R v Cox

[2001] QCA 428

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cox [2001] QCA 428

PARTIES:

R
v
COX, Graham Anthony John
(appellant)

FILE NO/S:

CA No 171 of 2001
DC No 145 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against conviction

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

12 October 2001

DELIVERED AT:

Brisbane

HEARING DATE:

26 September 2001

JUDGES:

de Jersey CJ, Jones and Douglas JJ
Judgment of the Court

ORDER:

Appeal against conviction dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – appeal against rape conviction – whether no reasonable jury properly instructed could have convicted – credibility of complainant’s and accused’s versions of events – whether jury should have accepted two witnesses’ evidence notwithstanding their relationship to the accused – where jury well and comprehensively instructed by trial judge

Jones v R (1997) 191 CLR 439, referred to
M v R (1994) 181 CLR 487, referred to

COUNSEL:

SJ Hamlyn-Harris for the appellant
SG Bain for the respondent

SOLICITORS:

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

1. THE COURT:  The appellant was convicted of having raped the complainant on 21 September 2000 at Redbank Plains.  He appeals against his conviction on the ground that no reasonable jury, properly instructed, could have convicted him.  That is the ground explained by the High Court in M v R (1994) 181 CLR 487 (and see Jones v R (1997) 191 CLR 439).

1. The complainant’s evidence was that, having consumed a substantial amount of alcohol and smoked marijuana, she went, in a drunken state, to bed.  She was wearing a long T-shirt style nightie and underpants.  Before she went to sleep, the appellant entered her room, whereupon she asked him to leave.  The appellant closed the door as he left.  The complainant awoke later to find someone on top of her, with his penis inside her vagina.  She said:  “Who are you?” – it was dark – and kicked and pushed him off.  He did leave, and as he did so, she identified him as the appellant.  The complainant was naked.  She chased him from the room, the door to which had been closed, and followed him into the lounge room where she commenced hitting him as he took refuge on a couch.   Having tried unsuccessfully to waken the nearby KC, while telling her that the appellant had raped her, the complainant went to have a shower.  The complainant later left the house and drove to the home of the father of her child, DD.  The complainant told him that the appellant had raped her.

1. The appellant did not give evidence.  In his interview with the police, given at a time when he said his head was spinning from the effects of alcohol and marijuana, the appellant gave a quite different version.  He said that he was lying on the couch when the complainant shoved against his shoulder.   The complainant then led him to the bedroom, where they had consensual intercourse over a period of about 20 minutes, with the complainant on top.  Then the complainant suddenly cried out:  “Who are you?”, followed by hitting and a tearful accusation of rape.  When challenged about what was, on his account, the apparent oddity of the complainant’s behaviour, the appellant suggested to the police that her sudden change of disposition may have been explained by her hearing laughter from outside, from his sister, KC, and his brother’s friend, CY.

1. Both KC and CY gave evidence.  The effect of their evidence was that they heard sounds of pleasurable moaning and groaning, apparently from a female, from the other part of the house, over up to 20 minutes, ending in slapping sounds.  Before hearing those slapping sounds, KC had been laughing aloud, being her response to the moaning sounds.  Hence the appellant’s explanation, inferring embarrassment on the complainant’s part at having been overheard having sexual intercourse with the appellant – who, significantly, is her cousin. 

1. The learned judge left the matter to the jury on the basis, very plainly articulated, that in order to convict the appellant, the jury must be satisfied beyond reasonable doubt that in the period prior to the complainant’s challenging the appellant, the complainant was asleep.  The judge directed the jury that if, as claimed by KC and CY, the complainant was indeed moaning and groaning over that period as they described, then the jury should acquit the appellant.   A feature which may have contributed to the jury’s rejecting their evidence of moaning and groaning, was the friendship and relationship between KC and CY and the appellant.

1. As to evidence supporting the complainant’s version, the judge in summing up to the jury referred, in appropriately qualified terms, to the complainant’s distressed condition following her emergence from the bedroom.  The appellant acknowledged, when he was interviewed by the police, that that was so, and KC and CY gave evidence that the complainant was crying when she came out.  DD gave evidence that when the complainant went to his place, she was crying and curled herself up into a ball on his couch. 

1. Potentially also supporting the complainant’s credibility was her immediate complaint of rape, confirmed by the appellant in his interview, and her later complaint to DD.  As the complainant left the house, KC said that the complainant was speaking of calling the police. 

1. Those aspects – the evidence of distressed condition and fresh complaint, could reasonably have been regarded by the jury as supporting the credibility of the complainant.

1. The Crown Prosecutor appears to have focussed before the jury on the complainant’s sudden challenge: “Who are you?”, to which the appellant claimed, to the police, to have replied:  “I’m Graham”.  Of course if, as the appellant claimed, the episode had to that point been consensual, the complainant’s question would have been strange to say the least, and the appellant might have been expected to remonstrate with her. What was on his account an odd response to that rather bizarre challenge, and – on the complainant’s evidence, his departure forthwith, may have been seen as consistent with a recognition that she had not consented to his act.

1. Counsel for the appellant raised other matters as tending against the likelihood of the complainant’s version.  He suggested, for example, as unlikely, that the appellant would have been able to remove the complainant’s nightie, necessarily over her arms and head, without waking her.  On the other hand, the complainant had apparently consumed an enormous amount of alcohol, together with some marijuana, and described herself as drunk.  The resultant dulling of her senses, what may have amounted to a stuporous state, may, on the jury’s reasonable assessment, have answered that concern.

1. Counsel also raised the significance of the evidence that the appellant had opened the bedroom door in order to leave.  The door had to be secured in a closed position by the use of a towel.  It is conceivable that to obtain a degree of privacy, having opened the door to enter the room, the appellant would have closed it using the towel before he approached the complainant. 

1. Counsel also referred to inconsistency between the complainant’s claim that the appellant ejaculated inside here, and the negative results of the subsequent medical examination: the complainant said that when she showered, she did so while clad, and that she did not wash her vaginal area.  The jury may simply have taken the view that the complainant was mistaken in her claim of ejaculation.

1. Those respective assessments by the jury would have fallen within the bounds of reasonableness.

1. The ultimate question, bearing in mind the way the case was left to the jury, is whether the jury, proceeding reasonably, should have accepted the evidence of KC and CY about the moaning and groaning, and consequently acquitted the appellant. 

1. On the one hand, there was no evidence of any collusion between those witnesses and the appellant, and their claim of audible laughing may explain why the complainant would, consistently with the appellant’s account, have acted as she did.  It is significant of course that these people had consumed large amounts of alcohol. 

1. On the other hand, those two witnesses were particular friends of the appellant rather than the complainant, the complainant’s credibility may have gained some strength from the evidence of her distressed condition and recent complaint, and, on the appellant’s account, it certainly was very odd that the complainant should suddenly, out of the blue as it were, orally challenge the appellant as he concedes she did,  with the appellant then responding, also, on one view, strangely.

1. The critical issue at the trial was the credibility of the complainant, with the credibility of KC and CY assuming importance because of the way in which the judge directed the jury.  This was a case where, in seeing and hearing those witnesses, the jury had a particular advantage not enjoyed by the court on appeal.

1. The learned judge delivered a balanced and helpful summing up, which drew the jury’s attention carefully to all relevant considerations.  In the course of that summing up, the judge reiterated the various points made by counsel in their addresses, points which could reasonably have been regarded as telling, one way or the other.   The jury was, in short, well and comprehensively instructed, and may be taken to have appreciated the importance of assessing very carefully the credibility of the complainant and of those other witnesses especially. 

1. This properly instructed jury could reasonably have convicted the appellant.  The appeal should be dismissed.