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R v Firic[2022] QCA 58

SUPREME COURT OF QUEENSLAND

CITATION:

R v Firic [2022] QCA 58

PARTIES:

R

v

FIRIC, Stevan

(appellant)

FILE NO/S:

CA No 272 of 2021

DC No 228 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 28 September 2021 (Morzone QC DCJ)

DELIVERED ON:

22 April 2022

DELIVERED AT:

Brisbane

HEARING DATE:

26 November 2021

JUDGES:

Fraser and McMurdo JJA and Boddice J

ORDERS:

  1. The appeal be allowed.
  2. The conviction below for the offence of sexual assault with a circumstance of aggravation be quashed.
  3. There be a retrial.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was found guilty of sexual assault with a circumstance of aggravation – where the appellant was sentenced to two years’ imprisonment – where the appellant and complainant had previously been in a sexual relationship – where the appellant and complainant gave different accounts of the continuance of that relationship – where the complainant denied having consented to particular sexual acts – where the prosecution’s case relied on the honesty and reliability of the complainant’s account – whether evidence should have been admitted that suggested the complainant had consented to those particular acts – whether by a failure to admit such evidence the appellant was denied a fair chance of acquittal

COUNSEL:

S L Kissick for the appellant

C N Marco for the respondent

SOLICITORS:

MacDonald Law for the appellant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    FRASER JA:  I agree with the reasons for judgment of Boddice J and the orders proposed by his Honour.
  1. [2]
    McMURDO JA:  I agree with Boddice J.
  1. [3]
    BODDICE J:  On 28 September 2021, a jury found the appellant guilty of sexual assault with a circumstance of aggravation (being a domestic violence offence).
  2. [4]
    On 29 September 2021, the appellant was convicted of that offence and sentenced to two years’ imprisonment.  The appellant was sentenced to a concurrent period of two years’ imprisonment in respect of an offence of arson, to which he entered a plea of guilty on 27 September 2021.
  3. [5]
    The appellant appeals his conviction on the ground that the trial Judge erred in refusing leave to cross-examine the complainant in relation to other sexual activities between the complainant and the appellant.

Trial

  1. [6]
    The indictment alleged that, on 5 October 2019, the appellant unlawfully and indecently assaulted the complainant by bringing his mouth into contact with part of her genitalia and her anus.
  2. [7]
    It was not in dispute at trial that the appellant had licked the complainant’s anus.  A video depicting that act was tendered as an exhibit and played to the jury.  That video was taken in the early hours of 5 October 2019.
  3. [8]
    The issue at trial was whether the complainant had consented to that act.

Evidence

  1. [9]
    The complainant, a 31 year old female, first met the appellant in early 2017.  They commenced a relationship a few months later.  That relationship broke down on 26 April 2019.
  2. [10]
    During the relationship they had not resided together.  At some point they lived in separate units in the same complex.
  3. [11]
    After the breakdown of the relationship, the complainant and the appellant remained friends.  They remained living in the same complex.  They still spent time together, seeing each other each week.
  4. [12]
    On the evening of 4 October 2019, the complainant went to the appellant’s unit to have a drink with the appellant and one of his friends.  The complainant recalled consuming a bottle of red wine.  She did not know how much the appellant had to drink but said the appellant appeared intoxicated by the end of the night.
  5. [13]
    At about ten o’clock, the complainant, who described herself as tired and intoxicated, went into the appellant’s bedroom to sleep.  The complainant closed the bedroom door.  She undressed, leaving on her bra and underpants, before falling asleep on her stomach with a pillow over her head.  The appellant and his friend were still outside.
  6. [14]
    The complainant awoke around six o’clock the next morning.  She returned to her unit, packed and travelled by aeroplane to Townsville.  The appellant was still awake when the complainant left his unit.
  7. [15]
    On the evening of 5 October 2019, the complainant reviewed photographs and videos she had taken on her mobile phone of the day’s activities in Townsville.  There were two videos she did not recognise which, when opened, depicted the complainant and the appellant.
  8. [16]
    The first video was dark.  It depicted the appellant and what appeared to be the complainant on the bed.  That video went for 15 to 20 seconds.
  9. [17]
    The second video recorded the appellant licking the complainant’s anus.  The complainant said she did not consent to that act.
  10. [18]
    A screenshot taken by the complainant of the videos showed they were recorded at 2.05 and 2.06 am on 5 October 2019.
  11. [19]
    The complainant returned from Townsville the following Monday.  The next day she spoke to the appellant, out front of the complex.  She said she saw the videos on her phone.  She asked why he did that.  She described the appellant as being dismissive.  He said he thought it was funny.
  12. [20]
    In cross-examination, the complainant accepted that, whilst their relationship had ended on 26 April 2019, they had continued to see each other weekly.  The complainant may have stayed one or twice at the appellant’s unit.  They may have engaged in sexual activities “a couple of times”.
  13. [21]
    The complainant also accepted that she had continued to see the appellant socially on occasions after 5 October 2019.
  14. [22]
    The complainant accepted she had may have invited herself to the appellant’s unit on the evening of 4 October 2019.  She possibly still had keys to let herself into the appellant’s unit.
  15. [23]
    The complainant accepted she may have hugged the appellant upon arrival but did not agree she kissed him or flirted with him that night.  She may have told the appellant later in the evening she was tired and wanted to stay at his unit.
  16. [24]
    In respect of the acts depicted on the video, the complainant did not accept the appellant had kissed her from the top of her body down to her vagina, during which time the complainant was awake.  She denied making any noise or movement suggestive of consent.  The complainant denied the licking of her anus occurred with her consent.  She also denied telling the appellant she liked what happened, in a conversation the next morning.
  17. [25]
    The complainant said she caught a train to the airport that morning.  She did not recall the appellant driving her to the airport.  She agreed she did not make a complaint about the offence until 21 April 2020.
  18. [26]
    The complainant said she had prepared a statement for police on 26 December 2019.  In that statement, she said she did not wish to make a complaint.  The complainant denied she had held onto the video as leverage against the appellant.

Evidence not led

  1. [27]
    During cross-examination, defence counsel sought to question the complainant about ongoing sexual activity between her and the appellant after the relationship had broken down.  After objection, defence counsel applied for leave to cross-examine the complainant in respect of three issues.
  2. [28]
    First, that about a month before the offence, the complainant and the appellant mutually agreed to sexual activities similar to that depicted in the second video.  Second, that shortly prior to the activity depicted in the second video, there had been conversations between the complainant and the appellant suggestive of consent to that act.  Third, that there had been a continuing sexual relationship after October 2019, contrary to the complainant’s evidence that they had ceased an intimate relationship.
  3. [29]
    As to the first, the trial Judge ruled that evidence of sexual activity about a month before was incapable of informing a jury as to consent.  Further, it was not relevant a mistake of fact as to consent as evidence of agreed similar conduct is not relevant to whether there was a mistake of fact in different circumstances, time and place.
  4. [30]
    As to the second, evidence of a conversation relevant to the nature and extent of any agreement as to sexual activity was relevant to the fact in issue, namely consent or mistaken belief as to consent.  Accordingly, questions limited to the conversation about sexual activity was permitted.
  5. [31]
    As to the third, later sexual interaction was not relevant to whether consent had been given and had a very limited purpose in respect of credit.  Accordingly, questions relevant to this line of inquiry were to be limited to identifying the nature and quality of the relationship, rather than details of specific engagements in sexual activity or the frequency of that engagement.

Appellant’s submissions

  1. [32]
    The appellant submits that, in circumstances where consent or mistaken belief as to consent were in issue at trial, evidence of ongoing sexual intimacy, both after the breakup of the relationship and after the offence, as well as evidence of consent to the recording of a similar act weeks earlier, was relevant.
  2. [33]
    Further, the prosecutor, in final address, submitted “if [the complainant] was a willing participant in this videoed sexual interaction, it’s not logical to conclude that this is the only sexual [indistinct] she could agree to be videoed”.  Such a submission was unfair where the appellant had been wrongly denied the opportunity to lead evidence of consent to the video recording of a similar act weeks earlier.  As a consequence, there was a miscarriage of justice as the appellant was deprived of the real prospect of acquittal.

Respondent’s submissions

  1. [34]
    The respondent submits that the trial Judge correctly disallowed cross-examination as to the video recording of prior sexual interaction.  Consent to that act did not render it more plausible that the complainant consented, or that the appellant had an honest but mistaken belief as to such consent.  Similarly, evidence of a continuation of the intimate relationship, whilst relevant, did not render admissible evidence of specific occasions of sexual interaction.  Defence counsel was permitted to cross-examine in relation to the nature and quality of the ongoing relationship after the breakup.
  2. [35]
    The respondent further submits that the prosecutor’s closing address was not unfair.  The prosecutor was merely submitting that, if the complainant had consented to being videoed on that occasion, the video would record, not only that sexual act, but other sexual activity.

Consideration

  1. [36]
    The central issue in dispute at the trial was consent to the act depicted in the video.  The termination of their previous relationship was a particular matter relied upon by the prosecution to support a conclusion that the jury would be satisfied beyond reasonable doubt that the complainant did not consent and, further, that the prosecution had excluded beyond reasonable doubt an honest but mistaken belief as to consent.
  2. [37]
    The prosecutor’s final address placed particular reliance on the honesty and reliability of the complainant’s account, in the context of an intimate relationship that had ceased in April 2019.  That reliance was the background against which the prosecutor contended that “if [the complainant] was a willing participant in this videoed sexual interaction, it’s not logical to conclude that this is the only sexual [indistinct] she could agree to be videoed.  It’s not logical that’s the only – sorry.  It’s not logical to conclude that this is the [camerawork] she was agreeing to.  The opposite is logical.”
  3. [38]
    In circumstances where there had been a concession by the complainant that there may have been ongoing sexual intimacy between her and the appellant subsequent to the breakdown of their relationship, evidence as to consent to a video recording of similar sexual activity after the breakdown of the relationship but before the night of the offence was relevant to the complainant’s credit.  The appellant was deprived of the opportunity to adduce that evidence in cross-examination.  Such evidence may have directly called into question the complainant’s credibility on the issue of consent.
  4. [39]
    Further, the absence of such evidence allowed the prosecutor to specifically contend that it was not logical to conclude the complainant agreed to the recording of the sexual activity in circumstances that there may have been evidence directly contrary to such an assertion, that the submission was unfair.  It allowed the jury to reason in a way which may not have been open had cross-examination been allowed at trial.
  5. [40]
    The denial of leave to cross-examine in relation to recent ongoing sexual intimacy subsequent to the breakdown of their relationship deprived the appellant of a legitimate line of questioning, with the consequence that he was deprived of a fair chance of acquittal.
  6. [41]
    That conclusion was not overcome by the trial Judge’s permission to cross-examine in a limited way in relation to the nature and frequency of any ongoing sexual relationship.  It was not merely consent to ongoing sexual interaction, but consent to the video recording of such interaction that was at the heart of the challenge to the complainant’s credibility.

Conclusion

  1. [42]
    As the appellant was denied a fair chance of acquittal, by reason of the trial Judge’s refusal to grant leave to cross-examine on those matters, there has been a miscarriage of justice.
  2. [43]
    The conviction ought to be set aside and there be ordered a new trial.
  3. [44]
    Whilst the appellant specifically abandoned any appeal in respect of sentence, the appellant was at the same time sentenced for the offence of arson, for which he received a concurrent period of two years’ imprisonment.  Those concurrent sentences were ordered to be served cumulatively on a sentence of imprisonment imposed on 6 September 2021.
  4. [45]
    A presentence custody certificate records that the sentences imposed cumulatively extended the appellant’s fulltime discharge date from 5 March 2024 to 10 February 2026 (allowing for 23 days presentence custody which was declared as imprisonment already served in respect of the cumulative sentences).
  5. [46]
    There is no application that, as a consequence of the setting aside of the appellant’s conviction in respect of the offence of sexual assault with the circumstance of aggravation, the concurrent sentence of two years’ imprisonment in respect of the offence of arson should itself be set aside to allow for a resentencing of that offence alone.

Orders

  1. [47]
    I would order:
  1. The appeal be allowed.
  2. The conviction below for the offence of sexual assault with a circumstance of aggravation be quashed.
  3. There be a retrial.
Close

Editorial Notes

  • Published Case Name:

    R v Firic

  • Shortened Case Name:

    R v Firic

  • MNC:

    [2022] QCA 58

  • Court:

    QCA

  • Judge(s):

    Fraser JA, McMurdo JA, Boddice J

  • Date:

    22 Apr 2022

  • White Star Case:

    Yes

Litigation History

EventCitation or FileDateNotes
Primary JudgmentDC228/21 (No citation)29 Sep 2021Date of conviction after trial (Morzone QC DCJ and jury) of aggravated sexual assault; accused licked ex-partner’s anus, which was videorecorded; consent and mistaken consent in issue at trial; complainant conceded ongoing sexual contact with accused after breakup; defence refused leave to ask complainant about consensual recording of similar act after breakup but before offence; prosecutor submitted to jury that it was not logical to conclude that complainant agreed to recording of offence.
Appeal Determined (QCA)[2022] QCA 5822 Apr 2022Appeal of conviction allowed, conviction quashed, retrial ordered; miscarriage of justice; accused deprived of opportunity to adduce evidence which may have directly called into question complainant’s credibility on consent; absence of evidence enabled prosecutor to encourage jury to reason in a way which may not have been open had leave not been refused; unfairness not overcome by questioning in limited way about ongoing sexual relationship: Boddice J (Fraser and McMurdo JJA agreeing).

Appeal Status

Appeal Determined (QCA)

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