R v CDD[2024] QCA 141

SUPREME COURT OF QUEENSLAND

1. [1]
   BOWSKILL CJ:  I agree with Henry J.
2. [2]
   MULLINS P:  I agree with Henry J.
3. [3]
   HENRY J:  The appellant raped the 16 year old niece of his de facto wife.  She babysat at their house one evening, staying overnight.  After the appellant and his wife had come home, he went to the room where the complainant was lying.  He told her to remove her pants, performed oral sex on her and then penetrated her vagina with his penis without her consent.
4. [4]
   He was convicted of rape but acquitted of the preceding sexual assault allegedly constituted by the oral sex.
5. [5]
   He appeals his conviction on two grounds.  First, he seeks a verdict of acquittal on the ground the jury’s verdict of guilty of rape was unreasonable because it was inconsistent with the verdict of not guilty of sexual assault.  Second, he seeks a retrial on the ground a miscarriage of justice was occasioned by the allegedly unfair comments of the learned trial judge about use of the word “willing” rather than “consent”.
6. [6]
   The appeal should be dismissed because, for the reasons which follow:

1. the mix of verdicts was logically open to be returned by a jury acting reasonably; and
2. the trial judge’s comments on the use of the word “willing” rather than “consent” did not cause a miscarriage of justice.

1. The mix of verdicts was logically open to be returned by a jury acting reasonably.

7. [7]
   Where a jury’s verdicts are alleged to be unreasonable on account of the inconsistency between them, the test of appellate intervention is said to be one of logic and reasonableness.^[1]  Assuming  there is evidence to support the guilty verdict, an appellate court should not interfere if the mix of verdicts can be reconciled on the evidence as having been logically open to a jury acting reasonably.^[2]  It can be so reconciled here.
8. [8]
   At trial the appellant admitted oral sex occurred but denied sexual intercourse.  The sexual assault acquittal thus bespeaks a reasonable doubt on one of two consent related issues.  Those issues were whether there was an absence of consent or whether the defence of honest and reasonable mistake of fact, left to the jury on both counts, had been excluded.  The appellant submits the existence of such doubt on one or other of those issues for the sexual assault ought also to have led to an acquittal on the rape.  That is supposedly because there was no intervening event between the occurrence of the oral sex and sexual intercourse, to displace the reasonable doubt apparently held by the jury about the possibility of an absence of or mistake about consent in respect of the oral sex.
9. [9]
   The flaw in that argument is its premise that there was no other relevant distinction between the two sets of sexual activity.  There clearly was.  Oral sex is not as invasive a physical interference as sexual intercourse is, particularly from the perspective of a 16 year old complainant who has not previously had any form of sexual connection with the adult seeking it.  It therefore does not follow that such a complainant’s consent to oral sex would bespeak consent to subsequent sexual intercourse.  That consideration becomes determinative of the appellant’s argument when it is appreciated how objectively strong the evidence of the rape charge was.
10. [10]
    The oral sex and sexual intercourse occurred after the appellant returned home with his partner in the early hours of the morning.  He approached the complainant in a room of which she was the sole occupant.  She had consumed some alcohol earlier but was not significantly affected.  She was already half asleep when the appellant entered her room.  She testified he talked to her, addressing her by her nickname, and repeatedly asked her if she wanted to take her pants off.
11. [11]
    That request was entirely unheralded.  There was no evidence of pre-existing romantic interest between the teenage complainant and the appellant, a father of three in his early thirties who she regarded as, and called, her “Uncle”.  Nor was there any hint of romantic interaction occurring in the room before he asked her to remove her pants.
12. [12]
    She testified she did not want to remove her pants but was scared.  She stood and took her pants off and laid back down on the bed.  The appellant also asked her to take her bra off but she did not.  He then took his pants off, bent over her and licked her vagina.
13. [13]
    He then moved and inserted his penis into her vagina while she was lying on her back.  She described him thrusting and said it was painful and felt like her vagina was being stretched.  She later noticed some blood at her vagina and told him in a pretext call that she had not had sexual intercourse before.
14. [14]
    When asked if she had told the appellant “No” while these events were happening, the complainant explained she did not.  She did testify telling him it hurt when he put his penis in her and she did not hear him say anything in response.  The complainant estimated the ensuing thrusting lasted for a minute to a minute and a-half.
15. [15]
    The complainant stated that when the appellant “was finished” he stood in the doorway watching her put her pants back on.  He kept saying, “Don’t tell anybody.”
16. [16]
    When the appellant then left the room, the complainant telephoned her friend.  She told her what had happened and that she was really scared.  Her friend testified the complainant was crying.  She recalled the complainant said the appellant told her to remove her pants and she did so, not knowing what he would say or do if she did not.  The friend testified the complainant said the appellant had raped her and she was scared and her “lady parts” were hurting.
17. [17]
    This evidence of the fact the complainant was distressed and complaining of rape so soon after the alleged event was powerful supporting evidence.
18. [18]
    The appellant reappeared in the room while the complainant was still on the phone.  She told him she was on the phone to her friend talking about her friend’s problems.  However, the complainant was crying and the appellant told her “It’s all right” and to “calm down”, and again left the room.
19. [19]
    The complainant did not complain to her mother when she later collected her from the appellant’s home.  However, the complainant’s friend told her own mother some days later.  This led to the complainant’s mother being told and the ensuing police investigation.
20. [20]
    As part of that investigation the police arranged for the complainant to place a recorded telephone call to the appellant on the pretext of asking whether he had used protection.  The appellant’s responses, during the telephone call, acknowledged the occurrence of oral sex.  He denied sexual intercourse had occurred, asking the complainant to “remember” it had not occurred.  However, his collective responses damningly implied an awareness that it had occurred.  For instance:

• he asked whether she was asking because she did not get her period;
• he said he “didn’t come”;
• he told her it was “between me and you” and asked, “But did you like it that night or what?”;
• he asked if it was her “first time”;
• he claimed he had asked if she wanted him to stop, saying, “And I asked you to take your pants off and you took your pants off.  You could have said no”;
• he said if she had said “no” he would have gone upstairs and “just had a wank”;
• he said when she took her pants off he “just thought you wanted to do it”;
• he said, “I just went down on you.  That’s all. …I didn’t put my dick in ya ‘cause remember you were saying it hurt”;
• he asked if she had told anyone and when she said “No” he responded, “What? You want to do it again?”;
• he asked her to promise not to tell anyone and offered her money or smokes or “whatever you want”.

21. [21]
    The contrasting clarity of the appellant’s responses in admitting the oral sex and stumbling lack of clarity in denying the sexual intercourse would not have escaped the jury’s attention.  It was consistent with him apprehending a difference in the gravity of his commission of the two acts.
22. [22]
    The appellant entered into a recorded interview with police.  When the recording of the complainant’s pretext call to him was played he asked for it to be stopped.  He said at the time of the call he had just finished a 14 hour shift and “didn’t know” what he was saying.  He claimed he told the complainant what she wanted to hear.  He denied the occurrence of both sexual intercourse and oral sex.  He claimed he had come upon the complainant sleeping on the ground next to a table, drunk, and had carried her upstairs.  He asserted that while carrying her he had touched her on the bottom and vagina, outside her clothes.
23. [23]
    The appellant abandoned his unconvincing account to police when he gave evidence at trial.  Instead, he claimed that he had fetched the complainant a blanket and pillow and said, “Hey, if you want to hook up – take your shorts off if you want to hook up”.  He said he thought that “by her taking her clothes off that she wanted to do it”.  He admitted performing oral sex on her, claiming she was physically responsive, holding his head down, moaning and pulling her breast out.  He also claimed that when he moved to have sex with her she said she didn’t want to because it was going to hurt and he denied putting his penis in her vagina.  Instead, he claimed he told her not to worry about it and to put her shorts back on.
24. [24]
    This was a strong prosecution case, both as to the commission of the two sexual acts and their occurrence without the complainant’s consent.  That is because of the corroboration of the complainant’s evidence by her distressed and immediate complaint of rape and the consciousness of guilt exhibited by the defendant’s lies.  It is also because of the implausibility of the complainant desiring the unheralded sexual advances of her uncle.
25. [25]
    It was well open to the jury to reject the appellant’s testimony that the complainant had been physically responsive to his touches.  That would leave the complainant’s removal of her pants at the appellant’s request as the only conduct of the complainant that might arguably have been mistakenly construed by the appellant as indicating consent.
26. [26]
    It was, on one view, merciful to give the appellant the benefit of the doubt of a mistake of fact defence on the strength of that feature of the evidence.  However, as the plurality observed in MacKenzie v The Queen,^[3] such a function has always been open to juries.  Further, such a merciful approach may also have resulted from the fact the complainant had complained to her friend about rape but not about oral sex.
27. [27]
    In any event, the earlier removal of pants at the appellant’s request was far less supportive of a potential mistake of fact defence for the subsequent, more invasive act of sexual intercourse.  That more invasive act was unconvincingly denied by the appellant yet the subject of a distressed and immediate complaint of rape by the complainant to her friend.  As a matter of logic and reasonableness, such considerations left it well open to the jury to reach the mix of verdicts returned by it.
28. [28]
    The verdicts were not inconsistent.

2. The trial judge’s comments on the use of the word “willing” rather than “consent” did not cause a miscarriage of justice.

29. [29]
    The appellant argues a miscarriage of justice was occasioned both by the comments of the learned trial judge in the course of evidence, as well as in his directions to the jury, regarding defence counsel’s use of the word “willing” rather than “consent”.
30. [30]
    The genesis of this complaint lay in defence counsel’s own problematic question posed of the complainant in cross-examination.  The context in which the problematic question was asked is important.
31. [31]
    Earlier, in evidence-in-chief, the complainant was squarely asked whether she consented to her uncle licking her vagina and penetrating her vagina with his penis.  In each instance she responded, “No”.  Then, soon after the commencement of cross-examination there ensued a line of leading questions in which defence counsel had the complainant agree:

• she took her pants off when the appellant asked her to take her pants off;
• she did not tell the appellant that she did not want to take her pants off;
• she did not tell the appellant that she did not want sexual contact with him;
• the appellant did not hold her down;
• the appellant did not threaten her; and
• the appellant was not violent and had never been violent to her.

32. [32]
    Self-evidently these aspects were all about what had and had not been said or done, not whether the complainant was in fact consenting to what occurred.
33. [33]
    It is in that context that this immediately following question and answer occurred:

“And [complainant], you were willingto have sexual contact with [the appellant] as it was happening, but then afterwards you realised you didn’t like it.  Am I correct?--- Yes.” (emphasis added)

34. [34]
    There were at least three problems with this problematic question.  Firstly, it was a compound question.  The mere use of the words, “but then”, was inadequate to eliminate the prospect the complainant’s answer went to her later dislike of what happened (the second component of the question) as distinct from her willingness at the time (the first component of the question).  It was thus unclear whether the answer “Yes” related to the first or second component of the question, or both.
35. [35]
    The Crown Prosecutor apparently thought the answer did go to the second component of what happened, for, in re-examination, this question and answer occurred:

“[Y]ou said to [defence counsel] that you didn’t like it after, it referring to the sexual interaction with [the defendant].  Can you please explain what you mean by that?---Afterwards, it – it like hurt pretty much and I just didn’t like it.”

Given the assumption implicit in that question, the answer given did not resolve the ambiguity attending the question at issue.

36. [36]
    Secondly, even if the answer did relate to the first component of it, the problematic question was unclear as to whether the “sexual contact” meant the oral sex or the sexual intercourse or both.
37. [37]
    Thirdly, the problematic question was unclear, by reason of its use of the word “willing”.  The appellant disputes this, relying upon a passage in R v Makary.^[4]  President Sofronoff there used the word “willingness” in explaining how the element of consent requires a consenting state of mind as well as the giving of consent.  As to the latter, his Honour observed the “giving” of consent is the making of a representation by some means “about one’s actual mental state when that mental state consists of a willingness to engage in an act”.  That observation did not, as the appellant submitted, mean the word “willing” is functionally identical to the word “consent” in the context of the present case.
38. [38]
    The problem is that even if the “yes” answer did relate to the first component of the compound question, in which the word “willing” was used, it is unclear whether the word “willing” went to the complainant’s mental state.  On the one hand it might have gone to a mental state consisting of the complainant’s willingness to engage in sexual activity with the appellant.  But on the other hand, it might merely have gone to whether she was willing in the sense she was outwardly compliant with the request of the non-violent, non-threatening appellant.  The latter interpretation was made more likely from the complainant’s perspective by the fact that her outward compliance and the appellant’s lack of violence and threats were highlighted immediately before the problematic question was asked.  Indeed, the possibility of the complainant thinking the question went to her mental state appears even more remote when it is remembered she was squarely asked a short time earlier in evidence in chief whether she consented and answered “no”.
39. [39]
    It may also be the setting and the question’s confusing structure resulted in the complainant, who is indigenous, gratuitously concurring with the questioner.^[5]  However the state of information and argument before this court precludes this court from expressing a concluded view about that.
40. [40]
    In any event, the above three problems with the question’s ambiguity meant that, without further clarification, it was not apparent that the “yes” answer had any relevant probative value.  There were no follow up clarifying questions posed by the cross-examiner.  To the contrary cross-examination moved immediately to a different topic.
41. [41]
    Further, the word “consent” was not deployed in any question asked of the complainant at any stage of the cross-examination.  Later in the cross-examination the complainant accepted she had felt embarrassed and awkward after the defendant had left the room.  In this instance the ensuing questions incorporated the word “let” rather than the word “consent”:

“Did you feel awkward?---Yes.

And that’s because you let him lick her vagina?---Yes.

And you wanted to tell your best friend … but you didn’t know how to tell her about this; is that correct?---Yeah – yes.

And so when you told [your friend] that night, you didn’t tell her about [the defendant] licking your vagina, did you?---No.

You felt too embarrassed to tell her this?---Yes.

And you didn’t know how to tell her that you took off your shorts and let him lick your vagina; is that correct?---No.” (emphasis added)

42. [42]
    In this context the word “let”, like the word “willing” used earlier, was vulnerable to an understanding by the complainant that it referred not to her mental state, but to the fact that she had not said or done anything physical to prevent or deter the defendant from licking her vagina.
43. [43]
    All of these difficulties explain comments the learned trial judge made when the defendant gave evidence and later in the course of directions.
44. [44]
    The following exchange occurred when the defendant was being asked questions by defence counsel in evidence-in-chief:

“[Appellant], before you had sexual contact or oral sex with [the complainant], what was your belief about her willingness or her consent?--- Well, she didn’t mention nothing to me at the time, I thought, you know, by her taking her clothes off that she wanted to do it.  You know, I wasn’t – I was – I was a fair way away from her when I asked her.  She had every opportunity to not do it, you know?

And when you were having sexual contact with [the complainant], what did you believe about her willingness at the time?

HIS HONOUR:  You keep asking about willingness; I noticed you did this in her prerecord.  But willingness is not the issue in this trial, Ms Logan.  You should use the terminology that the law uses.

DEFENCE COUNSEL:  I’m sorry.  Thank you.

I’ll ask that question again?--- Yep.

When you were having sexual contact with [the complainant], what did you believe about her consent at the time?--- I believed that she wanted to do it because of her – her body moved – her body movements and her holding my head down and moaning at the same time as I was doing it; pulling her breast out. …”

45. [45]
    This was an unremarkable intervention by the learned trial judge, obviously directed at trying to avoid repetition of the above discussed problems with ambiguity.  It was not unfair to try and avoid such ambiguity.  Indeed, it was helpful to the appellant, because such ambiguity at that point risked detracting from the potential probative value to the defence case of the appellant’s answers.
46. [46]
    Undeterred by that exchange, defence counsel in her closing address still sought advantage from the complainant’s “yes” answer to the problematic question posed in cross-examination of the complainant.  It was submitted the answer established the complainant did consent.
47. [47]
    That was a bold submission given the ambiguities in the question and the lack of subsequent clarifying questions in cross-examination.  It would have been very optimistic to contemplate such a submission would pass without comment by the prosecution or trial judge.  But this was a strong prosecution case, made even more difficult to defend by the appellant’s unwittingly incriminating statements.  It was presumably thought the submission was worth making despite the obvious risk it may excite comment.  It did.
48. [48]
    It attracted a submission by the learned Crown Prosecutor in her subsequent address to the jury.  This included highlighting of the fact the question was in two parts.
49. [49]
    The learned trial Judge thereafter dealt with the topic in this quite benign way in the summing up, in summarising defence counsel’s arguments:

“It was submitted to you that the complainant was mature, that she took her own pants off, and it was submitted to you – or you were reminded of evidence of when she was asked if she was willing to have sexual contact with the defendant, and she indicated that she had been willing to do so.

I will also just highlight one issue for you here, ladies and gentlemen.  In cross-examination, Defence counsel, at one stage, asked the complainant as I have just indicated and Crown counsel referred to it, whether she was willing.  And at – later in cross-examination on two occasions, she spoke or questioned the complainant about whether she let the defendant do certain things.  Now, these are everyday words, of course, but bear in mind willing and let are not the same as consent.  Consent has a legal definition.  So you need to bear that in mind when considering the evidence that was given.  And counsel – Crown counsel made certain submissions about that and you might take that into account.” (emphasis added)

50. [50]
    Defence counsel sought a redirection regarding his Honour’s above-quoted comments to the jury:

“DEFENCE COUNSEL:  Your Honour made a comment about – during the summation of my closing argument about the use of the word “willingness”.  Your Honour, I’d ask for you to redirect---

HIS HONOUR:  “Willing”, not “willingness”.

DEFENCE COUNSEL:  “Willing”.  I’d ask your Honour to redirect the jury with respect to that.  That is – that comes – your Honour’s comments comes with great weight during the summing-up, as the Judge in this court.  And it’s really a matter for them about what they make of that question and that answer, having heard your Honour’s direction about what consent is and the definition being read to them a few times over the course of your Honour’s summing-up.

HIS HONOUR:  So what direction that you want?

DEFENCE COUNSEL:  That that question and – sorry, that answer to that question and also the re-examination is a matter for them.  And---

HIS HONOUR:  Well, I told them that.  I told them they must bear in mind that the word “willing” and the word “let” is not the same as consent and they must bear that in mind.  And that the word “willing” and the word “let” are everyday words in everyday – in English usage – that they must take into account that fact.  The question was a poor question, [defence counsel].  I’m amazed that there was no objection taken at the time. … I have pointed out the fact that “willing” and “let” is not the same as consent, but they can take that into account when they consider the matter.”

51. [51]
    The content of the learned trial judge’s response to the request for redirection was entirely accurate.  His direction did no more than highlight that the words “let” and “willing” were everyday words and that the jury should bear in mind they are not the same as “consent”, which has a legal definition.  The directions were not in the least unfair.  They did no more than alert the jury to the distinction between the words “willing” and “let” and the legal definition of the word “consent”.
52. [52]
    His Honour could properly have commented further, explaining to the jury how the inherent ambiguities in the question meant it was not apparent that the “yes” answer had any relevant probative value.  The defence, having rolled the dice and risked judicial correction in the summing up, were fortunate to have met with such mild comments.  Indeed, his Honour was more critical in his comments about two aspects of the learned Crown Prosecutor’s address.
53. [53]
    It is to be borne in mind that the trial judge’s obligation of ensuring a fair trial according to law requires a fair trial to both sides.  It would not have been fair to the prosecution if his Honour failed to ensure the jury correctly understood the meaning of the element of consent and that their understanding was not confused by words which may blur that meaning.  Indeed, had his Honour erroneously allowed the case to go to the jury on the basis words like “willing” or “let” were apt substitutes for the legal definition of “consent” one can readily imagine the appellant complaining on appeal that he had not received a trial according to law.
54. [54]
    The learned trial judge’s comments during evidence and in his summing-up were fair and proper.  It follows no miscarriage of justice arose from them.

Orders

55. [55]
    Both grounds of appeal having failed, I would order:

Appeal dismissed.