R v Agnew

Case [2021] QCA 190

SUPREME COURT OF QUEENSLAND

CITATION:

R v Agnew [2021] QCA 190

PARTIES:

R
v
AGNEW, Peter James
(appellant)

FILE NO/S:

CA No 148 of 2020
DC No 1106 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:


District Court at Brisbane – [2020] QDC 157 (Richards DCJ)

DELIVERED ON:

3 September 2021

DELIVERED AT:

Brisbane

HEARING DATE:

11 June 2021
Supplementary written submissions: 17 June 2021

JUDGES:

Sofronoff P and Morrison JA and Flanagan J

ORDERS:

1.   Application for leave to adduce evidence refused.

2.   Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of rape and indecent assault following a trial – where the judge sat without a jury – where the Crown case consisted predominantly of witness testimony, including the complainant’s own evidence – where the appellant elected to give evidence – where there were some inconsistencies in the evidence given by Crown witnesses – where the offences occurred more than 40 years prior to the trial – where the complainant was unable to recall several specific details – where the complainant’s evidence was that her first recollection of the offending occurred 35 years post-event – whether the verdict was unreasonable or insupportable having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – DISMISSAL OF APPEAL WHERE NO MISCARRIAGE OF JUSTICE – GENERAL PRINCIPLES – where the appellant submits that a miscarriage of justice occurred because the trial judge made a material error of fact – where the alleged error was finding the complainant’s testimony to be consistent with the evidence of preliminary complaint – where the complainant’s evidence was generally consistent, albeit not perfectly consistent, with the preliminary complaint evidence – whether a miscarriage of justice occurred

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – FRESH EVIDENCE – AVAILABILITY AT TRIAL, MATERIALITY AND COGENCY – MATERIALITY AND COGENCY – EVIDENCE DIRECTED TO CREDIT – where the appellant seeks leave to adduce a victim impact statement tendered after trial – where the complainant, in the victim impact statement, states that she has an extraordinary memory as a result of suffering from autism spectrum disorder – where the complainant was unable to recall certain details during cross-examination – where the appellant submits that, if the victim impact statement had been tendered at trial, it would have materially affected the trial judge’s assessment of the complainant’s credibility – whether the victim impact statement is admissible as fresh evidence – whether the victim impact statement tends to establish that a miscarriage of justice occurred

Craig v The King (1933) 49 CLR 429; [1933] HCA 41, cited
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29, cited
Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26, cited
R v BBU (2009) 213 A Crim R 512; [2009] QCA…

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R v Agnew [2021] QCA 190
Case
[2021] QCA 190
Decision Date

CaseChat Overview and Summary

In R v Agnew, the appellant was convicted of rape and indecent assault following a trial before a judge sitting alone. The appellant sought to appeal against his conviction on the ground that the verdict was unreasonable or insupportable having regard to the evidence, that a miscarriage of justice had occurred, and that fresh evidence should be admitted. The appeal was dismissed.

The legal issues before the court were whether the verdict was unreasonable or insupportable having regard to the evidence, whether a miscarriage of justice had occurred due to a material error of fact by the trial judge, and whether a victim impact statement could be admitted as fresh evidence. The court examined the evidence presented at trial, including the complainant’s testimony, the evidence of preliminary complaint, and expert evidence. The court found that the trial judge was entitled to accept the complainant’s evidence as credible and to be satisfied beyond reasonable doubt of the appellant’s guilt. The court also found that there was no miscarriage of justice and that the victim impact statement was not admissible as fresh evidence.

The court’s reasoning was that the trial judge had the advantage of seeing and hearing the evidence at the trial and was entitled to accept the complainant’s evidence as credible. The court noted that the complainant’s evidence was generally consistent, albeit not perfectly consistent, with the evidence of preliminary complaint. The court also found that the appellant’s behaviour in a covert recording was not indicative of guilt and that his comments were selective. The court further found that there was no miscarriage of justice because the trial judge did not make a material error of fact. Finally, the court found that the victim impact statement was not admissible as fresh evidence because it was not material or cogent.

The final orders of the court were that the application for leave to adduce evidence was refused and that the appeal was dismissed.

Orders

Orders of the court

1. Application for leave to adduce evidence refused.

2. Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In R v Kelly,[8] this Court recently considered the principles that govern an appeal against conviction in a judge alone trial on the ground that the verdict is unreasonable or cannot be supported having regard to the evidence:[8][2021] QCA 134.“In R v Harris, … [h]aving considered the High Court’s decisions in Fleming v The Queen and Filippou v The Queen, Fraser JA (with whom Sofronoff P and North J agreed) concluded that each of the three grounds of appeal in s 668E(1) of the Criminal Code is capable of application to the verdict of a judge alone. His Honour stated:‘Accordingly, in an appeal against conviction in a judge alone trial upon the ground that the verdict of the judge is unreasonable or cannot be supported having regard to the evidence, the Court must undertake an independent examination of the whole of the evidence at the trial and decide whether it was open to the judge to be satisfied beyond reasonable doubt of the appellant’s guilt.’That exercise ‘must take into account any advantage of the trial judge in seeing and hearing the evidence at the trial in the way described by the High Court in M v The Queen ...’.This Court has also recently emphasised the limitations of an appeal against a guilty verdict on a question of fact:‘In our respectful opinion, not enough attention has been given to the limitations enunciated in M v The Queen and which are consistent with early judicial appreciations of the limitations of an appeal against the verdict of a jury on a question of fact. It is fundamental that it is not sufficient for an appellant merely to show “discrepancies” or “inadequacies” in the evidence or to show that the evidence is “tainted” or “otherwise lacks probative force”. It is necessary to demonstrate that such features appear in the evidence “in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted”.’The Court further stated:‘An appellant who contends that the verdict of the jury was unreasonable or that it was unsupported by the evidence must identify the weaknesses in the evidence and must then also demonstrate that these weaknesses reduced the probative value of the evidence in such a way that the appellate court ought to conclude that even making full allowance for the advantages enjoyed by the jury there is a significant possibility that an innocent person has been convicted.’”[9][9]R v Kelly [2021] QCA 134, [3]-[6] (per curiam) (citations omitted, emphasis in original).Examination of the evidence The Crown’s evidence at trial consisted of: the complainant’s own evidence; the witness evidence of Ms Susan Tonks; the evidence of preliminary complaint, being the testimony of Mr Andrew Flint and Senior Constable Olivia Shaw; the expert evidence of a pharmacologist, Professor Lindsay Brown; a covert recording of a conversation between the appellant and the complainant in 2016; and a recording of the appellant’s interview with the police in 2017.[10][10]The Crown also called Senior Detective Constable Jocelyn Ablett: AB147-152.

Decision

Reasons for decision

The learned trial judge accepted that, while the complainant could not recall matters on a large number of occasions, this was chiefly in relation to conversations between herself and the police and Mr Flint around five years ago, which was “unsurprising”.[62] Her Honour opined that there was little inconsistency in her accounts of what happened between herself and the appellant. In substantially accepting the complainant’s account of events, her Honour did not rely on the absence of an apparent motive to lie.[62]R v Agnew [2020] QDC 157, [19] (Trial Judgment). The learned trial judge considered the evidence of sexual interest by the appellant towards the complainant prior to the indecent assault and the rape. That evidence included the pornographic material, the touching, the unsolicited flat visit and his comments to the complainant about his wife. Her Honour found the complainant’s evidence in this regard to be credible. Her Honour was of the view that it:“… demonstrates an escalating behaviour towards the complainant, and the fact that she was compliant and did not rebuff him strongly but merely chose to move away from him, leads to a conclusion that he was emboldened by his advances to take matters further.”[63][63]Trial Judgment, [65]. In reviewing the evidence, her Honour also made the following specific observations:(a)there was a minor discrepancy between the complainant’s and the appellant’s descriptions of the tech lab room layout; (b)the complainant’s written statement was inconsistent with her testimony regarding the timing of the appellant expressing his displeasure at Ms Tonks’ presence in the practice;(c)Ms Tonks’ estimated time of arrival at the practice was probably wrong, but this was an insignificant inconsistency; and(d)there was an inconsistency between Senior Constable Shaw’s written notes (to the effect that the complainant could not remember, in relation to the rape, how she “got out from under him”) and the QPRIME entry (to the effect that she had pushed him away). Her Honour concluded that the QPRIME entry was to be treated with caution because it seemed “curious” that the complainant could have given two different versions of events in such a short period of time.[64][64]Trial Judgment, [36]. The trial judge regarded the appellant’s behaviour in the covert recording as “unusual”.[65] Her Honour also regarded as selective his comments in not denying the pornography, denying the groping and not recollecting the rape. Her Honour opined that most people would have reacted differently when confronted with such a situation. However, ultimately, the learned trial judge did not regard the appellant’s conduct as constituting any admission, finding that:“Human reaction is not always consistent or predictable and this is one of those occasions. In all the circumstances it seems to me given the fact that the defendant was confronted unexpectedly after 35 years with these allegations it would be unfair to assume that his reaction was that of a person deliberately acting out of a consciousness of guilt and I do not regard it in that way.”[66][65]Trial Judgment, [37].[66]Trial Judgment, [41].

Ratio Decidendi

Legal Principle Established

The Crown submits that it would be erroneous to consider the circumstances of the complainant’s recollection of the rape in isolation.[76] In assessing the complainant’s evidence, the whole of her evidence should be considered.[77] The Crown notes that the complainant’s account of how she came to specifically recall the circumstances of the rape was not explored in great detail at trial. Nor was the extent of the complainant’s recollection prior to reading the relevant article truly explored.[78][76]Respondent’s Submissions, paragraph 5.[77]T 1-13, lines 43-45.[78]Respondent’s Submissions, paragraph 4.Consideration of Ground 1 When the complainant’s evidence is considered as a whole, it was open to the learned trial judge to be satisfied beyond reasonable doubt as to its truth and accuracy. While her Honour had the significant advantage of being able to assess each witness as they gave their evidence, her Honour identified the need to exercise extreme caution in using demeanour to address questions of the consistency, reliability or truthfulness of the complainant’s evidence.[79][79]Trial Judgment, [18]. The evidence of the appellant’s sexual interest in the complainant makes it more likely that he committed both offences. The learned trial judge found the complainant’s evidence of that sexual interest credible.[80] The sexual interest evidence included the appellant showing pornography to the complainant.[81] Although the appellant denied ever having pornographic material at the surgery or ever showing it to anybody (including the complainant), he admitted that he may have taken some pornographic magazines to the surgery in his briefcase.[82][80]Trial Judgment, [65].[81]See [11] above.[82]See [40] above. There was also evidence of the appellant groping the complainant.[83] This conduct, which continued over the course of a couple of weeks, caused the complainant to change her pre-examination routine to deprive the appellant of the opportunity to grope her. The complainant’s evidence about changing her work routine was unchallenged. The appellant denied that he put his hand up the back of the complainant’s dress and groped her.[83]See [12] above. The appellant’s sexual interest in the complainant is further supported by the appellant sharing intimate details concerning his wife.[84] The complainant was able to give the names of both the wife and the child. The appellant stated that he was “surprised” the complainant knew his wife’s name.[85] There is also the evidence of the appellant’s uninvited arrival at the complainant’s flat.[86] The appellant vaguely recalled going to her home one day but he could not recall the circumstances, except that he thought he dropped something off such as wages, uniforms or keys.[84]See [17] above.[85]AB164.[86]See [13] above. It is significant that, the day after the rape, the complainant called the appellant and resigned, never to return to the practice. Although the complainant’s evidence was that she could not recall whether she told police about her resignation, in his own interview with police, the appellant recalled that the complainant’s employment ended when she “just resigned”.[87][87]AB375.