R v Burley[2022] QCA 251

SUPREME COURT OF QUEENSLAND

1. [1]
   BOWSKILL CJ:  On 23 October 2019 the appellant was convicted, following a three day trial in the District Court of one count of sexual assault, three counts of rape and two counts of sexual assault with a circumstance of aggravation (namely, that the assault included bringing the complainant’s mouth into contact with the appellant’s anus).  The appellant was sentenced to seven years’ imprisonment on each of the counts of rape, with lesser concurrent terms of imprisonment imposed on the other offences.  He appeals his convictions on the following grounds:

3. (1)
   the trial judge failed to direct the jury as to how to use the evidence of other sexual or discreditable conduct and uncharged acts;

3. (2)
   the trial judge failed to warn the jury about the appellant’s status in custody; and

3. (3)
   that there is fresh evidence sufficient to cast doubt on the verdict.^[1]

2. [2]
   As is apparent from ground two, the appellant was in prison at the time of the offences; as was the complainant.  They were both prisoners at Wolston Correctional Centre at the time, occupying cell block 10C that housed eight prisoners; six of whom had individual cells (including the complainant and the appellant), with the remaining two prisoners sleeping on mattresses in the common room.
3. [3]
   The evidence from the complainant was that he had gone into custody in August 2017, moving to block 10C in November 2017.  The appellant arrived there in February 2018.  The complainant said that the appellant “became verbally and physically abusive, possibly maybe around a month after he moved in… And that … went until the complaint was made”.  He described how the appellant would call him insulting names and used to put him down in front of everyone.  He also said that the appellant “used to slap me.  He used to bite me all the time on many parts of my body.  That happened very regularly.  And, on one occasion, he punched me in the head”.  In cross-examination, it was put to the complainant that, although he was able to, he never locked the door to his cell.  He responded that was because the appellant threatened him on numerous occasions that if he locked his door there would be physical punishment.  He said the appellant “would class the biting as punishment”.  In re-examination the complainant said the punishment, in the form of biting, happened regularly, weekly, and sometimes “he’d bite me five to 10 times a night”.
4. [4]
   The complainant said the first occasion of sexual abuse happened on 19 May 2018.  He was in his cell.  The appellant came in naked, sat on the complainant’s bed and did not say much at all, he started watching TV.  The appellant then “laid back against the wall that [the complainant] was laying against and he grabbed my left hand and he placed it on his penis”, which was erect at that point.  The complainant said he moved his hand away, but the appellant grabbed his wrist again and made him stroke his penis a couple of times (this was count 1, sexual assault).
5. [5]
   The weekend after that first occasion, another incident occurred.  The complainant was again in his cell, laying on his bed, watching TV.  He said the appellant came into his room, again naked, and sat on the edge of his bed.  He said the appellant tried to lift the blankets to lie down with the complainant, but the complainant sat up.  The appellant then grabbed his hand and put it on his erect penis.  When the complainant removed his hand, the appellant “grabbed the back of my head” and “he said ‘suck it’”.  The complainant said the appellant pushed his head down towards his penis and made him suck his penis (this was count 2, rape).
6. [6]
   The next occasion happened about a week later, in similar circumstances (count 3, rape).
7. [7]
   Then about a month later the complainant was again in his cell at night, in bed and watching TV.  He said the appellant came into his cell, naked again, and tried to lay on the complainant’s bed as he had done before.  He described the appellant again grabbing his head and pushing it down telling him to “suck my dick”.  The complainant resisted and said he recalled the appellant saying “lick my arse”.  He described the appellant forcing the complainant to put his penis in his mouth and then lifting his leg and putting it over his shoulder, at which point the complaint licked the appellant’s anus whilst the appellant was masturbating himself.  This is count 4 (rape) and count 5 (aggravated sexual assault).
8. [8]
   There was one further occasion, which the complainant said happened on 19 July 2018, again in his cell.  The officers had just conducted a muster, or head count.  The complainant walked back to his cell and lay down on his bed.  He said the appellant came into his cell, took off his clothes and lay down on the complainant’s bed with him.  He said the appellant attempted to force the complainant’s head down towards his erect penis, then put his leg over the complainant’s shoulder, as he had before, and the complainant again licked his anus while the appellant masturbated himself (this was count 6, aggravated sexual assault).
9. [9]
   The complainant said he did not consent to any of this and only did what he did because he was terrified.
10. [10]
    In the course of cross-examination of the complainant, it became apparent that he was in custody for offences of indecent treatment of a child under 16 and rape.  In cross-examination it was put to the complainant that his motivation to make up the complaint included to get back at the appellant, because the complainant felt he was being given the cold shoulder by the other inmates after he first complained to a supervisor about the appellant slapping him; to form the basis of a claim for compensation; or to help a future parole application.  He denied that.
11. [11]
    There was also evidence at the trial from some of the other prisoners who were in the same cell block.  This included evidence from a Mr T, who gave evidence of an incident he observed between the appellant and the complainant, who “were mucking around in his [the complainant’s] cell”.  He said the appellant “looked like he was, like, riding a bull sort of thing, mucking around”; that he was on the complainant’s bed, on top of the complainant, and appeared to be wearing “a set of white jocks”.  Mr T said he just thought it was funny, and although the complainant was saying “no”, “it was a high-pitched ‘no’ squeal like – like I’d say a girl would do”.
12. [12]
    Another prisoner, Mr NW, who had also been in the cell block, gave evidence that the complainant and the appellant had “seemed like friends”, and of observing them in the complainant’s cell together every now and again.  He described that the appellant would sometimes walk in there naked and that “to him, I think it was a bit of a joke”.  He “observe[d] laughter coming from in there, as if it was a joke” and “never heard any duress”.  He recalled one occasion when he walked past and saw the (clothed) complainant and the (unclothed) appellant on the complainant’s bed, with the appellant on top of the complainant, and that there was laughter and it seemed like it was a joke.  In cross-examination he agreed that the appellant would occasionally go into cells naked “for a bit of shock value” – walking in and dropping his towel and frightening the person by saying “rah” or something.  He said he only remembered the appellant doing that to the complainant, not other prisoners.
13. [13]
    A third prisoner, Mr JW, described how the prisoners would muck around and have “sort of play fights” and wrestle sometimes, just for fun.  He also described how they would play cards and as they did not have any money, would play for “bites on the tail” – so if you lost, you would get “bitten on the tail or something”.  He had bitten the complainant, when he lost; and said the complainant had bitten him, because he lost.  He agreed the appellant was a bit of a larrikin; and denied seeing any sexual activity happen between the complainant and the appellant.
14. [14]
    Another prisoner, Mr BE, gave evidence of the complainant telling him he had been getting sexually assaulted by the appellant, and of going with the complainant when he reported it to the prison authorities.
15. [15]
    Lastly, Mr B, also a prisoner in the same cell block, gave evidence of observing an occasion in which he walked past the complainant’s cell, glanced in and saw the appellant, with a shirt on but no pants, leaning over the complainant, who was lying down on his bed.  He recalled hearing “a couple of muffled chuckles” and thought it was “tickling and just general horseplay”.
16. [16]
    The defence case was that none of the alleged sexual activity occurred, that there were only playful mischievous interactions, with no sexual contact, and that the allegations had been made up by the complainant.  The complainant’s credibility was centrally in issue at the trial.

Ground 1

17. [17]
    Ground 1 contends that the trial judge failed to direct the jury as to how to use the evidence of other sexual or discreditable conduct and uncharged acts.
18. [18]
    The evidence was described as falling into three categories:

    1. (a)
       first, the complainant’s evidence of physical abuse before the sexual assaults;
    2. (b)
       second, the evidence from other witnesses (Mr T, Mr NW and Mr B) as to what was described as “other sexualised conduct” by the appellant towards the complainant, which was said to go to the nature of the relationship between the two; and
    3. (c)
       third, evidence of other more general sexualised conduct by the appellant (for example, that he always used to walk around the unit naked; that he was a bit of a larrikin who would drop a towel and enter a room naked).
19. [19]
    No direction was given by the trial judge about how the jury could use this evidence.  In the course of an exchange with counsel about what directions should be given, counsel for the appellant raised the question whether parts of this evidence (for example the “riding like a bull” incident, or laying on the bed naked) was being relied upon as some sort of discreditable conduct.  The prosecutor said it was not, but rather was relevant simply as evidence of interactions between the appellant and the complainant.  Defence counsel raised a question about what the jury would be told about how they could use that evidence.  The trial judge invited counsel to discuss that over lunch and see if they could resolve it.
20. [20]
    It appears from the transcript that the trial judge may have provided a draft of the summing up, or parts of it, to counsel during the lunch break.^[2]  In any event, the issue of a direction regarding this broader conduct of the appellant was not brought up again by defence counsel after lunch or otherwise.
21. [21]
    The prosecutor did not address the jury about this evidence.  Defence counsel did, referring to it as “the shenanigans, the tomfoolery, the horseplay” that went on in the cell block, to deal with the boredom of being in prison.  He submitted that it was not a trial about repetitive and systematic sexual assaults and rape by one of the prisoners; rather, it was a trial about “mutual fun that’s been spun into something sinister”.  At the end of his address, defence counsel said to the jury:

“For the Crown to be successful in this case, they have to prove the six individual acts that are on that sheet that was given to you earlier … So you’re not here to find him guilty of suspicious positions, or biting, or riding like a bull, or nudie runs, or dropping a towel.  That’s not what you’re here to convict him for.  You can’t say to yourself, ‘Well, because he’s done those things – they’re a little bit sexual – then maybe he’s done the charges.  I’ll convict him.’  That’s not your job, members of the jury.  You can’t do that.  You aren’t permitted to go down such a path.  You can’t form that view that because of those other things that were happening in 10C, that he must have committed the acts alleged.  That would be wrong, members of the jury”.

22. [22]
    The trial judge, in summarising the arguments by each of the prosecution and defence counsel, made reference to defence counsel’s submission about shenanigans, tomfoolery and horseplay; but not to this last element of the address.  And the trial judge did not herself direct the jury about how (or how not) to use the evidence.
23. [23]
    On one view, it could be said that defence counsel made a strategic decision not to press for a direction from the trial judge about the evidence of uncharged acts/discreditable conduct – for example, so that he could emphasise that there was no sexual element to that conduct, and characterise it as simply “shenanigans”, etcetera.  However, it is apparent from defence counsel’s address that he felt obliged to address the point, in case the jury might take a different view of the evidence.
24. [24]
    Given the view I have otherwise formed about ground 3, it is strictly unnecessary to determine ground 1.  However, in case it is relevant on any retrial, I consider that in the circumstances of this case,^[3] at the least, a direction was called for of the kind referred to in HML v The Queen (2008) 235 CLR 334 at [513] where Kiefel J (as the Chief Justice then was) said:

“Relationship evidence is also admissible for the more limited purpose of providing answers to questions which might naturally arise in the minds of the jury, such as questions about the complainant’s reaction, or lack of it, to the offences charged, or questions about whether the offences charged were isolated events. These examples are not exhaustive. It follows that no more evidence than is necessary to answer the inquiry could be considered relevant. Admissibility for this purpose is conditioned by the requirement of a direction to the jury as to the limits on the use to which the evidence can be put. Where the direction is not considered sufficient to overcome the potential for misuse of the evidence, perhaps because of the nature of the evidence, it should not be admitted on this ground.”

25. [25]
    The direction which appears in the Benchbook in this regard is:

“You have heard evidence of other conduct which has taken place between the defendant and the complainant, which the prosecution says is necessary to explain what occurred in the incidents which are the subject of the alleged offences. You must understand that the relevance of this evidence is limited. If you accept this evidence, it does not make it more probable that the defendant committed the alleged offence(s). This evidence is relevant only to answer questions which you might naturally have about the background to the incidents which the prosecution allege were the charged offences.”

26. [26]
    I say “at the least” because the prosecutor expressly disavowed reliance upon the evidence as evidence of discreditable acts from which the jury may have inferred a sexual interest in the complainant.  If that position were different, a more comprehensive direction would be required.  However, as counsel for the appellant aptly observed, this was a case properly to be seen as a “nest of prejudice”.  In those circumstances, an instruction directly from the trial judge about how this evidence could be used, and importantly its limitations, was called for.  The failure to do so can be said to have constituted a miscarriage of justice because the possibility cannot be excluded that, uninstructed by the trial judge, the jury may have embarked on an impermissible line of reasoning on the basis of this evidence.

Ground 2

27. [27]
    Ground 2 contends the trial judge failed to warn the jury about the appellant’s status in custody.
28. [28]
    The direction that was given by the trial judge, in the summing up, was as follows:

“Now, turning to [the complainant], when he gave his evidence you may recall during the course of cross-examination that he admitted having previous convictions for indecent dealing of a child under 16 and for rape. Now, the fact that someone has previous convictions does not necessarily mean that the witness’s evidence has to be rejected out of hand. It is a matter for you what weight you give to the fact that the complainant has been previously convicted of these offences.

Now, in deciding what weight to give to this matter you look at the rest of the evidence including any evidence that supports the evidence of [the complainant] independently, and then you weigh his evidence and the fact that he has convictions in that context. Now, if after having done that you are satisfied that he is a truthful and accurate witness you can act on the evidence that he has given notwithstanding that he has these previous convictions. You heard evidence that the defendant has been in custody. That is irrelevant. It would be unfair to speculate about it, and you must not use that in any way. And I direct you that you should put that entirely out of your minds.” [underlining added]

29. [29]
    The appellant submits that the direction given was deficient; that the trial judge ought to have added the words “adversely to the accused” – so that the third sentence would read “… and you must not use that in any way adversely to the accused”; or ought to have added that the jury should not reason, by virtue of the defendant being in custody, that he was a person who would be more likely to have committed the offences.
30. [30]
    On the one hand, the direction given by the trial judge was in clear terms – that the jury were not to use the fact that the defendant was in custody “in any way” and were to “put that entirely out of their minds”.
31. [31]
    On the other hand, the jury were dealing with a prison rape allegation.  They knew, from the evidence, that the complainant was in custody for a sexual offence against a child; and knew the appellant was in custody in the same cell block with him.  They may well have inferred the defendant was in custody for similar offending.  The fact of being in custody was not the limit of the potential prejudice.  There was the potential for (impermissible) reasoning that the appellant may also be a sex offender, and therefore may be more likely to have committed the offences against the complainant.
32. [32]
    A direction to that effect was sought by defence counsel;^[4] but ruled against by the trial judge, on the basis that the only evidence was the fact that the appellant was in custody: that there was no evidence of whether he had been convicted of anything, or was on remand; and, if he had been convicted, what the nature of the offences were.^[5]
33. [33]
    The difficulty with that analysis is the potential for inference, from the evidence the jury did have about what the complainant was in custody for.
34. [34]
    Again, it is unnecessary to form a concluded view about this ground, given the conclusion in relation to ground 3.  However, on balance, in my view a direction which went a step further was called for.

Ground 3

35. [35]
    Ground 3 contends there is fresh evidence sufficient to cast doubt on the verdict.
36. [36]
    The relevant evidence is from two people who were previously in custody with the complainant, as to conversations they overheard him have with others, or things he said to them, which the appellant submits are relevant to the complainant’s credibility or, even further, his willingness to lie about the offences.
37. [37]
    The trial took place on 21, 22 and 23 October 2019.
38. [38]
    The first witness provided a statement dated 19 November 2020 in which he describes overhearing a conversation between the complainant, a person I infer is the witness Mr T and some other people, in the afternoon after those people had given evidence in the appellant’s trial.  This witness says he overheard Mr T saying to another person (not the complainant) “that was an easy $1,000 that I have ever made”, and that Mr T said the complainant told him he would pay him $1,000 to give evidence against the appellant.  He also says he heard Mr T say that the complaint had told Mr T that he wanted the appellant out of the unit due to an assault against him by the appellant; that the prison officers were not taking his complaints seriously and he had to say it was a sexual assault to “get [the appellant] tipped” out.  The witness also heard the complainant say words to the effect of “we’ve got him, he’s fucked”; and heard the other people in the group telling the complainant he should go for compensation.  This witness says he saw the appellant about 12 months after this conversation and told him what he had heard.
39. [39]
    The second witness was also in the same cell block with the complainant and the appellant.  He has provided a statutory declaration dated 18 July 2021 in which he states that in about mid-June 2018 the complainant told him that he had had an argument with the appellant and the appellant had slapped him.  The complainant had reported it to a supervisor to try to get the appellant moved, but nothing was done.  A couple of weeks later, the complainant told him that he was going to say the appellant had been sexually assaulting him, so they would have to do something about it.  When this witness asked the complainant how the appellant had been sexually assaulting him, he says the complainant said that he hadn’t, but he was going to make a more serious allegation so the supervisor would have to act.  A couple of days later the complainant and another inmate went into the office and spoke to a supervisor and that afternoon the witness heard that the appellant had been moved to another block.  A few weeks later, the witness says the complainant told him a couple of the blokes in his unit hated the appellant and so the complainant told them he would give them $5,000 when he got his payout if they would give a statement to back up his story.  He says the complainant bragged about getting paid compensation and getting parole early.
40. [40]
    The second witness was interviewed by investigators in August 2022.  He said he did not tell anyone about this at the time because he did not know that the appellant had been charged and gone to trial over the allegations, and did not find out until he returned to custody two years later.
41. [41]
    Fresh evidence is evidence which either did not exist at the time of the trial or which could not then with reasonable diligence have been discovered.^[6]  In determining whether to allow an appeal against conviction based on fresh evidence, the test is whether it is established that there is a significant possibility (or that it is likely) that, in light of all the admissible evidence, both the fresh evidence and the evidence at trial, a jury acting reasonably would have acquitted.^[7]
42. [42]
    The evidence of both witnesses is fresh evidence, in the sense that the statements were not available to the appellant at the time of the trial.  The first witness says he did not tell the appellant about the conversation he overheard until 12 months later – that is 12 months after the trial had finished.  The respondent accepts this is fresh evidence. The second witness did not say anything until he returned to custody two years after the alleged incidents had occurred.  The respondent does not concede this is fresh evidence, submitting that it “defies belief” that, if the conversation is true, it was not communicated to the appellant at the time.  However, on the face of the statement of the second witness it appears the appellant was moved out of the unit on the afternoon of the day the complainant made his complaint (about the sexual assaults) to the supervisor.  Therefore, the opportunity to convey the conversation to the appellant was not available.  It is fair to conclude, as submitted by the appellant, that the evidence of the second witness is also fresh.
43. [43]
    Given that the central issue at the trial was the credibility of the complainant, the evidence of both witnesses is relevant.  The evidence, if accepted, could materially impair the complainant’s credibility.  Having regard to the evidence of Ms Fogerty (in relation to the first witness) and the interview with the second witness (evidence of which is annexed to the affidavit of Ms Hall), it is at least apparently cogent and plausible.  That conclusion is open even though the evidence of both witnesses may be open to challenge or not be accepted by the jury.  Albeit in a slightly different context (the unavailability at trial of a victim impact statement which contained allegations inconsistent with aspects of the account given by the complainant), the following observations of Keane JA (then of this Court) in R v HAU [2009] QCA 165 at [40] are apposite:

“… this Court cannot ignore even a relatively slim possibility that the defence has been forensically disadvantaged by the non-disclosure.  It is enough that the opportunity which the defence was denied ‘could have made a difference to the verdict’.”

44. [44]
    This case is not about non-disclosure.  But there is a real possibility that, if this evidence was available at the trial, it could have made a difference to the verdicts.  For that reason, a miscarriage of justice has occurred.^[8]  The convictions ought to be set aside and a retrial ordered.
45. [45]
    BOND JA:  I agree with the reasons for judgment of Bowskill CJ and with the orders proposed by her Honour.
46. [46]
    FLANAGAN JA:  I agree with the Chief Justice.