R v GAT
[2014] QCA 237
•23 September 2014
SUPREME COURT OF QUEENSLAND
CITATION:
R v GAT [2014] QCA 237
PARTIES:
R
v
GAT
(appellant)FILE NO/S:
CA No 237 of 2013
DC No 122 of 2013DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Ipswich
DELIVERED ON:
23 September 2014
DELIVERED AT:
Brisbane
HEARING DATE:
27 May 2014
JUDGES:
Margaret McMurdo P and Gotterson JA and Dalton J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
1. The appeal against conviction is dismissed.
2. The application to adduce further evidence is refused.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant and the complainant were in a de facto relationship – where the appellant beat and anally raped the complainant – where the appellant was found guilty at trial of one count of attempted rape (count 1), one count of rape (count 2) and one count of assault with an intent to rape (count 3) – where counts 1 and 2 occurred on the same day – where count 3 occurred within a month after counts 1 and 2 – where the appellant argued that the verdict was unreasonable due to internal inconsistencies in the complainant’s own evidence and between the complainant's evidence and other evidence – whether the inconsistencies undermined the reliability of the complainant's testimony – where the complainant did not make a complaint to the police or the Department for many years – whether the failure of the complainant to make a timely complaint to authorities meant the complainant's evidence was inherently implausible – whether the appeal against conviction should be allowed
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the learned trial judge gave a direction as to the complainant's distressed condition noted by police after count 1 but prior to counts 2 and 3 – where the learned trial judge did not specify that this direction applied only to count 1 and not to counts 2 and 3 – whether this was a misdirection – where no redirection was sought at trial – where there was an error as to the paragraphing in the transcript – whether there was a substantial miscarriage of justice
CRIMINAL LAW – EVIDENCE – GENERALLY – OTHER MATTERS – where the respondent applied to adduce further evidence – where the respondent sought to admit parts of the transcript from an earlier trial which miscarried – whether leave to adduce further evidence should be allowed
Criminal Code 1899 (Qld), s 668E(1)
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, appliedCOUNSEL:
D C Shepherd for the appellant
D C Boyle for the respondentSOLICITORS:
Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent
MARGARET McMURDO P: The appellant was convicted on 23 August 2013 after a three day trial of attempted rape on 8 July 2007 (count 1), rape on 8 July 2007 (count 2) and assault with intent to rape between 8 July and 8 August 2007 (count 3). At the time of the alleged offences, the complainant was the appellant's partner. The appellant had three children (M, K and T) from a previous relationship and the complainant had two children (J and C) from a previous relationship. They also had their own baby girl, Ju and all their children were living with them. He has appealed against his convictions on two grounds. The first is that the guilty verdicts were unreasonable or cannot be supported having regard to the evidence. The second is that there was a miscarriage of justice following from the learned trial judge's direction to the jury about the complainant's distressed condition.
In answer to the first ground of appeal, the respondent seeks leave to lead evidence from the record of the appellant's first trial on these counts which miscarried on 20 August 2013.
A consideration of the first ground requires this Court to review the evidence at trial.
The evidence at trial
The complainant's evidence
The complainant, whose evidence was critical to the prosecution case, gave the following testimony. When she and the appellant first began to live together she thought their relationship was perfect. After about six months they moved into a modest house[1] in a rural town in south-east Queensland with their blended family. As her pregnancy with Ju progressed, he became more dominating and violent. At the time of the alleged offences she was not working and did not have a driver's licence.
[1]See the photographs of the house (ex 2 and ex 3) and the diagram of the interior of the house (ex 4).
On 8 July 2007 they argued when she discovered he had sent suggestive text messages to her female friend, N. He admitted that he wanted to have sex with N. The complainant said she was leaving him. He responded that he may as well take what he wanted. He grabbed her by the ankles and pulled her down on the bed. She kept saying no. At first she thought he was joking and being a bully but a fight developed. He tried to rough her up, to scare her. She apprehended that he wanted "anal because he knew that [she] hated anal". He grabbed her legs and tried to pull them apart. They scuffled and landed on the floor. Her nightie came off. She was so sweaty that he could not grip her and she was sliding away from him. She screamed out to her son, J, for help. The appellant grabbed her and beat her. He was very violent as he tried to drag her closer to him. He would punch her and say a word, punch her again and say a word, and then punch her again and say a word. He claimed she did not love him and neglected his sexual needs. They were both naked. He was trying to position her so that he could put his penis into her buttocks. She was resisting violently. At one point the appellant's son, M, yelled out that her son, J, had grabbed the phone to call the police. The appellant went out and told them all to sit at the table and took all the phones into the bedroom. The attack seemed to go on for hours (count 1).
At about 3.00 pm the appellant's son, M, said that the police were there. She got off the floor and put on her robe. The appellant was yelling and screaming and the police tried to calm him down. They took her downstairs. She told them she and the appellant had argued about him having a relationship with somebody else. The appellant was yelling, "I didn't fucking touch her, leave us the fuck alone." The police stayed for no more than half an hour.
She went to bed with a headache. When the appellant came into the room she told him that he could not hurt her because J was there to protect her. He grabbed her, flipped her onto her stomach, anally raped her, ejaculated onto her buttocks, laughed, and walked out. She had clenched her bottom very hard so that only the tip of his penis made it in. She was "bawling" her eyes out, screaming and asking him to stop. She cried softly into the blankets, lying face down (count 2). He forced her to get up and eat dinner with the children. She took a mouthful but felt sick and ran back into the bedroom.
No more than a week later, when she returned from visiting her friend, N, she again told the appellant she was leaving him. He deleted N's number from her phone, told N not to contact them again and told the complainant not to talk to N anymore. N later contacted the complainant and asked if she was okay. As the appellant was not home, she invited N to visit. Before N arrived, the appellant came home unexpectedly. The complainant sent a message to N telling her not to come. She did not know whether N came to the house that day. The appellant became angry and threw the complainant's phone at her several times. He tried to drag her towards the back internal stairs to get her out of the house. He was angry as she was wearing a shirt that N had given her and he tried to rip it off. He began to drag her into the toilet. Her daughter, C, was between her legs and the complainant told C to go to her bedroom. The appellant angrily dragged her to the toilet. She tried to convince him that she was sorry. They ended on the toilet floor where he tried to rape her. She was fighting him off. She was wearing a skirt and no underpants; he would not allow her to wear underpants whilst he was home. He squeezed her throat and she blacked out for a time; she was unsure how long. She could not remember how they got there but they ended in the lounge room. He threw her over the top of the lounge and tried to penetrate her from the rear. She kept sliding onto the floor. He was angry and they scuffled on the floor. She begged him to stop. She told him that if he did this, she would never forgive him and he stopped. He then became really angry and punched the floor, breaking bones in his hand but he stopped his attack on her (count 3).
They had both been using the drug speed during their relationship but once Ju was born the Department of Child Safety became involved and she stopped taking drugs.
She subsequently planned to run away but she had no friends and each time she decided to leave she fell pregnant.[2] The appellant's daughter, K, begged the complainant to take her with her when she left but, as K was the appellant's daughter the complainant felt she could not.
[2]She had several more children to the appellant after these alleged offences.
In cross-examination, she agreed that she had given a number of statements to police and that her evidence at trial contained additional information. For example, on the occasion of count 3, she had not told police that when she was dragged into the toilet that her daughter C was between her legs. During this attack, baby Ju was probably asleep. She could not remember whether she had told a male police officer that she was wearing pants on this occasion. She explained that she "had to pretend that nothing was going on in that house to survive. So a lot of stuff was very very very very forgotten. It has taken this long and this amount of counselling to be able to remember this, not that [she] want[ed] to."[3] She said she did not need to speak to the children about these events because they knew; they were there. She did however speak to the appellant's daughter, K, in that she advised her not to find a partner like the appellant. When asked whether her daughter Ju was born in 2007 rather than 2008, she stated that she did not know dates and when she was "put on the spot" she went "blank" because of her anxiety. When she was giving evidence she was in panic mode.
[3]AB 73.
She stated that the appellant would never beat her in the face; he went for the back of her head. She agreed that when the police arrived she did not tell them that the appellant had been physically violent towards her or that he had tried to anally rape her. She did not have marks on her face but she had marks up her neck where he had been clawing her. The appellant had a gun in the house; she thought it was a rifle. She denied trying to shoot a gun out the window or having a rifle with her in the bedroom on 8 July 2007. On previous occasions the appellant had threatened her and the children with guns.
She had to keep returning to the police to make further statements because there had been so many rapes that it took her a long time to remember exactly how things happened. She agreed that she did not tell police that when count 1 occurred she was slipping and sliding around the bedroom for hours because she was sweaty. She found it difficult to talk about the detail of these attacks.
She agreed she did not tell police when they arrived on 8 July 2007 that the appellant had tried to rape her. When he raped her later that afternoon (count 2), she did not report this to police because she felt it was her fault for making "a smartass comment".[4]
[4]AB 81.
The attack constituting count 3 occurred a couple of days after counts 1 and 2. She did not contact the police after count 3 occurred. From 2007 to 2011 the Department was involved with the family because of concerns for the children's safety and about the appellant's violence to her. Sometimes the contact was more than weekly. She agreed that she did not complain to officers of the Department about being beaten or raped. She once telephoned the Department while the appellant was absent and asked if she left him would she get her children back. Ju was taken from her at 12 months old. Another son born later was removed when he was two days old and she had to fight for him in court to prove she was a stable mother. With all these things happening, there was no way she would have told the Department what the appellant was doing to her because this might impact on her custody of the children. She did not agree that a complaint to the Department would help her leave with the children because he would then have the right to go to court and claim the children; he could constantly hound her and threaten her.[5]
[5]AB 83.
In 2008 the Department removed all the children from the house and she was living alone with the appellant. She did not leave because she had "no income, no licence, nothing". The appellant fed, clothed and looked after her. She agreed the Department was also concerned about drug use but neither the appellant nor the complainant were using drugs when the present offences occurred. Once the Department became involved she stopped taking drugs. She did not defend the children when they were assaulted by the appellant because she "would have been dead".[6] When officers of the Department asked her about her bruises she would make excuses instead of telling them that the appellant had assaulted her. She did not tell her counsellors or the social workers preparing social assessment reports for the Department about the appellant's abuse. She agreed that after these offences occurred she had another three children with the appellant, adding "That wasn't by choice."[7]
[6]AB 85.
[7]AB 87.
She also agreed that in one of her statements to police she said she told N that the appellant had beaten and raped her. She was unsure when she told N but it was between 8 July 2007 when counts 1 and 2 occurred and when count 3 occurred a few days later.
When defence counsel suggested that none of the alleged counts occurred, she maintained that they did.
In re-examination she agreed that she and the appellant separated in 2011. She refused to make any complaint to police about these events until she knew the appellant would not get bail. While she had the opportunity to tell the Department about these alleged offences, she did not because she knew that this would not help her get her children back and live a life with just her and them.[8] The appellant had always threatened to kill her if she left him. He made it a joke but deep down she knew that she could not get away safely. She had no income. She had never worked because she had her first child at 15. She had been in a violent relationship prior to her relationship with the appellant. She was too ashamed to even speak to her family about the alleged offences. She knew she did the wrong thing in not protecting the children but she thought that if she got them back in her home she could leave with them and they could live a happy life together so she pretended to put on a happy face for everybody.[9]
[8]AB 89.
[9]AB 89-90.
The complainant's son
The complainant's son, J, was 14 at trial and about eight at the time of the offending. His evidence comprised his statement to police under s 93A Evidence Act 1977 (Qld) and pre-recorded evidence including cross-examination under s 21A Evidence Act.
In June 2012 when he was 13, the police asked him to tell them everything about the appellant from the beginning. He described him as "a very naughty bloke" who once tried to kill his mother. He had a gun. The police asked whether he remembered a time when he ran to a neighbour to call police. He said that his mother was getting hurt. She called out to him to get the next door neighbour to phone police and he did. His mother and the appellant were fighting. The appellant had a gun and was going to shoot her. She had a baby in her hands. He could not remember if the baby was Ju or a boy born in 2009, but he thought it was Ju. The appellant was almost picking his mother up and moved her into the bedroom. His mother was playing with the appellant's gun and the appellant told her not to. The police arrived and the fighting stopped. His sister, C, was also present as were the appellant's children, M, K and T.
In his evidence pre-recorded on 3 July 2013 he confirmed that what he told the police was true. In cross-examination he agreed that when his mother called out for help he could not see what was happening in the bedroom. The appellant was not doing anything with the gun which was ordinarily kept in a cupboard. His mother was holding the gun but was not pointing it at anybody. When his mother called out to him to get help he could hear a loud argument between his mother and the appellant. His mother said she was going to shoot out the window but the appellant told her not to because the bullet could bounce off and hit her.
The appellant's daughter, T
The appellant's daughter, T, was about nine years old at the time of the alleged offences, 14 when she was interviewed by police on 23 July 2013 and 15 when her further evidence was pre-recorded and she was cross-examined. She, too, gave evidence by way of s 93A and s 21A Evidence Act.
In her police interview she told police that she understood they were taking her statement about the alleged rapes that happened between the complainant and the appellant and J jumping a fence. She said that the family was sitting in the kitchen colouring in when the appellant took the complainant into their bedroom. They were arguing because the appellant had previously cheated on the complainant who was angry when she found out. The appellant's son, M, was worried that the other children would get into trouble as J had gone to get help. The complainant was screaming out "help, go get someone, go get help". The children were used to that. They were always told that if anything happened to "just stay put" or they would "get hurt for going anywhere". The complainant's son, J, did not know this. The complainant was screaming as if someone was covering her mouth because one moment she would scream and then it would be "really dead quiet". J ran to a neighbour for help. T remembered that when J jumped the fence he landed in a prickle patch. The screaming from the bedroom went on for about half an hour before J ran to get help. About five minutes later the police arrived. J came up the back stairs and the appellant "started getting up" J. The complainant told the appellant to stop. She was quite red as if she had been hit. The appellant told her to get downstairs now and run. T was unsure what happened after the police arrived because she went into the girls' bedroom and played with her sister, K. The female children slept in one room and the male children in another.
The next day the complainant had a massive black eye and her cheek was all black. Most of the time, she covered this up with make-up. She did not know the date, but much later, after the appellant was no longer with the family, she came home from school to find the complainant's mother visiting. The complainant spoke to T for about half an hour and told her that on the day J jumped the fence the appellant raped the complainant.
On another day when she was in year 8 and getting ready for school, the complainant was chased out of their bedroom by the appellant who was bashing her. The complainant threw his phone at his face because she found out he was cheating on her again. The appellant "lost the plot". The complainant's nose was bleeding. T gave the complainant a hug, told her she loved her and left for school. That afternoon the complainant told T that the appellant had "hit into" her but asked her not to tell anyone and T did not.
In her pre-recorded evidence, she confirmed that what she had told the police was accurate and that the appellant had told the children not to move around or they would get a beating.
In cross-examination she said that the complainant did not tell her what to say to police. As to count 1, the complainant started to call out for help almost as soon as the appellant took her into the bedroom. T was sitting at the kitchen table with J; her brother, M; and her sister, K. They would have all heard the complainant screaming out for help. After about 15 minutes, J went next door to get help and the police arrived a few minutes later. She could not remember the time. When the complainant came out of the bedroom her face was red as if she had been hit and the next day it was bruised. There was only one occasion when the complainant screamed for help and J ran next door to get assistance. T did not see what happened in her parents' bedroom that day. She agreed that she and her family had been involved with the Department and that she had not mentioned this incident to officers of the Department. She could not remember if she discussed the incident with her sister, K.
In re-examination she stated that she did not tell anyone about this before she spoke to police because she was worried it would affect the family and that she might not see her brothers and sisters again.
The evidence of the appellant's daughter, K
The appellant's daughter, K, was 12 at the time of the alleged offences and 17 when she gave pre-recorded evidence on 20 August 2013. She was asked what happened on the day J jumped the fence. She stated that the complainant and the appellant were arguing about phone messages or something like that. The appellant was getting "pretty violent". He came into the kitchen, told the children to sit at the table and took the complainant into the bedroom. She screamed out "help, help, he's raping me" and for J and C to assist her. J ran downstairs and jumped the back fence and called police.
This was not the first time the appellant had told the children to sit at the kitchen table and not move; it had happened before with other ex-girlfriends. If the children did not comply, they would be beaten.
The complainant was calling out for about half an hour but K could do nothing because she was too scared. She did not talk to the other children about what was happening. J left to get help after the complainant had been in the bedroom for about 20 or 25 minutes. The police arrived soon after. The complainant was very upset, went downstairs and K followed. The police were there for no more than 10 minutes. The complainant told them that she was alright. K went upstairs and the children made sure they stayed out of the way of the complainant and the appellant. The complainant was in her bedroom and she could not remember what the appellant was doing.
In cross-examination she agreed that until she gave a statement to police on 23 July 2013 she did not tell anyone from the Department about this incident. Nor did she tell the police on 8 July 2007 about what she had heard and seen. After the police left, things went quiet and the appellant and complainant acted as if nothing had happened. K went into her bedroom. She did not remember anything untoward; no more screaming and yelling.
She agreed she did not like the appellant. He had been so violent to her in the past that the Department had become involved with the family. She also agreed that sometimes she was comfortable telling officers of the Department about what he had done to her. When asked whether she liked the complainant she stated that they had their "past histories, but she's alright now" and that she had "forgiven her for the stuff that she's done". K stated that she would always dislike her father because he had ruined her life.
In re-examination she was asked why she did not speak to the police on 8 July 2007. She responded that she was scared that if she told them, the appellant would hurt her. She did not tell anyone from the Department because she would have been in trouble if the appellant found out; she "wasn't game enough – too scared". When she saw the complainant downstairs after the police arrived, the complainant looked very upset and had a couple of bruises on the side of her face, as if the appellant had punched her. When she spoke to the police in July 2013 she was living with neither the complainant nor the appellant.
Police evidence
Two police officers gave evidence that they arrived at the house at about 11.30 am on 8 July 2007. They went upstairs and spoke to the complainant, initially in the kitchen but later downstairs. She was upset and had red eyes as though she had been crying. She said she and the appellant had a verbal argument about the appellant massaging another woman.[10] Police asked if she had been assaulted but she denied this. The police officers left and they made an entry in the police computer system about the incident which included the statement "a verbal argument only". In cross-examination they each agreed they saw no injuries on the complainant.
[10]The complainant's evidence refers to massaging other women, including N. See AB 30, T 1-8 and AB 68, T 2-8.
A police officer who took a number of statements from the complainant agreed that the complainant did not tell her that the appellant threatened the lives of the children or her by holding a gun to their heads.
The neighbour's evidence
The neighbour gave evidence that in 2007 a boy about seven or eight years old jumped the fence into her yard in a panic. He was very distressed and asked for help. He was "pretty much in tears". He said that somebody was hurting his mother. She rang the police. When the police arrived, they took him to his home.
The evidence of N
N gave evidence that she had known the complainant and the appellant since 2006. The last time she saw the appellant was when she visited the complainant after receiving a text message from her. The appellant was meant to be at work but he was at home. She interrupted them having a dispute. She came half way up the stairs and then froze because she heard a "commotion, thumping and all that sort of stuff". The appellant yelled at her and told her to "f .. off and all that sort of stuff, get out of here and blah, blah, blah". She was a little scared and drove to a nearby park to wait. She did not want to return to the house or call police because she did not want to put the lives of the complainant and the children at risk. She did not know what was going on. She had since remained in regular contact with the complainant. She and the appellant were never involved in any romantic relationship. She had never propositioned him. He had sent her text messages about sexual intimacy.
In cross-examination she said that she gave a statement to police on 19 June 2012 about this incident which she thought occurred in 2006. Whilst she did not know what was going on inside the house, she knew that the complainant was being thrown around or abused. She did not see the appellant attacking the complainant before she left the house.
In re-examination she said the incident occurred when she was working at a particular place and that she worked there from the end of 2006 until the end of 2007. She agreed that the incident happened between the end of 2006 and the end of 2007.
Admissions
The following admissions were made at trial. The complainant provided signed, sworn statements to police on 10 June 2011; 23 September 2011; 22 October 2011; 15 February 2012 and 13 August 2013.
On 20 May 2011 she had a conversation with a police officer which included the following:
"POLICE OFFICER: Has he done things that he didn’t want you to do?
COMPLAINANT: Yep, and the choking.
POLICE OFFICER: What’s the story about the choking?
COMPLAINANT: I was going to leave him one time because I’d just found out he was trying to sleep with my best friend and because of that, he was going to rape me anally and it got to the toilet floor out there and um he was trying to get my pants off and because I was struggling too much he grabbed me by the throat and I passed out. He didn’t stop. He’s got no remorse for what he does, there’s no …
POLICE OFFICER: Was there a thing he would do regularly?
COMPLAINANT: No. He would always say I’m not pleasing him. It’s more just after I have had a kid or something."
The defence case
The appellant did not give or call evidence but defence counsel put to the complainant that the offences did not occur. The complainant maintained the offences occurred. The defence case put to the jury was that the complainant's evidence could not be accepted for the following reasons. The alleged offences happened in a small house so that the children must have heard and seen what happened. Her description of a savage beating over many hours in counts 1 and 2 was inconsistent with the evidence of the police officers and the children. There was no supporting evidence about the sexual elements of the alleged offences. She did not make any timely complaint to the police, the Department or anyone else. She gave inconsistent versions to police. She was unreliable and could not even remember Ju's birth year. The jury would have a doubt about the reliability of her evidence and acquit him.
Is the jury verdict unreasonable or not supported by the evidence?
The appellant's contentions
The appellant's counsel, like defence counsel at trial, emphasised the internal consistencies in the complainant's evidence and the inconsistencies between her evidence and the other evidence, as well as the inherent implausibility of the complainant's evidence. She made no complaint of rape or physical assault to police on 8 July 2007. She claimed she made a complaint about counts 1 and 2 to N but N did not give evidence of such a complaint. The complainant made no complaint to officers of the Department about the offending when this could only have assisted her in her desire to leave the appellant and live with the children. Her allegations seem to have been first raised in 2011. On her evidence, count 1 was the first time the appellant was violent towards her. She admitted lying to police about what happened on 8 July 2007, by saying she was not assaulted. She was not a reliable or credible witness. She admitted to past drug use.
The appellant's counsel also emphasised that the complainant's evidence differed from that of T and K as to whether she had facial or other injuries and on many other aspects. In such a modest house, it is implausible that the children were not aware of the commission of count 2. The complainant's and N's evidence were inconsistent in that the complainant did not give evidence that the appellant stopped abusing her before yelling abuse at N.
The complainant gave evidence that her memory had improved with counselling so that she was able to provide greater detail. The appellant's counsel submitted that this was implausible. She was so unreliable she was even uncertain when her daughter Ju was born. She agreed she had a motive to manufacture serious allegations against the appellant: she did not wish to lose custody of the children. There was no supportive evidence of her allegations of sexual offending.
For all these reasons, the appellant's counsel submitted, the jury should have had a reasonable doubt about each of her claims of attempted rape (count 1), rape (count 2) and assault with intent to rape (count 3).
The respondent's contentions and application to adduce further evidence
The respondent emphasised that the complainant did not resile from her essential evidence that each of the three counts occurred. Given the nature of her relationship with the appellant, it was unsurprising she did not complain about the offending for four years. The lack of support from the children for her evidence on count 2 was unremarkable in a case of this nature. Her evidence on count 1 was supported by the evidence of the children and the police officers. Her evidence on count 3 was supported by N's evidence. The jury were entitled to rely on the complainant's evidence.
The respondent sought to adduce as evidence a portion of the transcript of the appellant's earlier trial which miscarried on 20 August 2013. The appellant was there asked in cross-examination why she had not spoken to police earlier about the appellant's conduct. She responded "I knew that I'd never get my kids and I knew that I could never protect his kids if I left. I did leave. I left once after [Ju], after that time. And [K] got beaten, got made to get up that night and make his lunch for work and all."[11] Later she added "I only spoke up what had gone on to me when he was gone. … Because it's not about me. It was about the other ladies that he's hurt. I'm only here because of that." As a result of that evidence the trial miscarried and recommenced before a new jury the following day. The respondent contended that this evidence demonstrated why the complainant made no complaint about the appellant's offending until the appellant was taken into custody in relation to offending against other women. She spoke out then because she and the children were safe and to assist other complainants.
[11]T 20 August 2013, 1-24, lines 40-45.
Conclusion on the respondent's application to adduce further evidence
In determining whether the guilty verdicts were unreasonable and not supported by the evidence, this Court's task is to review all the evidence at trial and determine whether the guilty verdicts were reasonable on that evidence: M v The Queen;[12] SKA v The Queen.[13] The respondent's contention that this Court should consider the complainant's evidence and the submissions of counsel arising from it in another trial is inconsistent with that duty. This Court cannot consider that material on this ground of appeal. The respondent's application to adduce that evidence must be refused.
[12](1994) 181 CLR 487, 487-493.
[13](2011) 243 CLR 400, 405-406.
Conclusion on this ground of appeal
It is true, as the appellant contended, that the complainant was not always consistent on some details of her account of the alleged offences. Her inability to remember the year in which Ju was born was surprising. But on her evidence she had led a remarkably dysfunctional life from the age of 15 when she first became a mother. She had many children whom the State took from her custody from time to time for their protection. Her relationship with the appellant in which it seems uncontentious that he mentally and physically abused her was her second abusive relationship. Her evidence that the appellant was violent towards her was supported by the evidence of her son, J, the appellant's daughters, K and T and her friend, N. She explained that she suffered anxiety when under stress as a witness and her mind went blank. The jury were entitled to find that this explained her uncertainties and inconsistencies on peripheral matters. The complainant, however, was not uncertain about the three episodes charged as counts 1, 2 and 3. The jury were entitled to conclude that she was accurate on these matters as they were violent sexual attacks which she was unlikely to forget. It is also true, as the appellant emphasised, that the complainant had used drugs, including speed, during her abusive relationship with the appellant. But she gave evidence that neither she nor the appellant used drugs at the time these offences occurred, so very little turned on this.
The complainant's evidence in court was more detailed and in some ways inconsistent with her statements to police. The inconsistencies, however, were not critical. She explained her memory improved after counselling. In light of her history as a victim of domestic violence the jury were entitled to accept this.
As the appellant contended, the alleged offences occurred long ago, and years before the complainant made any complaint to police or the Department. The complainant's explanation was that she did not speak to officers of the Department about this offending because she feared this would not help her gain or maintain custody of the children. She also explained that she felt trapped in the abusive relationship and dependent on the appellant because she had never worked, had no income and did not have a driver's licence. The jury may well have apprehended that the complainant's failure to complain to police or to remove herself and the children from the violent relationship she described was explicable as such behaviour is not uncommon for victims of domestic violence. These matters did not preclude the jury from accepting her evidence that the appellant committed counts 1, 2 and 3.
It is also true, as the appellant emphasised, that the complainant's evidence was not always supported by the evidence of the children who were living with the complainant and the appellant in their modest house in July and August 2007. But all those matters were raised at trial for the jury to consider in assessing the complainant's credibility. The children were not asked to recall the incident for about five years or more, a very long time in the life of children who were as young as eight at the time. It was almost inevitable there would be inconsistencies between the recollections of the complainant and the children. The children's evidence, however, provided some support for the complainant's account, especially of count 1. While J's evidence of a gun being brandished by the complainant at the time of count 1 was not supported by any other evidence, there was no doubt that the appellant was physically violent towards the complainant that day; that J sought help from a neighbour; and that the police arrived. T's evidence of the appellant's subsequent injuries also supported the complainant's evidence on count 1. Further, N's evidence provided some support of the complainant's evidence on count 3.
While none of the children witnessed any behaviour to directly support count 2, this was unsurprising. On the complainant's evidence, the more violent episode was count 1, and count 2 occurred in her bedroom. Although she said she screamed, she also said she cried softly into her pillow. After the trauma of the violent episode in count 1, culminating in the arrival of police, it is not surprising the children were unaware of count 2 occurring. This did not require the jury to reject the complainant's evidence on count 2.
The appellant rightly points out that N did not give evidence that the complainant told her about counts 1 and 2 whereas the complainant told police she did tell N about the offending. But as N was not asked whether the complainant told her about counts 1 and 2, there was no inconsistency between N's evidence and the complainant's evidence. In any case, in the circumstances here, this was no reason to compel the jury to reject the complainant's critical evidence as to the three counts.
I have carefully reviewed the evidence in this trial in light of the comprehensive submissions of counsel for the appellant. Despite the many difficulties with the prosecution case considered individually and collectively, I am satisfied that it was well open to the jury to accept the complainant's evidence on each count beyond reasonable doubt and to convict the appellant. This ground of appeal is not made out.
The adequacy of the judge's direction to the jury
The impugned direction
The appellant contends that the following judicial direction to the jury as to how to treat the police officer's evidence of distressed condition is flawed:
"And then in cross-examination she agreed that she just said in her statement, “I got halfway up the stairs when I heard thumping, and I knew [the complainant] was getting hurt.” So that’s basically the evidence in relation to count 3, ladies and gentlemen, and of course the defence say that you wouldn’t be satisfied that that occurred at all. There’s also evidence, ladies and gentlemen, that I’ve covered briefly, that the complainant was upset when the police arrived, and that’s what we call evidence of distressed condition of the complainant, and that’s something that you can take into account when you’re assessing her evidence. It can be evidence that the complainant was raped or assaulted by the [appellant], but it’s a matter for you as the sole judges of the facts whether you accept the evidence of her distressed condition.
Remember, she didn’t tell the police that she was raped or assaulted by the [appellant]. If you do, then you have to ask yourself was the distressed condition genuine or was she just pretending – was she putting on the condition of distress or is there any other explanation of the distress condition at the time such as a verbal argument. So it’s customary for judges to warn juries that you ought to attach little weight to distressed condition because it can easily be feigned, but if you do find the distress was genuine, then it can be used by you as some evidence to support the complainant." (errors in the original; emphasis added)
The appellant's contentions
The appellant contends that the italicised direction caused a miscarriage of justice which requires the setting aside of the guilty verdicts and the ordering of a retrial. The distressed condition was noted by police after the alleged commission of count 1 but prior to the alleged commission of counts 2 and 3. The judge should have specified that this direction applied only to count 1 and not to counts 2 and 3. Given the weaknesses in the complainant's account, the internal inconsistencies and the inconsistencies with the evidence of other witnesses, this misdirection raises the real possibility that the jury may have incorrectly used the evidence of her distressed state after the alleged commission of count 1 to support her evidence on counts 2 and 3.
Conclusion on this ground of appeal
The police evidence was that when they arrived, the complainant was upset, had red eyes but had no injuries. It added little to the prosecution case and tended to be more favourable to the defence case. There was other evidence from the children that the complainant was screaming out for help and that she was being raped; and that she had marks on her face which turned into black eyes and bruises the next day. The judge said nothing about this evidence of distressed condition. In those circumstances the judge's impugned direction was curious, unnecessary and unhelpful. Having given the unnecessary direction, the judge should have made clear to the jury that the police evidence as to the complainant's distressed condition could only be used to support her evidence on count 1. But unsurprisingly no such redirection was sought. No doubt counsel did not consider it a significant issue in the trial. It is true that the impugned direction is commenced in a paragraph dealing with the evidence in count 3. But this is plainly the transcriber's mistake in paragraphing. The direction should have been transcribed in a discrete paragraph. I am confident the jury, who heard the direction and did not read the transcript of it, would have understood the direction was a quite separate topic to the judge's discussion of the evidence on count 3.
The trial was short with the evidence, counsel's addresses and the judge's summing up being completed in just over two days.[14] The judge accurately summarised all relevant evidence for the jury during the summing up. The sequence of events whereby the police witnessed the complainant's distressed condition after count 1 and before counts 2 and 3 would have been obvious to the jury. It would also have been obvious to them that as this evidence preceded counts 2 and 3, it could not be evidence that she was distressed because of counts 2 and 3. The judge's impugned direction placed no weight on the police evidence of distressed condition. The judge's summation of counsel's addresses does not refer to that evidence which also suggests that, understandably, it was not a significant issue in the trial.
[14]The trial commenced before the jury at 10.30 am on 21 August 2013 and the jury retired to consider their verdicts at 11.06 am on 23 August 2013.
Under s 668E(1) Criminal Code 1899 (Qld), this Court
"shall allow an appeal if it is of the opinion that … the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal."
The judge's impugned direction was not a wrong decision on a question of law as the judge was not asked to give the direction now sought by the appellant. I am unpersuaded that in the circumstances of this case the judge's omission to specifically confine the impugned direction to count 1 amounted to a miscarriage of justice. It follows that this ground of appeal is not made out.
Conclusion
As the appellant has not succeeded on either ground of appeal, the appeal against conviction must be dismissed.
ORDERS:
1. The appeal against conviction is dismissed.
2. The application to adduce further evidence is refused.
GOTTERSON JA: I agree with the orders proposed by the President and with the reasons given by her Honour.
DALTON J: I agree with the orders proposed by the President and her reasons.
In relation to the second ground, miscarriage of justice, I would add the following. The appellant faced three counts: count 1, attempted rape; count 2, rape, and count 3, assault with intent to rape. All offences were said to have occurred in the home shared by the complainant and the appellant. The police attended at the home after the events relied upon to support the first count. The police evidence was that the complainant seemed distressed on that occasion. The police did not attend the home at the time of the events relied upon to support counts 2 and 3.
The structure of the summing-up was that the trial judge explained the elements of attempted rape – count 1 – and then summarised the prosecution and defence cases on count 1. She then explained the elements of rape – count 2 – and summarised the cases on count 2. Then she explained the elements of the offence charged at count 3, and summarised the cases in relation to it. She then turned to general matters.
It is very clear from the summing-up that count 1 was a charge of attempted rape and the trial judge devoted some time in her summing-up to explaining what in law constitutes an attempt. During her discussion of the facts relating to count 1 the trial judge discussed the attendance by the police at the home. At the end of this part of the summing-up the trial judge says, "So that’s basically the evidence about count 1." She then turns to discuss count 2, saying, "Now, count 2 is the charge of rape. So again that’s just carnal knowledge without the consent of the complainant …" Because the paragraphing of the transcript is poor, there is no paragraph break after the words "count 1" and before "Now, count 2 is …" as the sense of the words demand.[15] Nonetheless, the jury were hearing the trial judge speak, they were not reliant upon the transcript for their understanding. I think it would have been perfectly clear to the jury from the summing‑up that count 1 was a count of attempted rape and count 2 was a charge of rape and that the police attended and reported a distressed state in relation to count 1 only.
[15]This paragraphing error is repeated when the primary judge stops talking about count 2 on the indictment and begins talking about count 3. The transcript reads, “So that’s count 2 on the indictment. Now, in relation to count 3, ladies and gentlemen …”. Clearly there should be a paragraph break before the words “Now, in relation to count 3 …”.
At the end of summarising the Crown and defence cases as to count 3, the trial judge moved to some general warnings and remarks. The transcript again is incorrectly paragraphed. It reads:
"And then in cross-examination she agreed that she just said in her statement, “I got halfway up the stairs when I heard thumping, and I knew [the complainant] was getting hurt.” So that’s basically the evidence in relation to count 3, ladies and gentlemen, and of course the defence say that you wouldn't be satisfied that that occurred at all. There’s also evidence, ladies and gentlemen, that I’ve covered briefly, that the complainant was upset when the police arrived, and that’s what we call evidence of distressed condition of the complainant, and that’s something that you can take into account when you’re assessing her evidence. It can be evidence that the complainant was raped or assaulted by the accused, but it’s a matter for you as the sole judges of the facts whether you accept the evidence of her distressed condition.
Remember, she didn't tell the police that she was raped or assaulted by the accused. If you do, then you have to ask yourself was the distressed condition genuine or was she just pretending – was she putting on the condition of distress or is there any other explanation of the distress [sic] condition at the time such as a verbal argument. So it’s customary for judges to warn juries that you ought to attach little weight to distressed condition because it can easily be feigned, but if you do find the distress was genuine, then it can be used by you as some evidence to support the complainant. You’ve heard also, ladies and gentlemen, from the complainant about escalating violence in the relationship.
You remember she said when she was pregnant when she was Ju [sic] the violence started. She said there was a lot of fighting. It got worse and worse until he was the boss of the house. …"
Properly paragraphed, that section of the summing-up would read:
"And then in cross-examination she agreed that she just said in her statement, “I got halfway up the stairs when I heard thumping, and I knew [the complainant] was getting hurt.” So that’s basically the evidence in relation to count 3, ladies and gentlemen, and of course the defence say that you wouldn't be satisfied that that occurred at all.
There’s also evidence, ladies and gentlemen, that I’ve covered briefly, that the complainant was upset when the police arrived, and that’s what we call evidence of distressed condition of the complainant, and that’s something that you can take into account when you’re assessing her evidence. It can be evidence that the complainant was raped or assaulted by the accused, but it’s a matter for you as the sole judges of the facts whether you accept the evidence of her distressed condition. Remember, she didn't tell the police that she was raped or assaulted by the accused. If you do, then you have to ask yourself was the distressed condition genuine or was she just pretending – was she putting on the condition of distress or is there any other explanation of the distress [sic] condition at the time such as a verbal argument. So it’s customary for judges to warn juries that you ought to attach little weight to distressed condition because it can easily be feigned, but if you do find the distress was genuine, then it can be used by you as some evidence to support the complainant.
You’ve heard also, ladies and gentlemen, from the complainant about escalating violence in the relationship. You remember she said when she was pregnant when she was Ju [sic] the violence started. She said there was a lot of fighting. It got worse and worse until he was the boss of the house. …"
Although the transcript of the summing-up is marked revised, it was accepted by the appellant that the paragraphing was incorrect and should be as I have adjusted it – t 1‑23-24. Unfortunately it is necessary for judges to attend to paragraphing when revising transcripts nowadays; it is certainly my experience that paragraphing is very often not according to sense in transcripts. As this case illustrates, proper paragraphing is essential to an accurate transcript.
The jury did not have the poorly paragraphed transcript. They would have understood from listening to the sense of what was being said that the primary judge had concluded her remarks as to count 3 and was moving onto a new topic when she began to give the warning about use of the complainant’s distressed condition.
It is true that count 1 was a count of attempted rape, not rape and not assault. In those circumstances the sentence beginning "Remember, …" might in some cases have been confusing. Here, where the facts of all three matters were relatively simple and the police attended on only one occasion – after the facts relied upon to support the count of attempted rape, I cannot see that there was any real danger that the jury was confused by the inaccurate general description "raped or assaulted". This is particularly so in circumstances where the trial judge had been at pains to discuss both the elements and facts in relation to each of the three counts separately and in circumstances where the police attended only in relation to count 1. As a matter of commonsense, the warning as to distressed condition could only relate to count 1, the count of attempted rape. There was in my view no miscarriage of justice.
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