R v Foster - [2014] QCA 226

SUPREME COURT OF QUEENSLAND

CITATION:

R v Foster [2014] QCA 226

PARTIES:

R
v
FOSTER, Dane
(appellant)

FILE NO/S:

CA No 308 of 2013
DC No 1911 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

9 September 2014

DELIVERED AT:

Brisbane

HEARING DATE:

23 June 2014

JUDGES:

Margaret McMurdo P and Gotterson and Morrison JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant and complainant were in a relationship – where the appellant had become controlling and moody – where the appellant attacked the complainant at her home – where the appellant threw bleach and other chemicals onto the complainant, including around her vagina and in her ears – where the appellant penetrated the complainant’s vagina with a hair brush, spray can and aluminium water bottle – where the complainant’s work colleagues visited the complainant – where a colleague asked the complainant whether she had been raped by the appellant – where the complainant did not verbally respond but “looked very sad” – where the colleague “assumed that [the appellant] had raped” the complainant – where the trial judge directed the jury that the primary evidence of the colleague amounted to a preliminary complaint – where defence counsel sought a direction that the colleague’s evidence did not amount to a complaint of rape – where the trial judge declined the request – whether the colleague’s evidence was a complaint for the purposes of admission under s 4A Criminal Law (Sexual Offences) Act 1978 (Qld) – whether the colleague’s evidence was sufficient as a complaint of any specific offence of rape

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUND OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the trial judge directed the jury to decide whether the instructions that the complainant had given to the prosecution and which formed Counts 9 and 10 were truthful or not – whether this was a misdirection – whether any substantial miscarriage of justice has occurred

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – where there were inconsistencies in the accounts given by the complainant – whether the inconsistencies undermined the reliability of the complainant’s testimony – whether the testimony was unreliable to a point that the jury could not reasonably have acted upon it to convict

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – where the appellant was acquitted on Count 8 – whether those different verdicts are an affront to logic and inconsistent

Criminal Code 1899 (Qld), s 668E(1A)
Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited
R v AW

Grounds of appeal

[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.

Continue reading R v Foster

Details

AGLC: R v Foster [2014] QCA 226
Case: [2014] QCA 226
Decision Date

CaseChat Overview and Summary

Dane Foster appeals against his convictions on two counts of rape. The appellant and the complainant were in a relationship in September 2011. Over the last week of the Brisbane Festival, the appellant became controlling and physically violent towards the complainant. He threw bleach on her, poured other chemicals on her and penetrated her vagina with a hairbrush, an aerosol can and an aluminium water bottle. On the afternoon of the second day of the trial, the prosecutor entered a nolle prosequi in respect of Counts 9 and 10. The jury returned a verdict of guilty on each of Counts 6 and 7 and a verdict of not guilty on Count 8. The jury convicted the appellant of rape by penetration of the complainant’s vagina with a hairbrush and an aerosol can but acquitted him of rape by penetration of the complainant’s vagina with a water bottle. The grounds of appeal were that the verdicts of the jury were inconsistent, unreasonable, that the learned trial judge erred in directing the jury that the evidence of one of the witnesses amounted to a preliminary complaint and that the learned trial judge erred in directing the jury that counts 9 and 10 were on the indictment due to the complainant’s “instructions” and “Whether they were truthful or not, I don’t know. That’s up to you.” The court dismissed the appeal. The convictions on Counts 6 and 7 were not unreasonable. The inconsistency between the verdicts did not amount to a substantial miscarriage of justice. The complainant’s evidence concerning Count 8 was less persuasive than that concerning Counts 6 and 7. It was open to the jury to have entertained a reasonable doubt about the reliability of the complainant’s testimony concerning Count 8.

Orders