R v Enright

Case [2023] QCA 89

SUPREME COURT OF QUEENSLAND

CITATION:

R v Enright [2023] QCA 89

PARTIES:

R
v
ENRIGHT, Corey
(appellant/applicant)

FILE NO/S:

CA No 218 of 2022
DC No 153 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 7 September 2022; Date of Sentence: 8 September 2022 (Farr SC DCJ)

DELIVERED ON:

5 May 2023

DELIVERED AT:

Brisbane

HEARING DATE:

4 April 2023

JUDGES:

Mullins P and Bond JA and Boddice AJA

ORDERS:

1.   The appeal against conviction be dismissed.

2.   Leave to appeal against sentence be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant stood trial for three counts of rape – where the jury requested, inter alia, during its deliberations to rewatch the recording of the preliminary complaint evidence to police – where the trial judge had replayed to the jury that audio-visual evidence – where immediately prior to replaying that recording, the jury had read to it the relevant evidence given by the complainant’s friend in respect of the preliminary complaint to her, and the evidence given by the complainant in cross-examination and re-examination, relevant to the preliminary complaint evidence – where, after the recording had concluded, the trial judge then repeated the directions that had been given earlier about the use to be made of preliminary complaint evidence – where the appellant submits there was an obligation on the trial judge to remind the jury of the cross-examination of the relevant police officer and of the defence case – whether the trial judge erred in the directions given by failing to adequately warn the jury about the risk of giving disproportionate weight to the complainant’s evidence following a replay of the audio-visual evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts of supplying a dangerous drug and was found guilty by jury verdict of three counts of rape – where the applicant was sentenced to an effective head sentence of five years imprisonment, suspended after serving two years, six months, for an operational period of five years – where the three rape counts had been committed after the complainant had voluntarily attended the applicant’s home, and there had been consensual sexual activity on two separate occasions earlier that evening – where two of the rape counts involved penile penetration – where the applicant was sentenced on the basis he had an honest, albeit not reasonable, belief as to consent – where the applicant had no relevant criminal history and a good work history – whether the sentence imposed was manifestly excessive

R v ABG[2021] QCA 259, considered
R v Miller[2012] QCA 168, considered
R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278, cited
R v O [1996] 3 NZLR 295,…

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R v Enright [2023] QCA 89
Case
[2023] QCA 89
Decision Date

CaseChat Overview and Summary

The appellant stood trial for three counts of rape, and subsequently appealed both his conviction and sentence. The conviction appeal centred on the trial judge's handling of the jury's request to rewatch the recording of the preliminary complaint evidence to police during their deliberations. The appellant argued that the trial judge had an obligation to remind the jury of the cross-examination of the relevant police officer and the defence case, and to warn the jury about the risk of giving disproportionate weight to the complainant's evidence following a replay of the audio-visual evidence.

The court considered whether the trial judge's directions adequately addressed the concerns raised by the appellant. It noted that immediately prior to replaying the recording, the jury had read to it the relevant evidence given by the complainant’s friend and the complainant in cross-examination and re-examination. The trial judge also repeated the earlier directions about the use of preliminary complaint evidence. The court concluded that these steps, given the relatively confined nature of the evidence in the case, balanced the replaying of the complainant’s preliminary complaint evidence.

In relation to the sentence appeal, the appellant submitted that the sentence was manifestly excessive. He had pleaded guilty to two counts of supplying a dangerous drug and was found guilty by jury verdict of three counts of rape. He was sentenced to an effective head sentence of five years imprisonment, suspended after serving two years, six months, for an operational period of five years. The appellant argued the sentence was excessive because he had no relevant criminal history, a good work history, and he had an honest, albeit not reasonable, belief as to consent.

The court found that the sentence imposed was not manifestly excessive. It considered the nature of the offences, the appellant's lack of criminal history, and the mitigating factors presented. The court concluded that the sentence was appropriate given the circumstances of the case.

1. The appeal against conviction be dismissed.
2. Leave to appeal against sentence be refused.

Orders

Orders of the court

1. The appeal against conviction be dismissed.

2. Leave to appeal against sentence be refused.

Background

Background to the litigation

Should leave be granted to appeal his sentence, the appellant relies on one ground, namely, that the sentence was manifestly excessive in all the circumstances.Background The appellant was born in 1981. He was aged 39 at the time of the offences and 40 at the date of his sentence. Each count of rape involved the same female complainant. They had met over social media and communicated for a number of weeks, before the commission of all three offences, in the course of one night.Evidence The complainant gave evidence that she met the appellant through Instagram on 30 August 2020. At that time, the complainant had recently separated from her husband. The complainant said she developed a romantic interest in the appellant. On 30 September 2020, the complainant met the appellant outside his workplace. That was the first time she had seen him in person. They returned to her house. The appellant stayed the night and they had consensual sexual intercourse. The complainant said they planned to meet the following day. On the evening of 1 October 2020, the complainant said she went to the appellant’s house. Prior to doing so, she attended a local hotel with a friend and had one drink. The complainant said she arrived at the appellant’s house at 10.44 pm. They chatted about their day and spoke about “taking MD”.[1] The complainant said that was MDMA. She consumed the drug in a glass of water.[1]AB97/38. The complainant said she had previously taken MDMA, but not often. She estimated she had sniffed or inhaled the drug twice. The drug made her happy and relaxed on those occasions. The complainant said on this occasion she could feel the drug working after about half an hour. She was happy and relaxed. At that point they went into the bedroom where the complainant had consensual sexual intercourse with the appellant. During that act, the complainant said the appellant asked her if she wanted some more of the drugs, and the complainant replied, “Yeah. Okay”.[2] The complainant said at that stage she felt fine and in control, “just happy, just chilled”.[3][2]AB98/36.[3]AB98/40. The complainant said they got dressed. The appellant provided her with the drug in water, in a cup. They both consumed the drug. The complainant said the second lot of the drug had the same effect. They then went outside and had some cigarettes, before going back into the bedroom and again having consensual sexual intercourse. The complainant said that whilst they were having consensual intercourse, she was “feeling good, like relaxed”.[4] However, she then started to get a bit anxious. She sat up and when the appellant offered her some more drugs, she said, “No thanks, no”.[5][4]AB99/33.[5]AB99/35. The complainant said she went to have a cigarette on the balcony. At that stage, she still felt in control, but wanted some fresh air. She asked the appellant to make her a glass of water. He brought out a drink in a shaker. It was a highly sugary drink, in a full cup. The complainant drank three-quarters of that cup. The complainant said when she questioned its sugary taste, the appellant said, “Yeah, I took this – I go to the gym”.[6][6]AB100/20.

Evidence

Evidence Before The Court

Each count of rape involved the same female complainant. They had met over social media and communicated for a number of weeks, before the commission of all three offences, in the course of one night.Evidence The complainant gave evidence that she met the appellant through Instagram on 30 August 2020. At that time, the complainant had recently separated from her husband. The complainant said she developed a romantic interest in the appellant. On 30 September 2020, the complainant met the appellant outside his workplace. That was the first time she had seen him in person. They returned to her house. The appellant stayed the night and they had consensual sexual intercourse. The complainant said they planned to meet the following day. On the evening of 1 October 2020, the complainant said she went to the appellant’s house. Prior to doing so, she attended a local hotel with a friend and had one drink. The complainant said she arrived at the appellant’s house at 10.44 pm. They chatted about their day and spoke about “taking MD”.[1] The complainant said that was MDMA. She consumed the drug in a glass of water.[1]AB97/38. The complainant said she had previously taken MDMA, but not often. She estimated she had sniffed or inhaled the drug twice. The drug made her happy and relaxed on those occasions. The complainant said on this occasion she could feel the drug working after about half an hour. She was happy and relaxed. At that point they went into the bedroom where the complainant had consensual sexual intercourse with the appellant. During that act, the complainant said the appellant asked her if she wanted some more of the drugs, and the complainant replied, “Yeah. Okay”.[2] The complainant said at that stage she felt fine and in control, “just happy, just chilled”.[3][2]AB98/36.[3]AB98/40. The complainant said they got dressed. The appellant provided her with the drug in water, in a cup. They both consumed the drug. The complainant said the second lot of the drug had the same effect. They then went outside and had some cigarettes, before going back into the bedroom and again having consensual sexual intercourse. The complainant said that whilst they were having consensual intercourse, she was “feeling good, like relaxed”.[4] However, she then started to get a bit anxious. She sat up and when the appellant offered her some more drugs, she said, “No thanks, no”.[5][4]AB99/33.[5]AB99/35. The complainant said she went to have a cigarette on the balcony. At that stage, she still felt in control, but wanted some fresh air. She asked the appellant to make her a glass of water. He brought out a drink in a shaker. It was a highly sugary drink, in a full cup. The complainant drank three-quarters of that cup. The complainant said when she questioned its sugary taste, the appellant said, “Yeah, I took this – I go to the gym”.[6][6]AB100/20. The complainant said she went back into the bedroom, put down the cup and commenced cuddling the appellant. The complainant said she was continuing to feel anxious and she sat up. She was anxious because of the time; she knew it was getting late. The complainant had to pick up her son or be at home for him by 6.00 am.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The trial judge then went on to direct the jury in relation to question 4.ConsiderationConviction appeal In the context of whether the jury should be provided with the transcript of the preliminary complaint evidence recorded by police when attending on the complainant in hospital, the trial judge had observed that the preliminary complaint evidence with police was “spectacularly similar to a 93A statement, and notwithstanding any direction that I give them, it seems to me that there is a danger that in the jury room they will lose sight of the fact that it does not actually constitute evidence of that which occurred”.[26] In those circumstances, the appellant submits there was an obligation on the trial judge to remind the jury of the cross-examination of the relevant police officer and of the defence case. Further, there was an obligation to direct or caution the jury about the risk of giving disproportionate weight to that evidence, after seeing a recording of her version of events for a second time.[26]AB53/40-45. In support of that submission, the appellant relies on the force of evidence in an audio‑visual form.[27] The appellant also relies upon the principle that when replaying such evidence, there is a necessity to ensure balance, by reminding the jury of the cross-examination and re-examination of the complainant witness.[28][27]See R v NZ (2005) 63 NSWLR 628 at [9]-[11].[28]R v Rawlings & Broadbent [1995] 2 Cr App R 222 at 227-228; R v O [1996] 3 NZLR 295 at 298; R v NZ (2005) 63 NSWLR 628; R v SDL [2022] QCA 207. There is no doubt that evidence in an audio-visual form has a force, particularly when compared with evidence only available in documentary or transcript form. However, what may be necessary to provide an appropriate balance in the replaying of that type of evidence, must be considered in the context of the trial as a whole, including its length and the other evidence. For example, the risk of disproportionate weight being given to such replayed evidence is heightened in circumstances where an accused has given evidence at trial, or where a complainant has given evidence in cross-examination which places the content of that audio-visual evidence as requiring correction. Those were the circumstances in R v SDL. The present case does not have either of those features. Further, immediately prior to playing that audio-visual evidence that was preliminary complaint evidence only, the jury had read to it the relevant evidence given by the complainant’s friend in respect of the preliminary complaint to her, and the evidence given by the complainant in cross-examination and re-examination, relevant to the preliminary complaint evidence. The limitations on the use of preliminary complaint evidence were emphasised by the trial judge at the same time by repeating the directions that had been given earlier about the use to be made of preliminary complaint evidence. Those steps, in the circumstances of the relatively confined nature of the evidence which formed the Crown case, balanced the replaying of the complainant’s preliminary complaint evidence.