District Court at Southport – Date of Conviction: 2 October 2014
DELIVERED ON:
17 February 2016
DELIVERED AT:
Brisbane
HEARING DATE:
19 June 2015
JUDGES:
Margaret McMurdo P and Philippides JA and Burns J Separate reasons for judgment of each member of the Court, Margaret McMurdo P and Burns J concurring as to the orders made, Philippides JA dissenting
ORDERS:
1. The appeal be allowed.
2. The conviction be set aside.
3. There be a retrial.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – REVIEW OF EVIDENCE – where the appellant was convicted of one count of rape – where the appellant appeals against conviction – where the trial judge gave a jury direction as to alleged lies told by the appellant – whether the trial judge erred in directing the jury that they could use alleged lies against the appellant as evidence of consciousness of guilt – whether the conviction was unsafe and unsatisfactory
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of one count of rape – where the trial judge gave a jury direction as to the defence of mistake under s 24 of the Criminal Code (Qld) – whether the trial judge erred in misdirecting the jury regarding s 24 of the Criminal Code (Qld) – where no redirection was sought on the issue – whether a new trial ought be ordered
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of one count of rape – where the trial judge gave the jury a direction as to the defence of accident under s 23(1)(a) of the Criminal Code (Qld) – whether the defence of accident arose on the facts – whether the learned trial judge erred by directing the jury on s 23(1)(a) of the Criminal Code (Qld)
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
R v Duckworth [2016] QCA 30
Case
[2016] QCA 30
Decision Date
CaseChat Overview and Summary
The appellant, in this case, was convicted of one count of rape and subsequently appealed against the conviction. The Court of Appeal was tasked with determining whether the trial judge erred in directing the jury regarding the alleged lies told by the appellant, which could be used as evidence of consciousness of guilt. The court was also required to decide whether the trial judge misdirected the jury regarding the defence of mistake under s 24 of the Criminal Code (Qld) and whether the trial judge erred in directing the jury on s 23(1)(a) of the Criminal Code (Qld) concerning the defence of accident.
The court found that the trial judge erred in directing the jury that they could use alleged lies against the appellant as evidence of consciousness of guilt. However, the court concluded that there was no prejudice to the appellant's case as the directions given worked to the appellant's advantage. The court further found that the directions given to the jury regarding the possible application of s 24 of the Criminal Code (Qld) were deficient. The court determined that the Crown case, although strong, did not meet the standard of a fair trial according to law, given the existence of these errors.
The appeal was allowed, the conviction was set aside, and a retrial was ordered.
Orders
Orders of the court
1. The appeal be allowed.
2. The conviction be set aside.
3. There be a retrial.
Background
Background to the litigation
It is necessary to provide an outline of the evidence at trial. It commences with a summary of the events leading up to the point when Ms Picard and the complainant arrived at the hotel room shared by the appellant, Mr Foster and Mr Pratt. Thereafter, the evidence given at the trial by the complainant, Ms Picard, Ms Bera, Mr Foster and Mr Pratt as to what occurred inside the hotel room is examined in somewhat greater detail. The evidence of Dr Jacobs and Mr Pippia is then briefly summarised before, lastly, turning to a consideration of the contents of the record of interview.Background events After midnight on 5 January 2013, the complainant and others in her group went outside the nightclub to which I have referred to have a cigarette. Mr Foster, Mr Pratt and the appellant were nearby and soon struck up a conversation with them. When they finished smoking, the complainant and her friends returned to the nightclub. Although the evidence at trial was not entirely clear as to the sequence of events, at different points in time Mr Pratt returned to the men’s hotel in Surfers Paradise alone and the appellant ventured off on his own to visit other establishments. Mr Foster remained with Ms Picard at the nightclub. There can be little doubt that, by this time, the complainant and her friends as well as the appellant and his friends had consumed a significant quantity of alcohol over the course of the evening. However, although the complainant accepted that she had consumed several drinks, she also believed that one or more of her drinks had been “spiked”. Whether or not that was so, all witnesses spoke of the complainant becoming violently ill at some time after she returned to the nightclub. When she first began to feel nauseous, the complainant ran to the ladies’ toilet where she remained for approximately 40 minutes until Ms Picard, who had until then been occupied with Mr Foster, came looking for her. By this time, it appears that Ms Bera and that the two other members of their group had been locked out of the nightclub because it was past 3.00 am. They decided to return to their apartment in Labrador. Eventually, Ms Picard assisted the complainant out of the nightclub. The appellant had also returned to the area outside the nightclub to reconnect with Mr Foster. The complainant had difficulty standing and, by her account, speaking. She could recall holding on to a palm tree for support, with her face down and, as she put it, “just vomiting”. She told Ms Picard that she “felt like [she] was dying” and wanted to be taken to a hospital or back to the apartment at Labrador. Mr Foster and the appellant were talking to Ms Picard, as well as trying to talk to the complainant. In due course, a taxi was successfully hailed and drove the complainant, Ms Picard, Mr Foster and the appellant to the hotel in Surfers Paradise where the appellant, Mr Foster and Mr Pratt were staying. More than once on the trip, the taxi was required to stop to allow the complainant to alight because she became physically ill. After they arrived at the hotel, Mr Foster, Ms Picard and perhaps also the appellant assisted the complainant into the building and into a lift to take them up to the room. The room was furnished with two double beds and, adjacent to the entry to the room, was a separate bathroom. At the opposite end of the room, was a sliding door that opened on to a balcony. When they walked into the room, Mr Pratt was observed to be asleep in one of the beds.Inside the hotel room
Evidence
Evidence Before The Court
The defence case was that no such incident occurred. The appellant told police that he had gone to bed after returning to the hotel room and, relevantly, that he had done so before anyone else apart from Mr Pratt. He said that, apart from waking during the night to visit the toilet and observing that the complainant and Ms Picard were in the process of leaving the hotel, he slept through until mid-morning.The evidence at trial The complainant, Ms Picard, Ms Bera, Mr Foster and Mr Pratt were all called as witnesses in the prosecution case. In addition, evidence was received from one of the investigating police officers (Snr Const Webber), a medical practitioner who examined the complainant following the making by her of the complaint to the police (Dr Jacobs) and a reporter from the DNA Analysis Unit of the Queensland Police Service (Mr Pippia). Although the appellant did not give or call evidence at the trial, he participated in a record of interview with police on 14 February 2013. Snr Const Webber produced an audio-visual recording of that record of interview when he was called at the trial, it was admitted into evidence and played to the jury. It is necessary to provide an outline of the evidence at trial. It commences with a summary of the events leading up to the point when Ms Picard and the complainant arrived at the hotel room shared by the appellant, Mr Foster and Mr Pratt. Thereafter, the evidence given at the trial by the complainant, Ms Picard, Ms Bera, Mr Foster and Mr Pratt as to what occurred inside the hotel room is examined in somewhat greater detail. The evidence of Dr Jacobs and Mr Pippia is then briefly summarised before, lastly, turning to a consideration of the contents of the record of interview.Background events After midnight on 5 January 2013, the complainant and others in her group went outside the nightclub to which I have referred to have a cigarette. Mr Foster, Mr Pratt and the appellant were nearby and soon struck up a conversation with them. When they finished smoking, the complainant and her friends returned to the nightclub. Although the evidence at trial was not entirely clear as to the sequence of events, at different points in time Mr Pratt returned to the men’s hotel in Surfers Paradise alone and the appellant ventured off on his own to visit other establishments. Mr Foster remained with Ms Picard at the nightclub. There can be little doubt that, by this time, the complainant and her friends as well as the appellant and his friends had consumed a significant quantity of alcohol over the course of the evening. However, although the complainant accepted that she had consumed several drinks, she also believed that one or more of her drinks had been “spiked”. Whether or not that was so, all witnesses spoke of the complainant becoming violently ill at some time after she returned to the nightclub. When she first began to feel nauseous, the complainant ran to the ladies’ toilet where she remained for approximately 40 minutes until Ms Picard, who had until then been occupied with Mr Foster, came looking for her. By this time, it appears that Ms Bera and that the two other members of their group had been locked out of the nightclub because it was past 3.00 am. They decided to return to their apartment in Labrador.
Decision
Reasons for decision
I am not persuaded that there is any substance in this ground of appeal. The defence was left to the jury because of some of the answers the appellant gave to the police during his record of interview. The evidence that the appellant appeared asleep at the time was also relevant. The appellant’s answers were to the effect that there had been no sexual contact between the complainant and himself while he was awake but that, otherwise, he was unsure whether something had happened between them. The possibility that the appellant may have unwittingly penetrated the complainant whilst he was sleeping would be difficult for any jury to accept but, given the appellant’s answers in his interview, it is understandable why the trial judge considered it necessary to direct the jury regarding s 23. Having said that, though, it would have been preferable for the trial judge to have raised the prospect of the giving of such a direction with counsel before the commencement of the summing up. Despite that, there is nothing about the directions that were given which were prejudicial to the appellant’s case at trial. The trial judge was not obliged to refer to every aspect of the relevant evidence. If anything, the giving of the directions would have worked to the appellant’s advantage.Conclusion For these reasons, I have concluded that the jury should not have been directed that the third category of alleged lies identified by the trial judge was capable of probative use and, further, that the directions given to the jury regarding the possible application of s 24 of the Criminal Code (Qld) were deficient. Although the Crown case was strong, the appellant was entitled to a fair trial, according to law. Given the existence of these errors, it cannot be said that this occurred. The appeal must be allowed, the guilty verdict set aside and a retrial ordered.