R v Collins

Case [2016] QCA 256

SUPREME COURT OF QUEENSLAND

CITATION:

R v Collins [2016] QCA 256

PARTIES:

R
v
COLLINS, John
(appellant)

FILE NO/S:

CA No 59 of 2015
DC No 436 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:


District Court at Brisbane – Date of Conviction: 11 March 2015

DELIVERED ON:

14 October 2016

DELIVERED AT:

Brisbane

HEARING DATE:

13 July 2016

JUDGES:

Gotterson and Morrison JJA and Burns J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

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 convicted by a jury, after trial, of three counts of rape and one count of sexual assault – where the appellant appeals against his conviction on the sole ground that the verdict is unreasonable and cannot be supported having regard to the whole of the evidence – where the incidents took place between December 1985 and January 1987 – where the complainant was 19-years old at the time of the alleged offences and the appellant was 42-years old – where the appellant interviewed the complainant for the position of nanny for his son and it was known that this role would be fulfilled whilst travelling on the appellant’s yacht – where the events are said to have occurred during a four and a half week period – where the complainant contends that the appellant raped her three times and sexually assaulted her – where the complainant contends that after the third rape she entered into an acquiescent sexual relationship with the appellant for fear of physical violence and threats to her family – where the appellant contends that a sexual relationship took place from before the journey on the yacht commenced, but that it was consensual – whether the verdict was unreasonable or insupportable having regard to the evidence

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, applied
The Queen v Baden-Clay (2016) 90 ALJR 1013 [2016] HCA 35, applied

COUNSEL:

P J Callaghan SC for the appellant
G P Cash QC, with D Nardone, for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. GOTTERSON JA:  I agree with the order proposed by Morrison JA and with the reasons given by his Honour.

  2. MORRISON JA:  On 11 March 2015, Mr Collins was convicted by a jury, after trial, of three counts of rape and one count of sexual assault.  The indictment alleges that the offences took place on an unknown date between 31 December 1985 and 1 January 1987.

  3. The Crown case alleges that Mr Collins, who was about 42-years old at the time of the offences, met the…

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Details
AGLC
R v Collins [2016] QCA 256
Case
[2016] QCA 256
Decision Date

CaseChat Overview and Summary

The case of R v Collins involved the appellant, Collins, who was convicted by a jury of three counts of rape and one count of sexual assault. The appeals court was tasked with determining whether the verdict was unreasonable or insupportable in light of the entire body of evidence. The incidents at the heart of the case occurred between December 1985 and January 1987, when the complainant was 19 years old and Collins was 42. The appellant had interviewed the complainant for the position of nanny for his son, a role that would involve travelling on his yacht. The complainant alleged that Collins raped her three times and sexually assaulted her during a four and a half week period, and that she entered into a sexual relationship with him out of fear of physical violence and threats to her family. Collins, however, contended that the relationship was consensual and began before the yacht journey.

The primary legal issue before the court was whether the verdict was unreasonable or insupportable in light of the evidence. The court noted that the High Court has emphasised the pre-eminence of the jury in deciding issues of fact in criminal cases. The court held that the setting aside of a jury's verdict on the ground that it is unreasonable is a serious step and should not be taken lightly. The appeal court must consider whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In this case, the court found that the complainant's evidence, despite some inconsistencies, was generally consistent and plausible, and the jury was entitled to accept it. The court concluded that there was no significant possibility that an innocent person had been convicted.

The appeals court ultimately dismissed the appeal, holding that the jury's verdict was not unreasonable or insupportable given the evidence. The court found that the complainant's evidence, though not perfect, was consistent and plausible, and the jury was entitled to accept it. The court emphasised the importance of the jury's role in criminal trials and the advantage they have in seeing and hearing the witnesses. The appeal was dismissed, and the convictions were upheld.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Recently the High Court has restated the pre-eminence of the jury. In The Queen v Baden-Clay[4] the Court said:“[65] It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is “the constitutional tribunal for deciding issues of fact.” Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is “unreasonable” within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without 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. Further, the boundaries of reasonableness within which the jury’s function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.[66]With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court ‘must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.’”[4][2016] HCA 35, at [65]-[66]. Internal citations omitted.The complainant’s evidence The complainant was 19 years old in 1986. She had just come out of seven years in boarding school. Her mother saw Mr Collins’ advertisement seeking someone to teach an eight year-old boy, and deal with correspondence, on a yacht travelling to the Whitsundays. The complainant answered the ad, and made an appointment to be interviewed by Mr Collins. The interview took place on the yacht. The complainant was able to identify a photograph of the yacht. During the interview Mr Collins explained the sleeping arrangements, where they would be travelling, who else would be on the yacht, and how much and when she would be paid. Apart from Mr Collins and his son, three others were to be on the yacht, a couple called Karen and Allen,[5] and another female, Gaye. Karen and Allen were to sleep in a cabin forward on the yacht, then on one side Gaye’s bunk, and opposite that, two bunks for the son and the complainant. Mr Collins’ cabin was at the front of the yacht.[5]The complainant said she knew him only as “Alan”: AB 59 (the transcript uses that spelling interchangeably with “Allen”, which will be used in these reasons). In fact he was Anthony Grasby who testified in the defence case. He referred to his girlfriend as “Kay”, not “Karen”: AB 157. A few days later the complainant was dropped off at the yacht, and several days after that, the journey commenced. In the meantime the complainant accompanied Mr Collins when shopping for provisions for the trip, during which time he pointed out his businesses and properties. In cross-examination she agreed that Mr Collins was affable and friendly in a non-sexual way during this time. She denied that she spent a night at Mr Collins’ penthouse or that they went out to restaurants.[6] However, in cross-examination she agreed that at the committal[7] she had said that they did go to restaurants or takeaways.[8] She explained that as simply being that her recollection at trial differed from her recollection in 2010.[6]AB 61, 62.[7]Which was in 2010.[8]AB 74-75.

Decision

Reasons for decision

I remain unpersuaded that the jury were not entitled to accept her evidence notwithstanding the differences. The overall thrust of her evidence remained, and after such a time lapse it is not surprising that recollections will have faults.Conclusion As will be evident from what has been said above I have made an examination of the whole of the evidence at trial to determine whether it was open to the jury to be satisfied of the guilt of Mr Collins on all or any counts, beyond reasonable doubt. All the suggested inconsistencies and inadequacies in the evidence raised on this appeal were fully tested before the jury at the trial, and the jury was addressed upon them and had the benefit of the learned trial judge’s summing up. Notwithstanding having my own reservations about the evidence of the complainant, especially as to the failure to seek help at the earliest time, I am unable to conclude that it was not open to the jury to accept the complainant’s evidence as to the way in which the offences occurred, and the fact that the making of threats against her family was the motivating factor that overcame her resistance and explained her failure to seek assistance from the earliest time. The complainant’s evidence was generally consistent and plausible. As mentioned above, this was a case where the real issue was not whether there had been any sexual contact and intercourse but whether it was consensual. The jury’s advantage in seeing and hearing the witnesses in this case must be given appropriate weight. Once making allowance for that advantage I cannot conclude that the evidence is so inconsistent, inadequate, or lacking in probative force that there is a significant possibility that an innocent person has been convicted.Proposed order For the reasons expressed above, I would dismiss the appeal. I propose the following order:1.The appeal is dismissed. BURNS J: I agree that this appeal must be dismissed for the reasons stated by Morrison JA.

Ratio Decidendi

Legal Principle Established

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