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R v Nash[2022] QCA 84

SUPREME COURT OF QUEENSLAND

CITATION:

R v Nash [2022] QCA 84

PARTIES:

R

v

NASH, Mark Kevin

(appellant)

FILE NO/S:

CA No 187 of 2021

DC No 61 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Gladstone – Date of Conviction: 22 July 2021 (Farr SC DCJ)

DELIVERED ON:

Date of Order: 19 April 2022

Date of Publication of Reasons: 20 May 2022

DELIVERED AT:

Brisbane

HEARING DATE:

19 April 2022

JUDGES:

Bowskill CJ and Sofronoff P and Martin SJA

ORDER:

Date of Order: 19 April 2022

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where the appellant was convicted on one count of rape – where the complainant conducted a pretext call with the appellant – where the appellant had unsuccessfully applied for the exclusion of the pretext call before the trial – where the trial judge refused to exclude the pretext call on the basis that a portion of the call was capable of constituting an admission against interest – where the appellant submits that the trial judge erred by failing to exclude the pretext call – whether the relevant portion of the pretext call contained a statement against interest – whether this statement was reasonably capable of being regarded as an admission by the jury – whether the relevant portion of the pretext call was intractably neutral, thereby lacking any probative force – whether a miscarriage of justice was occasioned by the failure to exclude the pretext call

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – CONSIDERATION OF SUMMING UP AS A WHOLE – where the trial judge directed the jury that in order to use the relevant portion of the pretext call, they would need to be satisfied that the appellant was being truthful at the time he made that statement – where the appellant also submitted that the trial judge was required to explain to the jury the other innocent inferences that could be drawn from the relevant portion of the pretext call – where the appellant also submits that the trial judge failed to direct the jury that, to accept the prosecution’s contention that the relevant portion of the pretext call constituted an implied admission, they needed to be satisfied of that beyond reasonable doubt – whether the trial judge was required to direct the jury that they must be satisfied that the words were accurate – whether the trial judge did in fact explain to the jury the other innocent inferences that could be drawn from the pretext call – whether the jury did in fact need to be satisfied of this beyond reasonable doubt

R v Booth and Combarngo [2018] QCA 74, considered

R v Ciantar (2006) 16 VR 26; [2006] VSCA 263, cited

R v Ferguson (2009) 24 VR 531; [2009] VSCA 198, cited

R v Hill [2014] QCA 107, cited

R v Nash [2020] QCA 127, cited

R v Taylor (2004) 8 VR 213; [2004] VSCA 98, cited

COUNSEL:

J R Jones and C J Tessmann for the appellant

C W Wallis for the respondent

SOLICITORS:

McGinness & Associates for the appellant

Director of Public Prosecutions (Queensland) for the respondent
  1. [1]
    BOWSKILL CJ:  I agree with the reasons of Martin SJA, which explain why I joined in the order made on 19 April 2022 that the appeal be dismissed.
  2. [2]
    SOFRONOFF P:  For the reasons given by Martin SJA, I joined in the making of the order on 19 April 2022.
  3. [3]
    MARTIN SJA:  On 22 July 2021, a jury found the appellant guilty of one count of rape.  He was sentenced to six years imprisonment.
  4. [4]
    The appellant appealed his conviction and relies upon three grounds of appeal each of which concerns a recorded telephone call between the complainant and him (“the pretext call”).  The grounds are:
    1. (a)
      the learned trial judge erred by failing to exclude the pretext call given that the purported admission against interest contained within it was not reasonably capable of being construed by the jury as an admission;
    2. (b)
      a miscarriage of justice was occasioned by the failure to exclude the pretext call given it was unfair to admit it; and
    3. (c)
      a miscarriage of justice was occasioned by the failure of the learned trial judge to correctly direct the jury about the use that could be made of the pretext call.
  5. [5]
    On 19 April 2022, this court ordered that the appeal be dismissed.
  6. [6]
    These are my reasons for joining in that order.

Background

  1. [7]
    This was the second trial of the charge against the appellant.  He had been convicted in October 2019.  On appeal, the appeal was allowed, the conviction set aside, and a re-trial was ordered.  See R v Nash [2020] QCA 127.
  2. [8]
    The offence of rape was committed on 11 March 2018.  It involved the appellant having penile/vaginal intercourse with the complainant.  It took place in the appellant’s residence which he shared with his wife and children.
  3. [9]
    At the trial, the appellant formally admitted having sexual intercourse with the complainant.  The prosecution case was that, at the relevant time, the complainant was asleep and so could not have consented.
  4. [10]
    The complainant was a 24-year-old national of the Netherlands.  She had travelled to Australia in December 2017 for a working holiday.  At the time of the offence, she was working as an au pair for the appellant’s children.
  5. [11]
    The complainant’s evidence was given in the form of a video recording.  She had given evidence on 15 October 2019 when she was in the Netherlands.  She was examined and cross-examined.  That video recording was shown to the jury in the first trial and to the jury in the re-trial.
  6. [12]
    For the purposes of this appeal, there are no relevant differences between the evidence given on the first trial and on the re-trial.  In the first appeal, Boddice J set out the relevant facts and, for the sake of consistency, I will repeat some of them in these reasons:

“…

  1. [11]
    On 2 March 2018, the complainant arrived at the appellant’s residence, having agreed by Facebook message to work as an au pair. The current au pair, a German national, gave the complainant a handover and stayed for a number of days to assist in teaching the complainant the routine with the appellant’s children. There were three children.
  2. [12]
    The complainant said she chose the appellant’s family because she wanted older children and two of their children had autism. The complainant had previous experience teaching children with autism.
  3. [13]
    The complainant was intending to stay for three months. The appellant’s family had previously had two au pairs. The first lasted only a short time. The second (and current one) had been there for six months. The appellant’s family had arranged for another au pair to start in June 2018.
  4. [14]
    The complainant’s duties included making breakfasts and taking the children to school, undertaking some cleaning before collecting the children from school and cooking dinner. She ate with the family. She was free to go during the day when she had finished those various duties.
  5. [15]
    The appellant’s wife worked, as did the appellant. He usually had left home before the complainant awoke each morning. He returned home at around four o’clock each afternoon. The complainant described her relationship with the appellant and his wife as “okay”. She “had a good time”.
  6. [16]
    The complainant described the appellant’s house as having two storeys. The children’s bedrooms were upstairs. The complainant’s bedroom was downstairs, as was the bedroom used by the appellant and his wife.
  7. [17]
    On the night of 11 March 2018, the complainant, the appellant and his wife had dinner together. The children were inside watching a movie or playing video games. They had a number of friends over at that time.
  8. [18]
    The complainant’s recollection was that she drank four or five glasses of wine. She was not drunk. The appellant drank more than the complainant. The appellant’s wife was quite drunk. She went to bed because she was so drunk. By that stage, the children were already in bed.
  9. [19]
    The complainant remained talking and drinking with the appellant after the appellant’s wife went to bed. One topic of conversation was that the complainant preferred girls. The complainant said it was important to her that they knew who she was and that they accepted that situation.
  10. [20]
    The complainant went to bed at around 11.30 that evening. The appellant also went to bed. However, he found his bedroom door was locked. The complainant, who was standing next to him, said “oh well, for me it’s not a problem … I want to go to bed. You can sleep next to me if you just go to sleep”. The complainant said she did not have any concerns about the appellant sleeping in her bed. She trusted him and it was normal for her to just sleep with men because there was zero attraction.
  11. [21]
    The complainant said the appellant confirmed that was okay. Otherwise, she would not have agreed to the appellant coming into her bed. The complainant could not recall if he indicated that confirmation by nodding his head or by saying yes or of course. She was, however, sure he confirmed that he would just go to sleep.
  12. [22]
    The complainant said she went to bed wearing a black singlet top, a bikini bottom and grey jean shorts. The shorts had a zipper at the front. The complainant said she fell asleep on the bed. She did not hear the appellant come into the bedroom.
  13. [23]
    The complainant next remembered waking up and realising after a minute that a body was on top of her, having sex with her. The appellant had his penis in her vagina. The appellant was making noises like “you’re horny”. The complainant said “hey, what you’re doing. Stop it”. The appellant stopped directly and said “oh, oh, oh, sorry”.
  14. [24]
    The complainant said the appellant was “just doing it while I was asleep. I couldn’t defend myself, so he didn’t have to force anything, and when I was realising he was just having sex, it was just normal. He didn’t have to force me because it just already happened. He didn’t have to force me, but he didn’t it wasn’t painful at all, or anything like that. When I was talking, he also just stopped”. The complainant assumed the appellant did not wear a condom as she did not feel or see it. The complainant said when the appellant stood up, he was naked. She was still wearing her black singlet top but her bottom was naked. The appellant had taken those clothes off. The appellant very slowly put his clothes on. She described the appellant as pretty calm when he left her bedroom. The appellant used the words “no worries. It’s okay”. The complainant said she became panicky and said “go away. Hurry up”.”

  1. [30]
    The complainant remained in her bedroom with the door locked until police telephoned her about 10 minutes later to say they were at the front door. The complainant did not see the appellant at any stage when she was walking through the house to the police or whilst the police were at the house. The complainant later located her shorts and bikini bottom in the bedroom.
  2. [31]
    Police recorded their conversation with the complainant. She identified the clothing she had been wearing that evening. She told police they had commenced drinking together at about seven o’clock. They were drinking upstairs on the deck. She estimated they drank a bottle of wine each. She said the appellant’s wife was really drunk but that the complainant and the appellant were not really drunk. They went to bed around 12 o’clock.
  3. [32]
    The complainant told police the appellant’s wife went to bed early, locking the bedroom door. The complainant told the appellant he could sleep in her bed. She fell asleep. When she woke up, the appellant was having sex with her. He had taken her shorts off. He stopped when she said “don’t. Stop it”. She told him to go away and locked the door. The complainant said the appellant had his penis inside her and that she was not sure if he was wearing a condom.
  4. [33]
    The complainant said she did not know how long the appellant was having sex with her. She said “it was already happening but maybe he thought I was awake but I wasn’t … when I woke up, it was still happening”. The complainant said the appellant had not finished when she told him to get off.
  5. [34]
    The complainant was asked if she wished to make a rape complaint against the appellant. The complainant replied “Yeah, of course”. The complainant said she did not give the appellant permission to have sexual intercourse with her. The complainant also said she was not a light sleeper. She had previously slept through a fire alarm. On another occasion, she was sleeping so deeply that a person pinched her nose shut to wake her up.
  6. [35]
    On 11 March 2018, police arranged for the complainant to make a pretext call to the appellant. That call, shortly after 8.15 in the morning, was recorded by police. In it, the complainant asked the appellant to “please tell me why you had sex with me last night in my room? Why it did happen?”. In response, the appellant said he thought he was very drunk and asked if they could talk about it in person. There then occurred the following exchange:

“COMPLAINANT: But did it already happen when I fell asleep or was it during the night? I think I woke up at 3:15. Can you please tell me what you did, did before because I really feel unsafe now while sleeping?

APPELLANT: I, I really don’t know.

COMPLAINANT: Well I think that’s not an answer. I think you have to try …

APPELLANT: I, I …

COMPLAINANT: To answer me.

APPELLANT: I cannot remember, [complainant], I really can’t. I’m sorry.”

  1. [36]
    The appellant went on to say that he remembered the complainant slamming the door but, in response to the complainant’s statement “I can’t imagine that that’s the only thing you mean you remember. But you had sex with me” the appellant replied “I’m not sure. I, I cannot remember”. The appellant said he thought he had fallen asleep and that he could not remember anything after lying down.
  2. [37]
    The appellant also said that he did not know why the complainant would smash the door. He said that woke him up. The appellant went on to say “I obviously did something wrong and I fucked up. I, I just want to apologise, so that … [i]t just feels weird doing this over the phone, that’s all”.
  3. [38]
    There also occurred the following exchange:

“COMPLAINANT: Well, what happened? Please tell me. I won’t, I don’t remember. I only remember that I woke up while your penis was in me and was it already taking a while? What did you do? Did you fell asleep? Please talk to me.

APPELLANT: All I can remember is falling asleep and then all of a sudden you being grumpy and the door closing, so I really have a, a blank, I’m sorry.”

  1. [39]
    The appellant was later recorded as asking the complainant “did I say anything, I’m not sure?”. When the complainant told the appellant he had taken his time to take his clothes and to leave and that she found it frustrating, “like it was really normal that he was naked”, there occurred the following exchange:

“APPELLANT: Yeah, I honestly don’t know, [complainant]. I can’t explain it to you. I was drunk. I cannot remember. I’m ridiculously sorry. I’m, I don’t know what happened.

COMPLAINANT: And how do you think that I feel now?

APPELLANT: I can imagine how you feel now, yes.

COMPLAINANT: Mmhmm.

APPELLANT: I am sitting here next to [my wife] as well. I can just imagine her going through it now, so …

COMPLAINANT: Sorry, you’re sitting next to what?

APPELLANT: [My wife].

COMPLAINANT: Oh she knows it?

APPELLANT: She, she can hear, hearing everything I’m saying so yeah.

COMPLAINANT: Okay, what did you tell her?

APPELLANT: Hey?

COMPLAINANT: What did you tell her?

APPELLANT: She just heard that I got drunk last night and I have no idea what I did. I, I woke up with that so, I’m assuming I did something wrong, so …

COMPLAINANT: I have a feeling that you know, that you remember more than you’re telling me now. I can imagine that you only feel like you did anything wrong.

APPELLANT: I, I don’t have any memory at all. I’m just all, up, up blanks, mental blanks from last night.

COMPLAINANT: But did you first fall asleep before it started?

APPELLANT: Hey?

COMPLAINANT: Did you first fall asleep before it started?

APPELLANT: I think I fell asleep. I’m not sure. I can’t, I remember lying down and that was it.

COMPLAINANT: I was wearing my clothes, right?

APPELLANT: I, I assume so yes.

COMPLAINANT: Yep. But I was naked when I woke up.

APPELLANT: I know.

COMPLAINANT: You know?

APPELLANT: You said that before. I’m sorry, [complainant], I really am.

COMPLAINANT: Okay. Do you want to say anything else to me now before I hang up?

APPELLANT: Just that I’m really sorry and I, I, I didn’t mean for anything to happen. I didn’t plan for anything to happen. I didn’t want to do this to you. I’m sorry, very sorry.

COMPLAINANT: Yep. I feel the most sad about, that I was sleeping and that must be the most safe place in your house or whatever, where it is and then this happened. I trusted you.

APPELLANT: Yep, I know.

COMPLAINANT: I really trusted you.

APPELLANT: I’m sorry.”

  1. [40]
    In cross-examination, the complainant denied flirting with the appellant. She denied putting her hand on his leg, shoulder and waist from time to time. She did not touch the appellant at all. She denied that, at one point, the appellant’s wife told the complainant they would have to review how long she stayed because the wife was not comfortable with how she was behaving with the appellant. She denied having any sexual interest in the appellant.
  2. [41]
    The complainant denied telling the appellant that her sexual preferences were both men and women. She was sure she had told him she preferred girls. She did not ever talk with him about sex. She denied that the appellant had told her he and his wife had an open marriage or that he told her about sexual activity with his wife and some friends. She denied ever having a discussion about her sex life or about drugs.
  3. [42]
    The complainant denied that when they were downstairs together, the appellant went to obtain spare keys in a cupboard next to her room. The complainant accepted there were other places where the appellant could have slept. There was the couch but no other bed. The complainant denied offering more than once for the appellant to sleep in her bed in her room. She denied the appellant hopped into bed first. She denied she was wearing only a G-string. She denied touching herself in an intimate way and that the appellant then performed oral sex on the complainant. The complainant did not know what the appellant did to her. She was sleeping and woke up with him in her bed. She denied ever willingly engaging in any sexual activity with the appellant.
  4. [43]
    The complainant denied using her hand to guide the appellant’s penis into her vagina; or, at one point, rolling over and hopping onto her knees before continuing sexual intercourse. She denied that, after the appellant went to sleep, she subsequently pushed him from the bed screaming “what are you doing in my room? Why are you in my bed?”. She may have screamed “why am I naked. Get out. Get out”. She denied having locked her bedroom door before she went to bed.
  5. [44]
    The complainant accepted that the purpose of the pretext call was to see if the appellant would say some things about what had happened that evening. It was the police who suggested she call him. The complainant accepted that the appellant did not want to speak to her on the telephone; he wanted to speak to her in real life. The complainant said she wanted him to say he had sex with her without permission because “he is the wrong guy in this situation. I did not do anything wrong”.
  6. [45]
    The complainant accepted she had asked questions in that pretext telephone conversation but denied asking those questions because she was not really sure what had happened that night. The complainant wanted to know what had happened when she was asleep. She did not know whether he was having sex for three hours or for only half an hour. She did not know what he did in the time between. The complainant accepted she did not know how she came to move from one side of the bed, where she fell asleep, to the other side. The complainant said the appellant had taken her clothes off without her waking up, so she did not know what he did in all the time she was asleep. She accepted she did not suffer any bruising or physical injury.
  7. [46]
    The complainant said, when she first woke up, she was on her belly. It took a minute or two before she fully realised what was occurring in her bed. It was about another 20 or 25 seconds before she said to the appellant “what are you doing? Stop it”. During that period, the appellant was continuing to have sexual intercourse with her. In the period before she realised what was going on, the appellant turned her from her belly to her back and was still having sex. The complainant accepted that nowhere in her statement to police did she mention anything about the appellant having sex with her whilst she was on her back. ” (citations omitted)
  1. [13]
    The appellant had unsuccessfully applied for the exclusion of the pretext call before the re-trial began.  On that application, the appellant had relied upon the decision in the first appeal – that any purported lies in the pretext call could not be left to the jury as lies indicative of a guilty conscience – and argued that there was nothing left to render the conversation admissible.  The trial judge identified a portion of the pretext call as being capable of constituting an admission against interest:

“COMPLAINANT: I have a feeling that you know, that you remember more than you’re telling me now. I can imagine that you only feel like you did anything wrong.

APPELLANT: I, I don’t have any memory at all. I’m just all, up, up blanks, mental blanks from last night.

COMPLAINANT: But did you first fall asleep before it started?

APPELLANT: Hey?

COMPLAINANT: Did you first fall asleep before it started?

APPELLANT: I think I fell asleep. I’m not sure. I can’t, I remember lying down and that was it.

COMPLAINANT: I was wearing my clothes, right?

APPELLANT: I, I assume so yes.

COMPLAINANT: Yep. But I was naked when I woke up.

APPELLANT: I know.

COMPLAINANT: You know?

APPELLANT: You said that before. I’m sorry, [complainant], I really am.” (emphasis added)

Grounds 1 and 2

  1. [14]
    As these grounds both turn on questions of admissibility, they may be dealt with together.
  2. [15]
    The appellant argues that the identified parts of the pre-text call were intractably neutral and, so, lacked any probative force.  He relies upon the test set out in R v Ciantar[1] where the Victorian Court of Appeal said:

[72] So, if an innocent explanation of post-offence conduct is so inherently likely that a jury could not properly regard the conduct as evidence of guilt, or if the post-offence conduct is intractably neutral, the judge should refuse to leave the conduct to the jury as evidence capable of demonstrating consciousness of guilt. But where the judge is satisfied that the post-offence conduct, when taken in conjunction with the circumstances and events so identified, is capable of demonstrating such a consciousness of guilt, the post-offence conduct should be left to the jury to determine whether it has that effect. …” (citations omitted)

  1. [16]
    In R v Hill,[2] the Court of Appeal considered the meaning of intractable neutrality so far as a consciousness of guilt might be inferred.  In doing so, reference was made to, among other authorities, R v Ciantar.  Morrison JA[3] said: “ … evidence from which a consciousness of guilt might be drawn, is not considered in isolation.  It is to be considered in the circumstances in the case.  In other words, post-offence conduct must be judged in the light of other circumstances in the case and, where the case depends upon circumstantial evidence, in the totality of that circumstantial evidence.”[4]
  2. [17]
    That approach is consistent with what Winneke P said in R v Taylor:[5]

“The applicant submits that the evidence which was left to the jury was “intractably neutral” in the sense that it could not be regarded as more consistent with guilt than with innocence. In those circumstances, it was submitted, it was incapable of amounting to supportive evidence. For my own part, I do not regard the evidence to be “intractably neutral”, whatever that may mean. If it means evidence that can never be regarded by the jury as confirming the complainant’s evidence, then I do not believe that this evidence falls into that category. The mere fact that it might be regarded as consistent with guilt as with innocence, does not prevent it, in my view, from being evidence which is capable of amounting to corroboration. There can be no doubt that circumstantial facts can combine to provide evidence supportive of that of the person required to be corroborated, in as much as they amount to circumstances leading to an inference that it was probable that advantage would be taken of an opportunity presented, or to show that the misconduct alleged was probable. For example, evidence of distress, or injury to, or torn clothing of a girl complaining of having been raped is often left to juries as evidence capable of providing corroboration even though it is equivocal per se. That, of course, does not mean that the evidence is not capable of being corroborative; all it means is that it is a question for the jury to determine whether it is corroborative or not.”[6] (citations omitted)

  1. [18]
    In a later case, R v Ferguson,[7] the Victorian Court of Appeal said:

“Some evidence is characterised as “intractably neutral” and therefore incapable in law of amounting to corroboration. However, evidence is not “intractably neutral” merely because it can be regarded as supporting competing hypotheses. It is a matter for the jury, properly instructed, to determine whether the hypothesis for which the Crown contends should be accepted. And merely because the accused suggests that some particular fact is not in issue does not render it “neutral” in the sense described.”[8] (citations omitted)

  1. [19]
    As part of his submission, the appellant identified four alternative inferences which he says could be drawn from the exchange in the pre-text call.
  2. [20]
    That different inferences might be drawn was not in dispute.  But the possibility of different inferences being available is not sufficient to classify the evidence as “intractably neutral”.  It was argued that there were no circumstances which would allow the jury to prefer one alternative to the others.  But that ignores, among other things, the admission by the appellant that intercourse had taken place.
  3. [21]
    It should also be observed that the argument about “intractable neutrality” and different inferences being available was not part of the appellant’s case at trial.  At the trial, the then counsel for the appellant sought to diminish the force of the answer given by the appellant that he knew the complainant was naked in these terms:

“ … I would invite you to listen to the call and bear in mind the circumstances that we know about. He is placating [his wife] throughout, from the very start. He continues to placate her. Why? Well, it’s obvious. He is next to his wife. He has breached one of the fundamental rules of their sexual relationship: you don’t have sex with the help. So that’s matters that I would ask you to consider as being important in giving proper context, a full view of the facts and a fair view of the facts when you consider what use you can make of that.”

  1. [22]
    That approach was entirely understandable.  It did not draw too much attention to the exchange and the inevitable inconsistency which arose between that exchange and the admission that intercourse took place which was made at the trial.  The case advanced was simply that the jury should not pay any attention to it because the appellant was just trying to placate his wife.
  2. [23]
    The pretext call was admissible.  It had a probative value.  In the circumstances, the appellant’s statement of “I know” in response to the complainant’s claim that she was naked when she awoke suggested that the appellant was aware of the events about which he claimed ignorance.  It was a statement against interest relevant to the question of his awareness of the complainant being undressed.  It was reasonably capable of being regarded as an admission.  And it was open to the jury to consider it in those terms.  Accordingly, I would dismiss this ground of appeal.
  3. [24]
    It was accepted by Mr Jones (who appeared for the appellant) that if the court did not accept his argument as to the probative value of the pretext call, then both grounds one and two would fail.

Ground 3

  1. [25]
    The appellant contended that the directions given about the manner in which the jury could use the statements of the appellant were incorrect and inadequate in three ways:
    1. (a)
      first, as it was suggested that as the appellant’s words “I know” effectively constituted a confession, the trial judge erred in not directing the jury that they could not treat those words as a confession unless they were satisfied that the words were both truthful and accurate;
    2. (b)
      second, it was incumbent upon the trial judge to explain to the jury the other innocent inferences that could be drawn from the appellant’s words; and
    3. (c)
      third, the trial judge failed to direct the jury that, to accept the prosecution’s contention that the words constituted an implied admission, they needed to be satisfied of that beyond reasonable doubt.
  2. [26]
    It was not the prosecution’s case that the words “I know” were confessional.  The argument advanced was that they were merely a statement against interest.
  3. [27]
    The trial judge made it clear that the prosecution relied upon the words “I know” as support for the proposition that the only way that the appellant could have known that the complainant was naked was because he had removed the complainant’s clothing while she was asleep.  The trial judge went on to tell the jury that before they could use that statement they would need to be satisfied that, when the appellant said “I know”, he was being truthful at that time.  The trial judge also told the jury that there were “numerous potential reasons before you to explain such conduct which are not indicative of guilt of the offence, for instance, embarrassment or remorse for engaging in consensual sexual activity with his children’s au pair or not wishing his wife to know of his consensual sexual activity with the complainant.”
  4. [28]
    The position taken by the appellant’s counsel at trial was understandable.  To remind the jury of the evidence, even in the context of the answer given in cross-examination by the complainant, would have only served to emphasise the statement.
  5. [29]
    In R v Booth and Combarngo[9] Douglas J[10] said:

[57] The leading decision of the High Court about the use of confessional statements, Burns v The Queen discussed some of the relevant issues in this area in these terms:

“It is clear and elementary law that once a confessional statement has been admitted into evidence its weight and probative value are matters for the jury. It is for the jury to determine whether the alleged confession was made and whether it was true in whole or in part. Unless the jury are satisfied that so much of a confession as tends to show the guilt of the accused was true they cannot treat it as a proof of guilt. However, a confessional statement may be only one piece of the evidence against the accused and the jury are entitled to consider all the relevant evidence together in deciding upon their verdict. The nature of the direction necessary to be given properly to instruct the jury as to the use of evidence of an alleged confession must depend on all the circumstances of the case. ‘There is no rule of law or of practice which requires the Judge to caution the jury against acting on such evidence or which prescribes any measure of the comment which it is his duty to make upon it.’ (Ross v The King).”

[58] There may be differing views as to whether a trial judge should give such a direction in the case of statements against interest as opposed to a full confession. Such a direction has been described as “conventional” or “standard” in Victoria for “cases where the Crown relies in part on statements, made by way of admission or confession, to support its case”. Much will depend on the circumstances, however, as Burns makes clear.

[59] In Magill v The Queen a majority of the Victorian Court of Appeal regarded it as necessary to make such a direction in a case where there was a live dispute as to whether the appellant was the author of the whole or any part of a relevant text message. With respect to the opposing view, that conclusion is hardly surprising. Here, however, there was no challenge to the identity of the maker of the statements or as to their having been made. They were not confessions but statements against interest. No direction of the type now sought was requested at the trial although the making of directions about such statements was raised by the trial judge.

[60] The failure to seek such a direction may well be explicable on the basis that trial counsel believed that there was no advantage to her client in drawing any further attention to the evidence…” (citations omitted and emphasis added)

  1. [30]
    The circumstances of this case are not dissimilar.  The apparent forensic reason for not seeking the direction at trial (but which is now advanced as being necessary) is the same as that in R v Booth and Combarngo.
  2. [31]
    There was no need for the jury to be satisfied beyond reasonable doubt, because this was not a confession.  It was just a piece of evidence that the jury were capable of using in their consideration of guilt beyond reasonable doubt.
  3. [32]
    The directions given by the trial judge were appropriate in the light of the conduct of the case.  Accordingly, I would dismiss this ground of appeal.

Footnotes

[1]  (2006) 16 VR 26.

[2]  [2014] QCA 107.

[3]  With whom de Jersey CJ and Fraser JA agreed.

[4]  [2014] QCA 107 at [187].

[5]  (2004) 8 VR 213.

[6]  (2004) 8 VR 213 at [13].

[7]  (2009) 24 VR 531.

[8]  (2009) 24 VR 531 at [110].

[9]  [2018] QCA 74.

[10]  With whom Gotterson JA and Flanagan J agreed.

Close

Editorial Notes

  • Published Case Name:

    R v Nash

  • Shortened Case Name:

    R v Nash

  • MNC:

    [2022] QCA 84

  • Court:

    QCA

  • Judge(s):

    Bowskill CJ, Sofronoff P, Martin SJA

  • Date:

    20 May 2022

  • White Star Case:

    Yes

Litigation History

EventCitation or FileDateNotes
Primary JudgmentDC61/19 (No citation)22 Jul 2021Date of conviction of rape (sentenced at [2021] QDCSR 595) after retrial (see [2020] QCA 127); complainant alleged waking up to accused having sex with her; intercourse admitted at trial; in pretext call, accused claimed ignorance of events but then said ‘[he] kn[e]w’ that complainant awoke naked, which was led as an admission in that he knew that because he had undressed her while she slept; jury directed that they must be satisfied that statement true and examples of innocent inferences given.
Appeal Determined (QCA)[2022] QCA 8420 May 2022Appeal against conviction dismissed; evidence admissible as statement against interest relevant to question of awareness of complainant being undressed, notwithstanding availability of innocent inferences (and, it followed, no miscarriage of justice arose out of trial judge’s failure to exclude evidence as unfair); trial judge’s directions on admission appropriate in light of conduct of case: Martin SJA (Bowskill CJ and Sofronoff P agreeing).
Application for Special Leave (HCA)File Number: B29/202208 Jul 2022Application for special leave to appeal from [2022] QCA 84.

Appeal Status

Appeal Determined (QCA) Special Leave Sought (HCA)

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