R v Downing

Case [2018] QCA 343

SUPREME COURT OF QUEENSLAND

CITATION:

R v Downing [2018] QCA 343

PARTIES:

R
v
DOWNING, Simon Ronald
(appellant)

FILE NO/S:

CA No 85 of 2018
DC No 468 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 14 March 2018 (Lynham DCJ)

DELIVERED ON:

7 December 2018

DELIVERED AT:

Brisbane

HEARING DATE:

30 August 2018

JUDGES:

Fraser and Gotterson and McMurdo JJA

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was charged with rape – where the complainant alleged that the appellant penetrated her vagina with his fingers while she slept in a hotel room – where DNA samples taken from the complainant’s underwear revealed a DNA profile matching the appellant’s – where the appellant denied any penetration of the complainant’s vagina but gave evidence that he touched the outside of the complainant’s underwear – where an alternative offence of indecent assault was left to the jury upon the suggestion of the trial judge – where the jury acquitted the appellant of rape but convicted him of indecent assault – whether the alternative verdict of indecent assault was rationally open to the jury – whether it was unfair to permit the jury to convict the appellant of the alternative offence in reliance upon the appellant’s own account, where that evidence was given in defence of the different charge on the indictment – whether the jury being directed to consider the alternative verdict caused a miscarriage of justice

Criminal Code (Qld), s 245, s 352(1), s 578(1)

James v The Queen (2014) 253 CLR 475; [2014] HCA 6, cited
R v Cooling [1990] 1 Qd R 376, cited
R v Coutts [2006] 4 All ER 353; [2006] 1 WLR 2154; [2006] UKHL 39, cited
R v Holzinger[2016] QCA 160, cited
R v King (2004) 59 NSWLR 515; [2004] NSWCCA 20, cited
R v Nous (2010) 26 VR 96; [2010] VSCA 42, cited

COUNSEL:

J A Greggery QC for the appellant
C Marco for the respondent

SOLICITORS:

Purcell Taylor Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. FRASER JA:  I agree with the reasons for judgment of McMurdo JA and the order proposed by his Honour.

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

  3. McMURDO JA:  The appellant was tried for the rape of a young woman by penetrating her vagina with his fingers while she slept in a hotel room.  The jury acquitted him of that charge, but convicted him of an offence of indecently assaulting the complainant.  He appeals against that conviction on the ground that there was a miscarriage of justice by the jury being directed to consider this alternative verdict.

    The prosecution evidence

  4. The complainant and another young woman were…

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R v Downing [2018] QCA 343
Case
[2018] QCA 343
Decision Date

CaseChat Overview and Summary

In R v Downing, the appellant was convicted of indecent assault after being acquitted of the more serious charge of rape. The Court of Appeal was called upon to determine whether the jury's consideration of the alternative offence of indecent assault was justified and whether it resulted in a miscarriage of justice. The appellant argued that the alternative verdict was not rationally open to the jury and that it was unfair to permit the jury to convict based on his own account, which was given in defence of a different charge.

The court examined whether the alternative offence of indecent assault was rationally open to the jury, considering the appellant's admission of touching the outside of the complainant's underwear without penetration. The court found that the alternative offence was indeed rationally open to the jury, as the appellant's evidence, if believed, could constitute an indecent assault. The court further considered whether it was unfair to allow the jury to convict based on the appellant's account, referencing the judgment in R v Nous. The court held that the decision to leave the alternative offence to the jury did not result in unfairness to the appellant, as there was no suggestion that the appellant's case would have been conducted differently had the alternative been raised earlier.

The Court of Appeal concluded that the jury's reasoning towards the guilty verdict on the alternative offence need not have been irrational, and there was no unfairness in permitting the jury to consider the alternative offence. The appellant's complaint regarding the miscarriage of justice was rejected, and the appeal was dismissed. The court emphasized that the decision to leave an alternative offence to the jury is within the trial judge's discretion, aiming to ensure a fair trial in the public interest.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The appellant’s counsel then appeared to agree with what the judge had said, as did the prosecutor. The judge added that whilst there was evidence of the defendant performing oral sex on the complainant, the alternative offence of a sexual assault “must arise out of the rape charge, in the sense that it’s the touching with the hand”. Again each counsel agreed.The appellant’s evidence The appellant testified that he had smoked cannabis that evening and was “a bit stoned” and not thinking like a sober person. He’d gone to the television room of the hotel where he had stayed for about an hour before falling asleep. At about 11.00 pm, he walked onto the verandah to smoke a cigarette when he saw the doors to the verandah from the complainant’s bedroom were open. He said he “walked down to have a look” and saw both women on the bed wearing only underpants. He said that he asked if he could come into the room and the complainant said “mmm”. He went into the room and stood beside the bed, he said, saying to the complainant that she looked lovely and asking whether he could touch her to which she again responded “mmm”. He said he put his hand on her breast, spat on his other hand and started to rub it on the outside of her underwear. After a few seconds, the complainant moved her leg, which gave him a fright and he left the room. He said he returned to the door soon afterwards saying “sorry, I apologise” when the complainant told him “fuck off or I’ll call the police”. He said that there was no penetration of the complainant’s vagina and no masturbation.The directions to the jury The trial judge explained to the jury that they would consider the alternative count of sexual assault if “for example, [they] were satisfied that the defendant touched the complainant on her underwear in the manner he described, that is, on the outside of her underwear, but he did not penetrate her vagina with his fingers.” The judge then described the elements of this offence of sexual assault in terms of which there is and could be no criticism. He referred to the relevance of the appellant’s own evidence in the proof of this alternative, by saying:“You would have no difficulties, members of the jury, accepting … that a man touching a woman on the vagina in the manner described by the defendant would be an assault.”The appellant’s argument Counsel for the appellant, who did not appear at the trial, advanced in effect two arguments. Firstly, he submitted that the alternative verdict was not rationally open to the jury. It is said that the proof of this alternative offence required the jury to:·accept the complainant’s evidence that she gave no consent to any sexual contact and was asleep at the time at which it occurred;·not accept her evidence that her vagina had been penetrated;·accept the appellant’s evidence that he touched the outside of her underwear; and·not accept the appellant’s evidence that she consented, or apparently consented, to that conduct.Because that reasoning was illogical and not open to the jury, the alternative verdict should not have been left and what resulted was a compromise verdict.

Decision

Reasons for decision

Consequently, the jury’s reasoning towards the guilty verdict on the alternative offence need not have been irrational. Nor was there an unfairness in this case from the possibility of the alternative offence being raised when it was in the course of the trial. There has been no suggestion of any way in which the appellant’s case would have been conducted differently had the alternative verdict been raised by the prosecution or the judge at the outset of the trial. It is relevant, although not determinative, that the appellant’s trial counsel complained of no unfairness from the alternative being left to the jury.Conclusion and order The appellant’s complaint that there was a miscarriage of justice by this offence being left to the jury cannot be accepted. I would order that the appeal be dismissed.

Ratio Decidendi

Legal Principle Established

Secondly, it is argued that it was unfair to permit the jury to convict in reliance upon the appellant’s account, where that evidence was given by him in defence of the different charge on the indictment. That submission relied upon what is said to be the effect of the judgment of the Victorian Court of Appeal in R v Nous,[2] where the court said that whether the interests of justice will favour a lesser alternative offence being left to the jury could depend upon, amongst other things, whether there is “reliance by a party upon [evidence which raises the alternative offence] as evidence which is inconsistent with proof of one or more of the elements of the more serious offence”.[3][2](2010) 26 VR 96; [2010] VSCA 42.[3]Ibid at 106 [48].Consideration The alternative offence was under s 352(1) of the Criminal Code (Qld) which provides, by sub-section (1)(a), that a person who unlawfully and indecently assaults another person is guilty of a crime. Section 245 defines what constitutes an assault. It includes touching of another person without that person’s consent. In the present case, on the appellant’s own evidence, he touched the complainant so that absent her consent there was an unlawful and indecent assault by him. Section 578(1) of the Code provides that upon an indictment charging a person with the crime of rape, a person may be convicted of an offence, if established by the evidence, under (amongst others) s 352. As Derrington J said in R v Cooling,[4] the provisions of s 578 are facultative and designed to avoid the necessity of including multiple alternative charges in the indictment. The section did not require this alternative offence to be left by the trial judge for the jury’s consideration. Instead whether the judge had to do so depended upon whether that was necessary to secure the fair trial of the appellant, according to the facts and circumstances of this particular case.[5] In this context, the fairness of the trial must be considered more broadly than only by reference to the interests of the accused, because there is also the public interest that “defendants should be convicted of offences which they are proved to have committed and should not be convicted of offences which they are not proved to have committed”, as Lord Bingham of Cornhill said in R v Coutts.[6][4][1990] 1 Qd R 376 at 381; [1989] QSCCCA 219.[5]James v The Queen (2014) 253 CLR 475 at 491 [38]; [2014] HCA 6.[6][2006] 4 All ER 353 at 359 [12]; [2006] 1 WLR 2154 at 2159 [12]; [2006] UKHL 39; with which the plurality agreed in James v The Queen (2014) 253 CLR 475 at 487 [27]; and applied in this Court in R v Holzinger [2016] QCA 160 at [30]. More commonly, there is a challenge to a conviction upon the basis that a lesser offence was not left to the jury. Here the complaint is that there was an injustice because it was left. Undoubtedly there will be cases where it would be unfair to an accused to allow the jury to consider another possible offence, such as where the accused may have been deprived by assumptions made in the course of the trial of a fair opportunity of meeting that offence. Referring to a case of that kind, in James v The Queen Gageler J explained that this is part of the principle that the accused should not in any case be taken by surprise but should have a fair opportunity of meeting the case against him.[7] It was the potential for an unfairness of that kind that Smart AJ had in mind in R v King,[8] in saying that “[i]f the Crown wants the jury to consider an alternative charge it should open that to the jury [and it] should not be left to its closing speech or later”. Nevertheless, the fact that the alternative offence has not been opened by the prosecutor is not determinative. The question of whether to allow the alternative in each case will remain one for the trial judge, and it will be answered by reference to the particular facts and circumstances of the case, to the end of ensuring a fair trial in the public interest.[7](2014) 253 CLR 475 at 502 [75] citing Pantorno v The Queen (1989) 166 CLR 466 at 473; [1989] HCA 18.[8](2004) 59 NSWLR 515 at 532 [97]; [2004] NSWCCA 20.