R v CDE

[2024] QCA 155

SUPREME COURT OF QUEENSLAND

CITATION:

R v CDE [2024] QCA 155

PARTIES:

R
v
CDE
(appellant)

FILE NO/S:

CA No 86 of 2022
DC No 7 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Charleville – Date of Conviction: 6 April 2022 (Muir DCJ)

DELIVERED ON:

30 August 2024

DELIVERED AT:

Brisbane

HEARING DATE:

17 April 2024

JUDGES:

Mullins P and Bond and Boddice JJA

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty of one count of rape – where the appellant said at no time that night did he have any physical contact with the complainant; and at no time did he have sex with the complainant – where, at trial, admissions were made as to the results of a DNA swab taken from the complainant’s left breast and bra cup, which included a probability of a match to the appellant’s DNA profile, greater than 100 billion times more likely to have occurred had there been a contribution of DNA from the appellant, rather than if there had not – where a Crown witness gave evidence that she saw the appellant and the complainant “having sex” that night  – whether the verdict was unreasonable or insupportable having regard to the evidence

Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25, applied
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, cited

COUNSEL:

E J Coker for the applicant (pro bono)
S L Dennis for the respondent

SOLICITORS:

No appearance for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. MULLINS P:  I agree with Boddice JA.

2. BOND JA:  I agree with the reasons for judgment of Boddice JA and the order proposed by his Honour.

3. BODDICE JA:  On 6 April 2022, a jury found the appellant guilty of rape.

4. The appellant appeals his conviction.  One ground is relied upon, namely, that the verdict was unreasonable and could not be supported having regard to the whole of the evidence.

   Indictment

5. The offence concerned a female complainant, known to the appellant.  At the relevant time, the complainant was staying at her cousin’s house (the cousin).  The cousin was also related to the appellant.  The Crown particularised the offence as the appellant having penetrated the complainant’s vagina with his penis, without her consent, on 31 December 2019.

   Trial

6. The Crown called eight witnesses.  The Crown also led evidence of a recorded interview between the appellant and police, on 1 January 2020.

7. The appellant elected not to give or call evidence at trial.

8. Formal admissions were made at trial as to the complainant’s and another witness’s dates of birth; the results of DNA testing of various swabs taken from the complainant’s left breast and bra cup on 1 January 2020, which included a probability of a match to the appellant’s DNA profile, greater than 100 billion times more likely to have occurred had there been a contribution of DNA from the appellant, rather than if there had not; and the result of a tape lift on the outside of the elastic around the top of the complainant’s underpants, producing a mixed DNA profile which was approximately four times more likely to have occurred had there been a contribution of DNA from the appellant, rather than if there had not.

9. Formal admissions were also made as to telephone calls and messages between the complainant’s and the appellant’s mobile phones on the afternoon and evening of 31 December 2019.  Those admissions were to the effect that there were numerous SMS messages, as well as conversations, between 5.15 pm and 8.38 pm on 31 December 2019.  There were also two occasions on which the appellant’s phone number called the complainant’s phone number at 10.42 pm and 11.32 pm that evening.

   Evidence

   Complainant

10. Police spoke to the complainant at the hospital and, later, at the police station.  These conversations were recorded and played to the jury.

11. At the hospital, the complainant said that she was staying at the home of the cousin for the weekend, when the cousin left to go to another party.  The complainant remained at the house with the appellant and the cousin’s niece (the niece).  The appellant said he had a headache and went into a bedroom.  The appellant then called her into the room.  The appellant told her that she was going to be bashed; that she was in trouble.  The appellant then told her to shut the door.  The complainant said she tried leaving it open, but the appellant quickly got up and shut it.  He then threw her on the bed, putting her hands behind her back and holding her down.  When the complainant went to call out, the appellant placed his hand on her mouth.  The appellant took off her clothes and “went inside”.  At that point, the cousin opened the door.  She was very angry.  The complainant rang her sister’s friend to pick her up.  She told her what happened.

12. The complainant told police, at the hospital, that there had been telephone calls between her and the appellant the previous evening.  She showed them the details.  She also told police she thought the appellant had given her “a hickey”.

13. In her later interview with police, the complainant said she was having a few drinks for New Year’s Eve at the cousin’s place, when the cousin left to go to another party.  The appellant told her he had a headache and walked to the cousin’s bedroom.  After about five minutes, he asked the complainant to come into the bedroom.  He told her she was apparently “talking shit” about her cousins and asked her to shut the door.  She went to leave it, but he shut the door.  He then grabbed the complainant around the waist, slammed her onto the bed and attacked her.  A short time later, the cousin came home.  She opened the bedroom door, said they were sick animals and told them to get out of bed.  She tried to explain, but the cousin would not listen.  After the complainant left the house, she spoke to a friend and later went to the hospital.

14. The complainant said that she had known the appellant through his daughter.  She had seen him from time-to-time over the previous five years, but not that often.  The cousin invited the appellant over to her house to have a drink.  The cousin used the complainant’s phone to call the appellant as she could not find her own phone.  The complainant said she had the appellant’s number, but deleted it from her phone after she went to the hospital.  She did not want anything to do with him anymore.

15. The complainant said when the appellant started raping her, she was wriggling, trying to get out of it.  His penis went into her vagina and he pinned her down.  At that point, the cousin walked in.  She estimated the appellant had his penis in her vagina for “probably like five minutes” but said it may not even have been that long.  No words were spoken.  She tried to yell for help, but the appellant put his hand over her mouth.  She did not know whether the appellant ejaculated, but she thought he used a condom.  She did not give any consent to the appellant to have sex with her.

16. The complainant said that her sister’s friend took her back to the house of the complainant’s sister.  The complainant told them that the appellant had raped her.  She explained how, why, when and where it happened.  They told her she had to go to the hospital.

17. In her evidence, which was pre-recorded and played to the jury, the complainant said the cousin could not find her phone to call the appellant.  She asked the complainant to call the appellant, which she did, several times.  She also sent a couple of messages.  The complainant said that she was fairly intoxicated, but denied she had difficulty recalling what had happened that evening.  She accepted she had told police she could not remember some of the activities between her and the appellant.

18. The complainant accepted that she initially did not tell police that she had been ringing the appellant a number of times during the night, but denied that was because it would look to the police that she was encouraging him to come over.  Later, she gave an explanation that she thought she could “probably get in trouble for making phone calls several times to [the appellant]”.[1]  The complainant agreed that at some stage the appellant was stroking her arm.  She said it happened in the bedroom.

    [1]AB 389/15.

19. The complainant was further cross-examined on 17 March 2022.  That examination was also pre-recorded and played to the jury.

20. In that cross-examination, the complainant accepted that she had rung the appellant so that she could obtain more alcohol; that she had a heated argument with the cousin before the cousin left the house; and that when the cousin returned, she was very angry and would not listen.  The complainant denied that she made up a story about the appellant having sex with the complainant.

    Preliminary complaint

21. The niece spoke to police on the morning of 1 January 2020.  Her interview was recorded and played to the jury.  She said that the complainant and the appellant were drinking at the cousin’s house with other people.  When the appellant said he had a headache and went to lie down, the niece decided to go outside to play music, so as not to disturb him.  The complainant went into the bedroom.  The niece heard them talking.  She “heard like a mattress move, but I thought that was just nothing, so I didn’t worry about it”.[2]  When the cousin came home, she went into the bedroom and “went off”.  She heard the cousin say to get out of the house and that the complainant “should have more respect”.

    [2]AB 453/5.

22. Later, the complainant told the niece that the appellant grabbed her and pinned her down to the bed.  The complainant said she told the appellant that she was not doing it in the cousin’s room with her child on the floor.  The niece asked the complainant “did he” and she replied, “he did”.  The complainant said she could not call out because the appellant had a hand over her mouth.  She described the complainant as looking frightened, terrified when the cousin came home.

23. In cross-examination, the niece agreed that the main reason the appellant was invited over that evening, was so that he could bring more alcohol.  She estimated the cousin was away from the house for at least half an hour to 45 minutes.  She was certain the complainant went into the cousin’s bedroom, after the appellant had said he had a headache.  The niece saw the appellant touch the complainant on the arm and heard a mattress-type noise coming from the bedroom.  The niece heard the cousin having a fight with the complainant that night.  The cousin seemed very angry.

24. The sister’s friend gave evidence that she vaguely knew the appellant.  On New Year’s Eve 2019, the complainant sent a Snapchat message in which it appeared the complainant had been crying.  The complainant wanted to pack her bags and go home.  The sister’s friend replied asking if she was okay.  The complainant said “no” just after midnight, but that she did not want to involve her.  The complainant sent another message asking the sister’s friend to call her, which she did at 12.04 am.

25. The sister’s friend asked the complainant if everything was okay.  The complainant said “no”, that she had been at the cousin’s house having a couple of drinks for New Year’s Eve and that whilst there, the appellant had said he had a headache and had gone to lay down in the bedroom.  The appellant then told her he had some gossip regarding her two cousins and asked her to close the door.  The complainant said “no”, but the appellant closed the door, pinned her to the bed and raped her.  There was a child in the bedroom, asleep on a mattress next to the bed, which was why the complainant did not want to close the door in the first place.  The complainant also told her that the appellant had covered her mouth and would not let her call out to her cousin, who had gone outside to play music so as not to disturb the appellant.

26. The complainant agreed to the sister’s friend coming to pick her up.  The complainant was concerned because her sister had not known that she had been drinking and she would get into trouble.  When the sister’s friend picked up the complainant, she was quite upset.  She was sitting in the gutter outside the cousin’s house.  They drove towards the sister’s house.  When they arrived, the complainant could not verbalise what had happened, so the sister’s friend said what the complainant had told her earlier.  The complainant was helping, putting in details here and there.  It was at that point that the complainant spoke about the cousin walking in and finding them having sex on the bed and had gone off.[3]

    [3]AB 213/5.

27. The sister’s friend said she went into the kitchen to make coffee, the complainant walked in and she noticed the complainant had “a hickey on her left breast”.[4]  The complainant said she had got it during that night from the appellant.  They went to the hospital approximately half an hour after arriving at the sister’s house.  They arrived at the hospital at about 1.00 am.

    [4]AB 213/13.

28. The sister gave evidence that she knew the appellant; that on New Year’s Eve 2019 she received a message on her mobile phone, via Snapchat from the complainant, saying, “Leaving this fucked up place.”[5]  At about midnight, the complainant arrived at her home with the sister’s friend.  The complainant said she wanted to tell her sister something, but she was too scared.  The sister’s friend started to say that the appellant had just raped the complainant, when the complainant took over.

    [5]AB 205/8.

29. The complainant said that she had been drinking at the cousin’s house; that the appellant had called her inside to tell her something; that the appellant said he needed to go into a quiet room because he had a headache from the music being so loud; that the appellant began to tell the complainant that two other family members had been running the complainant down and that if she wanted to hear more she should shut the door; that the complainant did not want to shut the door; and that the appellant had pushed her onto the bed, and put his hand over her mouth.  Shortly after, the cousin walked in and caught the appellant on top of the complainant.  The cousin started to become abusive.  The complainant did not say anything about what the appellant was doing to her.  She “didn’t go into detail at all”.[6]

    [6]AB 206/20.

    Medical evidence

30. A medical practitioner examined the complainant at the hospital, at about 1.40 am on 1 January 2020.  The complainant gave an account of having gone to a New Year’s Eve party at the cousin’s house; that she had been drinking throughout the evening; and that she was assaulted at this house.  She said at around midnight everyone left the house except for herself, a male and her cousin’s 13-year-old niece.  The male claimed he had a headache and went to lie down.  He called out from the bedroom.  When she arrived at the bedroom, the male was telling her that her cousin was badmouthing her.  He encouraged her to shut the bedroom door.  The complainant declined to do so.  The male shut the door and pushed her back onto the bed.  He held her hands over her head and put his hand over her mouth when she tried to call out.  His penis then penetrated her vagina and attempted to penetrate her anus.  The male told her “he had come”.[7]  At that point, the cousin walked into the bedroom.  The cousin would not listen.  The cousin told her to clean the bed.  The complainant then left the house.

    [7]AB 176/2.

31. The doctor said that her examination revealed a small bruise over one of the complainant’s breasts, as well as a bruise to her inner left thigh.  The complainant said the bruise over her breast was “a hickey”.  Swabs were taken from the location of the bruise to the breast and also from the vaginal area.

    Other evidence

32. A forensic scientist gave evidence that the detection of semen is highly variable, as it depends on a number of factors.  DNA is also very easily transferrable from one area to another.  Probabilities range from 100 billion to non-contribution.  The low probability in respect of the tape lift on the outside of the elastic around the complainant’s underpants was possibly due to its DNA having been transferred from another object.

33. David Harper (Harper), a Police Officer with Queensland Police Service, gave evidence that he was the officer responsible for attending the hospital and speaking to the complainant.  Harper subsequently spoke to the appellant who agreed to participate in an interview on the afternoon of 1 January 2020.  That interview was recorded and played to the jury.

34. During the interview, the appellant told police that he had gone to the cousin’s house, having consumed alcohol at a friend’s house earlier that day.  Both the cousin and the complainant rang him.  It was about 20 times.  The appellant said he continued to drink at the cousin’s, but described himself as not intoxicated at all.  He remained in the loungeroom the whole time he was at the cousin’s house, apart from going to the toilet.  When the cousin returned, she was angry.  She was yelling at the complainant.  The appellant said that at no time did he enter the cousin’s bedroom; did he have any physical contact with the complainant; and did he have sex with the complainant.

35. The appellant said after he had arrived home, the complainant rang and asked for money.  She told him that she hated this town.  She then said “oh, don’t worry about it, I’ll fix it.  I’ll think o’ some way to get out of this piss-hole, or some bloody name like that, she said”.[8]

    [8]AB 475/20.

36. The cousin gave evidence that she had known the appellant since she was young.  She called him “uncle”.  The cousin denied contacting the appellant that afternoon.  The appellant arrived late, before dark.  The appellant brought his own carton.  The cousin said that later that night, she left to go to another party.  She left her child asleep in her bedroom.  She returned after she received a phone call from her niece, saying the doors were locked and that the appellant and the complainant had kicked her out.  When she returned to the house, she booted the door in.  As she opened her bedroom door, she “got a shock of my life”.[9]  The appellant and the complainant were on her bed.  The complainant was on her back.  The appellant was between her legs.  They were having sex.  The appellant had one hand over the complainant’s mouth.  The cousin said she “started going off”.  The appellant kept apologising.  She told them to get out of the house.  The complainant did not say anything to her.

    [9]AB 250/45.

37. In cross-examination, the cousin agreed that there were a number of phone calls made to the appellant’s phone from the complainant’s phone, earlier in the night, by both the complainant and the cousin.  The cousin accepted that she asked the appellant to bring a bag of cannabis to the party.  She denied she was angry with him because he did not bring cannabis.  The cousin accepted that when she gave her statement to the police, she did not put in anything about the appellant bringing cannabis around.  That was not relevant.  She gave a statement because “at the end of the day, it’s not rape”.  She saw them having sex, it was not rape.  The cousin said it was an ongoing thing for the last six months or more.  The cousin accepted that in her statement to police, she said she went home because her niece “turned up” and told her that the appellant and the complainant were in her bedroom.  The cousin said the niece rang her and told her that the doors were locked.

    Consideration

38. The determination of a ground of appeal, that a jury verdict was unreasonable and against the weight of the evidence, requires the appellate court to undertake its own independent assessment of the record as a whole, to determine whether it was open to the jury to be satisfied of an appellant’s guilt of the offence, beyond reasonable doubt.[10]

    [10]Dansie v The Queen [2022] HCA 25 at [38] (“Dansie”).

1. The appellate court is to have due regard for the position of a jury in the criminal justice system and as to the advantages afforded to the jury, by having seen and heard the witnesses.[11]  However, if upon an independent assessment of the record there are inconsistencies, discrepancies or other evidence which, allowing for the advantages enjoyed by the jury, are of such a nature that a reasonable doubt ought to have been entertained, the verdict of the jury is to be set aside as unreasonable.[12]

   [11]Dansie at [9], citing M v The Queen (1994) 181 CLR 487 at 493.

   [12]Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39].

2. In the present case, the appellant submits that the complainant’s allegation lacked detail; that her evidence contained inconsistencies, lies and admitted deficiencies in memory; that there were significant inconsistencies between the complainant’s evidence and the preliminary complaint evidence; and that there was the evidence of the cousin, to the effect that what she observed was consensual sex.

3. Whilst it is correct that there were inconsistencies in the complainant’s account and the complainant admitted deficiencies in aspects of her memory, a consideration of the record, as a whole, supports a conclusion that it was open to the jury to be satisfied of the appellant’s guilt of the offence of rape, beyond reasonable doubt.

4. First, it was open to the jury to reject the appellant’s assertion to police that there was no act of intercourse on the night on question.  That evidence was contrary to the complainant’s account and the account given by the cousin, as to her observations upon opening the bedroom door.

5. Second, the inconsistencies and inadequacies in the complainant’s evidence were not of a nature that a jury ought to have entertained a doubt as to the complainant’s reliability and credibility.  The inconsistencies and inadequacies were entirely consistent with a credible witness giving an honest account of her memory of a traumatic episode.

6. Third, the complainant was consistent in her account as to the central features, namely, as to the circumstances in which she entered the bedroom that night and as to the appellant having engaged in penetrative sex, without her consent.  Those accounts were also consistent, in material respects, with the preliminary complaint evidence.  The jury was entitled to use those consistencies as supportive of the complainant’s reliability and credibility.

7. Fourth, there was substantial support for the complainant’s account in the cousin’s evidence.  The cousin gave evidence that when she observed the appellant on top of the complainant, having sex, he had his hand over the complainant’s mouth.  This was a central feature of the complainant’s evidence.

8. Whilst the cousin gave an unsolicited opinion that the sexual intercourse was not rape, it was open to a jury to reject that opinion, particularly having regard to the cousin’s specific evidence that at the time she observed them having sex, the appellant had his hand over the complainant’s mouth and, further, the cousin’s obvious rage at what she had observed taking place, in her own bed, in the presence of her young child.

   Conclusion

9. An independent assessment of the record, as a whole, supports a conclusion that it was open to the jury to be satisfied as to the appellant’s guilt of the offence of rape, beyond reasonable doubt.  There is no material prospect that an innocent person has been convicted of the offence.

10. The verdict of the jury was not unreasonable.

    Order

11. I would order:

    1.The appeal be dismissed.