R v Butterworth

Case [2019] QCA 94

SUPREME COURT OF QUEENSLAND

CITATION:

R v Butterworth [2019] QCA 94

PARTIES:

R
v
BUTTERWORTH, Edward Charles
(appellant)

FILE NO/S:

CA No 214 of 2018
DC No 20 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Mount Isa – Date of Conviction: 2 August 2018 (Dearden DCJ)

DELIVERED ON:

24 May 2019

DELIVERED AT:

Brisbane

HEARING DATE:

6 March 2019

JUDGES:

Fraser and Morrison and Philippides JJA

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – CONSENT – PRESUMPTION OF – where the appellant was convicted after trial of three counts of sexual assault and one count of rape – where the appellant had performed acts of a sexual nature on the complainant without consent – where the appellant contends that the conduct had been with the complainant’s consent – whether the responses of the complainant while the offences were being committed bring into question the issue of non-consent

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the appellant contends there has been a miscarriage of justice because of the way the trial was conducted – where it is submitted that the appellant’s counsel failed to adduce evidence of a text message that was sent to the appellant by the complainant after the sexual assaults – where the appellant contends that their counsel failed to address the actions and responses of the complainant while the offences were being committed – where the appellant’s counsel failed to adduce evidence of the appellant’s state of mind – whether the failure of the appellant’s counsel to adduce evidence resulted in there being a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where it is contended that the jury was misdirected as to the use which might be made of the pretext calls between the appellant and the complainant – where it is contended that the pretext calls warranted more fulsome directions that were given about the use to which the jury could put that evidence – where it is submitted that there has been a miscarriage of justice resultant from the misdirection – where there was no complaint during the trial about this aspect of the directions – where the crown prosecutor invited the jury to consider the complainant’s experience in the giving of evidence in the trial as a basis to accept the truthfulness of the complainant’s evidence – where it is contended that the trial judge failed to adequately instruct the jury that they should not focus unduly on the court process in considering the truthfulness of the complainant’s account – whether directions to the jury by the trial judge resulted in a miscarriage of justice

Criminal Code (Qld), s 24, s 349

Ali v The Queen (2005)…

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AGLC
R v Butterworth [2019] QCA 94
Case
[2019] QCA 94
Decision Date

CaseChat Overview and Summary

In the case of R v Butterworth, the appellant was convicted after a trial of three counts of sexual assault and one count of rape. The appellant argued that the acts were consensual, while the prosecution maintained that the complainant did not consent to the sexual acts. The court was required to determine whether the complainant's responses during the offences in question indicated non-consent, and whether the appellant's counsel's conduct during the trial amounted to a miscarriage of justice. Additionally, the court needed to assess whether there was a misdirection or non-direction of the jury by the trial judge that led to a miscarriage of justice.

The court found that the evidence presented at trial did not indicate that the complainant consented to the sexual acts. The complainant's responses during the offences, including her attempts to resist and her verbal protests, demonstrated a lack of consent. Furthermore, the court held that the appellant's counsel did not act in a manner that resulted in a miscarriage of justice. The court found that the counsel's decisions regarding the presentation of evidence, including the decision not to present certain text messages and the state of mind evidence, were reasonable and did not prejudice the appellant's case. Finally, the court concluded that the trial judge's directions to the jury were not erroneous and did not lead to a miscarriage of justice.

As the grounds of appeal were unsuccessful, the court dismissed the appeal. The judges agreed with the reasoning provided by Morrison JA and proposed the same order. The appeal was dismissed, and the convictions and sentences imposed by the trial court were upheld.

ORDERS:
The appeal is dismissed.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Whilst no ground was raised that the verdicts are unsafe or unsatisfactory, or cannot be supported by the whole of the evidence, in light of the way the appeal was conducted it is nonetheless necessary to review a substantial amount of the evidence.Evidence of the complainant The complainant was about 26 years of age at the time of the offence, which occurred on 8 July 2015. She had qualified as a mining engineer in 2010, and then decided to pursue a qualification in veterinary science, commencing in 2014. The complainant had met the appellant in his professional capacity in 2011, when she took her dog in to be examined. Subsequently she had some contact with the appellant during the course of her veterinary science course, when he contacted her to enquire how her studies were going. She also had some contact with him in 2013 when she applied to the North West Vet Clinic, where the appellant worked, to secure some work experience. A period of work experience was arranged for December 2014, but postponed until July 2015. At that time the complainant drove to Cloncurry where she met the appellant and commenced two weeks work experience. They travelled to various cattle stations north of Mt Isa and Cloncurry. For that purpose the appellant’s vehicle was used and they would stay in the workers’ quarters on the various cattle stations. They also stayed at the appellant’s house at Karumba. There were two bedrooms in that house and they used separate bedrooms. The complainant said she could recall the appellant asking some personal questions, which left her feeling uncomfortable.[2] That occurred a few days before the events the subject of the five counts.[2]AB 100 line 28. As to those events the complainant said that they were staying at the appellant’s house in Karumba and watched the State of Origin football match. They had dinner and some beers and when the game was over the complainant watched some YouTube videos.Evidence on Count 1 For various reasons which will become apparent, Count 1 sits in a different position from the other counts. It is therefore convenient to collect the evidence on that count separately. The complainant said that the appellant told her, while they were sitting at the dining table in front of the TV, that he wanted to show her a trick. He told her that the trick was that he could get her breasts to move without touching them. She continued:[3]“So he made me face him. He was sitting in his chair. I was sitting in mine. And he held my hands in front of my chest … about 30 centimetres away from my chest and said if he could get them to move without touching them, he owed me – or I owed him $20. And I thought he was going to startle me … to make me jump and make my breasts move, but instead he grabbed them … and then he laughed and said he guessed he owed me $20.How long did he touch your boobs for?---About – I don’t know, about four seconds.How many hands did he use?---He used one on each breast.You mentioned before that he made you face him?---Yes.What – how did that happen?---He just told me I should face him. So I swivelled in my chair to face him. We were sitting side by side.”[3]AB 101 line 36 to AB 102 line 4.

Decision

Reasons for decision

In my view, this ground should be rejected.Conclusion The grounds of appeal having failed, I propose that the appeal be dismissed. PHILIPPIDES JA: I agree with the reasons of Morrison JA and the order proposed by his Honour.

Ratio Decidendi

Legal Principle Established

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