R v RBJ[2023] QCA 124

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  The appellant was found guilty after trial in the District Court before a jury of rape which was count 1 on the indictment.  He was acquitted by the jury of two further counts of rape (counts 2 and 3).  All counts were domestic violence offences.
2. [2]
   The appellant appealed on two grounds:

3. 1.
   the verdict on count 1 is unreasonable because it is inconsistent with the verdicts of acquittal on counts 2 and 3; and

3. 2.
   a miscarriage of justice occurred because the learned trial judge failed to direct the jury on how they could use evidence of an exchange of text messages between the appellant and the complainant after the alleged offending:

3. a.
   no direction was given as to the use that could be made of the complainant’s assertions of fact in the text messages; and

3. b.
   no direction was given as to the prosecution’s attempt to use the appellant’s non-denial of accusations put in the text messages as admissions, confessions or consciousness of guilt.

3. [3]
   The respondent’s written outline conceded that the appellant should succeed on ground 2 and that the appeal should be allowed and a retrial ordered.  As a result, the Court convened on 29 May 2023 and made the following orders:

1. Appeal allowed.
2. Conviction set aside.
3. The appeal remains listed for 1 June 2023 to hear submissions on whether a new trial is ordered.

4. [4]
   The question of whether an acquittal should be entered on count 1 or a new trial ordered depends on whether the appellant can succeed on ground 1.  These reasons are therefore confined to a consideration of ground 1.
5. [5]
   The prosecution had particularised the three rapes as occurring on 10 October 2020, the rapes that were the subject of counts 1 and 3 were penile vaginal rapes and count 2 was a digital rape.  The prosecution’s case relied on the jury’s acceptance of the complainant’s evidence as credible and reliable.  The appellant’s contention at trial was that the appellant and the complainant had consensual sex that comprised the complainant’s performing oral sex on him, her touching him and one episode of penile vaginal sex and that the incidents that were the subject of counts 2 and 3 did not occur.

Relevant evidence

6. [6]
   Apart from the investigating police officer, the only witness at the trial was the complainant.  Her evidence included the following.  The appellant and complainant had been in a relationship which ended on 29 September 2022.  They remained in contact.  On 10 October 2020, the complainant was residing with her mother and brother.  At about 7.40 am, she was asleep in her bedroom when she woke up to see the appellant closing the bedroom door behind him, as he entered the room.  He had two coffees in his hand.  He sat on the bed, pulled the covers off her legs and started rubbing her leg.  The complainant told him not to touch her.  She told him she did not want to have sexual intercourse.  They had further conversation in which the complainant repeated that she did not want to have sex with the appellant.  The appellant told her “Look me in the eyes and tell me that you don’t want to f**k me”.  When asked by the prosecutor what her response was, her first answer was that she said that he was not her boyfriend and that he responded he was, but her second answer was she did not recall exactly what she said.
7. [7]
   The complainant described that he climbed over her legs and lay so that he had one leg on each side of her legs and was on top of her.  She told him to get off her.  He took his shirt off.  He groped and sucked her breasts.  He took off her top.  She was telling him to “stop”.  He shoved her hands out of the way and held them together above the complainant’s head with one hand, while he removed her pants with the other hand.  The complainant was then naked.  She told the appellant that she did not want to have sex with him and that he should leave.  He stood up off the bed and took his pants off, pulled the covers off the complainant which she had pulled up and manoeuvred himself so that he was between her legs.  He put his penis inside her vagina (count 1).  She cried and she told him to stop and to get off her.  After a couple of minutes, he ejaculated on her chest.  The complainant got up and went into the bathroom and cleaned herself up. (The complainant clarified in cross-examination that she had a shower at that time and the bathroom was outside the bedroom across the hall.)  At no time did the complainant want to have sexual intercourse with the appellant on that day.
8. [8]
   When the complainant returned to the bedroom, the appellant was still naked and sitting on the bed.  His penis was erect and he was on his phone.  He said he wanted to have sex again.  The complainant said “no” and that he should leave.  She said “You can’t get rapey like that” and that she did not want to have sex with him.  The appellant stood up and “180’d” the complainant, so she was in his position and he was in hers.  She told him to get his hands off her and that she did not want to have sex.  The appellant pushed her down on the bed, put both her hands in one of his hands and put them above her head and then inserted his finger in her vagina for a couple of seconds (count 2).  He then inserted his penis in her vagina for five minutes and ejaculated inside her (count 3).  There was no conversation.  The complainant got up, picked up her clothes and said she was going to work.  He asked whether she wanted him to leave and she “just sarcastically looked at him” and said “of course not”.  She was crying at that point.
9. [9]
   When the complainant came out of the bathroom for the second time, the appellant had left.  The complainant drove to work.
10. [10]
    Text messages and details of calls had been downloaded from the appellant’s phone and the complainant’s phone.  They showed that the appellant had been contacting the complainant on 10 October 2020 from 7.43 am about getting a coffee for her.  The last of these calls and messages from him that was also not answered was at 8.09 am.  The next message from the appellant to the complainant was sent at 9.52 am that stated “Love you too, drive safe”.  The complainant responded 30 seconds later in a text “I hate being late”.  There was an audio call between them that lasted 13 minutes and appeared to end at 10.05 am.  The complainant could not recall what they talked about in that conversation, because she was “a mess”.  (The complainant clarified in cross-examination that they were arguing back and forth, as she was angry about what had happened, she told him that “it’s not okay” and she was angry and stressed about being late for work.)  At 10.08 am, the appellant sent a text to the complainant “I did love f**king you this morning tho”.  The complainant’s texts in immediate response were:

“You can’t show up in my house unannounced and f**k me after I say no 100 times

There’s nothing ok about that.”

11. [11]
    The appellant responded at 10.09 am with the following three texts:

“I said do you want me to go you said no

And we had a nice cuddle

I’m not arguing, text me later love you.”

12. [12]
    The complainant’s immediate reply was:

“[Appellant’s name] that was way after

I told you no and pushed your hands off me too many times.”

13. [13]
    There were multiple texts between them at 10.10 am.  The appellant sent a text at 10.10 am that said:

“We had sex 3 times.”

14. [14]
    After a couple of more texts, the complainant sent another text at 10.10 am to the appellant:

“I’m not messaging you anymore about this.  You can’t get rapey like that.”

15. [15]
    That was immediately followed by a text from the appellant:

“You loved it! Don’t get angry now.”

16. [16]
    After further exchanges, there was another text at 10.10 am by the appellant:

“No doesn’t mean yes.”

17. [17]
    After a further six texts from the appellant, the complainant sent a text at 10.13 am:

“You are not allowed to let yourself into my house and my room.”

18. [18]
    Further exchanges between them followed and the complainant stated that she would block the appellant’s messages.  She explained in another message that her messaging the appellant made him think that it was “ok to just come over”.
19. [19]
    After further exchanges, the complainant sent a text at 10.54 am:

“Sex feels good, doesn’t mean that me telling you no means yes.”

20. [20]
    There were more exchanges and the appellant then suggested at 11.25 am that they talk “about it” after work.  The complainant immediately responded:

“I’m sorry I can’t do it.”

21. [21]
    The appellant persisted in the suggestion that they talk after work and that was rejected by the complainant who sent a message at 11.46 am:

“You’re not allowed at my house.”

22. [22]
    That sentiment was repeated after further texts from the appellant in a text sent at 12.01 pm that included:

“I am upset, and I made it very clear I didn’t want you at my house or at work and you broke the rules.”

23. [23]
    The appellant’s response at 12.04 pm included:

“… we both enjoyed seeing each other today and having a cuddle”.

24. [24]
    The complainant responded at 12.15 pm:

“It’s not the point

You let yourself into my house while I was asleep.”

25. [25]
    In the texts in response, the appellant at 12.16 pm referred to the conversation of which the complainant gave evidence that she had been speaking sarcastically:

“Then I said do you want me to go and you said no.”

26. [26]
    There were more texts with two from the complainant sent at 12.24 pm:

“I still love you and you broke my heart, so I will not say it again

Don’t show up to my place please.”

27. [27]
    The complainant’s evidence in cross-examination included the following.  The complainant had a video call with the appellant lasting 28 minutes at 1.04 am on 10 October 2020.  She recalled that the appellant asked her whether she would ever sleep with him again and she refused to answer the question.  She otherwise could not recall what they spoke about.  On the morning of 10 October 2020, she did not know whether her brother was at home (as she did not see him) and she expected that her mother was at home.  The complainant denied that she was touching and kissing the appellant and performed oral sex on him before they had sexual intercourse.  After the conduct that was the subject of count 1, the complainant went to the bathroom for a shower.  As she had left her clothes in the bedroom, she was naked when she returned to the bedroom but was in a towel.
28. [28]
    The complainant accepted that she made the statements in the messages exchanged with the appellant after the complainant had gone to work but explained that the appellant would show up at her house, if she did not respond to his calls.  The complainant denied that she had sexual intercourse with the appellant on 11 October 2020 and that they maintained a sexual relationship up until mid-December 2020.  Her last contact with the appellant was on 17 December 2020.
29. [29]
    The complainant was cross-examined extensively on many messages and calls that she had with the appellant between 10 October and mid-December 2020.  The prosecution tendered the printouts of the messages and records of calls between the complainant and the appellant.
30. [30]
    The appellant neither gave nor called evidence.

The summing up

31. [31]
    In giving the standard direction about considering each charge separately by reference to the evidence relating to the particular charge and that the jury would return separate verdicts for each charge, the trial judge then stated:

“Now, the evidence in relation to the separate charges is different, and so your verdicts, at least theoretically, need not be the same.  I say theoretically because of something I am going to return to in a moment.”

32. [32]
    After continuing to give the direction that, if they were to find the defendant not guilty in relation to one count because they were not sufficiently confident of the complainant’s evidence to convict in respect of that count and they had to consider whether that affected the way they assessed the rest of the complainant’s evidence, the trial judge then gave a direction that can be described as the “all counts were part of one event” direction:

“Here, because the three counts are, really, alleged to have been part of the one event, and to have occurred at the same time and to have involved the same complainant, if you had a general concern as to her credit or reliability, arising in respect of one or  more counts, that ought to cause you to also be concerned as to her evidence in relation to the other counts. That is what I meant by my reference to theoretically. You do have to consider the evidence separately in relation to each count, but where the facts are very close in time, you would also take that into account.”

33. [33]
    A jury question after they commenced their deliberations sought clarification on finding different verdicts for different counts.  They asked for guidance particularly on the part of the trial judge’s instructions where he had mentioned “technically” which counsel and the trial judge worked out was a reference to the direction given where his Honour used the word “theoretically”.  That was answered with this further direction that repeated the “all counts were part of one event” direction:

“Because the three counts are really alleged to have been part of the one event and to have occurred at the same time and all the evidence comes from the complainant, if you had a general concern as to her credit or reliability arising in respect of one or more counts, that ought to cause you to be also concerned as to her evidence in relation to the other counts. That is, if you had reasonable doubt as to the complainant’s honesty or reliability as to any count, that ought to result in you having the same concerns in relation to all counts.”

34. [34]
    The jury also requested the transcript of the complainant’s evidence from “entering the bathroom to them leaving”.  The transcript of the complainant’s evidence in chief from the conclusion of the sexual intercourse that was the subject of count 1 until the complainant came out of the bathroom for the second time to find the appellant had gone was read to the jury.  The corresponding cross-examination of the complainant was also read to the jury.

Are the verdicts inconsistent?

35. [35]
    The principles concerning inconsistent verdicts are set out in MacKenzie v The Queen (1996) 190 CLR 348 at 365-368.  As stated in proposition 3 in MacKenzie at 366, the test of whether inconsistency arises in the jury verdicts is “one of logic and reasonableness”.  Illustration of instances where different verdicts returned by the jury would represent “an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty” are set out in proposition 5 in MacKenzie at 368.  A recent application of these principles in this Court is found in R v KBB [2022] QCA 273 at [19]-[27].
36. [36]
    The appellant submits that the “all counts were part of one event” direction given by the trial judge indicated the trial judge’s view that, it was an all or nothing case where a mix of verdicts would be illogical and, although not determinative of the issue of inconsistency, must be a relevant consideration for this Court.  The appellant also submits that the inconsistency of the verdicts with that direction of the trial judge suggested that the jury’s processes miscarried.  These submissions assume that the “all counts were part of one event” direction was a direction on the law.  This was not the case.  The “all counts were part of one event” direction reflected the trial judge’s subjective view of factual matters which were the sole responsibility for the jury to determine in the trial.  The jury were also instructed they were the sole judges of the facts.  It was a matter for the jury to determine whether on their consideration of the evidence “all counts were part of one event”.  It therefore did not follow that the jury’s processes miscarried because they did not follow the “all counts were part of one event” direction.
37. [37]
    The issue that determines ground 1 for the purpose of this appeal is whether there was a proper basis on the evidence on which the verdicts could be reconciled which would preclude the conclusion that the conviction on count 1 was unreasonable.  The appellant submits that there was no difference in the quality of the complainant’s evidence given about any of the counts on the critical issue of consent and the fact that there was a short break in time between the commission of count 1 and the commission of counts 2 and 3 could not justify the different verdicts.
38. [38]
    It was open to the jury to reason as follows.  The appellant arrived at the complainant’s mother’s home and entered the complainant’s bedroom uninvited and while the complainant was asleep.  The complainant’s protests that she did not want to have sexual intercourse with the appellant were repeated and unambiguous before the first act of sexual intercourse and her description of what happened, including that the appellant removed her clothes and that she cried and continued to object whilst it happened, was detailed.  The complainant left the room long enough to have a shower.  She did not take her clothes with her and returned without wearing any clothes and only covered in a towel.  She returned to the bedroom while the appellant remained there.  Even though the complainant gave evidence that she protested before the conduct that constituted counts 2 and 3 occurred, her description of what then occurred was far less detailed than for count 1.  She also related that there was no conversation during the five minutes when the sexual intercourse that constituted count 3 took place.  The complainant related a conversation she had with the appellant at the conclusion of that conduct which was ambivalent in the sense that the subsequent text messages showed that the appellant took what the complainant said literally.  The complainant explained away what she said by describing that she said it sarcastically and that she was crying.  This was the conversation where, after she said she was going to work, the appellant said “do you want me to leave” and the complainant responded “of course not”.  The text exchange immediately after the complainant arrived at work, in which she confirmed that it was not acceptable for the appellant to show up in her house unannounced and to have sexual intercourse with her after she said “no” 100 times was more referable to count 1 than the other counts.  When the appellant then sent a message reminding the complainant that she said she did not want him to go, the complainant’s response was “that was way after” which could also be taken as referable to “way after” the act of sexual intercourse when he first arrived that constituted count 1.
39. [39]
    It was apparent from the verdicts returned by the jury that they did not find that all counts were part of the one event and it could not be said to be unreasonable that the jury treated the circumstances in which count 1 was committed when the appellant arrived in the complainant’s bedroom uninvited as different from the circumstances of counts 2 and 3 when the complainant returned to the bedroom without wearing clothes while the appellant was still there.

Order

40. [40]
    It follows that the further order which should be made in relation to this appeal is: New trial ordered on count 1.