her card and left the taxi.
- CCTV footage of the complainant in EL’s taxi recorded that on each occasion EL asked the complainant for an address, she provided her Brisbane address of 174 Grey Street. The complainant had difficulty spelling Grey, she frequently closed her eyes and appeared to be falling asleep. The complainant also struggled to locate her bank card to pay for the fare and stumbled as she exited the taxi.
- CCTV footage also recorded the appellant’s vehicle approach the complainant on the side of the road. The complainant was recorded as entering the appellant’s vehicle before it left the area. CCTV footage from the car park area of a motel located in Earlville later recorded the appellant’s vehicle arrive at that motel complex. He and the complainant were recorded as walking into the motel.
- RF was working as the onsite manager at that motel on the evening of 20 September 2018. After 9 pm, when reception was closed, guests are able to obtain a motel room by using a telephone at the front entrance. A service records the guest’s details and gives the guest access to a room.
- An audio recording of the appellant’s request for a motel room recorded that he advised there were two guests and, when asked if they needed separate beds, he answered they were happy to share.
- RF received an email the following morning from that service recording a walk in confirmation for the motel at 12.09 am on 21 September 2018 under the name of the appellant. The email recorded the appellant’s address and credit card details. He had been allocated room 12, a ground floor room containing a single bed, a twin size bed, a bathroom, TV and tea and coffee facilities.
- At about 7.10 am on 21 September 2018, a young woman appeared at reception. RF said she was visibly upset. RF said she did not know where she was and did not know how she had got there. She had a $20 note. She placed the key for Room 12 on the bench. RF went to room 12. She saw a condom wrapper on the bedside table and one on the bathroom bench. RF then telephoned Policelink. RF obtained the complainant’s name and details of where she was staying when RF returned back to reception. RF ensured that no-one entered room 12.
- In cross-examination, RF said the complainant only had a $20 note. She did not have a purse or telephone. The woman told RF she was staying at the hostel.
- EJ was also staying at the motel complex at Earlville on the evening of 20 September 2018. She was occupying room 19 on the ground floor. That room had an attached balcony which overlooked the car park. EJ recalled waking from her sleep at around 12.20 am on 21 September 2018. She went outside onto the balcony. She observed a vehicle enter the car park area. A male and a female left the vehicle. The male appeared to have his arm around and supporting the female as she walked to the entranceway. EJ said the female appeared to be walking in a straight line. She did not hear them speak. EJ did not see the female again. She did see the male about ten minutes later, when he moved the vehicle to another car park space. He also removed something from the vehicle.
- Police arrived at the motel complex at 8.40 on the morning of 21 September 2018. They spoke to RF and seized the $20 note. They also examined room 12. They observed two condom wrappers, one on the bedside table and one in the bathroom. There was also a single sheet located in the bathroom. The sheet was damp.
- In cross-examination, police accepted that, upon attending the motel on the morning of 21 September 2018, the complainant was breathalysed.
- A sexual assault investigation was performed on the complainant at around 10.30 am on 21 September 2018. There were, on examination, no visible signs of injury externally. That was extremely common in his experience and the absence of injuries did not exclude the possibility that there had been vaginal penetration. Two vaginal swabs and one external swab were taken for DNA analysis.
- On the evening of 21 September 2018, police attended the appellant’s residence with a search warrant. A search of an outside garbage bin revealed the presence of three condoms. They were seized and underwent DNA analysis.
- The search warrant process was recorded. That recording revealed police advised the appellant that they were investigating a sexual assault and they were going to search his residence and vehicle. They seized the clothes he said he had been wearing in the previous 24 hours.
- The appellant told police he had been at work all day. The appellant said he was “concerned about um something that, that I was um involved in last night” and that he did not want to implicate himself but that he “certainly didn’t assault anyone in the last twenty-four hours, that’s for sure”.
- The appellant said he picked up a young woman who looked like she might have been in the process of being in some trouble or about to break the law. It was probably about 11 o’clock in the evening when he saw her on the side of the highway. She appeared to be trying to get into a property. He stopped to see if she was alright. She was not making much sense. Eventually, he found a motel and booked her into it for the night. He was concerned she might be unwell. He took care of her for a while.
- The appellant said the woman was intoxicated and not well. He was worried she might have had some drugs. She was Norwegian and did not speak English too well. She was also sick at the motel. The woman vomited on the single bed in the motel. There were two beds in the room.
- The appellant told police he thought he had told them enough. He was concerned “that she may have been sexually assaulted earlier in the evening” and wanted to obtain some legal advice. The appellant said he was concerned “the minute I saw her and concerned that she may have been assaulted earlier”. When asked about condom wrappers located inside the motel room, the appellant said “Ah, this is where I, I, yeah, I, and you gave me my rights before, can you just remind me of those?”
- The appellant said he had finished work late, purchased some food and was on his way home when he saw the woman leaning up against the premises. She was scratching at or cutting at canvas on the outside of those premises. He thought she might have had a knife. It was strange behaviour. When asked the purpose of stopping, the appellant replied “Mate, I’ve got a twenty-one year old, twenty year old daughter who’s coming home tomorrow, um, you know, it’s, I’m after the person’s wellbeing.”
- The appellant said, when he stopped at a red light, the woman jumped into his car. He wanted to make sure she was alright. He asked if he could take her anywhere, take her home or to a friend. He was concerned she may have been distressed, intoxicated or taken a drug. She was not clear on what she wanted to do or where she wanted to go. He thought she was drunk among a few other possibilities.
- The appellant said the woman could still talk to him and was coherent in her speech. She told him she was Norwegian. The appellant said she was very tired and falling asleep. He asked her whether she wanted him to take her somewhere to sleep. The appellant estimated it was a total of 15 minutes from when she sat in the motor vehicle to when he arrived at the motel. The appellant asked the woman where she was staying. She did not answer. He chose the motel as it was the first one that had a vacancy sign and 24 hour check in.
- The appellant said he checked in using an after-hours phone. He obtained the key from a secure box after being given the code. He did not know what time he left the motel. He sat for a while. The appellant said he put the woman in the single bed of the room. He had a shower to freshen up before driving home. While he was doing so, the girl vomited on the bed. He cleaned that up and put her on the other bed.
- The appellant said it was a strange place for the woman to be at that hour. He did not know how she had got to the area. When asked if she made any advancements of any type towards him, the appellant said “Oh, I don’t want, yeah, I don’t think, I feel uncomfortable at the question so again I don’t want to answer that”. He also did not want to answer whether he had sex with her. The appellant said he helped her and had physical contact with her but did not want to answer whether there was intimate contact. He said there was a motivation to claim a sexual allegation on the part of the woman. He did not know what that motivation was.
- The appellant, when asked how the woman became naked, said “She took off her clothes, I guess”. He was not in the room. He was in the shower. When he came out, she was naked in the bed with the sheet up. He knew she was naked as her outfit was on the floor. He did not take her clothes off.
- When told that used condoms had been located in his bin, the appellant said the used condom “could be” his. He did not remember when he put it in the bin. When asked whether he recently had sex that may have required a condom, he replied yes and that the last time he had sex was the night before last night with his partner.
- The appellant thought the woman fell asleep in his car when he went to check in to the motel. He thought she woke up when he was parking the car. When asked when she vomited, he said “Well, when the condom boxes are coming out”.
- The appellant paid for the motel room. When asked if this was something he had done before, the appellant replied:
“Um, no, I don’t like exactly know but you know if someone’s in need I’ll continue to getting them home safe, or, you know, give em’ a bus fare or whatever or a taxi fare. You know, like, I’ve been out with my partner and, hailed taxis for girls and put them in a taxi and send them home”.
- He had never booked a room for someone and put them up. That was the first time. There was no conversation about the woman paying him back. He was just doing it out of the goodness of his heart. The appellant said “[I]t went on too long, I wanted to get home” and that “I was hoping the outcome might have been take me here, you know five minute drive”.
- When asked whether he felt the woman was intoxicated and whether that was the reason he stopped, the appellant replied “No, I stopped because I thought two, one of two things, I stopped she could have been in danger or she was you know breaking in, you know, what would she be doing there?” When asked what it was that led him to believe that, the appellant said it was just odd at the time and said “You’re a policeman. Wouldn’t you think it was odd if you were driving home on the Sheridan Street and there’s a young lady on the side of the road, um, there’s a narrow footpath there if you can recall it, you know, seeming to be scratching and cutting at the, at the um canvas on the fence.” The appellant said he did not initially think the complainant was unwell. He was concerned for her safety and her predicament.
- The appellant said he understood sexual assault was making any sort of sexual contact with a person who is not agreeable to it and “I didn’t do that”. He asked police whether the woman was okay physically. When asked what he meant, he replied “[l]ike not harmed in any way? You know, like bruised or, um battered or you know well the ultimate sexual assault is rape, right? That’s forceful”. He also asked police where her friends were last night and how she came to be in that situation, as it was not an area where there was any accommodation. He asked police if there were any allegations of property stolen.
- When asked by police if there was something at the residence that he thought belonged to her, the appellant replied “No, definitely not. I’m just wondering if something else happened and I’m being blamed for it. The thing that concerns me is she didn’t seem to have any possessions. Right? I don’t recall seeing her phone or her wallet.” He replied yes when police said “Is this something you thought of last night? Where’s your phone? Where’s your wallet?” He thought that as he was leaving the motel. He had checked his car that morning to see if she had left anything in the car. When he left the motel, the appellant left $20 and the key. He was not going to rummage around looking for her phone or wallet and left her $20 to get a taxi in case she needed it.
- Dr Leslie Griffiths opined that, if a sample of the component’s breath using a handheld breathalyser recorded a reading of 0.102 per cent on the morning of 21 September 2018, then, depending on the rate of elimination and experience with alcohol intake, the complainant would have had a blood alcohol concentration of approximately 0.229 per cent when the complainant was removed from the Woolshed on the evening of 20 September 2018; 0.214 per cent when she entered the appellant’s vehicle; and 0.207 per cent when she arrived at the motel. Those estimates were taking the median rate for elimination.
- Dr Griffiths opined that the effect of alcohol varies depending upon the tolerance to heavy drinking. A very heavy drinker would acquire a tolerance over time and may not appear as intoxicated at certain levels of alcohol as a light social drinker at the same level. The description given by the complainant was consistent with binge drinking. Having regard to the complainant’s youthful age, he would not expect her to have acquired a very high degree of tolerance of alcohol.
- Dr Griffiths opined that a person with an average tolerance to alcohol would initially feel euphoric, talkative and sociable but not appear particularly intoxicated at an alcohol level of 0.05 per cent. Above 0.08 per cent, critical judgment, perception and coordination might be affected and there may be signs of disinhibition and risk taking. Over 0.1 per cent, visual acuity can be impaired and there may be signs of physical indicia. There are signs of confusion as you get closer to 0.2 per cent, although there is enormous individual variability. A person with a blood alcohol level above 0.2 per cent would be clumsy and not able to walk in a straight line. There would also be an inability to lay down new memories. Critical judgment and disinhibition would be impacted upon and there would be evidence of drowsiness, slurred speech and muscle relaxation. A level of intoxication which is higher than 0.2 per cent is consistent with the development of anterograde amnesia.
- Dr Griffiths accepted that, if the complainant was observed to be dancing very promiscuously with various men and trying to kiss them that could be explained by disinhibition due to alcohol. The fact that she lost memory did not mean she fell unconscious. A person with a blood alcohol of up to 0.2 can be walking, talking and communicating with other people but have no later memory. Intoxicants also increase a person’s tendency to accept higher risk and to decide to do something on the spur of the moment. Dr Griffiths had known complainants who said “Surely I wouldn’t have gone home with that individual?”
- Dr Griffiths accepted in re-examination that a person who developed amnesia as a consequence of alcohol intoxication could fall asleep. You could also have a person who was awake and conscious, but not have the ability to work out what was happening at the time. Cognition is memory and understanding. Judgment is also critical. Judgment may be affected by the alcohol such that the person may not be aware of not just their surroundings, but their circumstances. The loss of memory is forward in that, from the time the alcohol level is reached, all activities after that time are obliterated. The person has no memory of events in that particular time.
- Alan McNevis undertook DNA analysis of the vaginal swabs and condom. The high vaginal swab tested negative for the presence of semen. However, a DNA profile indicated the presence of DNA from both the complainant and the appellant. It was approximately 16 times more likely that that mixed DNA profile would occur if the appellant had contributed the DNA along with the complainant, rather than if the appellant had not contributed DNA. That was a fairly low statistic.
- The low vaginal swab tested positive for the presence of semen. The DNA profile was again mixed, with two contributors, the complainant and the appellant. It was approximately 5,900 times more likely to have obtained that mixed DNA profile if the appellant contributed DNA along with the complainant. This was a much larger likelihood ratio.
- The vulval swab also tested positive for the presence of semen. The DNA profile was again mixed, with two contributors, the complainant and the appellant. It was approximately 15,000 times more likely to have occurred if the appellant contributed DNA along with the complainant.
- McNevis undertook DNA analysis of swabs collected from the exterior of a soiled condom found in the appellant’s wheelie bin and the exterior of two used condoms found scrunched up inside tissue paper removed from a condom box in that rubbish bin. McNevis could not comment on the presence or absence of the use of a condom during sexual intercourse, other than to note that, if there was less DNA to match, there would be a lower statistic.
- The DNA analysis revealed positive results for the presence of semen from the exterior of the soiled condom but a negative result for presence of semen for the interior of the soiled condom. Each had insufficient DNA for analysis. Each of the used condoms tested positive for the presence of semen, with one producing a DNA profile matching the DNA profile of the appellant. That DNA profile was greater than 100 billion times more likely to have occurred if the appellant had contributed DNA than if he had not.
- The other used condom did not contain sufficient DNA of the semen but revealed a mixed DNA profile indicating the presence of DNA from the appellant and the complainant. That mixed DNA profile was greater than 100 billion times more likely to have occurred if the appellant and the complainant contributed DNA than if they had not. The results in relation to the used condom presented a high degree of positivity that the appellant had used that condom at some particular time. In the case of the mixed DNA profile, the results indicated that each person must have transferred enough DNA to represent that high likelihood ratio, but McNevis was unable to say how the DNA came to be deposited on the condom.
- The Crown case also relied on admissions made pursuant to s 644 of the Criminal Code. Those admissions related to the dates, times and contents of CCTV footage, the location of the motel, the occupation of room 19 by EJ, the arrival of police at that motel at approximately 7 am on 21 September 2018, the taking of a breath sample from the complainant by police and the relevant blood/alcohol concentrations based on various elimination rates at relevant times on the evening of 20 September 2018. There were also admissions in relation to the removal of condoms from the rubbish bin at that home.
- The agreed summary of the contents of the CCTV footage, relevantly, included:
- (a)the complainant entered the Woolshed at approximately 9.30 pm on 20 September 2018 and was escorted from it at approximately 10.21 pm;
- (b)the complainant walked with JS after exiting the Woolshed for approximately 10 minutes before disappearing from view;
- (c)the complainant walked towards the entrance of Gilligan’s nightclub at approximately 10.53 pm on 20 September 2018 before being stopped by JS. The complainant then approached EL’s taxi, entering it at 10.58 pm. The complainant left in that taxi at 11.14 pm;
- (d)at 11.14 pm, EL’s taxi arrived in Cairns North and the complainant exited the taxi;
- (e)at approximately 11.30 pm on 20 September 2018, the appellant‘s vehicle approached traffic lights in Cairns North. The vehicle stopped before the appellant performed a U-turn;
- (f)at approximately 11.56 pm on 20 September 2018, the appellant approached the front entrance of the motel at Earlville. One minute later he picked up the after-hours phone;
- (g)at approximately 12.05 am on 21 September 2018, the appellant’s vehicle drove into the motel car park. Both the complainant and the appellant exited, walking together towards the motel entrance. The appellant is holding onto the complainant as they walk;
- (h)at approximately 12.07 am on 21 September 2018, the appellant walked along an internal corridor towards room 12, with the complainant following him. At approximately 12.08 am, the appellant ran along the internal corridor away from room 12, before entering his car and reversing it in the car park;
- (i)at approximately 12.10 am on 21 September 2018, the appellant ran through the car park carrying various items towards the motel entrance. At 12.11 am, the appellant walked along the internal corridor towards room 12 carrying various items;
- (j)at approximately 12.22 am on 21 September 2018, the appellant walked along the internal corridor away from room 12 towards his car, carrying various items. At approximately 12.27 am, the appellant walked back towards the motel entrance, holding various items, prior to travelling along the internal corridor towards room 12;
- (k)at approximately 1.20 am on 21 September 2018, the appellant walked along the internal corridor away from room 12 into the car park, dressed in shorts and a singlet. At approximately 1.21 am, the appellant walked back towards the motel entrance before walking along the internal corridor towards room 12;
- (l)at approximately 3.57 am on 21 September 2018, the appellant walked along the internal corridor away from room 12 carrying various items, before walking to the car park towards his vehicle;
- (m)at approximately 4 am on 21 September 2018, the appellant walked back towards the motel entrance and along the internal corridor towards room 12;
- (n)at approximately 4.06 am on 21 September 2018, the appellant walked along the internal corridor away from room 12 towards the car park before leaving the car park in his vehicle.
- At the conclusion of the Crown case, the appellant elected to neither give nor call evidence.
Trial Judge’s decision
- The trial Judge acknowledged there was a circumstantial case in respect of consent and that to bring in a verdict of guilty, it was necessary that guilt should not only be a rational inference but the only rational inference that could be drawn in the circumstances.
- The trial Judge recorded that the making of a booking for two guests to be accommodated in the same bed at the motel was inconsistent with the appellant’s version to police that he took the complainant to the motel to care for her and that he was only interested in her wellbeing. CCTV footage from the motel also recorded that the complainant could not walk in a straight line and it appeared the appellant was holding her up and guiding her towards the motel.
- The trial Judge accepted Dr Griffiths’ evidence the complainant’s blood alcohol concentration at the motel would have been at least 0.17 per cent and that, at blood alcohol levels above 0.08 per cent, there would be an effect on critical judgment, perception and coordination and may be an effect on memory.
- The trial Judge found that the evidence established that the complainant was not aware of her surroundings in the taxi or when she entered the appellant’s vehicle. The trial Judge did not consider the complainant’s behaviour at nightclubs with young men informed her about whether she consented to sexual intercourse with the appellant, an older male and a stranger. However, the CCTV footage satisfied the primary Judge that the complainant was highly intoxicated and falling asleep, leading up to and in the motel, and was, therefore, not in a position to consent to sexual intercourse with the appellant.
- The trial Judge directed herself in relation to alleged post offence conduct, being the appellant distancing himself from the act of carnal knowledge; asserting that the complainant was coherent; asserting that the last time he had sexual intercourse was with his partner the “night before last”; and removing the condoms from the motel room, and found that those actions demonstrated a consciousness of guilt.
- The trial Judge also found that the appellant’s account to police did not raise a defence of mistake of fact. The interview with police contained an assertion that sexual assault was making any sort of sexual conduct with a person who is not agreeable to it and that he was saying he did not do that. That passage did not give rise to an inference that the appellant subjectively believed the complainant was willing to engage in sexual intercourse with him, that he subjectively believed that consent had been given for such sexual intercourse and that those beliefs were reasonable.
- The trial Judge found the appellant had carnal knowledge with the complainant; that at the time of penetration the complainant did not have the cognitive capacity to give consent to the carnal knowledge freely and voluntarily due to the level of her intoxication; and that the appellant had engaged in actions demonstrating a consciousness of guilt.
- Having considered all of the evidence, the trial Judge was left with no reasonable doubt as to the guilt of the accused, finding the prosecution had proven the element of lack of consent beyond reasonable doubt.
- The appellant submits the Crown failed to establish that the complainant had an inability to consent and failed to exclude that the appellant had an honest but mistaken belief that the complainant had given consent. The CCTV footage demonstrates that the complainant was capable of physically controlling herself and there was evidence the complainant was dancing very promiscuously with various men and trying to kiss them, throughout that night. The evidence of Dr Griffiths established that an intoxicated person may have no memory of the events of the night but be capable of walking, talking and communicating with people, such that it did not mean that person did not have the cognitive ability to consent to sexual intercourse.
- The appellant further submits that none of the post offence conduct was capable of establishing a consciousness of guilt. The alleged lies in the interview to police were not material to the offence as the only issue in dispute was consent. Those lies did not reveal a consciousness of guilt in respect of the complainant having no capacity to consent to sexual intercourse as opposed to an explanation consistent with innocence in respect of that element.
- The appellant submits the appellant’s conduct was inconsistent with a consciousness of guilt. He arrived at the motel in his own vehicle, gave his own name, address and driver’s licence and paid using his credit card. Against that background, removal of a used condom was consistent with mere common courtesy, particularly as the appellant did not remove the empty condom wrappers. In any event, a used condom would only have established that intercourse had taken place, which was not in dispute. Its removal said nothing about the complainant’s ability to consent.
- The appellant further submits that the appellant told police he had attended the motel and declined to answer any question as to whether there was any sexual interaction, as was his legal right. The exercise of that right does not indicate any consciousness of guilt as to the issue in dispute, namely, the complainant’s ability to consent to intercourse. Further, the appellant’s observations as to the complainant’s coherency and speech were consistent with other witnesses, such that they are not established to be a lie and were incapable of being used as evidence of a consciousness of guilt on the question of the complainant’s cognitive ability to consent.
- The appellant submits that the appellant’s assertion about the last time he had sexual intercourse must be considered in context. The appellant had been asked specifically about intercourse at his residence. There was no basis to find his answer exhibited any dishonesty. His answer was consistent with shame and regret, not a consciousness of guilt concerning the complainant’s ability to consent to sexual penetration.
- The appellant further submits that none of the post offence conduct was capable of establishing a consciousness of guilt. The clear implication of the appellant’s words to police was that he admitted sexual intercourse with the complainant but with her consent. If he was wrong in respect of that matter, the question raised was whether he was honestly mistaken as to that consent.
- Finally, the appellant submits the trial Judge erred in having regard to the appellant’s answers to police where the appellant was entitled to exercise his right to silence; erred in her directions as to the use to which the alleged post offence conduct may be used in demonstrating a consciousness of guilt; erred in making no determination whether the alleged lies were, in fact, lies and, if so, whether they were Edwards’ lies or credit lies; and erred in the approach to Dr Griffiths’ expert evidence, such that there was a miscarriage of justice. The failure to consider alternative explanations for conduct other than a consciousness of guilt also resulted in a miscarriage of justice.
- The respondent submits that the verdict is not unreasonable. There was direct evidence from the complainant that she was not aware of her surroundings and circumstances. There was, in addition, direct evidence of an absence of cognition, having regard to the complainant’s likely level of intoxication at the time of sexual penetration and the accounts of her cognitive function prior to entering the appellant’s vehicle. These accounts were supported by the CCTV footage and by the appellant’s account to police, to the effect that the complainant was not making much sense, was tired and falling asleep and that he thought she was intoxicated or had consumed drugs. That evidence, considered as a whole, amply supported a conclusion, beyond reasonable doubt, that the complainant did not have the cognitive capacity to consent.
- The respondent further submits the trial Judge correctly rejected a submission that there was evidence of mistaken belief. The appellant gave no such evidence and there was no evidence from which such a mistaken belief could be said to have arisen. The appellant’s interview as a whole suggested that the appellant was asserting there was no sexual interaction between the two. In any event, there was no basis upon which it could be said there was raised the existence of an honest belief. The appellant’s own account was that the complainant was acting strangely, vomited and appeared intoxicated in circumstances where the appellant took her to a motel room, suggested that two beds would not be required and engaged in sexual intercourse with an obviously vulnerable complainant.
- The respondent further submits that the trial Judge correctly directed herself in respect of consciousness of guilt. Whilst the primary Judge did not identify a reasoning process, a consideration of the evidence as a whole supports a conclusion that the matters relied upon, in fact, evidenced a consciousness of guilt. There was also no miscarriage of justice.
- The determination of a ground of appeal that the finding of guilt was unreasonable requires this Court to undertake its own independent assessment of both the sufficiency and quality of the evidence to determine whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, it would be dangerous in the circumstances to permit the verdict to stand.
- In undertaking that assessment, the appellate court must give due regard to the benefit the tribunal of fact had of seeing and hearing the witnesses. If, however, the record reveals that the evidence contained discrepancies, inadequacies, was tainted or otherwise lacked probative force, in such a way as to lead the appellate court to conclude that, even allowing for those advantages, there is a significant possibility that an innocent person has been convicted, the verdict is to be set aside as unreasonable.
- The sole issue in dispute at trial was whether the Crown could establish, beyond reasonable doubt, that the complainant lacked the cognitive capacity to give consent to sexual intercourse. The lack of cognitive capacity to consent was said to be evidenced by the complainant’s state of severe intoxication.
- A consideration of the evidence as a whole supports a conclusion that it was open to find that the complainant was severely intoxicated, late on the evening of 20 September 2018 and well into the early hours of 21 September 2018. It was open to accept Dr Griffiths’ evidence that the complainant had, at the time she entered the appellant’s vehicle and upon arrival at the motel with the appellant, a level of intoxication which impacts upon cognitive capacity, particularly critical judgment and understanding.
- Whilst Dr Griffiths conceded that an individual with a high blood alcohol reading may have the ability to walk, talk and interact, there was evidence from the complainant as to her total memory loss, consistent with severe intoxication at the relevant time. CCTV footage within the taxi confirmed those effects were obvious, as did the evidence of JS and, significantly, the account given by the appellant to police. That account was consistent with an obviously severely intoxicated young woman.
- Against that background, it was open to the tribunal of fact to be satisfied, beyond reasonable doubt, that at the time of penetration the complainant lacked the cognitive capacity to consent to sexual intercourse, such that the Crown had established, beyond reasonable doubt, that consent had not been given freely and voluntarily as required under the Criminal Code.
- In coming to that conclusion, it was open to the tribunal of fact to conclude that there was no evidence which gave rise to consideration of a defence of an honest but mistaken belief that the complainant was consenting to sexual intercourse. Nothing in the appellant’s account to police supported a conclusion that the appellant was contending that penetration had taken place, in circumstances where he honestly but mistakenly believed the complainant was consenting to sexual intercourse.
- Ground one fails.
- Post offence conduct can only be used as evidence of a consciousness of guilt if it is open to the tribunal of fact to find that the conduct was concerned with some circumstance or event connected with the offence. The conduct must relate to a material issue. In the present case, such conduct must have been undertaken by the appellant knowing that the act of sexual intercourse occurred without the complainant’s consent and with a fear that he would be implicated in the offence of rape.
- The trial Judge specifically directed herself, in accordance with the benchbook, as to the use of alleged post offence conduct. Whilst the reasons did not specifically set out those directions, there is no basis to conclude that the trial Judge did not proceed in accordance with those directions. Similarly, there is no basis to conclude the trial Judge did not proceed having regard to the benchbook directions as to the use of expert evidence.
- That said, the trial Judge’s reasons contain no findings as to whether the alleged identified lies contained in the police interview were, in fact, lies and, Edwards’ lies rather than lies going to credit only. Whilst the ultimate conclusions may support an inference that each identified lie was found to be an Edwards’ lie, the reasons were deficient in identifying why each matter was a lie and, further, why the trial Judge was satisfied each such lie was capable of amounting to a consciousness of guilt.
- The inadequacies of the reasons are significant, particularly having regard to the differing nature of each alleged lie. For example, the appellant’s answer to police, to the effect that he did not want to answer questions in relation to any physical contact with the complainant, was consistent with the exercise of a right to silence. Such a statement may also be explained by shame associated with an act of carnal knowledge with a stranger, when the appellant was in a relationship. This matter would have rendered that alleged lie not capable of amounting to an Edwards’ lie.
- As to the remaining lies, whilst it would be open to conclude that asserting the complainant was coherent and that the last time he had had sexual intercourse with his partner was “night before last” were capable of constituting lies, no reasons were provided as to why the primary Judge was satisfied that such lies were not consistent with shame associated with engaging in an act of carnal knowledge with a stranger, rather than a consciousness of guilt, that intercourse had occurred without the complainant’s consent.
- Similarly, the primary Judge’s findings contain no reasons as to why the final matter of alleged post offence conduct, namely, removing the condoms from the motel room, was evidence of consciousness of guilt. The empty condom packages remained in the motel room. Such conduct seems inconsistent with an intention to remove evidence of sexual intercourse without consent. It was incumbent upon the trial Judge to explain why the removal of the used condoms from the hotel room constitute evidence of a consciousness of guilt of sexual intercourse without consent, rather than being explicable on the basis of either tidiness, as alleged by the appellant, or being evidence equally consistent with an act of carnal knowledge with consent.
- These deficiencies in the trial Judge’s reasons are significant as the trial Judge’s findings of guilt specifically relied upon each of these actions as constituting post offence conduct demonstrative of a consciousness of guilt. Against that background, there is a real and appreciable risk that the appellant has been denied a fair chance of acquittal, such that there has been a miscarriage of justice.
- I would order:
- (1)The appeal against conviction be allowed.
- (2)The verdict of guilt be set aside.
- (3)A retrial be ordered.
An application for leave to appeal against sentence was abandoned by the appellant.
SKA v The Queen (2011) 243 CLR 400 at .
Pell v The Queen  HCA 12.
Edwards v The Queen (1993) 178 CLR 193 at 210-211; R v SCL; Ex parte Attorney-General (Qld)  2 Qd R 401 at ; R v Nash  QCA 127 at -.
- Published Case Name:
R v Vico
- Shortened Case Name:
R v Vico
 QCA 73
Holmes CJ, Fraser JA, Boddice J
16 Apr 2021
- White Star Case: