R v Brown

Case [2020] QCA 159

SUPREME COURT OF QUEENSLAND

CITATION:

R v Brown [2020] QCA 159

PARTIES:

R
v
BROWN, Leigh Murray
(appellant)

FILE NO/S:

CA No 223 of 2019
DC No 86 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Southport – Date of Conviction: 29 August 2019 (Kent QC DCJ)

DELIVERED ON:

7 August 2020

DELIVERED AT:

Brisbane

HEARING DATE:

8 April 2020

JUDGES:

Morrison JA and Boddice and Williams JJ

ORDERS:

1.   The appeal be allowed.

2.   The conviction on Count 1 be set aside.

3.   A verdict of acquittal be entered on that count.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was found guilty of one count of rape (Count 1) – where the appellant was acquitted of a second count of rape (Count 2) – where both counts related to the same female complainant – where the appellant appeals his conviction on the ground that the jury’s verdict of guilty on Count 1 was unreasonable and unable to be supported on the evidence – where the appellant and the complainant matched on Tinder – where the appellant and the complainant communicated regularly, including explicit messages with sexual innuendos – where a safe word was identified and the appellant asked the complainant if she remembered the safe word before undertaking different sexual acts – where the complainant’s evidence at trial that she told the appellant she could not remember the safe word was not consistent with her detailed statement to police given days after the events – whether the jury ought to have entertained a reasonable doubt as to the appellant’s guilt – whether the verdict of the jury on Count 1 was unreasonable

Criminal Code (Qld), s 668E

Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited
Hocking v Bell (1945) 71 CLR 430; [1945] HCA 16, cited
Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited
Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75, cited
Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12, cited
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited
R v CX[2006] QCA 409, cited
R v Dalton[2020] QCA 13, cited
R v GAW[2015] QCA 166, cited
R v Holland[2017] QCA 69, cited
R v Lennox; Ex parte Attorney-General (Qld)[2018] QCA 311, cited
R v Motlop[2013] QCA 301, cited
R v Newlove[2019] QCA 291, cited
R v Reynolds[2015] QCA 111, cited
R v Sun[2018] QCA 24, cited
R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151, cited
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AGLC
R v Brown [2020] QCA 159
Case
[2020] QCA 159
Decision Date

CaseChat Overview and Summary

The case of R v Brown involved the appellant appealing his conviction for one count of rape, while being acquitted on a second count of rape involving the same female complainant. The appellant's appeal was based on three grounds: (1) the jury's verdict of guilty on Count 1 was unreasonable and unable to be supported on the evidence; (2) the jury's verdict of guilty on Count 1 was inconsistent with the verdict of not guilty on Count 2; and (3) a miscarriage of justice occurred due to the absence of direction in accordance with Robinson v The Queen. The court examined the evidence presented, including the communications between the appellant and the complainant on the dating site Tinder, which included explicit messages and discussions of sexual preferences and role-playing. The court highlighted the importance of the jury's role in deciding factual issues and the advantage they have over an appellate court. After considering the evidence and the arguments presented, the court found that the first ground of appeal lacked merit. The court dismissed the appeal, concluding that the jury's verdict on Count 1 was not unreasonable or unsupported by the evidence. The conviction on Count 1 was upheld, and the acquittal on Count 2 was maintained.

Orders

Orders of the court

1. The appeal be allowed.

2. The conviction on Count 1 be set aside.

3. A verdict of acquittal be entered on that count.

Background

Background to the litigation

The appellant appeals his conviction. He relies on three grounds of appeal:(1)The jury’s verdict of guilty of rape on Count 1 was unreasonable and unable to be supported on the evidence.(2)The jury’s verdict of guilty of rape on Count 1 is inconsistent with the verdict of not guilty of rape on Count 2.(3)A miscarriage of justice was occasioned by the absence of direction in accordance with Robinson v The Queen.[130][130][1999] HCA 42; (1999) 197 CLR 162.Background The appellant was born on 31 October 1974. He was aged 42 at the date of the offence and 44 at the date of sentence. The complainant was born on 27 November 1970. She was aged 46 at the time of the commission of the offence. The appellant and the complainant did not know each other prior to commencing communications through a fast track dating site, “Tinder”, in July 2017.Evidence The complainant commenced using the Tinder dating site a couple of years before July 2017. Her profile contained pictures, her age and a spiel. In July 2017, the complainant matched with the appellant, another user of the dating site. They conversed for some hours on the Tinder site. When they later tried to communicate using their mobile telephone numbers, it became apparent they had previously spoken through the Tinder application. The complainant said on that earlier occasion the appellant had wanted to send suggestive texts and was wanting to talk sleazy. The complainant had blocked his number. The complainant realised the connection when the appellant was unable to contact her on her mobile in July 2017. In her statement to police on 23 July 2017, the complainant said the appellant said “well let’s start off on a different foot now. I think you sound really nice”. The appellant said he wanted a relationship. The complainant unblocked his number. On 18 and 19 July 2017, the complainant and the appellant communicated regularly through text messages. They also spoke over the telephone. These communications included explicit messages, sexual innuendo and an occasion of phone sex. In those conversations, the appellant told the complainant he liked rough sex and rape role play and he liked to talk dirty during sex. The complainant replied “Well what do you say. Let’s fuck”.[131] The appellant said he might say “I want to throw you on the table and fuck you” and he wanted to dominate her and own her. The complainant said she did not like rough as in “hard fucking all the time”. The appellant replied “well, who knows. Maybe my kind of rough you might like”.[131]AB190/5. The appellant also said he was into choking, slapping and general manhandling. The complainant told the appellant she did not want to be choked and she had tried choking in the context of sexual matters. The appellant told the complainant he might be interested in pushing her up against a wall or throwing her around a bit. She replied “as long as I’m not physically hurt”, to which he replied “yeah, but it’s only sexually and trust me you won’t feel violated with me in general life. I want to share life with someone. The only time I will own you is sexually”.

Evidence

Evidence Before The Court

The High Court restated the pre-eminence of the jury in R v Baden-Clay.[3] As summarised by this Court recently in R v Sun,[4] in Baden-Clay the High Court stressed that the setting aside of a jury’s verdict on the ground that it is unreasonable is a serious step, because of the role of the jury as “the constitutional tribunal for deciding issues of fact”,[5] in which the court must have “particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.”[6][3](2016) 258 CLR 308 at [65]-[66]; [2016] HCA 35; internal citations omitted.[4][2018] QCA 24 at [31].[5]Citing Hocking v Bell (1945) 71 CLR 430 at 440; [1945] HCA 16.[6]Baden-Clay at 329, citing M v The Queen at 494, and MFA v The Queen (2002) 213 CLR 606 at 621-622 [49]-[51], 623 [56]; [2002] HCA 53.The Evidence The complainant was a mature woman of 46 when she met the appellant via the Tinder application. As events transpired, she and the appellant had made contact previously on Tinder but the complainant had terminated any contact before they met because the appellant “wanted to send suggestive texts, like a dick picture, and was wanting to talk sleazy”. To the contrary of that, the complainant was seeking a relationship. When the complainant and the appellant reconnected on Tinder the appellant asked if they could start again, saying “I’m a good guy … let’s try again”. That led to the course of communication by text as well as phone calls. I will shortly refer to the text messages in more detail. As for the phone calls, the complainant described their content as being that they were both “just talking to get to know each other basically”. Her evidence was that those phone conversations did not include discussion about sexual acts which they might engage in if and when they met.[7][7]Appeal Book (AB) 114 lines 23-33. The text messages were tendered at the trial.[8] At the start, the appellant told the complainant that he did not want to meet her just for sex, but “If the connection is there then it can happen the first night”, a sentiment with which the complainant agreed.[9] The appellant also described his view of close sexual connection as involving “looking into their eyes (window to the soul) at the same time”. The complainant agreed saying, “it’s all in the eyes”.[10] Then followed a series of texts over time in which each of the complainant and appellant posed questions to the other, seeking a response as to what they liked generally and in terms of sexual preferences. The following is a synopsis of those texts, matching specific answers to specific questions, and making some observations:[8]Exhibit 1, AB 319.[9]AB 319.[10]AB 320.(a)the complainant said she did not want full frontal naked photographs before they met, and the appellant agreed;[11][11]AB 321.(b)the appellant described himself as “dominant and rough”, to which the complainant asked “Rough?”, and added “Don’t like rough”;[12][12]AB 321-322.(c)the complainant asked the appellant to “Explain rough”, asking “As in hard fucking all the time?”; the appellant responded that “Maybe my kinda rough you might like”, and rough was “Not hard fucking all the time”, to which the complainant responded that “I love that”;[13][13]AB 322.(d)the appellant said that rough included “more than hair pulling and spanking”, and the complainant asked for examples; the appellant replied “Choking. Slapping, general man handling”; the complainant said “Don’t want to be choked” and that she had tried it but did not like because it made her “Feel violated”;[14][14]AB 322-323.(e)having asked what the appellant meant by “manhandling” the appellant responded “pushing you up against a wall or throwing you around a bit”; the complainant responded “Hmmm as long as I’m not physically hurt”;[15][15]AB 323.(f)responding to the appellant’s description that “The only time I’ll own you is sexually”, she asked “Kind of like 50 shades?”, drawing the response from the appellant that “Well a little pain is pleasurable but I don’t wanna give you a black eye or anything”;[16][16]AB 323.(g)the appellant then described that he had a serious girlfriend two years previously and “I’d slap her face during sex”, but that “one day I slapped her face and then back handed her … I left a bruise. Black eye.”; the complainant responded “Ow wow”, and “I think slapping on the arse & hair pulling is good for now”;[17][17]AB 324.(h)it was then that the appellant first mentioned “role play rape”; he explained his conduct towards his former girlfriend as “Got a bit excited in the moment. We were doing role play rape. So much fun but she was ok about the black eye”;[18] that comment was not posed as suggesting that the complainant might be interested in role play rape; in fact, the complainant went on to say “Well we might never have sex So let’s just meet and see if we connect in person”; the complainant responded “Agreed. Let’s meet first & see if the chemistry is there …”;[19][18]AB 324.[19]AB 324.(i)it was the appellant who then proposed that they play “the question game”, where each would “take turns asking this or that, 2 response questions” and the other “must choose an answer”, but not repeat the question back; the appellant initiated that sequence by asking the complainant “Cats or dogs?”; the appellant assured the complainant that it was not a test, but “Just a way to learn about each other”;[20][20]AB 325.(j)the complainant and appellant resumed the question game after a break with the topics including whether each preferred sunrise or sunset, cats or dogs, kissing or spooning, walking on the beach or in the rainforest, colours, movies, food, movie stars, and TV channels; the complainant asked whether the appellant preferred a “Relationship or friends with benefits”, and he responded “Relationship”;[21][21]AB 331.(k)some of the questions then turned to sexual preferences, the complainant asking whether the appellant preferred “Dinner on the first date followed by sex”, or “just sex”, and “Sex on table” as opposed to the kitchen floor; it was at this point that the appellant asked whether the complainant liked “Anal or no?”, and she responded “Nope”; she then qualified that answer, when the appellant said “Bummer”, by saying “Depends”, “But don’t like to be [in] pain”, and “Perhaps if I’m in a relationship then yes … Not general sex”;[22][22]AB 333.(l)the questions resumed then with more general topics, including apples or oranges, electrician or builder, but the appellant then resumed asking sexually related questions, “Spit or swallow?”, to which the complainant responded “Hmmm politely spit”;[23][23]AB 333-334.(m)after a break they resumed the question game, interspersed with discussion concerning a medical condition from which both the appellant’s daughter and father suffered; the appellant asked the complainant’s preferences for “Lingerie or cosplay”, and also said that body stockings were his favourite, then sending about nine images of women in body stockings;(n)the appellant then proposed that they meet; it was at this point that the complainant said “I need to use protection. If we do sleep together … As there are still a hell of a lot of things we could potentially give each other”;[24] the appellant responded that “Yeah that’s ok I guess. If we sleep together. But let’s see first and also if we click the[n] we can go get tested together and then feel free after that”, to which the complainant responded “[A]t the moment I’m really mentally drained & have been thinking that I actually am seeking something more”;[25](o)the next day the texts resumed with the question game (including coffee or tea, lights or darkness, Scotland or Ireland, various foods and books) interspersed with questions concerning the appellant’s father and his medical issues and other general matters;(p)the appellant then returned the questions to sexual matters asking “Deepthroat or gag?”, to which the complainant replied “Not a fan of deep throat”,[26] and she was not interested in biting on the nipples as “It really hurts me”;[27](q)the appellant asked the complainant’s preference for “Face or tits for climax?”, the complainant responding “Tits”, and rejecting the appellant’s comment that he wanted to “cum all over your pretty face”;[28] her answer was “Not face … I’ll have to bite you”, drawing the response from the appellant “That’ll get you in trouble missy”, and her response “But then I guess you would hold my arms over my head & do it anyway right?”;[29](r)the appellant responded to the last text from the complainant, saying “Maybe but if you use a safe word then I’d stop”;[30] this was the first time that the appellant had used the phrase “safe word”, but there was no explanation of what he meant; the appellant then texted “You want me too [sic] don’t you?”; the complainant evidently understood the appellant’s comment as being a reference to holding her arms over her head and ejaculating on her face, to which she said “No”;[31] the appellant then corrected her by saying “I mean wank”,[32](s)what followed then was a series of texts in the category of sexting, concerning oral sex, the appellant masturbating, and each exchanging photographs; the texts then immediately returned to the question game and general questions about the health of the appellant’s father;(t)the topics in the question game included hotel or camping, how to cook eggs, what cheese, which country to visit, types of music, movies and movie characters; the only sexual overtone concerned preferences for hugging and whether that would include “arse grabbing”;[33](u)they discussed meeting and the complainant reminded the appellant to get condoms “Just in case things get electric between you & I”,[34] and told him that condoms had to be used “to protect both of us”, and “I can’t do anything without protection … Have to use it”;[35] she told the appellant that they had each slept with a lot of people and she wanted to stay healthy, so “It’s important to me”;[36](v)the texts concerning the arrangements to meet continued, with the complainant reminding the appellant that “we need protection … Or no sleeping with anyone”, and the appellant responding “Yeah I get it for the 10th time. Protection”.[37][24]AB 340.[25]AB 341.[26]AB 347.[27]AB 348.[28]AB 349.[29]AB 349-350.[30]AB 350.[31]AB 350.[32]A referent to the texts immediately preceding it which concerned whether the appellant would masturbate.[33]AB 359.[34]AB 363.[35]AB 365.[36]AB 366.[37]AB 367.

Decision

Reasons for decision

This ground lacks merit.Conclusion For these reasons I would dismiss the appeal. BODDICE J: On 29 August 2019, a jury found the appellant guilty of one count of rape. The jury acquitted the appellant of a second count of rape. Both counts related to the same female complainant. The first count, involving penile – anal intercourse occurred on the evening of 19 July 2017. The second count was alleged to involve similar sexual conduct on the following morning, 20 July 2017. The appellant appeals his conviction. He relies on three grounds of appeal:(1)The jury’s verdict of guilty of rape on Count 1 was unreasonable and unable to be supported on the evidence.(2)The jury’s verdict of guilty of rape on Count 1 is inconsistent with the verdict of not guilty of rape on Count 2.(3)A miscarriage of justice was occasioned by the absence of direction in accordance with Robinson v The Queen.[130][130][1999] HCA 42; (1999) 197 CLR 162.Background The appellant was born on 31 October 1974. He was aged 42 at the date of the offence and 44 at the date of sentence. The complainant was born on 27 November 1970. She was aged 46 at the time of the commission of the offence. The appellant and the complainant did not know each other prior to commencing communications through a fast track dating site, “Tinder”, in July 2017.Evidence The complainant commenced using the Tinder dating site a couple of years before July 2017. Her profile contained pictures, her age and a spiel. In July 2017, the complainant matched with the appellant, another user of the dating site. They conversed for some hours on the Tinder site. When they later tried to communicate using their mobile telephone numbers, it became apparent they had previously spoken through the Tinder application. The complainant said on that earlier occasion the appellant had wanted to send suggestive texts and was wanting to talk sleazy. The complainant had blocked his number. The complainant realised the connection when the appellant was unable to contact her on her mobile in July 2017. In her statement to police on 23 July 2017, the complainant said the appellant said “well let’s start off on a different foot now. I think you sound really nice”. The appellant said he wanted a relationship. The complainant unblocked his number. On 18 and 19 July 2017, the complainant and the appellant communicated regularly through text messages. They also spoke over the telephone. These communications included explicit messages, sexual innuendo and an occasion of phone sex. In those conversations, the appellant told the complainant he liked rough sex and rape role play and he liked to talk dirty during sex. The complainant replied “Well what do you say. Let’s fuck”.[131] The appellant said he might say “I want to throw you on the table and fuck you” and he wanted to dominate her and own her. The complainant said she did not like rough as in “hard fucking all the time”. The appellant replied “well, who knows. Maybe my kind of rough you might like”.[131]AB190/5.

Ratio Decidendi

Legal Principle Established

It is evident that in respect of count 1 the jury rejected the evidence given by the appellant in his own defence. His evidence was to this effect:(a)in the telephone conversations prior to them meeting for the first time he had mentioned his preference for “rough sex, role-play rape”;[87] when he raised rape role play in the phone calls he did not have to explain to the complainant what it was, and “she was interested, but she was a little cautious”;[88][87]AB 259 lines 9-14.[88]AB 280 line 40 to AB 281 line 4.(b)when they arrived at her unit and were talking on the couch, he raised the question of rape role play asking if she was willing to give it a go, and she said yes;[89][89]AB 262 lines 4-11.(c)he explained to her about a safe word and she chose the word “Buddha”;[90][90]AB 263 lines 1-18.(d)when he wished to take the condom off he asked to do so but said he would keep it on if she insisted; she said he could take it off; he asked her twice “Are you sure?” and she said “Yeah”;[91] the appellant was shocked at her response when she agreed that he could take the condom off;[92][91]AB 264 lines 11-22. This was not put to the complainant in cross-examination.[92]AB 295 lines 1-7.(e)after taking off the condom he asked her if she wanted to try some of the things such as “choking, slapping”, saying that he wanted the complainant “to feel comfortable with me before we tried these things”; she replied “Yes, fine”;[93][93]AB 264 line 38 to AB 265 line 6.(f)at a point when they were having vaginal sex, and before any anal sex, he told her he was going to slap her in the face and asked her if she was okay with it, because it was something she was new to and he wanted to make her feel comfortable; he then slapped her in the face but “could see that she was visibly upset”; he stopped and spoke to her, asking if she was okay and could he “help try to calm down”;[94][94]AB 265 line 21 to AB 266 line 5.(g)straight after he slapped her in the face, the complainant used the safe word;[95][95]AB 266 lines 12-19.(h)he did not slap her again, but engaged in rape role play, choking her and turning her over to engage in anal sex when she refused to let him put his penis in her mouth;[96][96]AB 266-267.(i)the complainant did not use the safe word at any time during the rape role play, though the appellant “constantly reminded her of what it was”;[97] [97]AB 268 line 10.(j)he and the complainant spoke about rape role play and the use of a safe word several times by telephone and in her apartment, including talking about choking;[98][98]AB 281.(k)according to him, “she was obviously interested in some rough sex” and “expressed that to me”; [99] she expressed that interest in the text messages;[100](l)when in her apartment, he explained to her how rape role play worked because “This is something she’s doing for the first time … I need to make sure that she’s okay and that I’m going to be okay”;[101](m)notwithstanding the telephone conversations, the complainant had not agreed to participate in rape role play before they got to her apartment;[102](n)when talking about the rape role play at the unit, he told her that he “would slap her arse”, as well as “slap her face”, and she voiced her agreement with that;[103](o)they did not discuss the subject of anal sex before sexual activity commenced that night;[104](p)when he slapped her she was shocked and upset and crying;[105] he stopped what he was doing and “laid down with her … and cuddled her … and said, “Look, let’s not do that again because, obviously, that’s upset you. You need a little while””; she then said “just give me a little while”, and two or three minutes later she was okay and said she was okay to continue;[106](q)in the course of the rape role play he was “constantly asking her if she’s okay” and she responded “I’m fine”;[107](r)while they were engaged in anal sex he asked her multiple times if she was okay, and she said she was fine;[108](s)during the course of the activity he reminded her of the safe word between six and 10 times, because he “was being very cautious because this is something that’s new to her”;[109] and(t)throughout the night he told her “What’s the safe word? Do you remember it’s Buddha?” and on each occasion she said “Yes, I know”.[110][99]AB 283 lines 15-17.[100]AB 288 line 33.[101]AB 288 lines 10-19.[102]AB 292 line 17.[103]AB 293 lines 9-17.[104]AB 293 lines 23-29.[105]AB 296 lines 1 and 14; AB 297 lines 21-23.[106]AB 296 lines 17-23.[107]AB 297 lines 7-9.[108]AB 297 lines 38-45.[109]AB 299 lines 4-17.[110]AB 299 lines 19-25.Consideration