R v HCQ[2024] QCA 93

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Dalton JA.
2. [2]
   DALTON JA:  Mr HCQ acts for himself in appealing against a conviction for rape after a jury trial in March 2023.  The ground of appeal in his notice of appeal is that the conviction was unreasonable and could not be supported having regard to the evidence.  In his outline of written submissions he also raised the point that, having faced three counts of rape and being acquitted on two, the verdict of guilty was inconsistent with the other verdicts.  The Crown accepted that the appeal should be heard as if both grounds were before the Court.  In my view, both grounds fail and the appeal ought to be dismissed.  I will deal with the unreasonable verdict ground first.

Unreasonable Verdict

3. [3]
   The Crown case was that the appellant married the complainant in the mid‑1990s when she was in her mid‑20s and he was about 20.  Both the complainant and appellant were members of a church which regarded anal intercourse as a sin.  The complainant’s evidence was that over the course of the marriage, lasting several years, the appellant forced her to engage in anal intercourse on literally hundreds of occasions without her consent.  The trial took place 20 to 25 years after the incidents complained about.  The complainant said she could not recall the detail of all the incidents, but was able to describe two occasions of non-consensual intercourse with clarity.  On the first she said that the appellant forced anal intercourse upon her (count 1).  She said that two or three weeks later there was an occasion when the appellant had both vaginal and anal intercourse with her without her consent (counts 2 and 3).
4. [4]
   The complainant gave evidence from a remote witness room with a support person beside her.  The jury was appropriately instructed about this by the trial judge.
5. [5]
   The complainant gave evidence that she had been born in the late 1960s and was a member of a particular religious organisation from the early 1990s.  She believed that Jehovah had written in the Bible that sodomy and rape were sexually immoral, unclean and unnatural practices.  In her evidence she cited various chapters and verses of the Bible which she believed were to this effect.  She said that in her church “one can be disfellowshipped for those practices” – t 1-43.
6. [6]
   She married the appellant in 1995 and that he was a member of the same church as her.  She had children born in the mid- and late-1990s, and said that during the course of her marriage she engaged in vaginal intercourse with her husband.  The appellant was always curious about anal sex but that the complainant shut down any discussions of this “straight away” – t 1-44.  He was keen to try it, but “I would say no, flat‑out no, absolutely not.  It’s against our beliefs.” – t 1-44.
7. [7]
   Against this background she recalled a hot summer’s night in 1997 when she was lying on a mattress in the lounge room under the air‑conditioner reading a religious magazine.  The appellant came into the lounge room and lay down beside her.  He put his arm around her and started kissing her neck, then proceeded to remove her “night pants” and underwear.  He began having vaginal sex with her.  This was consensual.  Then, very quickly, he put all his body weight on top of her so that she could not move and engaged in anal intercourse with her.  She screamed out that he was to stop, and she cried because she was hurt, but the appellant would not listen.  He continued with this for a few minutes.  Afterwards she was in shock and extreme pain.  The appellant went to their ensuite bathroom to “clean up” – t 1-45.  She lay in the lounge room until he had finished and then she went through to the bathroom, ensuite to their bedroom, shut the door and cleaned herself up.  When she came out of the bathroom he was standing there and asked whether he could “check you out”.  She refused – t 1-45.  She was in a fragile mental state at the time.  He managed to lie her down on the bed, “check me out”, and then he said he was sorry – t 1-46.
8. [8]
   The complainant’s evidence continued that about two to three weeks later, there was a second incident and then after that, “it would’ve been initially two to three times a week, and then it built up to at least four to five times a week” – t 1-46.  She said that there was a pattern to the offending in that it would usually take place at night time; the appellant would proceed with vaginal sex, and then “he would do the same thing again” – t 1-46.  He would put his body weight on her, and then engage in anal intercourse with her.  She asked him not to do this.  She tried to physically get away from him, but he was just too heavy and “he never took no for an answer” – t 1-46.
9. [9]
   The second occasion which the complainant described in her evidence was the basis for counts 2 and 3.  She said that she recalled it with clarity because it was “out of the ordinary”.  She was in the kitchen making breakfast for the children and lunch for the appellant because he was heading off to work.  She went into a rumpus room where there was a pool table and the appellant came out of his office, which was right next door to the rumpus room.  He started “getting friendly”, indicating that he wanted sex – t 1-46.  He bent her over the pool table.  She stood up and said no, it was “not the time” because the children were around the corner in the lounge watching television.  Nonetheless the appellant ignored her, bent her over the pool table and “proceeded with vaginal sex and the same thing happened again” – t 1‑46.  He used his body weight to pin her to the pool table and then began having anal sex with her.  She said “no”, and she tried to move out from under him.
10. [10]
    In 2003 the appellant left the family home.  Her parents came to stay for a while but later a friend, PE, PE’s husband and their children moved in because they needed a place to stay.  At some point during this time PE, the complainant and another friend were sitting at the dining table.  They were all good friends and had known each other for a long time.  There was a discussion about “how men have bad behaviour and how they can be rather selfish at times” – t 1-48.  The conversation turned to the subject of sex.  Sodomy was discussed.  This upset the complainant and she burst into tears.  PE asked whether that had been happening to her and she said that it had.  She also said to PE that she did not consent “to any of it” – t 1-48.
11. [11]
    There were several points made in cross-examination of the complainant which were put to the jury as negatively affecting her credit and reliability.
12. [12]
    In cross-examination the complainant said that she has had trouble with her memory to do with “my anxiety” – t 1-49 – and that specifically she had suffered “loss of memory chunks” – t 1-49.  She admitted that her memory of “most of the relevant time is blurred”, and unclear – t 1-49.
13. [13]
    Prior to the appellant leaving the family home, the complainant became aware that he was having an affair with a person the complainant described as a “young girl” – t 1‑50.  She became aware of this when the young girl’s mother told her of the affair.  The appellant left the marriage shortly thereafter.  He packed up his bags and walked out – t 1-51.  The complainant conceded that it was possible that she tried to convince the appellant to come back to her after he had left and conceded that she engaged the priest at their local church to try to give the appellant “guidance and counselling” about the decision to leave, but the appellant would not speak to the priest – t 1-52.
14. [14]
    After the marital separation the family home was sold.  She moved in with PE for a period with her children.  While she was living with PE she started making arrangements to relocate herself and her children to New Zealand and PE, as her friend, assisted in organising that.  She shipped her furniture and her car to New Zealand and booked flights for herself and the two children.  She then gave a letter to the appellant, informing him of her plans.  She had not told him earlier because she knew that he would not agree to this.  She said she did not know that he had to give his permission; that she had taken advice about the matter (she does not say from whom), and that she was told there was no need to let the appellant know until she and the children were “ready to go” – t 1-55.  PE drove the complainant and her children to the airport, where she was stopped by Federal Police.  She had not thought there was anything wrong in what she was doing – t 1-55.
15. [15]
    In the event, the appellant married the “young girl” with whom he had had an affair and they had four children.  Then they separated and there was a custody dispute in the Family Court relating to the children of that marriage.  In 2020 the complainant gave written evidence in the Family Court in support of the wife in those proceedings.  That written evidence included the allegation that:

“In or about November 1997, I was raped and sodomised by [the appellant].  This was the first time that he had abused me in a sexual way.  I screamed and said, no, but that was futile.  The evening after the abuse, [the appellant] came into the bathroom and apologised for what he had done to me.  He also wanted to see if his actions had caused me any physical damage.  I told him to get out of the bathroom and said, that I did not want him near me.  It was three or four weeks later when he next raped and sodomised me.  I was raped and sodomised two to three times a week for a period of six years.” – t 1‑59. 

16. [16]
    Cross‑examination having reached that point, the complainant was asked whether, after the Family Court hearing in relation to the appellant’s second marriage, she had any contact with the appellant’s second ex‑wife.  She said “no”.  She was asked, “None at all?” and confirmed, “None at all.” – t 1-57.  Almost immediately she then gave evidence which contradicted this by saying that she did see the appellant’s second ex-wife six months after the Family Court hearing into the second marriage, on an occasion so that the half-siblings could meet, and on another occasion six months after that at a park.  About 12 months after the first admitted contact she had sent a message to the appellant’s second ex-wife thanking her for some earrings she had received from that lady as a present, and about the same time she sent another message to that lady talking about that lady’s new intimate relationship.
17. [17]
    Cross-examination further revealed that the police had contacted the complainant during the Family Court proceedings into the appellant’s second marriage, asking if she wished to make a statement.  She did provide such a statement, which was the basis for the evidence she gave at trial.
18. [18]
    There was cross-examination directed to some inconsistencies in the complainant’s version of events regarding count 1.  In the complainant’s statement to police she had said that she was wearing bike pants and shorts whilst lying on the mattress in the living-room, but she later changed that to bike pants and a shirt.^[1]
19. [19]
    In the complainant’s police statement she said that after the subject matter of count 1, she went into her bedroom and continued, “I’m not sure if I started bleeding, but I was extremely sore.  [The appellant] then came into the room starting to apologise, and then asked if he could check on me.  I was in so much shock at what had just happened, and I allowed him to do it.” – t 1-60.  It was put to the complainant that this was inconsistent with the version she gave in the Family Court proceedings.  That version was that the appellant apologised the following evening.  The complainant accepted that there was an inconsistency, but blamed it on “a typo” – t 1-61.  She explained the typo on the basis that, “I clearly didn’t read what I was signing properly” – t 1-61.  Cross-examination on this topic took some time but the complainant did not resile from the version that she had originally given in evidence.  She adhered to her version that she walked into the bathroom, cleaned herself up, opened the door and the appellant was there apologising for what he had done – t 1‑61.
20. [20]
    In cross-examination the complainant accepted that she had not mentioned the occasion which was the subject matter of counts 2 and 3 in the Family Court proceedings.  She was asked if she had ever told anyone about that particular occasion before she told the police.  She thought she told PE but she could not remember when that was.
21. [21]
    The complainant and the police officer who interviewed her both gave evidence to the effect that the complainant’s first police statement dealt with the subject matter of count 1, but not the subject matter of counts 2 and 3.  The first police statement did, however, include the following sentence, “The suspect then did this again three weeks later and then continued until 2003”.  Details of the facts supporting counts 2 and 3 were included in a police statement after the police officer returned to see the complainant again and asked for further details.
22. [22]
    In cross-examination dealing with another topic, the complainant denied knowing what her evidence in the Family Court “was helping with” – t 1‑68.  It was put to her that it was being used to help prevent the appellant having custody of the children of his second marriage.  After some further questioning she accepted that she had told a treating psychologist that her involvement in the Family Court proceedings was aimed at preventing the appellant having custody of the children of his second marriage – t 1-70.  It was put to the complainant that her helping in the Family Court proceedings was an act of revenge.  She denied this, saying, “I don’t have an ounce of revenge in me” – t 1‑75.
23. [23]
    Cross-examination which might be seen as designed to show the unreliability of the complainant’s evidence emphasised, and the complainant accepted, that she said she had been forcefully raped by the appellant four or five times a week over a period of six years; literally on hundreds of occasions.  At this part of the cross‑examination the complainant was asked questions to elicit the evidence that she was “distraught” when the appellant left the marriage and took steps to have him return to the marriage – t 1-74.
24. [24]
    Cross-examination which might be seen to have a similar purpose had the complainant repeat her religious beliefs several times and also elicited her saying that the appellant had told her he would stop having anal sex with her if she could demonstrate by reference to the Bible that it was forbidden.  She accepted that if she were to admit to having anal sex willingly she would be shunned by her church, and that would mean the loss of her family and friends, including her children.
25. [25]
    The complainant accepted that she had not chosen to go to the police, but that the police came to her after she involved herself in the Family Court proceedings relating to the appellant’s second marriage.  She accepted that if she were now to retract her complaint about non‑consensual anal sex she would suffer the loss of church, family and friends.  The complainant denied that her motivation to complain against the appellant, or to continue with the complaint, was to prevent the loss of these things – t 1-76.
26. [26]
    PE gave evidence that she had been friends with the complainant for about 30 years.  She belonged to the same church and congregation, and gave evidence that she believed that if one practised sodomy, “you will not inherit God’s kingdom” – t 2‑4 and t 2‑6.  In response to cross-examination PE gave quite a lot of details of her religious beliefs.  Presumably the time taken to explore such things in cross‑examination was to allow the jury to reflect on whether these matters affected her reliability.
27. [27]
    PE recalled that when she, her husband and children had moved in with the complainant, the complainant told her that “she had been sodomised” – t 2‑5.  She questioned the complainant as to why she would let that happen, and the complainant said, “I didn’t let it happen” – t 2-5.  The complainant told her that she had been in the lounge room lying on a mattress on the floor reading a book.  The appellant came up from behind her, started kissing her and massaging her, and then forced himself on her and raped and sodomised her.  She was lying on her stomach, was pinned down, and he used his weight so she could not get up.  She told him to stop it.
28. [28]
    Although the complainant had told PE that there were other occasions when the appellant had sodomised her without her consent, she did not go into any detail about them.
29. [29]
    It was put to PE that she had helped the complainant attempt to take her children to New Zealand, away from the appellant, without his permission, and that she encouraged and assisted the complainant to get involved in the Family Court proceedings relating to the appellant’s second marriage.  She admitted some involvement in these matters, but denied that the complainant was encouraged by her.  Rather, she said that the complainant did what she, herself, wanted to do.  She denied making up the preliminary complaint to assist the complainant.
30. [30]
    The appellant did not give or call evidence.
31. [31]
    In arguing his appeal, the appellant emphasised the inconsistencies in the complainant’s testimony regarding when she said he apologised to her after the subject matter of count 1, and as to whether or not he checked on her physical state after the subject matter of count 1.  He particularly emphasised that the complainant had been emphatic in her denial that she had anything to do with his second ex‑wife after the Family Court proceedings, but then admitted to several interactions with the lady thereafter.  He made reference to the fact that the complainant gave evidence that she thought she complained to PE about the subject matter of counts 2 and 3, yet PE said she did not.
32. [32]
    More generally, the appellant relied upon the complainant’s poor memory.
33. [33]
    The appellant pointed out that on the evidence there were real questions for the jury to consider as to whether or not the complainant had a motive, or motives to lie.  He pointed to the fact that their relationship ended, against the complainant’s will; that he prevented the complainant relocating to New Zealand, thus causing her significant financial loss and the inability to reside with her family.  He relied upon the idea which was made apparent in cross-examination, that if the complainant had engaged in consensual anal intercourse with him, she would be “disfellowshipped” and shunned by her church, losing her family and friends.
34. [34]
    The difficulty for the appellant is that the matters he relied upon before this Court are classically matters for the jury, and these factual matters, and the inferences to be drawn from the evidence, were canvassed before the jury.  This Court is to consider whether or not “it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”.^[2]  In this case the answer must be yes.  While the defence had material for the jury’s consideration, and points to make concerning her memory, motives and credit, none of it meant that the jury must have rejected her evidence.^[3]  The verdict was not unreasonable.

Inconsistent Verdicts

35. [35]
    This Court recently set out the principles relevant to determining whether a jury’s verdicts are inconsistent in the relevant sense in R v Silcock:

“In R v GAW [2015] QCA 166 Philippides JA (with whom Margaret McMurdo P and Holmes JA agreed) by reference to M v The Queen (1994) 181 CLR 487, Jones v The Queen (1997) 191 CLR 439 and MacKenzie v The Queen (1996) 190 CLR 348 summarised the principles concerning inconsistent verdicts as follows:

‘The principles concerning inconsistent verdicts are well‑established. Where alleged inconsistency arises in the jury verdicts upon different counts affecting an accused, the test is one of “logic and reasonableness”; that is, whether the party alleging inconsistency has satisfied the court that the verdicts cannot stand together because “no reasonable jury, who had applied their mind properly to the facts in the case could have arrived” at them.

However, respect for the jury’s function results in a reluctance in appellate courts accepting a submission that verdicts are inconsistent in the relevant sense, so that:

“... if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.”

In that regard, “the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt”. Alternatively, the appellate court may conclude that the jury took a merciful view of the facts on one count; a function which has always been open to a jury.

It is only where the inconsistency rises to the point that the appellate court considers intervention is necessary to prevent possible injustice that the relevant conviction will be set aside. While it is impossible to state hard and fast rules, the following provide examples of relevant inconsistency; where the different verdicts returned by the jury are an affront to logic and common sense which is unacceptable, and strongly suggests a compromise in the performance of the jury’s duty, or which suggests confusion in the minds of the jury, or a misunderstanding of their function, or uncertainty about the legal difference between specific offences, or a lack of clarity in the instruction on the applicable law.’”^[4]

36. [36]
    In this case the jury was properly directed to consider each of the counts separately.  In my view, the evidence which related to count 1 on the one hand, and counts 2 and 3 on the other, was different in material respects.  First, there was evidence of a preliminary complaint in relation to count 1, but not in relation to count 2.  Secondly, the detail of what the complainant said about count 1 had been contained in her statement given in the Family Court proceedings concerning the appellant’s second ex‑wife; there was no statement in those proceedings as to the subject matter of counts 2 and 3.  Thirdly, when the complainant initially spoke to the police she gave the detail of offending concerning count 1, but not of counts 2 and 3.  That last factor is the weakest of the three differences, but it may have had some influence on the jury.
37. [37]
    The fact that not guilty verdicts were returned on counts 2 and 3 meant that the jury did not find those counts proved beyond reasonable doubt.  In circumstances where the detail of that offending had not been provided by the complainant on three occasions where there was an obvious opportunity to do so, there was a logical and reasonable basis for the jury to hold a reasonable doubt in relation to that offending which did not exist in relation to count 1.  In this way the jury verdict can be seen as reconcilable, indeed nuanced, having regard to the weight of all the evidence before it.  I cannot see that there was anything in this ground.
38. [38]
    In my view, this appeal should be dismissed.
39. [39]
    KELLY J: I agree with Dalton JA.