Queensland Judgments
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R v Clancy

Unreported Citation:

[2022] QCA 162

EDITOR'S NOTE

In this case the accused was convicted of rape. He appealed against conviction. One of his grounds of appeal was that a number of interventions by the trial judge during the course of the trial caused a miscarriage of justice (the “impugned interventions”). Two of the impugned interventions which occurred during the cross-examination of the complainant compelled the Court to conclude that a miscarriage of justice had occurred. This was on the basis that the trial judge had prevented defence counsel from asking whether the complainant had “allowed” the accused to have sexual intercourse with them. Any response to the question was relevant to consent, which was the “critical issue” in the trial. The appeal was allowed, the convictions were set aside, and a retrial was ordered.

McMurdo and Flanagan JJA and Beech AJA

31 August 2022

Background

The accused was convicted of rape. [1]. The rape was alleged to have occurred in the bathroom of a bar in the Fortitude Valley. [4]–[6]. The accused formally admitted that sexual intercourse had occurred, so the factual controversy in the trial was narrowed to the following issues: whether the accused had sexual intercourse without the consent of the complainant; and whether the accused did not honestly and reasonably believe that the complainant was consenting. [7]–[14]. The trial judge was said to have made a number of interventions during the course of the trial which gave rise to a miscarriage of justice (the “impugned interventions”). [2], [15].

Whether the impugned interventions of the trial judge caused a miscarriage of justice

The Court (McMurdo and Flanagan JJA and Beech AJA) discussed the general principles that apply to interventions by a trial judge: see generally [15]–[24]. The fundamental question was whether the impugned interventions created a “real danger that the trial was unfair”. [17]–[18]. Whilst a number of the impugned interventions were considered to either be appropriate or permissible in the circumstances (see [25]–[34]), two of the impugned interventions which occurred during the course of the complainant’s cross-examination were of “significant concern”. [35]. The relevant part of the cross-examination was as follows:

“[DEFENCE COUNSEL]: And I just want to be clear with you. In the circumstances of what you describe happening in the bathroom that effectively what happened is that you allowed this man to have sex with you.

[TRIAL JUDGE]: No, that’s not – that’s not the test of rape, its that she consented to sex. Submission is not the same as consent. That’s [R v Sunderland [2020] QCA 156; (2020) 5 QR 261 (“Sunderland”)] – it’s a recent case from the Court of Appeal.

[DEFENCE COUNSEL]: He didn’t say anything to threaten you? --- No.

And he certainly wasn’t violent to you?--- No.

And you yourself thought that the sex was – in the first few days after the bathroom incident, you thought yourself that the sex was consensual didn’t you?

[TRIAL JUDGE]: Did you ever think that it was consensual? --- No. No, I – not at all.” [35].

The Court observed that the trial judge’s interventions precluded defence counsel from asking whether the complainant had “allowed the [accused] to have sex with [them].” [36]. The trial judge’s reference to Sunderland was misplaced. [36]. There was no issue as to whether the complainant did not have the cognitive capacity to give consent, nor was there any issue as to whether any of the circumstances in s 348(2) Criminal Code 1899 applied. [36]–[41]. Defence counsel was entitled to ask the question as it was “relevant and permissible” for at least three purposes:

  • The fact, if established, would have formed part of an “evidentiary picture” in advance of a case theory that consent had been given. [44].
  • If the complainant had given an affirmative response, it could have led to other relevant lines of questioning on this topic. [44].
  • It was relevant to “test … the complainant’s state of mind as to whether sexual intercourse was consensual”. [45].

The Court held that it was an error for the trial judge to intervene and prevent defence counsel from asking what was a relevant and permissible question. [48]. As a result of the intervention of the trial judge, the accused was unable to put his case “fully and fairly” to the jury, which included having an opportunity to test the evidence of the complainant on the issue of consent. [48]. Given consent was a “critical issue” in the trial there was a real danger that the intervention of the trial judge was “readily capable of having realistically affected the jury’s verdict.” [48].

Disposition

In the result, the appeal was allowed, the convictions were set aside, and a retrial was ordered. [70].

D Kerr

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