R v Bond

Case [2018] QCA 130

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bond [2018] QCA 130

PARTIES:

R
v
BOND, Harry John
(appellant)

FILE NO/S:

CA No 118 of 2017
DC No 2516 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 31 May 2017 (Richards DCJ)

DELIVERED ON:

22 June 2018

DELIVERED AT:

Brisbane

HEARING DATE:

5 March 2018

JUDGES:

Sofronoff P and McMurdo JA and Boddice J

ORDERS:

1.   The appeal be allowed.

2.   The verdicts of guilty on Counts 1 and 2 be set aside.

3.   There be a re-trial in respect of Counts 1 and 2 on the indictment.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – where the complainant was eight-years-old at the time of the alleged offences – where the appellant was convicted of two counts of anal rape and found not guilty of one count of oral rape – where the appellant was sentenced to eight years imprisonment in respect of the counts of anal rape – where the appellant appeals those convictions on the grounds that: (1) the verdicts of guilty were unreasonable and cannot be supported having regard to the evidence, and (2) the verdicts of guilty were inconsistent

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the complainant recounted the acts of rape to police, family, his teacher, and a psychiatrist prior to the trial – where the complainant gave evidence at trial – where the complainant’s evidence contained some inconsistencies – where the complainant nevertheless consistently recounted each act of anal rape – where it does not follow the inconsistencies in the complainant’s evidence were of such a magnitude as to cause a jury to doubt the reliability and credibility of the complainant’s accounts of each anal rape – whether the jury was entitled to be satisfied beyond reasonable doubt of the complainant’s guilt of each of the offences of anal rape

CRIMINAL LAW – APPEAL AND NEW TRIAL – INCONSISTENT VERDICT – APPEAL ALLOWED – whether the jury’s verdict of guilty of anal rape (Count 2) was inconsistent with the jury’s verdict of not guilty of oral rape (Count 3) – where the acts of anal and oral rape occurred within the same uninterrupted period – where a consideration of the evidence of the complainant, and other evidence at trial, provides no logical or reasonable basis for the jury to have distinguished the complainant’s reliability and credibility in respect of Count 2 and Count 3 – whether the different verdicts on Counts 2 and 3 are an affront to logic and common sense

Evidence Act 1977 (Qld), s 93A

R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited
R v GAP [2013] 1 Qd R 427; [2012] QCA 193, cited
R v GAW[2015] QCA 166, applied

COUNSEL:

J Lodziak for…

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AGLC
R v Bond [2018] QCA 130
Case
[2018] QCA 130
Decision Date

CaseChat Overview and Summary

The appellant in this case appeals his convictions on two counts of anal rape of an eight-year-old boy. The appellant was acquitted on a count of oral rape. The appellant was sentenced to eight years imprisonment for the counts of anal rape. The Court of Appeal was required to consider whether the jury’s verdicts of guilty were unreasonable or inconsistent. The Court of Appeal found the appellant’s convictions on Counts 1 and 2 to be legally inconsistent with the acquittal on Count 3. This inconsistency was due to either a compromise in the jury’s duty, confusion or misunderstanding of the jury’s function, or the legal difference between the offences.

The Court of Appeal found that the jury’s verdicts of guilty on Counts 1 and 2 were not unreasonable and could be supported by the evidence. The complainant’s evidence contained inconsistencies, but these were not of such magnitude as to cause a jury to doubt the reliability and credibility of the complainant’s accounts of each anal rape. However, the Court found the verdicts of guilty on Counts 2 and 3 to be inconsistent, as there was no logical or reasonable basis for the jury to have distinguished the complainant’s reliability and credibility in respect of these counts. The different verdicts on Counts 2 and 3 were an affront to logic and common sense. The Court concluded that any compromise, confusion, or misunderstanding could also have infected the jury’s deliberations on Count 1.

The Court of Appeal allowed the appeal, set aside the verdicts of guilty on Counts 1 and 2, and ordered a re-trial in respect of Counts 1 and 2 on the indictment. The Court found the verdicts of guilty on Counts 1 and 2 to be legally inconsistent with the acquittal on Count 3, and that any compromise, confusion, or misunderstanding could also have infected the jury’s deliberations on Count 1. Therefore, the verdicts of guilty on Counts 1 and 2 should be set aside, and a re-trial ordered.

Orders

Orders of the court

1. The appeal be allowed.

2. The verdicts of guilty on Counts 1 and 2 be set aside.

3. There be a re-trial in respect of Counts 1 and 2 on the indictment.

Background

Background to the litigation

The appellant appeals those convictions. The grounds of appeal are that, firstly, the verdicts of guilty are unreasonable and cannot be supported having regard to the evidence and, secondly, that the verdicts of guilty on Counts 1 and 2 are inconsistent with the verdict of not guilty on Count 3.Background The appellant was born on 16 February 1948. He was aged between 61 years and 63 years at the time of the offences and 69 years at sentence. The indictment alleged all three counts of rape occurred between 3 July 2009 and 1 February 2012. All related to the one male complainant. He was born on 3 July 2003. The complainant was aged between six and eight years at the time of the offences and 13 years at the time of trial. All three counts of rape were said by the male complainant to have occurred whilst he was staying at the appellant’s residence at Runcorn in the State of Queensland. The complainant stayed at the residence for a period of approximately two weeks. The complainant’s mother was in a relationship with the appellant at that time. Count 1 was particularised as being an act of anal intercourse which occurred in an area of the garage under the house. Counts 2 and 3 were particularised as acts of anal and oral intercourse which occurred in the kitchen area. Count 2, the act of anal intercourse, was immediately followed by Count 3, the act of oral intercourse.Trial The appellant’s trial commenced on 30 May 2017. The Crown called the complainant and eight other witnesses. At the conclusion of the Crown case the appellant elected not to give or call evidence. The issue at trial was whether the three acts of rape occurred at all. Central to that issue was the jury’s assessment of the complainant’s reliability and credibility.Complainant’s Evidence The complainant first spoke to police on 26 August 2015. That interview was recorded and tendered at trial pursuant to Section 93A of the Evidence Act 1977. At the time of that interview the complainant was 12 years-of-age and living with this father. The complainant told police he had lived in a few different places throughout his life. His father had a ‘mental problem’. He had only ever lived with his mother on holidays. The complainant said he was both a Cook Islander and Italian. The complainant described himself as a ‘Prince of the Cook Islands’. His Great, Great Grandfather was ‘Chief of the Cook Islands’. The complainant told police he had informed his teacher he had been raped a fair few times, not just once. The complainant spoke to his teacher because, after he had been raped, he started to “go weird” and was placed on medication. As a consequence of the medication he suffered blackouts that would last for about two seconds. He had one in class. Luckily he struck his teacher’s shoe, rather than the ground. The complainant, when asked whether it had been determined why he had blacked out, said “yeah, the exact same reason when I was raped”. When he was raped “a lot of thoughts went through [his] head and stuff”. He would black out once every day. It normally happened at home. It had never happened at school before. The blackouts all started after he was raped.

Evidence

Evidence Before The Court

The issue at trial was whether the three acts of rape occurred at all. Central to that issue was the jury’s assessment of the complainant’s reliability and credibility.Complainant’s Evidence The complainant first spoke to police on 26 August 2015. That interview was recorded and tendered at trial pursuant to Section 93A of the Evidence Act 1977. At the time of that interview the complainant was 12 years-of-age and living with this father. The complainant told police he had lived in a few different places throughout his life. His father had a ‘mental problem’. He had only ever lived with his mother on holidays. The complainant said he was both a Cook Islander and Italian. The complainant described himself as a ‘Prince of the Cook Islands’. His Great, Great Grandfather was ‘Chief of the Cook Islands’. The complainant told police he had informed his teacher he had been raped a fair few times, not just once. The complainant spoke to his teacher because, after he had been raped, he started to “go weird” and was placed on medication. As a consequence of the medication he suffered blackouts that would last for about two seconds. He had one in class. Luckily he struck his teacher’s shoe, rather than the ground. The complainant, when asked whether it had been determined why he had blacked out, said “yeah, the exact same reason when I was raped”. When he was raped “a lot of thoughts went through [his] head and stuff”. He would black out once every day. It normally happened at home. It had never happened at school before. The blackouts all started after he was raped. When asked by police to tell them about the rape, the complainant said “He put his dick in my ass at least five times while I was over there, every time mum went out, he did it to me. I just didn’t want to be there anymore, so I told mum.” He did not tell his mum about the rapes; “I told mum can I go home and I went home”. The complainant said the man who raped him was his mother’s boyfriend or “fiancée by now.” He thought his first name was Gary. He described Gary as “Aboriginal Philippine” with brown skin with black hair, or white by now and two front teeth “gone.” He was not tall and swore a lot. He was “all flabby – he’s got no muscle at all.” A description by the complainant was a little hard because “I got a bad memory because everything goes out, comes in and it stays for about two days, and it’s gone.” The complainant said his mother told him Gary was 64. His mother was 27. The complainant said “it’s pretty much like he was raping my mum, because [of] how old he was, plus my mum had a baby, my sister. My birth mum had a baby when she was 14, so she was probably raped.” The complainant told police the rapes last happened about four years ago in a garage when he was seven, turning eight. Gary had two four wheel drives, one red and one green. Both were not “stock standard”. They had “nice wheels”. Gary’s house had a backyard with two palm trees, a type of bush thing, a clothes line and a shed near the house. Something happened in the shed near the house. Gary also “did it” in the house two times.

Decision

Reasons for decision

The different verdicts on Counts 2 and 3 are an affront to logic and common sense. They are only consistent with either a compromise in the performance of the jury’s duty, or some confusion or misunderstanding in respect of the jury’s function and as to the legal difference between those specific offences.Conclusions Whilst the jury’s verdicts were not unreasonable, the jury’s verdicts of guilty of Count 2 but not guilty of Count 3 are legally inconsistent. As any compromise, confusion or misunderstanding could also have infected the jury’s deliberations on Count 1, both verdicts of guilty should be set aside.Orders I would order:1.The appeal be allowed.2.The verdicts of guilty on Counts 1 and 2 be set aside.3.There be a re-trial in respect of Counts 1 and 2 on the indictment.

Ratio Decidendi

Legal Principle Established

The respondent further submits that the verdict of not guilty on Count 3 was not inconsistent. It was reconcilable on a consideration of the evidence as a whole. The complainant’s account was of the appellant’s penis being in his mouth for a very short time after he saw ejaculate on his bum. A jury was entitled to entertain a logical and reasonable doubt about the reliability of this account, whilst still accepting the reliability and credibility of the complainant’s evidence on Count 2.ConsiderationUnreasonable verdict The test to be applied in considering this ground is not in dispute. The Court is to independently assess the whole of the evidence, both as to its sufficiency and quality, to determine whether it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt of the offences, the subject of Counts 1 and 2 on the indictment. In undertaking that task, the court must be mindful of the primacy of the jury’s role in determining the appellant’s guilt.[10][10]R v Baden-Clay (2016) 258 CLR 308 at [65]-[66]. A consideration of the complainant’s evidence reveals marked inconsistencies in his initial account to police and his evidence at trial. Those inconsistencies included both the frequency of the acts of rape and the circumstances in which they occurred. However, there was a core consistency in the circumstances of the two acts of rape, the subject of Counts 1 and 2 of the indictment. In his version to police and in evidence, the complainant consistently recounted an act of anal rape in a part of the downstairs garage and a further act of anal rape in an upstairs area, adjacent to the kitchen of the appellant’s residence. The circumstances in which each act of rape occurred and the actions of the appellant on each occasion, were also consistently recounted by the complainant. Whilst there were inconsistencies in relation to the use and relevance of a stool during those acts, and a level of questionable recollection as to the circumstances in which each act ended, it does not follow those inconsistencies and questionable details were of such a magnitude as to cause a jury to doubt the reliability and credibility of the complainant’s account of having been anally penetrated without his consent on each such occasion. This conclusion is supported by consideration of the photographic evidence, which was consistent with the complainant’s recollection of the house. Whilst the complainant’s initial complaints to his grandfather, father, and aunt did not include allegations of rape, the lack of such a complaint was properly a matter for the jury to consider in assessing the complainant’s reliability and credibility. That lack of detail did not mean the jury could not accept the complainant as a reliable and credible witness. A consideration of the evidence as a whole, including the significance of those inconsistencies and the questionable aspects of the ending of each episode, supports a conclusion that it was open to the jury to be satisfied beyond reasonable doubt of the complainant’s guilt of each of the offences of rape. Neither verdict of guilty on Counts 1 or 2, was unreasonable. This ground fails.Inconsistent verdicts