R v Farias

[2010] QCA 240

SUPREME COURT OF QUEENSLAND

CITATION:

R v Farias [2010] QCA 240

PARTIES:

R
v
FARIAS, Fernando Felipe
(applicant/appellant)

FILE NO/S:

CA No 32 of 2010
DC No 2387 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

7 September 2010

DELIVERED AT:

Brisbane

HEARING DATE:

25 August 2010

JUDGES:

McMurdo P, Fraser JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal allowed.

2. Guilty verdict set aside.

3. Instead, a verdict of acquittal entered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL ALLOWED – appellant pleaded not guilty to six counts of unlawful carnal knowledge of a girl under 16 and six counts of unlawful treatment of a child under 16 – central issue at trial was whether appellant reasonably believed complainant was 16 years or over: s 215(5) Criminal Code 1899 (Qld) – appellant acquitted on eleven counts, convicted on count 5 – count 5 occurred after counts 1-4 and before counts 11,12,15 to 19 on which appellant convicted – count 5 was only count after which complainant bled – complainant was an inconsistent witness – trial judge directed jury that if had reasonable doubt's about truthfulness or reliability of complainant's evidence on one or more counts, jury must consider that in assessing truthfulness or reliability in relation to other counts – whether conviction on count 5 inconsistent with not guilty verdicts on other counts – whether verdict constituted affront to common sense or logic – whether verdict was unreasonable and cannot be supported having regard to the evidence

Criminal Code 1899 (Qld), s 215(5), s 668E

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, applied
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, cited

COUNSEL:

H C Fong for the appellant
D L Meredith for the respondent

SOLICITORS:

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

1. McMURDO P: The appellant and his brother pleaded not guilty in the District Court at Brisbane to all counts on a 19 count indictment charging them with an assortment of sexual offences concerning the one complainant who was 15 years old at the time of the charges. Twelve counts were brought against the appellant, namely, six counts of unlawful carnal knowledge of a girl under 16 (counts 1, 2, 4, 5, 12 and 15) and six counts of indecent treatment of a child under 16 (counts 3, 11, 16, 17, 18 and 19). Seven counts of indecent treatment of a child under 16 were brought against the appellant's brother (counts 6-10, 13 and 14). A central issue at trial was whether the appellant reasonably believed that the complainant was 16 or older: see s 215(5) Criminal Code 1899 (Qld). After a six day trial, the appellant's brother was acquitted on all counts; and the appellant was acquitted on 11 counts but convicted of count 5.

1. Count 5 allegedly occurred whilst the appellant was on parole and subject to the operational period of a suspended sentence.  The judge sentenced him on count 5 to eight months cumulative imprisonment and set his parole eligibility at 9 June 2010, taking into account 21 days served solely in relation to this offence.  Counsel for the appellant informed this Court that the appellant has not yet applied for parole, in part because of this appeal.

1. He appeals against his conviction on count 5 under s 668E(1) Criminal Code on the ground that the guilty verdict was unreasonable, cannot be supported having regard to the evidence, and that it was not open to the jury on the whole of the evidence to be satisfied of his guilt beyond reasonable doubt.  As I apprehend it, incorporated in this ground of appeal is the submission that the guilty verdict on count 5 was inconsistent with the not guilty verdicts on the other counts, and that it constituted an affront to logic and common sense as discussed in MacKenzie v The Queen.[1]  The appellant contends the appeal must be allowed, the guilty verdict set aside and, instead, a verdict of acquittal entered.

   [1](1996) 190 CLR 348, 366; [1996] HCA 35.

The evidence and issues at trial

1. It is unnecessary in this case to deal in detail with the facts surrounding count 5 and the offences on which the appellant was acquitted, save to note the following matters which are common ground. 

1. The complainant was a reluctant, inconsistent and unimpressive witness. Her evidence was entirely unsupported by independent evidence and, on any view, exaggerated. She agreed that she was taking various drugs at the time of the charges brought against the appellant and his brother. She alleged she had consensual sex with the appellant on over 50 occasions and that he knew her age. There was confusing evidence from the complainant and from her female friend as to what the appellant and his brother had been told about the complainant's age. But there was evidence on each of the counts, including count 5, on which the jury could have determined on the balance of probabilities that the appellant reasonably believed she was 16 years old or older: see s 215(5) Criminal Code. 

1. The appellant did not give or call evidence but his case, put to the complainant in cross-examination, was that he thought she was over 16 and he had sex with her on three occasions, all preceding the date on which count 5 was said to have occurred. 

1. Crucially, counts 1 to 4 on which the appellant was acquitted, occurred before count 5 was charged as occurring.  And counts 11, 12, and 15 to 19, on which the appellant was also acquitted, occurred after count 5 was charged as occurring.  The evidence as to the appellant's understanding of the complainant's age in respect of each of the counts on which the appellant was acquitted was neither stronger nor weaker than that evidence in respect of count 5.  

1. What is striking about the complainant's evidence in respect of count 5 is that it was the only episode of charged sexual conduct about which the young complainant said that immediately afterwards she began to bleed heavily and a few days later she saw a doctor.  The doctor did not give evidence and no medical records were tendered to show she visited a doctor at this time.  I emphasise the complainant's evidence was not that she did not consent to count 5, or that the appellant used force in committing count 5, or that the act of sexual intercourse charged in count 5 caused her to bleed. 

1. It should also be noted that the complainant's evidence on count 15 was also striking.  The complainant identified count 15 as the last time she had sex with the appellant; it was on the afternoon before the police arrived; and the appellant, uniquely on this occasion, did not ejaculate inside her but on her face.  The complainant’s evidence on this count seemed as consistent and detailed as her evidence on count 5.

1. Count 5 did not feature in counsel's final addresses to the jury.  The addresses contain nothing to throw any light on the jury's verdict convicting the appellant only of count 5.

1. The judge directed the jury in terms consistent with R v Markuleski:[2] if they had a reasonable doubt concerning the truthfulness or reliability of the complainant's evidence in relation to one or more counts, then they must take that into account in assessing her truthfulness or reliability as a witness generally in relation to the other counts.  The judge also warned the jury to scrutinise the complainant's evidence carefully before acting on it to convict either the appellant or his brother on any count.

   [2](2001) 52 NSWLR 82; [2001] NSWCCA 290.

1. After the return of the guilty verdict on count 5 and during the sentencing proceedings, the experienced primary judge expressed his difficulty in understanding "how the jury could possibly have arrived at the decision they did…  One conviction in the circumstances."

1. In sentencing the appellant, the judge noted that the jury must have found that the appellant knew or believed the complainant was about 15 and a half years old at the time he committed count 5.  The judge noted that, on any view of the evidence, the complainant was "astonishingly corrupted in a sexual sense" and the appellant had no role in that. 

The issues in this appeal

1. Counsel for the respondent concedes that, at first appearance, the verdict on count 5 seems inexplicable.  But he submits that, on closer examination, there are logical explanations for the guilty verdict on count 5.  The jury may have been satisfied on the evidence that, by the time count 5 occurred, the appellant knew that the complainant was under 16.  In respect of the counts involving the appellant which were committed after count 5, her credibility as to these events was challenged in cross-examination and there were inconsistencies in her evidence.  The jury may have acquitted on these counts, not because the appellant may have reasonably thought she was over 16 but because of these inconsistencies.  Her evidence of events in respect of count 5 was not subject to those inconsistencies.  This, counsel for the respondent contends, may logically explain the verdicts.  Alternatively, he suggests that an even more compelling reason for the jury to convict was a decision to render a merciful verdict in respect of the other counts.  A merciful verdict, he submits, is not sufficient to allow the appeal under the principles set out in MacKenzie.

Conclusion

1. It is true that, on the evidence, the jury could have concluded that by the time count 5 occurred, the appellant knew the complainant was under 16.  Nevertheless, I do not find counsel for the respondent's arguments persuasive.  As to his first contention, if the jury considered that, by the time count 5 occurred, the appellant knew that the complainant was under 16, it is difficult to see why they convicted on count 5 but acquitted on the remaining counts subsequent in time.  The theory, that the complainant's evidence was more consistent or detailed on count 5 than on the remaining counts, is especially undermined by the jury's acquittal on count 15 about which the complainant's evidence appeared as consistent and detailed as was her evidence on count 5.  I can see no reason to support the jury verdict of guilty on count 5 in light of their verdicts of not guilty on counts 11, 12, 16 to 19, and especially count 15. 

1. This Court should not conclude that the decision to render not guilty verdicts on all counts against the appellant other than count 5 was a merciful verdict and that as a result the verdict of guilty on count 5 should stand.  In my opinion, the jury seems to have convicted on count 5 and acquitted on the remaining counts, not because they were giving a merciful verdict in respect of the remaining counts, but because of some misguided reasoning in respect of count 5.  Perhaps they apprehended that the 32 year old appellant had behaved morally reprehensibly, deserved to be convicted of something, and chose count 5 because the complainant said she bled heavily after this episode of sexual intercourse.  Perhaps they wrongly reasoned that, because she went to a doctor a few days later, this gave some independent support to her claim that she had sexual intercourse with the appellant as charged in count 5.  It is not, of course, this Court's task to speculate as to the jury's reasoning, but rather to determine whether there is a rational way to reconcile the verdict of guilty on count 5 with the verdicts of acquittal.  Like the primary judge, I can find no way to do this.  The jury verdict of guilty on count 5 in light of the not guilty verdicts on the remaining counts brought against the appellant, particularly count 15, is an affront to logic and common sense.  It follows that the appeal must be allowed, the guilty verdict set aside and, instead, a verdict of acquittal entered: see MacKenzie v The Queen.[3]

   [3](1996) 190 CLR 348, 366; [1996] HCA 35.

ORDER:

1.          Appeal allowed.

2.          Guilty verdict set aside.

3.          Instead, a verdict of acquittal entered.

1. FRASER JA: I agree with the reasons for judgment of McMurdo P and the orders proposed by her Honour.

1. MULLINS J: I agree with McMurdo P.