R v Gallagher
[2015] QCA 163
•4 September 2015
SUPREME COURT OF QUEENSLAND
CITATION:
R v Gallagher [2015] QCA 163
PARTIES:
R
v
GALLAGHER, Adam Patrick
(appellant)FILE NO/S:
CA No 215 of 2014
DC No 337 of 2013DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Ipswich – Unreported, 28 March 2014DELIVERED ON:
4 September 2015
DELIVERED AT:
Brisbane
HEARING DATE:
12 May 2015
JUDGES:
Chief Justice and Morrison JA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the order madeORDER:
Appeal dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of four counts of rape of a 16 year old female complainant – where the appellant was acquitted of two further counts of rape alleged to have occurred as part of the same incident – where the appellant was sentenced to an effective term of 10 years imprisonment – where the appellant’s ground of appeal was that the verdict was unreasonable or insupportable having regard to the evidence – where it was not in dispute that sexual activity had occurred between the appellant and the complainant – where it was in dispute whether that sexual activity was consensual
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, followed
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, followedCOUNSEL:
D R Edwards for the appellant
T A Fuller QC for the respondentSOLICITORS:
Bradley Munt & Co for the appellant
Director of Public Prosecutions (Queensland) for the respondent
MORRISON JA: I have had the advantage of being able to study the draft reasons of each of Boddice J and Carmody J. I agree with the reasons and conclusions drawn by Boddice J.
With certain caveats I agree with the reasons of Carmody J in paragraphs [106]-[108], [111]-[120] and [122]-[139], of his reasons. My caveats are as follows:
(a)in paragraph [123] the view is expressed that it would have been open for the jury to find that the appellant may have attempted to disguise his voice; there was no evidence that might justify that conclusion, even if it was a suspicion held by the jury;
(b)in paragraph [126] alternative hypotheses are explored on the assumption that the jury might have found that the complainant failed to state that she recognised that the appellant’s voice was that of Wilson; there was no evidence that the complainant had made that recognition and, as is pointed out in paragraph [124] of Carmody J’s reasons, it was not a matter put to her; in my view the jury could not have reasonably reached this point of consideration, as it depends upon an acceptance of an unproven fact, namely that the complainant did recognise the appellant’s voice as that of Wilson.
I agree with Boddice J that the appeal must be dismissed.
BODDICE J: On 28 March 2014, the appellant was convicted of four counts of rape of a 16 year old female complainant. Each of the offences occurred at the appellant’s home on 13 September 2011. The appellant was acquitted of two further counts of rape alleged to have occurred as part of the same incident. On 28 July 2014, the appellant was sentenced to an effective term of 10 years imprisonment.
On 18 August 2014, the appellant lodged an appeal against both his conviction and sentence. The appeal against conviction was out of time, but an extension of time in relation to that appeal was granted on 23 September 2014. At the hearing of the appeal, the appellant abandoned his application for leave to appeal against sentence. That application for leave was dismissed.
The sole ground in respect of the appeal against conviction is that the verdict was unreasonable and could not be supported having regard to the whole of the evidence.
Background
The appellant was born on 25 July 1971. He was 40 years of age at the time of the offences and 43 years of age at the time of sentence. The complainant was born on 4 December 1994. At the time of the offences, she lived with her parents and other family members at Ipswich in the State of Queensland.
On 13 September 2011, the complainant visited the appellant’s address. Whilst there various sexual acts occurred between the appellant and the complainant. The complainant alleged these acts all occurred without her consent. The appellant alleged any sexual acts occurred consensually and at the complainant’s instigation.
Trial
The appellant was initially charged with seven counts of rape. A trial of those seven counts was conducted between 1 and 10 December 2013. On 6 December 2013, the Crown entered a nolle prosequi in respect of the first count of rape. On 10 December 2013, the jury indicated it was unable to reach a verdict in respect of the remaining six counts. The jury was discharged without delivering a verdict.
A second trial in respect of the remaining six counts of rape commenced on 25 March 2014. The jury found the appellant not guilty of the first and second counts. The first count was particularised as inserting an object, believed to be a television remote, into the complainant’s vagina. The second count was particularised as inserting an object, believed to be a deodorant bottle, into the complainant’s vagina.
The jury found the appellant guilty of the four remaining counts. The third and fifth counts were particularised as acts of oral rape. The fourth and sixth counts were particularised as acts of vaginal rape.
At trial, it was not in dispute that sexual activity had occurred between the appellant and the complainant at the appellant’s residence on 13 September 2011. The appellant admitted penetration of the complainant with his penis, both orally and vaginally. He denied penetration of the complainant with any other objects. At issue at the trial was whether the sexual activity that took place between the complainant and the appellant was consensual.
The complainant alleged she expressly told the appellant she did not wish to engage in sexual conduct with him. Despite that denial, the appellant blindfolded her and subjected her to a series of forced sexual acts, including penetrating her with other objects on two occasions. The complainant also alleged the appellant photographed her during their sexual activity. The appellant contended the sexual activity between the complainant and the appellant was consensual. He denied using a blindfold, and denied taking photographs of the complainant.
Crown case
Complainant
The complainant gave evidence that in the months prior to the alleged offences she met a person who identified himself as James Wilson online. At no stage did the complainant meet Wilson in person. Their communications were restricted to MSN, Facebook, telephone calls and text messages. Wilson provided the complainant with a photograph which indicated he was in his late teens or 20 years of age. His Facebook profile did not contain a photograph of him, and Wilson never activated his camera during these web chats.
The complainant said that after she had been communicating with Wilson for some time, he introduced her over the internet to another man, who he identified as Tim Batlow. Batlow was said to be a nurse in Brisbane. Again, the complainant never met Batlow in person. The complainant did not have Batlow’s telephone number, and did not ever see a photograph of Batlow.
The complainant said shortly prior to the offences, Wilson told her that Batlow had been assaulted, a claim Batlow confirmed. Batlow told the complainant his assailant had seen a photograph of the complainant and wanted to meet her. Batlow claimed he would be assaulted again if the complainant did not agree to meet his assailant. Batlow also told her that the assailant would expect to have sex with her and would want to use objects on her. The complainant said she was very concerned about Batlow and did not want him to be further assaulted by his assailant. She agreed to meet the assailant.
The complainant said that on the day before she went to the assailant’s house, Batlow was trying to guilt her into feeling bad that he would be bashed if she did not go to his assailant’s house. She agreed Batlow told her not to go, but said the way she interpreted the conversation was that if she did not go, he would get bashed; “it was a guilt trip instead of him actually genuinely saying don’t go”.[1]
[1]AB 62/5.
The complainant accepted she told her family that morning that she was going into town to meet a friend, although she planned to go to the assailant’s house knowing that sex would be expected of her. The complainant said that did not mean she did not think she could get out of it.[2]
[2]AB 50/5.
The complainant said Batlow provided her with directions to the assailant’s house, including details of the train and bus she needed to catch to travel from her home to the assailant’s house. The complainant followed those instructions and travelled to the assailant’s house.
The complainant said Wilson contacted her by telephone that morning to ask how she felt. Further, whilst travelling to the assailant’s home, the complainant became lost, and sent Wilson a text asking him to have Batlow contact her. Batlow then contacted her. He was angry she had been unable to find the house. Batlow called her a second time and advised her the garage door of the house in question was open.
The complainant travelled by train and bus to the appellant’s house on the morning of 13 September 2011. She arrived by train at Redbank station at 7.20 am. Batlow called her at 7.27 am, while she was waiting for a bus. After she had caught the bus to near the assailant’s house, she sent a text to Wilson at 7.55 am saying she was lost. Nine minutes later, Batlow telephoned her. The complainant said he was very cross. Eight minutes after that, she telephoned Wilson. The complainant said she arrived at the house about one minute later, at about 8.20 am.
The complainant said when she arrived at the assailant’s house, through the open garage door, she was met by a male standing in the kitchen dressed in a beanie and sunglasses. She described the male as a head taller than herself and overweight. The male locked the door that led to the garage and sat on a chair. The male then directed her to sit on his lap and to kiss him. The complainant said no, but the male put his hand on the back of her head and pulled her face towards him. The male said the complainant was to kiss him or he would hit her. The complainant again said no but was made to kiss him by having her head forced towards his face.
The complainant said the male then told her to stand up and take her clothes off. The complainant said she did not want to, but the male said she was to “do it”. The male then started to take off her clothes. Once he had taken off her shirt and skirt, he made her sit on his lap again. The male then took off her bra and felt her breasts. She told him to stop. He then made her kiss him again by forcing her face to his face. The complainant said she tried to pull away but the male was stronger than her.
The complainant said the male then told her to stand up. He ripped her underpants from her. She told him to stop but the male took her into the bedroom. She resisted by leaning her body weight away from him. When they went into the bedroom, the male told her to sit down. He then pushed her onto the bed. He told her to lay down and threw a blindfold at her. The male told her to put it on. The complainant said she was terrified but did what she was told.
The complainant said she then felt the male kneel on the bed. He forced her legs open and attempted to insert into her vagina what felt like a remote control. She described it as being about 10 centimetres wide and about two centimetres deep. The complainant told him to stop and tried to close her legs and move away. The male then took the remote control away and took a smaller object, which she described as circular, like a deodorant bottle, and tried to place that inside her vagina. The complainant felt pain in her vagina when the appellant was attempting to insert the remote control and later the deodorant can. The pain was greater when he tried to insert the remote control. She again tried to pull her legs away and told the male to stop.
The complainant said the male then grabbed her leg and pulled her closer to him so that she was on the edge of the bed where he was standing. The male told her he wanted the complainant to “give him head”.[3] The complainant said no, and tried to move away, but the male grabbed her on either side of the cheeks of her face so that her mouth opened and put his penis into her mouth. The male moved his hips backwards and forwards. The complainant said she tried to move away, by putting her hands on his legs to push herself away, but he had one hand on her shoulder and one hand on her face and was stronger than her.
[3]AB 32/10.
The complainant said the male then stopped and pushed her away so that she was back on the bed again. He told her to put her hands on the bars of the bed and to hold on to them. The complainant said she did not want to, but the male told her to do it. The complainant held onto the bars and the male opened her legs and started taking photographs with his mobile phone. The complainant said the blindfold was still on but she could hear the click of the taking of the photograph. She also saw the flash at the edges of her blindfold.[4] The complainant told him to stop and tried to close her legs.
[4]AB 33/30.
The complainant said the male then put his penis inside her vagina. She told him to stop, that she did not want to be there. The male was taking photographs while he was penetrating her vagina. After a while, the male stopped and made her sit up again. The male then put his hand on her face, opened her jaws and put his penis in her mouth again. The male started taking more photographs. The male then pushed the complainant away, separated her legs and started having sex with her again. The complainant said after about another 10 or 15 minutes the male said he was done, and for her to get out. The complainant got her clothes and left. By this time, the complainant estimated it was about 1.00 pm. The complainant said she did not consent to any of the sexual acts with the male on 13 September 2011.
The complainant said while she was at the male’s residence, he pulled out his phone and showed her a photograph of a first man wearing a blindfold, with a second man standing and pointing a gun at the first man’s head. The male told her the first man was Batlow and she was lucky this had not happened to her. The male also asked her about scars on her body where she had previously cut herself. The male offered her scalpel blades and betadine and said he had an elaborate plan to cut her up. The complainant said she was crying. Just before she left the male’s house, he pulled out a Refidex and pointed out her house.
The complainant caught a bus back to the train station shortly after 1.30 pm. The complainant said when she was on the train returning home, Wilson telephoned her. He asked her what had happened and whether she was okay. Shortly after that telephone conversation Batlow called her. She had a similar conversation with him. She called her sister when back at the train station, and they met later that afternoon. They had dinner with the girls’ uncle and aunt that evening. When she returned home that night she contacted both Wilson and Batlow on MSN. It was between 9.00 and 10.00 pm. They again were asking her what had happened, but she did not want to speak about it.
The complainant said when she awoke the next morning, 14 September 2011, she told her mother she was not feeling well. A doctor’s appointment was booked for that afternoon. Whilst travelling to the doctor, the complainant spoke to her sister. The complainant agreed she did not complain to her sister that she had been raped. She said she started to vaguely talk about what happened, and her sister asked her whether she had been raped. The complainant replied she had. Her sister then telephoned the complainant’s mother, who then contacted police. The complainant went to police that evening. The complainant later gave police access to her Facebook account. When they had finished with it, she deleted that account.
In cross-examination, the complainant accepted she did not refer to incidents involving a remote control or a deodorant canister in the statement she gave to police on 14 September 2011. It was not until two years later that she told police about those two incidents. The complainant denied she had only just remembered them. She did not read her statement again after 14 September 2011, so was not aware there was “stuff missing”. The complainant agreed she had given a total of six statements and those two incidents were first mentioned in her fourth statement, dated 20 August 2013. The complainant said she did not read her first statement again until August 2013, and the statements made between the first and fourth statement were not in relation to anything regarding her fourth statement. She denied she did not mention these incidents in her first statement because they did not occur.
The complainant agreed that when she was talking to Wilson through the internet and text messages, she was also talking to a lot of other people on MSN. She agreed she mainly spoke with Wilson electronically on MSN and on Facebook. She had many telephone conversations with Wilson which lasted over an hour and a half. She also sent text messages. She deleted her messages all the time so that she could receive new messages. She denied deleting all the text messages she had sent to Wilson.
The complainant agreed that in her messages with Wilson he had referred to her as being “hot”. She also agreed that when she spoke to him she would use a web camera. He did not use a camera so should could not see him. At one point she saw a picture of a person she understood to be Wilson. She agreed she sent Wilson photographs of herself, including one where she was not dressed.
The complainant agreed that around this time she had also formed a relationship with a gentleman in Canberra named Will. She met him in August, when he stayed the weekend at her sister’s place.
The complainant denied she arranged with the appellant to go to his house. She denied ever speaking with the appellant by telephone, or that he had ever sent her a text message. The complainant said she did not know his name until after she had made her statement to police.
She denied having any online conversations with the appellant before going to his house that day. She denied she had asked the appellant if she could go there. She denied the appellant had told her how to get there.[5] She denied that when she arrived she opened her arms and hugged and kissed the appellant. She denied she took off her own clothes and asked him to rip off her underpants. She denied she asked the appellant if they could go to the bedroom. She denied the window was open in the bedroom and that she could hear people talking next door. She said she did not scream because the appellant was considerably larger than her and she had already been pre-warned he was a violent person. She said she was crying because she was terrified. She could not explain why there was no reference to crying in her statements to police. She told police she was crying.[6]
[5]AB 64/40.
[6]AB 72/20.
Other witnesses
The appellant’s housemate, Max Owens, described his relationship with the appellant at the time of the offences as very good. In September 2011, Owens had a night mask for sleeping with an elastic band around the back which completely blocked out the light. The mask completely blocked all vision. It was kept on a bed pole near the head of his bed. The residence also had a TV remote in the lounge area.
The complainant’s sister, M, said her sister was very quiet and very upset on 14 September 2011. She looked withdrawn from the world. As a result of a conversation she had with the complainant whilst taking her to a doctor that afternoon, she contacted her mother and travelled to the police station. M agreed the complainant did not say she had been raped. However, from the conversation and her body language, she knew the complainant had been raped. The complainant had told her about Wilson and Batlow. The complainant described Wilson as a close friend.
The complainant’s other sister, A, met with the complainant on the afternoon of 13 September 2011. She had tried to contact her by telephone earlier that day but her sister did not respond. The first attempt was around 11.00 am. She tried many times thereafter. It was only about 2.30 pm that her sister responded to her texts and telephone messages. The complainant sounded upset, like she had been crying or yelling. When she met her later that afternoon, she noticed the complainant had some hickeys on her neck and on the top of her chest. The complainant was quiet and distant. On the night of 13 September 2011, the complainant tried to hide her mobile phone from her and was acting out of character.
The next day the complainant was still quiet and distant. She noticed the complainant had a fresh self-harming cut to her thigh. She asked why the complainant had self-harmed that morning. The complainant told her she was fighting with her boyfriend and that they might break up. That afternoon she went to the police station. The complainant was crying uncontrollably.[7]
[7]AB 134/15.
The complainant’s mother said that on the morning of 13 September 2011, the complainant was taken to the train station as she said she was going out with some friends. She described the complainant as not her normal self. When she saw the complainant that evening she was again very quiet and very withdrawn. The next morning the complainant was upset and crying. She said she was very sore in the abdomen and was not feeling well. Her daughter M took the complainant to the doctors that afternoon. Whilst there she received a telephone call from M. They then travelled to the police station.
The complainant’s mother described the complainant as very upset, and crying quite hysterically, at the police station. The complainant told her there was a friend who had been bullied by a man and that the man was bullying her and said if she did not go to where he was he was going to kill her friend. The man had sent her a photo with a gun on her friend. The complainant said when she went to his house, the man had made her take her clothes off and then he took her into a room. She had to have a blindfold put on. He then raped her. The complainant said the blindfold did not tie very well and she saw that he had taken photos of her and sent them to people. The man also told her other people were going to come as well. The complainant said the man said his name was Steven but she did not believe him. She thought it was a lie.[8]
[8]AB 140/20.
The complainant’s doctor, Dr Willmot, saw the complainant just after 1.00 pm on 14 September 2011. The complainant told her she had been to a male person’s house the day before and he had raped her. Dr Willmot did not examine the complainant as she did not want to interfere with the legal process. She insisted the complainant’s sister take her to the police straight away. She described the complainant as very teary.
The complainant was examined by a clinical nurse, Jocelyn Plumb, on the evening of 14 September 2011. She observed two suction like marks on the right side of her neck that looked like a love bite type bruising. Ms Plumb was unable to examine the complainant genitally as she was very tender. Apart from being tender to touch, there were no injuries of note to her genitalia. The tenderness was consistent with consensual sexual intercourse.
William Davies said he met the complainant whilst talking in an online social networking website in early 2011. They talked “pretty much every day”[9], generally for hours by text messaging. He met the complainant in person towards the end of 2011 when he travelled to Brisbane from Canberra. He continued speaking by text with the complainant thereafter. They remained good friends. He had had no other face-to-face meeting with the complainant. The complainant also sent him photographs of herself, mostly on Facebook. The complainant did not relay details of any other online relationship she had at that time.
[9]AB 166/25.
The arresting officer gave evidence he attended the defendant’s residence shortly after receiving the complaint from the complainant. He did not observe a blindfold or a remote control, but said as he did not have a search warrant he would not have been able to seize them anyway and did not look for them. Enquiries had been unable to locate persons by the name of Chris Bitlow, James Wilson or Tim Batlow.
Documentary evidence
Evidence was led of posts made on the complainant’s Facebook page and on Wilson’s Facebook page. Those posts included communications by Wilson to the complainant after the complainant had advised Wilson she had reported the matter to police but before police had made any contact with the appellant. Those posts included a reference to Batlow. Police enquiries were unable to locate any persons with the name and details of Wilson or Batlow.
Evidence was also led of communications from a mobile telephone in the possession of the appellant. That mobile telephone had a unique International Mobile Equipment Identifier (IMEI). The telephone with that IMEI had used two prepaid SIM cards.
The first, for telephone number ABCD EFG HIJ, was activated on 5 August 2011 in the name of a Chris Bitlow. Police could not locate any person of that name and date of birth. Such a person also was not known to residents adjacent to the address given at the time of activation. That number was the contact number the complainant had for Wilson.
The second, for telephone number KLMN OPQ RST, was activated by the appellant on 3 September 2011. The appellant admitted the date of birth on his Vodafone account was incorrect. There was a second IMEI number linked to that number, which evidenced possession of a second handset in which that SIM card had been used. The telephone handset provided to the police by the appellant had a different IMEI number to the Wilson calls.
Records were also recovered in relation to the complainant’s telephone. They evidenced a series of text messages to the complainant’s telephone from the Bitlow telephone, on a daily basis from 5 to 31 August 2011 and from 1 to 8 and 12 to 15 September 2011, together with a series of telephone calls to the complainant’s telephone from the Bitlow telephone on numerous dates in August and September 2011. The IMEI number correlated with the appellant’s, and the signal tower locations were consistent on occasions with his address at Goodna and his work location at Hervey Bay.
The records also revealed that text messages were sent to the complainant’s telephone from the appellant’s number on 19 and 29 August 2011, and a voice call or data was sent to the complainant’s telephone from the appellant’s number on 25 August 2011. The IMEI number was identical to that for the Bitlow telephone in the preceding days. There was a further voice call or data sent to the complainant’s telephone from the appellant’s telephone on 27 August 2011 with the identical IMEI number to the Bitlow telephone. Both calls originated from the Goodna area, and occurred within minutes of each other. The identical IMEI number meant different SIM cards were used in the same handset.
Call charge records for calls to and from the Bitlow telephone, revealed the overwhelming majority of calls received from that number were from the complainant’s telephone. Other calls received were from numbers contained in the appellant’s contact list in his telephone. Records of calls from the appellant’s telephone handset revealed it contained the IMEI number for the Wilson telephone. A second IMEI number recorded voice calls after 16 September 2011.
Text messages recovered from the complainant’s telephone revealed a person using the Wilson number had a sexual interest in the complainant, had knowledge she was a school student, had seen her on webcam, had references to “Tim”, had references to the complainant sending him a photograph and contained a statement he was not calling the complainant any more on 7 September 2011.
Defence case
Appellant
The appellant said he met the complainant on an 18 + website in about mid-2011. He could not remember the name of the website, which had been deleted or closed down. They spoke continuously for about a month and a half to two months before the complainant gave him her phone number and he contacted her. The complainant said she was 21. He told her he was 39. She said the age gap did not matter. They talked about her personal life and her family.
The appellant said that in the period immediately before 13 September 2011, he was working as a support worker looking after a client living between Hervey Bay and Maryborough. The client had autism and bipolar disorder, and engaged in both aggression towards others and self-harm. There was no internet connection at the client’s residence. He worked looking after the client on Sunday, 11 September 2011. The appellant returned by train to Brisbane from that workplace on 12 September 2011.
The appellant said he communicated with the complainant when he returned to Brisbane on 12 September 2011. The complainant said she would like to come to his home. Prior to this they had discussed what each of them looked like and what would happen if they ever met. The complainant had also discussed her sex life. He told the complainant she could come over to his place the next morning. He said if she was not there by 9.00 am he was going out. The complainant told him she would be there between 8.10 and 8.15 am.
The appellant said that when the complainant had not arrived by 8.30 am, he decided he would go out. He put on his sunglasses and was about to leave at about 8.40 am, when the complainant walked into his home. They hugged and she gave him a kiss. They kissed for some time, after which the complainant removed her shirt and bra. The complainant had previously told him in the email exchange that she was large-breasted for her age.[10] The complainant asked him what he thought of her breasts. The appellant said they kept kissing and he felt her breasts. The complainant did not ask him to stop. They then stood up and he undid the complainant’s skirt. The complainant said she had a pair of panties on with a hole so that he could rip them off her. He said no.
[10]AB 192/40.
The appellant said the complainant then grabbed his hand and they went into the bedroom. As they went down the hallway, he pulled down her pants. The complainant sat on the edge of the bed and took off his clothes. The complainant then gave him oral sex. He then hopped onto the bed with her and they kissed and talked. At this point, the appellant said he heard his next door neighbour out the back talking. The complainant asked who they were. The appellant asked the complainant if she wanted to go out and meet them. The complainant said no, and they continued kissing, before they each performed oral sex on each other.
The appellant said the complainant hopped on top of him and they had sexual intercourse. He then turned around and hopped on top of the complainant. He did not, at any stage, use any objects on the complainant. The appellant said all of the intercourse was consensual. The complainant never pulled away or pushed him off her and never told him to stop. There were no tears.[11] He did not take photographs at any time. He did not use a mask at any time.
[11]AB 195/1.
The appellant said after the sexual encounter came to a conclusion they spoke for a while before the complainant said she had to leave as she had to get a bus at 2.10 pm to meet her sister. Whilst they were talking the complainant told him they she was turning 17 in December. The appellant said he panicked and told the complainant it was a bit of a shock. He asked her why she did not tell him when she first walked in. The complainant said “I thought you might have not wanted for me to stick around”.[12] The appellant then walked the complainant to the bus stop. After she left, the appellant tried texting the complainant once or twice to see how she was; he might also have left something in her inbox on the dating site.
[12]AB 196/25.
In cross-examination, the appellant had no explanation for why his telephone number was used in a different handset, according to the telephone records. He denied making any telephone calls to the complainant from the Hervey Bay area on 15 September 2011. He could not recall contacting the complainant on the morning of 13 September 2011. The appellant denied owning a beanie. He said his flatmate had told him he owned a sleeping mask. He agreed he might have said at his earlier trial that he did not know his flatmate owned a sleeping mask. He agreed his flatmate had not told him that only in the last couple of months. The appellant also agreed that at his earlier trial he said he left the door to the laundry open, whereas his evidence at this trial was that it was pushed partially closed.
The appellant said in his conversations with the complainant they had discussed her age. It started off her being 21 “and it slowly, graded down to her being 18”.[13] The appellant agreed he knew of the complainant’s allegations on 15 September 2011. The chat conversations he said he could no longer recover from the website were recoverable at that point. He agreed the site was one of his favourites. He could have told police his user name and password when police spoke to him on 15 September 2011.
[13]AB 226/1.
The appellant agreed that in his earlier trial he said the complainant had said he was forcing her and making her kiss him, but that sexual contact was consensual by both parties.[14] He had not said that in his evidence in the current trial “because I didn’t want to come off too offensive”.[15] He also agreed that in the earlier trial he said the complainant took off her skirt, whereas at this trial he said he undid her skirt. The appellant said what he meant was he undid the buttons. The complainant took off the skirt. The appellant also agreed that in the earlier trial he said he was in a shock when the complainant asked him to tear off her underwear. He said it was going through his mind at the time that if he tore her underwear she would have no “undies” to wear home.[16]
[14]AB 228/40.
[15]AB 229/43.
[16]AB 233/5.
The appellant also agreed that in the earlier trial he had said the complainant had grabbed the back of the bed-head and yelled out “fuck me” three times. The appellant agreed he had not given that evidence at the trial. The appellant said he did not want to bring that up again in his evidence. He felt it “would have been best if I didn’t say it again”.[17]
[17]AB 236/25.
The appellant said the version he had given in evidence-in-chief that the complainant had told him she was 16 was not “the true version of what she had told me previously”.[18] The complainant told him she had been raped by her uncle at the age of about 12 and a half or 13 and he did the maths and said to the complainant that could not be right because she was 18. In response, the complainant told him she was 16. That was how he found out her real age. He denied he had lied to the jury, saying he thought he was protecting her and her two sisters because the complainant had told him the uncle had raped her and her two sisters at the same time.
[18]AB 238/2.
The appellant agreed at his earlier trial he said the complainant had produced four or five naked photos of herself. He had not mentioned that in his evidence at this trial, but “was going to get into that a bit later”.[19] He denied he was toning down his version of events in an attempt to make it “easier to swallow”.[20] He said he was trying to protect the complainant. He agreed he was not trying to protect her at the first trial.
[19]AB 239/25.
[20]AB 239/35.
The appellant said that when the complainant left his house that morning he took her to the bus stop and walked in front of the bus doorway. The appellant said he did not have any reason to suspect at that time the complainant was going to accuse him of rape. He agreed at his first trial he gave evidence he made a point of specifically walking across a person’s front yard hoping somebody would see her, and that when he entered the bus he was hoping that they had CCTV footage of him and seeing her walk on the bus. The appellant said he was freaking out because of his age and he was worried about his blue card. The appellant had not mentioned that in his evidence at this trial as he had forgotten he had mentioned it before. He agreed he was still entertaining meeting up with her again after 13 September 2011, even though he was worried she was 16. The appellant said he was trying to let the complainant down easily.[21] The appellant denied he was Chris Bitlow, James Wilson or Tim Batlow.
[21]AB 244/20.
Other evidence
James Schaumberg lived next door to the appellant in September 2011. He recalled sitting outside having a cup of coffee on the morning of 13 September 2011 when a friend, Greg Owens, walked past. He spoke to Owens briefly. He did not recall hearing anything else happen that day. Owens also recalled speaking to Schaumberg that morning, at between 8.00 and 8.30 am. He said they spoke for a good half an hour or more. They stood adjacent to the appellant’s bedroom window. He did not hear any noise from next door.
Jeanette Brown, the manager of the appellant’s employer, said the client the appellant was looking after in September 2011 lived in an area without telephone range or internet services. Given the nature of the client, there were always two people on the shift 24 hours a day.
Appellant’s submissions
The appellant submitted the verdicts were unreasonable and could not be supported by the evidence, as the Vodafone records showed extensive communications between the complainant and James Wilson between 11 August and 15 September 2011, rendering it extremely unlikely that, had the appellant and James Wilson been one and the same person as asserted by the Crown, the complainant would not have immediately known this and said so in her six statements to police, or in her evidence. The complexity in the detail of those records meant members of the jury, taking those records into account, must have had a reasonable doubt as to the identity of the persons Wilson, Batlow and the appellant.
Further, the evidence as to the contact between the complainant and Wilson on Facebook, and as to the deletion of messages in the complainant’s telephone, would have reinforced the jury’s doubt about the supposed identity of the appellant and Wilson such that they could not be satisfied beyond reasonable doubt of the appellant’s guilt. This was particularly so having regard to the evidence that, in order to obtain a Vodafone SIM card, a person was required to produce a driver’s licence or passport. There was no evidence Wilson or Batlow had purchased their SIM cards without being required to produce such identification. It was therefore not open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.
Respondent’s submissions
The respondent submitted the verdicts of the jury were not unreasonable. The jury’s acquittal on the two counts of rape involving insertion of objects was explicable on the basis the complainant did not initially complain about the use of objects. Further, the appellant was blindfolded at the time and was uncertain as to what object was precisely being used or what was occurring. The appellant also denied those acts, whereas he had admitted to penile penetration of the complainant both orally and vaginally.
The respondent submitted the central issue for the jury at trial was not whether the appellant was James Wilson, but whether it accepted the complainant’s account of what occurred at the house on 13 September 2011. The question for the jury was whether they accepted beyond reasonable doubt that the sexual acts occurred without her consent. That was a question entirely for the jury based on its assessment of the complainant’s reliability and credibility.
The respondent further submitted there was a significant body of evidence to support the inference the appellant was using Wilson’s persona and the Bitlow telephone to interact with the complainant. It was not surprising the complainant did not identify the appellant as being Wilson as, whilst they had lengthy interaction prior to 13 September 2011, the majority of that interaction was via text message and on Facebook. Wilson did not activate his camera when they engaged in Web chats and had provided a photograph of a younger man. Against that background, a conclusion the appellant was Wilson was not only reasonable, but inevitable. That conclusion supported the complainant’s account of how she came to be at the house and as to the non‑consensual nature of the acts which took place.
Finally, the respondent submitted the absence of full records of interaction between the complainant and Wilson did not mean the jury must have had a reasonable doubt as to the veracity of the complainant’s account. There was evidence that pre-paid telephone cards could be purchased at a variety of outlets. What was significant was the unique IMEI telephone number recorded on the voice and data calls, which linked the appellant to the second telephone number evidenced by the telephone records.
Applicable principles
Whether a verdict of a jury properly instructed can properly be said to be unreasonable in that it was not open for a jury to conclude that the appellant was guilty of the offences beyond reasonable doubt, requires an independent assessment of both the sufficiency and quality of the evidence.[22] The relevant test was enunciated in M v The Queen[23]:
“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has the benefit of having seen and heard witnesses. On the contrary, the court must pay full regard to those considerations.” (footnotes omitted)
[22]SKA v The Queen (2011) 243 CLR 400 at 406, 409.
[23](1994) 181 CLR 487 at 493.
The High Court observed that generally a doubt experienced by an appellate court will be a doubt which a jury also ought to have experienced except where a jury’s advantage in seeing and hearing the evidence is capable of raising that doubt. This observation was explained thus:[24]
“… where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”
[24]M v The Queen at 494-495.
Discussion
It was a question for the jury, which had the considerable advantage of seeing and hearing the complainant give evidence, whether it was satisfied beyond reasonable doubt that the sexual acts occurred without the complainant’s consent. The jury obviously was so satisfied, and there was nothing in the evidence as a whole which renders that conclusion unreasonable. A consideration of that evidence raises no matter which must have caused the jury to have reasonable doubt as to the reliability and credibility of the complainant’s evidence.
The jury was presented with compelling evidence which supported the Crown contention that the appellant had used Wilson’s persona in order to lure the complainant to his house on that day. The unique IMEI number and its connection with the telephones used by both Bitlow and the appellant was particularly compelling evidence. It, together with the available text and other messages, provided the jury with an explanation supportive of the complainant’s version of events.
The complainant’s failure to immediately identify the appellant as one and the same as Wilson is not a matter which, of itself, would suffice to render the jury’s verdict unreasonable. The complainant provided an explanation which, if accepted by the jury, explained why she would not have drawn such a connection. That issue was specifically canvassed in the summing up. It was entirely a matter for the jury whether it accepted that explanation. It was also a matter for the jury how they assessed the volume of communications. It does not follow that that assessment could only be undertaken by a methodical analysis of each communication.
Similarly, the unavailability of text messages from the complainant, or of information as to how Bitlow had acquired the SIM card, are not matters which could materially render the jury verdict unreasonable. The verdict of guilty meant the jury ultimately accepted the complainant’s evidence beyond reasonable doubt that each of the sexual acts occurred without her consent. Those matters were matters for a jury to consider in its assessment of the reliability and credibility of the complainant’s evidence, having regard to the whole of the evidence. The complainant’s actions, both on that day and the following day, were also matters for the jury to consider in the assessment of her reliability and credibility.
In any event, whilst the complainant’s evidence as to her contact with Wilson and Batlow prior to 13 September 2011 was important in explaining why a 16 year old female went to the home of a male she did not know, knowing that male expected to have sexual relations with her, whether the appellant was Wilson was ultimately not a matter central to the jury’s determination as to the appellant’s guilt of the offences of rape. The central issue in that determination was whether the sexual acts had occurred without the complainant’s consent.
On that aspect, the complainant’s evidence was clear and unequivocal. Each of the admitted acts of oral and vagina penetration had occurred in circumstances where she was forced to engage in the act and when she had expressly said no or taken steps to physically resist the appellant’s advance. Whether the jury was satisfied beyond reasonable doubt that those acts had occurred without the complainant’s consent depended entirely upon an assessment of the complainant’s evidence, classically a question for the jury having regard to all of the evidence. There was also nothing in the evidence as a whole which rendered the jury’s verdict of guilty of those counts of rape unreasonable and not supported by the evidence.
Whilst the appellant’s evidence that each of the acts occurred consensually, if accepted by the jury, would raise a reasonable doubt as to the appellant’s guilt of those offences, it was open to a reasonable jury, properly instructed, to reject his evidence. There were significant inconsistencies in the appellant’s accounts at the previous trial and his account at the current trial. Further, his explanation as to how and in what circumstances he came to know the complainant’s real age was likely to have caused the jury to question the truthfulness of the appellant’s evidence. The evidence of Schaumberg and Owens did not materially assist, as the timing of their presence next door was arguably earlier than the timing of events described by the complainant.
Finally, the jury’s verdict of not guilty in relation to the two counts of rape involving penetration with objects did not mean the jury must have rejected the complainant’s evidence as to the other counts as neither credible nor reliable. The complainant’s initial statements did not include reference to the use of objects. Further, the complainant readily conceded she was blindfolded at the time and was unable to be sure as to the precise object. Against that background, there was a sound basis for the jury to have given the appellant the benefit of the doubt in relation to those counts, whilst still being satisfied beyond reasonable doubt as to the reliability and credibility of the complainant’s accounts in respect to the non-consensual nature of the remaining acts of rape.
Conclusions
The jury’s assessment of the complainant as a witness of credit and reliability must be given paramount weight. None of the matters raised by the appellant, either individually or collectively, support a conclusion that the verdicts of guilty were not reasonably open to the jury. There is no basis to conclude the jury, properly instructed, reached verdicts which were unreasonable or unsupported by the evidence.
Order
I would dismiss the appeal.
CARMODY J: The appellant, aged 40, was charged with raping a 16 year old school girl 6 times at a house in Goodna on 13 September 2011.
He was found guilty by a jury on 4 of those counts in early 2014 and sentenced to ten years imprisonment.
The convictions are said to be unreasonable and unsupportable. This ground requires the court to review the entirety of the admitted evidence to determine its legal sufficiency. The appeal fails if the verdicts were reasonably open.
The reasons furnished by the appellant in his written and oral submissions tend to be somewhat divergent. Nonetheless, the appellant appears to have furnished at least four primary reasons supporting the conclusion that the convictions were unreasonable and insupportable. These reasons are that:
1.the evidence could not support a finding that the appellant was identical the ostensibly fictitious person James Wilson.
2.the complainant failed, at trial or in pre-trial witness statements, to identify the appellant with Wilson, despite extensive telephone contact, and her evidence regarding consent to sexual intercourse should have been rejected as inherently improbable or incredible.
3.the time the jury took to deliberate on the evidence relating to the telephone records.
4.some evidence regarding the content of messages between the complainant and Wilson was destroyed or otherwise lost before trial.
It is convenient to briefly summarise the prosecution’s case before inquiring into the adequacy of the prosecution case and evidence supporting it.
Prosecution Case Theory
Based on the complainant’s version of events and analysis of voice call, text and Facebook records to retrace communications to and from the complainant’s telephone number, the Crown alleged that the appellant was an online sex predator who trawled social media for victims. The prosecution hypothesis was that he assumed fictitious identities and a fictitious persona to create a false electronic universe within which he persuaded the naïve complainant to live in before luring her to his place on an elaborate pretext for the purposes of sex with or without her consent.
More particularly, the appellant allegedly used at least two other pre-paid SIM cards issued in fake user names in different mobile phone handsets to deceive the complainant into believing that she was communicating with his own mobile service as well as fictitious characters, Mr Wilson and Mr Chris Bitlow, over the same period.
The complainant had significant text contact and web chats with the Wilson number in the two or three months leading up to September 2011. They exchanged photographs but never met in person.
Wilson later purportedly introduced Batlow to the complainant as a nurse in Brisbane. As part of the ruse Wilson told the complainant via MSN that a photograph of her he had sent to Batlow had been seen by Bitlow who threatened to injure Batlow unless she agreed to meet him with a view to having sex.
Facts in Issue
Neither date nor place were contested. Nor was identity or penetration. Consent was the only disputed fact for the jury to resolve.
The appellant claimed that the complainant willingly had sex with him on their first face to face meeting after a short but intimate chat room romance and that the case of deception and personation presented by the prosecution could not be established beyond reasonable doubt on the evidence presented before the jury.
He contended that the false complaint to police was prompted by the intercession of the complainant’s family, and that the jury gave the complaint much more weight than her inherently improbable testimony reasonably deserved because, in part, the trial judge failed to emphasise its weaknesses in summing up.
The appellant denied posing as Wilson, Batlow and Bitlow, but admitted voice call contact from his mobile service.
Submissions
It was argued that given the nature of the complainant’s online relationships with Wilson and the appellant, especially their lengthy voice call contact, her failure to realise and inform the police that Wilson was really the appellant raises serious doubts about her veracity in key respects.
These concerns, it was contended, should have been reinforced by the deletion of alleged text and Facebook exchanges.
Moreover, assuming effectiveness and compliance, the anti-fraud measures for issuing SIM cards undermine the prosecution’s inferential case that Wilson, Batlow and the appellant were common identities.
Elements and Ancillary Facts
In examining this appeal, it must be remembered that the appellant was convicted of rape. Rape requires proof that the appellant sexually penetrated the complainant without her consent. It does not require proof that the appellant was identical with Bitlow, Batlow or Wilson. Nor does it require proof that the appellant engaged in an elaborate electronic subterfuge to induce the complainant into having sexual intercourse with him. To convict the appellant, therefore, the jury need only have been satisfied that: (a) the appellant sexually penetrated the complainant; and (b) the sexual penetration occurred without the consent of the complainant.
It was open for the jury to find that the appellant was not identical with Bitlow, Batlow or Wilson, and did not create an elaborate electronic subterfuge, yet conclude that the appellant raped the complainant. This is not to say that the evidence tending to establish the deception against the appellant is irrelevant to the proceedings – indeed, proof of such an hoax would injure the appellant’s credibility and contextualise the ensuing sexual interaction – rather, it merely demonstrates that it is neither a necessary or sufficient criterion for finding that the appellant sexually penetrated the complainant without her consent.
Findings and Reasons for Dismissing the Appeal
Adequacy of the Evidence Supporting the Finding that the Appellant was Identical with Wilson and Bitlow
The appellant contends that the “inherent improbability” of the elaborate deception allegedly employed militated strongly against the inference that Wilson and Bitlow were aliases or personas for the appellant. The appellant also asserts that SIM cards possess certain anti-fraud mechanisms which precluded the appellant from falsely misrepresenting himself to have the SIM cards registered under the aliases.
As a preliminary matter, I would note that there is nothing “inherently improbable” with finding that an elaborate deception was employed using electronic devices and false pseudonyms to procure unsuspecting persons for sexual intercourse. The advent and proliferation of “social media”, and other forms of unsecure personal messaging services, permitting anonymous and unidentifiable correspondence, has created a new domain for the facilitation and perpetration of sexual offences. Such offences often go undetected, or are rendered undetectable, by cryptographic protections integrated within social media and private messaging platforms, and ineffective requirements for identity verification in establishing user accounts. Furthermore, having regard to the reduced cost and increased disposability of SIM cards and mobile phones, it is unsurprising that such offences are often accompanied by telephonic communications.
Online sexual predation is a significant, and apparently growing, social problem and criminological phenomenon within the Queensland community. Therefore, any allegation of “inherent improbability” in the context of electronic ruses should be treated with appropriate circumspection. In any event, that which seems unlikely or improbable from the perspective of a right-minded observer may be mere common practice among certain criminal circles.
Turning to the material adduced at trial, there was a strong body of evidence supporting the inference that the appellant had fabricated the aliases of Wilson and Bitlow.
Police obtained a mobile telephone from the appellant which had a unique IMEI number. Records were obtained from Vodaphone that established that two prepaid sim cards had been used in that handset. One prepaid sim card was activated on 5 August 2011 by Chris Bitlow of 4 Heit Street, North Booval. The second prepaid sim card was activated by the appellant on 3 September 2011. A second IMEI number was linked to the second number evidencing the possession of another handset within which the sim card was used. The mobile telephone surrendered to police by the appellant had a different IMEI number to the relevant handset which performed the Wilson calls.
Police acquired the telephone records particularising all dialled and received calls from the complainant’s telephone. The telephone records establish that:
1.A series of text messages were sent from the Bitlow telephone to the complainant’s telephone from 5 to 31 August 2011, 1 to 8 September 2011, and 12 to 5 September 2011. Several of the text messages were recovered from the complainant’s phone.
2.A series of telephone calls to the complainant’s telephone from the Bitlow telephone on 5, 11, 17, 18, 20, 21, 25, 26, 27, 29, and 31 August 2011, and 6, 7, 8, 13, 15 September 2011. The calls evidence voice correspondence or data exchanges on the stated dates. The IMEI number correlated with the appellant’s handset, and the signal tower locations were consistent on occasions with the appellant’s residential address at Goodna, and employment address at Hervey Bay.
3.Text messages were sent from the appellant’s phone number to the complainant on 19 and 29 August 2011. A voice call, or data exchange, was initiated by the appellant with the complainant’s telephone on 24 August 2011. The IMEI number is identical to that ascribed to the handset used by Bitlow several days beforehand.
4.A voice call or data was sent to the complainant’s telephone from the appellant’s phone on 27 August 2011, and the IMEI number was identical to that for the Bitlow phone used the day before. Both calls originated in Goodna and took place within minutes of one another. As the IMEI number ascribed to each call was identical, the sim cards must have been utilised in the same handset.
The call charge records to and from the Bitlow telephone were also obtained by the investigating police for the period of 1 June 2011 to 30 September 2011. The records establish that the overwhelming majority of calls received from that number were from the complainant’s telephone, and any other calls received by the Bitlow telephone were from numbers in the appellant’s contact list in his nominated handset.
Police officers stationed at Hervey Bay questioned the appellant on 18 September 2011. The police confiscated the appellant’s telephone handset and acquired all relevant telephone call charge records. The telephone call records displayed the IMEI number for the Wilson telephone. The second IMEI number is only recorded against voice calls after 16 September 2011.
The text messages sent from the Wilson telephone number to the complainant demonstrate that a person using the Wilson number:
1.exhibited a sexual interest in the complainant;
2.knew the complainant was a school student, and had observed the complainant using a webcam;
3.did not want the complainant communicating with his Facebook friends;
4.made references to a person identified as “Tim”;
5.made reference to her sending the user a photograph;
6.stated on 7 September 2011 that he would no longer be corresponding with the complainant, four days prior to the date of the alleged rape.
Police failed to recover any outgoing texts from the complainant’s telephone, which may have lacked the capacity to save them, or they were deleted but the data may have been able to be recovered. Police extracted data from the appellant’s telephone, including his contact list.
The evidence tended to establish that a handset used by the appellant had been connected with the appellant’s sim card and the sim card of Bitlow. The designated telephone number of the Bitlow sim card was registered in the complainant’s telephone as the contact details for Wilson. The Bitlow telephone number was frequently correlated with the appellant’s residential and work addresses. The Bitlow sim card and appellant’s sim card had also been switched in quick succession on occasion.
Although the appellant adduced evidence of identity verification processes which are adopted by Vodafone to avoid fraudulent behaviour, it was reasonably open for the jury to conclude that the verification processes were not properly implemented on the occasions on which the appellant may have acquired the SIM cards, or that the appellant adopted some method (such as the presentation of false identifying information) to obtain the SIM cards. This was a question of fact for the jury, which was not excluded by mere evidence of the existence of a verification process.
I am satisfied that a reasonable jury properly instructed could conclude on the basis of the evidence adduced at trial that Bitlow and Wilson were pseudonyms or aliases for the appellant. The telephone records, combined with the IMEI numbers of the relevant handsets within which the SIM cards were utilised, appear to exclude any reasonable hypothesis consistent with the fact that Bitlow and Wilson were not false identities employed by the appellant.
Notwithstanding this finding, I would note that the appellant was convicted of rape, not fraud, impersonation or any other form of false misrepresentation. Therefore, proving the existence of an online subterfuge was not a necessary criterion of establishing the relevant offence. Indeed, it is perfectly consistent for the jury to have found that Wilson and Bitlow were not false aliases of the appellant, yet nevertheless conclude that the appellant raped the complainant. It is equally consistent to find that Wilson and Bitlow were false aliases of the appellant, yet nevertheless conclude that the appellant engaged in consensual sexual intercourse with the complainant. Despite this, the existence of the elaborate deception undermined the credibility of the appellant’s evidence, and contextualised the sexual interaction which was asserted to have ensued.
Credibility of the Complainant
The appellant submits that if it is found that he engaged in an elaborate deception through the manufacturing of false personas to induce the complainant to participate in sexual intercourse, the failure of the complainant to voluntarily (and, apparently, without prompting) identify Wilson with the appellant undermines the complainant’s credibility. According to the appellant, this infects the reliability of the complainant’s account, such that her evidence regarding consent should not have been relied on by the jury.
This argument is misconceived for several reasons. Firstly, there is insufficient evidence to establish that the complainant should necessarily have recognised the intonation, modulation or idiosyncratic grammar of the appellant. Indeed, it would have been fairly open for the jury to find that had the appellant invested the effort to manufacture several false aliases, the appellant may also have attempted to disguise his voice.
Secondly, even if it can be said that the complainant should have recognised certain personal identifying features of the appellant’s communications, the matter was not put to the appellant before or during the hearing. If the appellant intended to impugn the credibility of the account of the complainant by reference to her failure to identify the speech patterns of the appellant with Wilson, this should have been put to the complainant during cross-examination by experienced counsel for the appellant. It would be utterly unfair to attack the credibility of the complainant on the basis of an omission to particularise a stated fact without such an assertion being put to her in cross-examination.
Thirdly, even accepting that (a) the complainant should have recognised the speech patterns of the appellant with Wilson and (b) this need not have been fairly put to the complainant by the appellant during cross-examination, the omission was noted by the trial judge prior to the jury retiring for deliberations. The trial judge also noted that the Crown’s prosecution of the appellant substantially depended on the credibility of the complainant, and reference was made to the significant number of telephone conversations taking place between Wilson and the complainant. Accordingly, the jury was properly and comprehensively instructed on the omission of the complainant to recognise the voice of the appellant.
Fourthly, even if the jury should have found that the complainant failed to state that she recognised that the appellant’s voice as that of Wilson, the jury need not have drawn the further inference that her evidence was unreliable on the basis of that fact. The complainant may have failed to acknowledge that the appellant and Wilson’s speech patterns were identical because the common identity of the two was self-evident or otherwise obvious in her mind. Alternatively, it would not be unreasonable to infer that the complainant failed to mention the identity of Wilson and the appellant by mere oversight. Neither conclusion requires the inference that the complainant sought to manipulate or misrepresent her evidence, nor that she was incredible.
Fifthly, conceding that the jury should have found that the omission meant the appellant delivered incredible evidence in respect of whether she recognised the speech patterns of Wilson as those of the appellant, this does not require the further inference that her evidence regarding consent was incredible. As stated by the trial judge in issuing directions to the jury, it was open to the jury to reject certain components of the account of the complainant, but accept others. Accordingly, the jury was entitled to find that the complainant failed to give credible evidence regarding the identity of Wilson and the appellant, but nevertheless conclude that the complainant gave credible evidence regarding consent.
Accordingly, it follows that the alleged failure of the complainant to give evidence regarding the ostensive identity of the speech patterns of the appellant and Wilson cannot give rise to a finding that the verdict of the jury was insupportable or unreasonable on the evidence adduced at trial.
Duration of Time Required for Jury Deliberations
In the course of oral argument before the Court of Appeal, counsel for the appellant appeared to assert that the unreasonableness of the jury verdict was indicated by the brief duration of time, approximately five hours, required by the jury to deliberate and reach a verdict. Counsel referred to the apparent complexity and voluminous nature of the telephone records in claiming that the stated time period was inadequate.
This argument is unsustainable and irrelevant. The Court, in reaching a decision regarding the reasonableness of a jury verdict, must examine the relevant evidence which was adduced at trial. It is not required to speculate or engage in conjecture regarding the purported decisional processes of the jury. Accordingly, the duration of time required by the jury to deliberate and reach a verdict cannot give rise to a finding that the verdict of the jury was insupportable or unreasonable on the evidence adduced at trial.
Destruction or Loss of Evidence
The appellant submitted the loss or destruction of certain messages communicated between the complainant and Wilson using a social media platform (“Facebook”) meant that the decision of the jury is insupportable or unreasonable. The transcript of proceedings demonstrates that the primary judge properly referred to the omitted Facebook materials in the course of her directions to the jury.
The record indicates that over 2,000 messages and other correspondence was obtained by the Queensland Police Service through an investigation of the complainant’s Facebook user account. According to the appellant, such materials were lost or destroyed due to errors committed by the investigating police officers.
Assuming that the materials were lost or destroyed due to the error of investigating officers, the question remains whether the jury verdict was reasonable or supportable on the evidence adduced at trial. A reasonable jury might conclude, on the basis of forensic omissions or gaps, that there is insufficient evidence to establish the guilt of an accused, in respect of the offence for which they have been charged, beyond reasonable doubt. Equally, a reasonable jury might conclude, notwithstanding evidential omissions or gaps, that the evidence adduced a trial is sufficient to establish beyond reasonable doubt that the accused committed the offence in respect of which they were charged. The inferences which may be drawn from evidential omissions and gaps, therefore, is a matter appropriately within the fact-finding functions of the jury.
In exceptional circumstances, an appellate court might find that evidential gaps or omissions rendered a verdict unreasonable or insupportable on the evidence. This would arise where the circumstances are such that the omissions or gaps properly give rise to a positive inference in favour of the appellant. It may also arise where no positive inference may be drawn from the evidential omissions or gaps, but where the evidence, when examined as a whole, is rendered inherently unstable or precarious having regard to the omissions.
There is no evidence from which this Court might infer that the Facebook materials were exculpatory or inculpatory of the appellant, or would tend to support or vitiate the common identity of the appellant with Wilson. There is also nothing that suggests the investigating police officers intentionally or deliberately destroyed the Facebook materials for the purposes of fortifying the prosecution against the appellant. Furthermore, as there is no evidence illuminating the content of the Facebook materials, it is not possible to infer that the messages would not have assisted the prosecution. Accordingly, there is no basis upon which this Court could draw an inference in favour of the appellant from the loss of the Facebook materials.
Examining the evidence of the prosecution as a whole, having regard to the telephone records and testimony of the complainant, there is nothing which indicates the omission of the Facebook materials should give rise to a conclusion that the verdict was inherently unstable or precarious.
The treatment of the omitted Facebook materials was a matter for resolution by the jury in the proper discharge of its fact-finding function. It was open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant notwithstanding the absence of the evidence regarding the content of the Facebook communications. Even if the jury were to have inferred from the absence of the Facebook materials that Wilson was not an alias for the appellant, the jury would still have been entitled to conclude that the appellant unlawfully sexually penetrated the complainant without her consent.
Accordingly, the omission of the Facebook materials is not sufficient to give rise to a finding that the jury verdict was unreasonable or insupportable on the evidence.
Conclusion
The appellant has failed to establish that the jury verdict was insupportable or unreasonable on the basis of the evidence adduced at trial. The appellant has also failed to show any other instantiation of factual or legal error warranting appellate intervention.
Proposed Order
The appeal should be dismissed.
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