R v GBN
[2024] QCA 112
•14 June 2024
SUPREME COURT OF QUEENSLAND
CITATION: R v GBN [2024] QCA 112 PARTIES: R
v GBN
(appellant)
FILENO/S: CA No 161 of 2023
DC No 1848 of 2020
DIVISION: Court of Appeal PROCEEDING: Appeal against Conviction ORIGINATING COURT: Supreme Court at Brisbane – Date of Conviction: 1 September 2023 (Holliday KC DCJ) DELIVEREDON: 14 June 2024 DELIVEREDAT: Brisbane HEARINGDATE: 9 May 2024 JUDGES: Mullins P and Crow and Crowley JJ ORDER: The appeal is dismissed. CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE
HAVING REGARD TO EVIDENCE – where the appellant was convicted of a single count of rape – where it was not disputed by the appellant that he digitally penetrated the complainant – where there was a dispute as to whether the complainant consented to the act – where there was a dispute as to whether the appellant had an honest and reasonable but mistaken belief that the complainant consented under s 24 of the Criminal Code (Qld) – where the defendant did not give or call evidence at trial – where the Crown’s case ultimately depended on the jury accepting the evidence of the complainant beyond reasonable doubt – where the complainant gave evidence that she voiced protest and that the appellant “shushed” her – where there was preliminary complainant and distressed condition evidence – where the trial judge gave a Robinson direction – where the appellant argued that having regard to the inconsistencies in the complainant’s evidence the jury could not have rationally accepted her evidence – where the appellant argued that the complainant’s behaviour prior to the alleged offending was inconsistent with an absence of consent – whether it was open
for the jury on the whole of the evidence to be satisfied beyond reasonable doubt of the appellant’s guilt
Criminal Code (Qld), s 24
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30,
cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, cited
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited
Robinson v The Queen (1997) 197 CLR 162; [1999] HCA 42, citedCOUNSEL: S J Hamlyn-Harris for the appellant C N Marco for the respondent SOLICITORS: Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent
MULLINS P: I agree with Crowley J.
CROW J: I agree with Crowley J.
CROWLEY J: The appellant was tried by jury in the District Court on a single count of rape. The jury found the appellant guilty.
The appellant appeals against his conviction. His sole ground of appeal is that the conviction is unreasonable or cannot be supported having regard to the evidence.
The issues in dispute at trial
The Crown alleged that in the early hours of the morning on 29 September 2019, the appellant raped the complainant by digitally penetrating her, without her consent, whilst they were in a bedroom of an apartment where the complainant had been staying. The only persons present in the room at the time of the alleged incident were the complainant and the appellant.
The appellant did not dispute that he had digitally penetrated the complaint. His case was that the Crown could not prove beyond reasonable doubt that the complainant did not consent to the act; or if she did not consent, that it could not exclude beyond reasonable doubt that he honestly and reasonably, but mistakenly, believed that she consented, thereby raising a defence of mistake of fact under s 24 of the Criminal Code (Qld).
There were therefore only two issues in dispute at trial.
In addition to the evidence given by the complainant, the Crown adduced preliminary complaint evidence and some evidence of distressed condition said to support the complainant’s account. The balance of the Crown case comprised some brief evidence from the owner of the apartment; some CCTV recordings showing interactions between the complainant and appellant at some bars they had attended together before the incident; and some short evidence from an investigating police officer, which included the tender of some photographs of text messages the appellant had sent to the owner of the apartment shortly after the alleged incident. Admissions made by the parties confirmed that the results of DNA analysis of samples taken from the complainant and the appellant, and a medical examination of the complainant, were neutral.
The appellant did not give or call evidence at trial. Proof of the Crown case ultimately depended upon the jury accepting the evidence of the complainant beyond reasonable doubt.
The Crown case was that the jury should accept beyond reasonable doubt the complainant’s evidence that she did not consent to the act, and that it had also negatived the defence of mistake of fact beyond reasonable doubt, and therefore the jury should find the appellant guilty.
The appellant’s case was that the complainant could not be accepted beyond reasonable doubt as a credible and reliable witness and therefore the Crown had failed to prove its case beyond reasonable doubt and the jury should find him not guilty of the charge.
The evidence at trial
Complainant
The complainant lived in Canberra but had travelled to Brisbane to attend a course. She arrived on 27 September 2019 and was intending to stay for about a week. She had arranged through Airbnb to rent a room at the Peppers apartment complex in Fortitude Valley.
The appellant was friends with the owner of the unit and rented the other bedroom in the same apartment, however his parents were visiting and were staying in his room overnight on 28-29 September, so the appellant was sleeping on the couch.
The complainant first met the appellant at the unit in the afternoon on 28 September, after she had returned from attending her course. He introduced himself and told the complainant that his parents would be staying there at the apartment. The complainant went to her room to rest for a while, before leaving at about 7.30 pm to have dinner with a friend at the Jubilee Hotel. She returned to the unit at about
9.00 pm.
The appellant was in the loungeroom of the unit when the complainant returned. They talked for a while. The appellant told her that he would sometimes take apartment guests out and show them around. He offered to show her around a few places and suggested that they should go out. She agreed. She gave evidence that she did not take her apartment key with her when she left the unit with the appellant.
The complainant did not recall what time they left the apartment. They walked to one place, which they could not get into as it was busy, then went to a rooftop bar. The appellant ordered each of them an alcoholic shot. She drank the shot then ordered herself another drink. The appellant also ordered himself another drink. They could not find a seat, so they walked around and drank their drinks before leaving a short time later. As to their interactions up to that point the complainant said: “It was still fairly light between us. There wasn’t anything happening.”
The complainant then suggested that they go to the Jubilee Hotel. She was not sure what time they arrived but said that they stayed there until about 1.00 am. The appellant bought a bottle of champagne, and they went into the pool room to sit. The complainant said that she felt their interactions were different there. The conversation became all about drinking and the appellant was “sculling” his champagne and asking
her to do the same. She gave evidence that she did not want to do that, but the appellant wanted her to refill her glass faster. She recalled having her hair up in a bun and at one point the appellant had asked her to take her hair out, which she did. She said the appellant told her that it looked better, and she should wear it that way.
After leaving the Jubilee Hotel the pair went to another bar, called ‘Netherworld’. The appellant wanted to stop there on the way home. The complainant said that she told the appellant that she wanted to go home as she had class in the morning but that he “shooshed” her, so she went inside the bar with him.
The complainant gave evidence that whilst they had walked the block between the Jubilee Hotel and Netherworld, the appellant kept trying to link arms with her and although she asked him not to, he insisted. She said he had done the same thing earlier on the way to the Jubilee Hotel after they had left the rooftop bar. She said that she had told him “No” and had actually pulled her arm away at one stage but that he had relinked it.
The pair had further alcoholic drinks at Netherworld. The appellant bought each of them some sort of flavoured mixer drink. The complainant said that she was starting to feel “a little bit tipsy but not too bad”, although she was very tired.
The complainant said they left Netherworld after they finished their drinks and started walking back to the apartment. She recalled the appellant said he wanted to go to a wine bar at Peppers but that she told him that she was tired and wanted to go to bed. The wine bar was closed when they got there. The complainant said they then had another discussion because the appellant wanted to walk to the bottle shop to get more alcohol to drink at the apartment. She gave evidence that she said firmly, “No, I don’t want to.”
The pair then went back to the apartment. The complainant said she went into the shared bathroom, which was located on the right side of the hallway near the entrance to the apartment, and that when she returned to the loungeroom the appellant was standing there in front of the couch. The complainant then gave the following evidence in answer to questions from the prosecutor:
“And did you have an interaction with him then?--- I said, ‘Good luck with your parents tomorrow.’ And he shooshed me and - - -
Sorry. I don’t mean to interrupt in the middle, but you’ve - I’ve just got to say what you’ve just done for the record. So you said, ‘He shooshed me,’ and you brought your finger up to your lips. I mean, aside from - can you just explain what he did to shoosh you? Are you indicating that’s what he did or - - -?---No. He brought - he - he brought his - he brought his finger to his lips and sai - and then indicated towards the bedroom to go talk - my - where I was staying - to go talk in there and went “sh.”
Okay. I understand. And how did you respond to that?---I - I went into the bedroom and turned on the light and sat on the bed waiting for him to, I don’t know, say what he wanted to say.
Okay. And so that initial interaction you had with him, was that in the lounge room?---Yes.
And then you’ve gone into the bedroom and turned on the light and sat on the bed. So what was the next thing he did?---He then followed me into the bedroom. He wasn’t directly behind me, so I was already sitting on the bed when he entered. And he stood in front of me.
Yes. And what was the next thing that happened?---He stood in front of me for a couple of seconds, and then he kissed me.
Okay. And were you still sitting on the bed at that point?---Yeah. So he leaned down to kiss.
Okay. And where did he kiss you?---On my mouth with his tongue - or put his tongue in my mouth.
Okay. And how did you respond to that?---I - I was surprised, so I was trying to think about what to do.
Sorry. Sorry?---Sorry. Yep.
What I’m interested in is, rather than your thoughts of what was happening at the time - I’m interested in anything that you said or did at that point?---I was passive.
Okay?---I didn’t do anything. I didn’t say anything and I didn’t return the kiss.
Okay. Well, what was the next thing that happened, that is, what is the next thing that either of you said or did?---He pushed me down on the bed, so he put his hand on my shoulder to push me down on the bed. He then started to lift up my skirt, and as he was lifting up my skirt he stopped to kiss me, so I said, “Stop. I’m too - I’m too drunk to be doing this. I’ve had too much to drink.” He shooshed me. He brought his finger to my lips and shooshed me. He then pulled aside my underwear with his hand, and again I said, ‘No,’ and again he shooshed me, and he then put his fingers inside of me.
Okay. When you say he “put his fingers inside” of you, I just need you to be specific about what you mean by that, so where did he put his fingers?---He put his fingers in my vagina.
Are you able to tell us how many fingers he put in your vagina?--- More than one, but no, I can’t tell you specifically - - -
Okay?---------- more than that.
And were you consenting to him doing that? No.”
When asked what sort of volume she had first used to tell the appellant, “Stop. I’m too drunk to be doing this”, the complainant described it as, “Loud - like, a normal speaking voice.” She said there were no other noises in the room at the time. When asked what volume she had then used when she said “No”, the complainant said, “I feel like I said that louder than I said the first statement...” When asked how the appellant responded when she said “No”, the complainant repeated that the appellant ‘shooshed’ her again, but this time he did not use his finger on her mouth.
In response to further questions from the prosecutor about what she had done when the appellant put his fingers in her vagina, the complainant gave this evidence:
“All right. So you’ve told us that he put his fingers in your vagina. How did you respond to that, if at all?---I was kind of - - -
Again, just focusing on, you know, what you said or did?---Okay. Thank you. I - I - I guess I didn’t do anything. I guess I just lied there.
Okay. And for how long did he have his fingers in your vagina?---I’m not sure.
Did he do anything with his fingers when they were in your vagina?---They were moving around.
And how did that feel?---Uncomfortable and rough and forceful.
How did it come to an end?---So at some point, I heard a sound that kind of - and it - when I looked, it looked like he was taking off his pants, and I used that moment to go, ‘I need to go to the bathroom,’ and I escaped to the bathroom.”
The complaint said she threw up straightaway in the bathroom and that she was very shaky. After leaving the bathroom she started to head back towards her bedroom, when she noticed that the loungeroom light had been turned off and the appellant was lying on the couch. She gave evidence that she said goodnight to him and at that point he grabbed her arm, pulled her in and gave her a closed-mouth kiss. She said she went to her bedroom as soon as he let her go.
The complainant said that, once she was in her bedroom, she messaged the friend that she had dinner with earlier at the Jubilee Hotel. Sometime later she left the apartment on foot, intending to go to the Fortitude Valley Police Station but she was unable to find it. She then took an Uber to the South Bank Police Station however it was closed and unattended. There was a telephone number there for Policelink, which she then called. She waited outside the station until police arrived. She spoke to them and then attended at the hospital for a medical examination. Later, at about 3.00 am, she was interviewed by police at Dutton Park Police Station.
When cross-examined, the complainant acknowledged that she had seen counsellors, psychologists and psychiatrists throughout her life, since she was a teenager. At the time of this incident, she had been attending counselling sessions for various reasons, including that she sometimes had panic attacks. As part of her counselling, her counsellor had encouraged her to adopt a model for using different parts of her mind to communicate with each other, in what she described as “a conversation within myself.” She had developed a safety plan with her psychologist and her general practitioner to manage her mental health. She said that when she came to Brisbane she was in a “really good place” with her mental health, but as part of her safety plan she had Valium as a back-up. She could not recall whether she had taken Valium before the incident but said it was possible. She agreed that Valium and alcohol were not meant to be taken together.
She agreed that she had also previously been diagnosed with Attention-Deficit Hyperactive Disorder (‘ADHD’). She accepted that because of her ADHD, she could sometimes make an impulsive decision which, on reflection, was not a good idea. She further agreed she had previously been diagnosed with autism spectrum disorder. She acknowledged that an effect of that condition was that she did not “read people very well”, but she believed that by September 2019 she had improved a lot and there
was a marked difference in her communication and social skills. She conceded that she had previously said that she sometimes misses social cues or subtle signs and that sometimes people might be sending out positive sexual behaviour signs, or flirting, but she would miss it completely. She also agreed that she had previously said that sometimes her behaviour might be interpreted as “flirty”, even when she did not intend it to be, and that in the past people had misinterpreted her behaviour as flirting.
She had previously been in a romantic relationship with a man (her former partner) from about 2016 to August 2019. She agreed she still had feelings for him when she came to Brisbane in September. She confirmed that they had since resumed their relationship.
She agreed that when she came home from her course, on 28 September, that she could hear voices coming from the room next door. A short time later she saw the appellant walk out of the other room and that was when they first met. It was then that the appellant told her that his parents were staying the night in his room. As to the appellant’s later suggestion that they go out, the complainant said that this “seemed normal” and that things had started out “very light.”
When it was put to her that there were no issues at the rooftop bar they had gone to, the complainant said that she did not like that the appellant had bought her a shot. She said that she did not want to finish it and felt pressured to do so. She agreed that she was happy to drink alcohol that night but that it was not her intention to consume alcohol quickly like that.
With respect to interactions after they left the rooftop bar, the complainant reiterated that the appellant had been linking arms with her as they walked to the Jubilee Hotel and added that he said to her “I’ll help you to the top.” She said that she unlinked arms and said “No, I’m fine” but that he again linked arms with her. She said that this made her feel uncomfortable. She denied holding hands with the appellant, adding that was what “boyfriend and girlfriend” do.
She repeated her evidence that the conversation at the Jubilee Hotel seemed to be all about alcohol and “sculling” drinks and that she felt the appellant kept trying to steer the conversation in that direction. She said she felt pressure from him to drink faster. When asked whether the appellant could have formed the view that she was flirting with him, the complainant said that she hoped not as she was sending very strong signals of, “I don’t want to drink. This is uncomfortable.” She did not think she was sending out signs that she might be interested in the appellant. She reiterated that she had taken her hair out at the Jubilee Hotel.
When shown the CCTV recording from the Jubilee Hotel, the complainant agreed that it appeared to show they were engaged in an animated conversation and that she was playing with her hair. She again denied it showed she was sending out “flirting signals”. She said she was “sending out positive signals…just having a chat, just being normal people talking.”
The complainant said that after leaving the Jubilee Hotel, the appellant had again linked arms with her which she felt very uncomfortable about. She said she told him that she did not want to link arms. She said she felt that he was finding opportunities to touch her and she did not like that. She said that he was insistent and that because she had not brought her key she thought, “Okay. Well, great. I kind of have to stick with this until we get home.”
The complainant said that by the time they got to Netherworld, she wanted the night to end but the appellant wanted to keep on drinking. She again said that she did not think she was sending out “flirting signals” to the appellant and was very conscious of her body language. She said she was feeling really uncomfortable but acknowledged there was a lot of laughter happening. She agreed that by this time she was under the influence of alcohol, as was the appellant.
When shown CCTV footage from Netherworld, the complainant agreed that it showed the appellant touching her numerous times throughout the night and that she did not react; that she did not show any negative reaction when the appellant sat close to her; and that when they eventually got up to leave the appellant had gently taken her by the hand. She agreed that the recording then showed that she was pointing at something, which she explained was her attempt to “redirect my body, or the conversation…to get out of the touching…so that I could let go of his hand…I didn’t want to be touched.” She accepted however that throughout the entire period of the recording it seemed as though she was having a good time, but she added that was the appearance she was attempting to give. When it was put to her that she was at least creating the impression that she was enjoying the appellant’s company, the complainant said “I don’t know. I guess…I can see how it could be interpreted like that, yes.” She agreed that the recording did not show her physically resisting or pushing the appellant away.
The complainant said that on the way back to Peppers she had “gotten quite cross” with the appellant, as it was really clear he wanted to keep drinking and continue the night. She said she told him that she needed to get up early in the morning and wanted to go to sleep, as she had had enough. She agreed that she felt exasperated by his behaviour by this time.
She accepted that when they arrived back at the apartment, she was aware that the appellant had potentially been flirting with her as he had been touching her a lot. She agreed that flirting can sometimes be a preamble to sexual activity but said that she did not want to have sexual activity of any type with the appellant. She said that she went straight into the bathroom and that when she came out the appellant was standing in the loungeroom. She said she told the appellant “Good luck with your parents tomorrow” and as she went to go to her room the appellant “shushed her” and indicated that he wanted to finish the conversation in the bedroom. She could not recall if he spoke or only gestured to shush her. When asked what conversation she thought the appellant might want to continue in the bedroom, she said “Well, I don’t know. Saying goodnight, I assumed. I don’t know.” She said that she did not want him in her room but that it did not occur to her to not let him in. She disagreed with the suggestion that by letting him into her room that she was sending a signal to the appellant that she was happy for him to be there. She said she was exasperated, and she tried to modulate her facial expression and body language to show that.
She agreed that when she entered the room she sat on the bed; that the appellant followed and stood in front of her; and that the appellant leaned forward and kissed her, putting his tongue in her mouth. She said that she did not want this to happen but agreed that she did not pull her head away. She said that she was “trying to think about what to do”, that her head was spinning, and she was trying to think “how do I just stop this”. She agreed that she could have pulled away as he was not physically holding her but added that she had had an entire night of pulling away from him and him “pushing on harder”, so she wanted to make sure that if she was going to react
that it would be the “right reaction”. Although she agreed her goal was to give the appellant the very clear message that she did not want to engage in any form of physical contact with him, she also agreed she had previously estimated that he kissed her for about ten minutes and had said that her tongue had moved in response to the way he was kissing her. In answer to the suggestion that, because she was not resisting or physically reacting and not telling the appellant to stop, she was giving the appellant a physical signal that the kissing was okay, she conceded “I certainly think that’s how he would have interpreted it…yes.”
The complainant agreed the appellant had next gently pushed her shoulder and she went back onto the bed. She did not think she resisted, but thought her body was very tense. She accepted the suggestion that by now it was “pretty obvious what’s going on here”. She explained that the appellant then stopped kissing her and started to lift up her dress. Her evidence was that at this point, “…when he stopped kissing me and he started lifting up my dress, I said, stop, I’m just too - I’ve had too much alcohol to be doing this.” She agreed that the appellant was using both his hands to lift her dress up and managed to push it up to about her waist. When it was put to her that she said nothing to the appellant in this period, the complainant repeated, “whilst he was pulling on my dress I said, ‘I don’t want to do this, I’ve had too much to drink.’”
When challenged about that evidence, the complainant reiterated “No, I said it. And he shooshed me…Like he shooshed me throughout the night.” She agreed that this was the first time she had said “a stop” or “a no” to the appellant that night. When asked if she said this loudly, she said “I think I said it in a normal speaking - like normal enough.” When it was put to her that she did not yell out “stop this”, the complainant said that it did not occur to her, but added, “Because when I – when I say ‘no’, I expect people to listen…I thought I just need to tell this guy; you know what, now it’s time to stop. Like, let’s just stop. So that’s what I did.”
The complainant then gave the evidence that appears in the following exchange:
“Right. Keep going?---He then shooshed me after I - after I made that request, or statement. He then began to move, or he was - he - yeah, he started using his fingers to move my underwear to the side. At which point I’ve again asked him to stop, I said, ‘no’, which he again ignored. He then put his fingers inside of my vagina and moved them around.
Right. Now, that fingers inside your vagina, you’ve previously said that it felt like 20 minutes but you can’t tell, you can’t say that with certainty, but you reckon it was double the amount of the kissing; is that right?---It felt like a very long time, yes.
…
Okay. All right. Now, as he’s doing that, is he still standing at the foot side - at your foot side of the bed?---Yes. I believe so.
Right. Okay. And you’re lying backwards on the bed?---Yes.
Right. Now, when he - as this is going on, did you move in any way?---I don’t believe so.
Right. He’s not holding you down on the bed; correct?---He’s not - his hand is not - I - I - I can’t - can’t remember where his hand is, but he wasn’t - I - I don’t know.
Well, he’s got at least one hand - - -?---Yeah.
- - - in your vagina; correct?---Yeah. I - I can’t remember where the other hand was.
Okay. The - from - so you’re just lying there, passive, as it were, for 20 minutes or so?---I - I don’t know how long it was. I was freaking out, because I had said no and he didn’t stop. And I - I didn’t really know what to do. And I did have a - a freeze response after that as well. Yeah.
Yeah. But you’re aware of this lengthy period of time where he’s moving his fingers inside and outside of your vagina; correct?---Yeah. Yes.
Okay. And from the physical viewpoint, you’re doing nothing. You’re just lying there; correct?---Yes. I think - I think after I’d said no and had thought about what was happening, I - I had an automatic freeze response.
And the - as you give evidence today, you are certain that you said no to him?---Yes.
You’re certain that he was saying ‘shh, shh, shush, shush’?---Not - I think - I think he shushed me, not like that, like I think when I said something, he shushed me then, but not - it wasn’t a ongoing, ‘Shush, shush, shush, shush,’ kind of - - -
Okay. And you’re just lying on - so if we get the picture for this 20 minutes, you’re just lying across this bed, there he is standing up on the other end of the bed, just penetrating you with his fingers?---I don’t know. I wasn’t really watching him, but yes, that’s what it would look like from an outside perspective.
But "what I’m getting at is he hadn’t jumped on the bed with you, hadn’t jumped on you, anything?---No.”
The complainant was then asked about a previous statement she had made to the police at Dutton Park about this matter, where she had said:
“So then he put his fingers inside of me. And that went on for a little bit. And I said no a couple of times, but he would keep going, ‘Shush, shush, shush.’ So I don’t know if he just misheard me or whatever. But –”
After accepting this was what she had told the police, the complainant gave this evidence:
“Right. This is happening about three o’clock in the morning, so it’s within the three hours of the events. And at that stage, you didn’t know if he had just misheard you or whatever; correct?---I - I feel like when I said that, I was processing the events of what was going on. And I was really, again, just like I said with the kissing, I was really worried
about my role in the - in the situation. Because I can’t imagine myself, if somebody said no to me, that I would keep going. It doesn’t make sense. I was trying to make sense of what was - of what had happened.
Isn’t it the case, really, that over time you’ve thought more and more about these events and rationalised them in your mind?---I did my - like, the formal written police statement with Sean [police officer] not that much later. But it - I mean, it’s been four years as well. Like, I have had more time to reflect and - and think about things, and - - -
But basically it amounts to this, doesn’t it? Within three hours after the event, you’re unsure - you don’t know if he just misheard you or whatever. That’s the situation there. Well, you said that, so that’s the situation, is it, or not?---Well, I - I don’t think that’s what I would necessarily thought. I was - it was a thinking out loud kind of process for me. I’ve never - I’ve never been through this kind of thing before, so I’m a very - you know, speaking my mind kind of person, like I just
- unfiltered - just non - like it - and that helps me, when I hear things, it helps me.
…
Well, you’re talking to police, telling the police what you say happened. Okay? If you were certain in your own mind at that time that he had heard you say no, that he had - right? You would have told them that; correct?---I - that’s - it was the same evening. Like, I’m both trying to manage my own feelings about the whole process, about what’s happening, and as you say, also enter this really serious process with lots of rules and structures and things like that. I was in shock. I was trying to work out what had happened. It was really upsetting.
What - but why tell the police ‘I don’t know if he just heard me or whatever.’ You were telling the police within three hours of these events that you don’t know if he just misheard or whatever, or indeed even heard you. You didn’t tell the police, ‘Oh, I’m not - you know, I’m processing this.’ That’s what you told them. Why did you tell them that?---I mean, I think this is part of - you know, so we’ve talked about social skills and things like that. I don’t always understand how what I say will come across to other people and - yeah.”
When asked further about her explanation that she had never been through this kind of thing before, the complainant conceded that she had previously been through the process of being interviewed by police in the past as she had made an allegation of rape against her ex-husband some years ago.
The complainant also accepted she had previously given evidence at a committal hearing where she said she did not recall the appellant shushing her when she had said “No” to him after he had started to push up her dress. However, she denied the further suggestion put to her she had then said she had no recollection of him shushing her because that did not actually happen. The complainant was then asked to explain why she had previously given that evidence, and she responded:
“Because that - that was how - that was - that was what I could remember it, in that point in time, when I was asked in court - in
Canberra. Yeah, the court. Yeah. And I’m trying to be - I know this is a really big deal and I’m trying to be really honest with my answers and, you know, it’s - it’s - so I don’t want to tell you that I don’t remember when I do remember, but I - I can remember. I can see it in my mind, the shushing.”
Defence counsel then summarised the various concessions the complainant had made in her earlier evidence about not resisting or responding to the appellant kissing her and pushing her back onto the bed, before putting further propositions, to which the complainant responded in the following passage of her cross-examination:
“All right. Okay. Now, the - I want you to understand, we’re not arguing about the sexual activity taking place. All right. Okay. The - and you do nothing - keep in mind, just looking at physical acts - while he’s moving - pushing your undies aside? -- No physical acts.
Yeah. Okay. He then places his fingers in your vagina for what you estimate to be twice as long as the kissing, perhaps 20 minutes? I mean, again, no idea, but like, felt forever. Yeah.
Yeah. All right. And he’s moving his fingers about inside your vagina; correct? And you’re not doing anything, you’re laying there?---I - I’m not physically doing anything, yes.
Yeah, yeah. That’s what I’m saying?---Yep.
Keep in mind this question’s just focused on not physically doing anything. You’re not - he is not holding you down, preventing you from moving; correct?---Correct.
Right. He’s just standing there, in front of you, on the floor, using his fingers inside your vagina?---Yes. Very much deer in headlights, so not - not doing anything.
Okay. Now, do you accept that just looking at those - that physical picture, that you were creating the impression that you were not objecting to what was going on, just looking at the physical picture?---Yes.
All right. Okay. Now, you have already accepted that on a previous occasion, you said, within three hours of the event, I don’t know if he just misheard me or whatever; correct?---Yes. I accept that I said that in the past.
You have previously said, on another occasion, that you had no recollection, at that time, of him shooshing you in the room?---I accept that’s what I said.
I beg your pardon?---I accept that’s what I said, sorry.
Okay. See, what I’m putting to you is, there are two pictures that potentially come out of this. Number 1, you were consenting to that sexual activity, that’s the penetration of your vagina, as well as the kissing at that time. And you would say? It’s really just a yes or no answer?---I thought you said there was two pictures, sorry.
Yeah. I’m going to give you the second picture?---Okay. So, definite no.
All right. But I’ll put another picture to you, you didn’t - well it’s probably to (a’s) and (b’s), I suppose. You never actually vocalised or indicated in any way, your opposition to what was going on. And that, in those circumstances, [the appellant] would have thought you were consenting. So first of all, I’m putting to you that you never actually vocalised or indicated in any way that you were objecting?---No. I – I was very present and clear minded that I needed to make sure to tell him what I wanted. As in, to stop.
When were you very present and clear minded?---When he said - when I said to him, ‘no, no, I don’t want to make this decision, I’m too drunk to be, you know, considering having sex’. Or, you know ‘stop, I’m having too much to drink’. Because my thought process was like, you know what, if I was going to do this, I’d want to really think about it if I’m going to sleep with somebody. So I said, ‘no, stop, too much to drink’. Then when he - when he did not stop and he continued, I was like, well, that message didn’t land, I need to make sure this one does. So I was very, ‘no. Stop’.
So you’re saying, the scenario is that you’d had too much to drink for you that night, okay?---Well, yeah.
Right?---More than I would like.
This male is penetrating you in a very intimate way, right? Fingers in the vagina?---Yeah.
Right. And you are lying back there thinking cooly and calmly about how I should react to this?---No, no. That - so the - I made the comments about him - or I made the statement. I don’t know - to stop before he - before he put his fingers inside of me. That was as he was lifting up my dress, and the second time when he was pushing aside, or he went to push aside my underwear.
Not even as a human response when someone - when your vagina is penetrated, you didn’t even flinch?---I don’t know what my face looked like - - - that was a trauma and a trauma is an automatic response, and my response was a freeze response.
…
Right. Well, at what time did you freeze in this sequence of events? So after – after he had already penetrated me … it wasn’t immediately. I - I froze and had a - it’s - when I say - when I use the word ‘freeze’, I mean in the sense of having fight, flight, freeze, in that kind of freeze response. So I froze and had, what I feel was - was a disassociation event.
Okay. All right. So - but for the 20 minutes or so, you’re thinking cooly about how you should respond to this man, with his fingers in your vagina?---I don’t - I don’t know how many minutes. When I said - what I said before about thinking about what, you know, I’ve had too much to drink, if I was going to do this, that was before hand. Now I’m trying to go, okay, nothing’s worked, I’ve said, ‘no’, what - what do I do next.”
Later, the complainant gave the following evidence in response to a series of final propositions put to her:
“Okay. Well, a number of matters I will put to you. Okay. As I’ve said, there’s no argument that sexual activity did take place in that room. And I will put to you that you actually consented to all that sexual activity, and I’m including the penetration of your vagina. Agree or disagree? Disagree.
Right. I put to you that you did not say no to the activity at any time in that room? ---I said no more than once.
I put to you that you didn’t ‘shush, shush’ at any time in that room? ---That he didn’t? I - no, he did
I put to you that if in fact you were not consenting to that activity, you
- what you did in that room gave the indication that you were consenting?---I was trying to survive the moment and get out of there, and that - I was thinking about getting through it. That was the point.”
Preliminary complaint and distressed condition
Commencing at 1.35 am, the complainant sent the following series of text messages to her friend:
“So got back home and he tried to sleep with me I’m totally devested [sic. ‘devastated’]
I’m going to leave tomorrow Or tonight
I feel very panicked”
The Crown tendered, and the jury was played, an audio recording of the complainant’s telephone call and conversation with the Policelink operator, made at
2.32 am, outside the South Bank Police Station. During the call the complainant said that she was wanting to report “an assault”. The Crown relied upon the sound of the complainant’s voice on the call as evidence of her distressed condition, which it argued was evidence the jury could consider as supporting her account that she did not consent to the sexual act.
While waiting for the police to arrive, the complainant telephoned her former partner. His recollection of the call was:
“She was very upset and so she didn’t give a - a straight line list of things that she said, so there was quite a lot of repetition, so I can only summarise the gist of it, rather than word-for-word. But she said, ‘I just wanted to go home. He kept pushing drinks onto me.’ Something about, ‘We kept going place to place for drinks.’ There was also a sequence that included the words, ‘I told him no.’ And then something like, ‘He wouldn’t stop, he wouldn’t listen.’ And she also talked about being stupid, she apologised for calling, and she talked about, I should have left. Social conditioning - I followed my social conditioning. I paid for the room. And she - that - that was all quite mixed up and backwards and forwards a lot, but that’s the gist of it.”
The former partner said that the telephone call from the complainant ended when she said that the police had arrived, and she had to go. He was not cross-examined.
Police attended at the South Bank Police Station in response to the complainant’s call to Policelink and had a conversation with her which was recorded by police body worn camera. Due to issues with respect to the audibility of parts of the recording it was not played to the jury. Instead, the parties agreed upon the critical parts of what the complainant had said to police during the conversation and included them in the admissions that were later made by the parties and tendered as an exhibit. The relevant part of the admissions stated:
“Preliminary complaint to police outside Southbank police station
1.When speaking to police outside Southbank police station, the complainant described what happened to her in the following way.
a.‘he put his hand inside of me’
b.‘like I said no so many times’; and
c.‘so, we, we were in the lounge room and I was saying something and he's like, shh, cause my parents are sleeping in the other room ... Let's go to your bedroom and I'm like, mm, okay. And then I sit down on the bed and he jumped, he didn't jump, but he, he kind of went on top of me and started kissing me very forcefully and I'm like, I'm too drunk for this ... you know, to be in this position. Well not drunk, drunk, but for me, I'm not in a clear state of mind and I don't normally do that. But I'm like but, so I said, I, I said no and I said, I'm too drunk. And he just, he just kept kissing me and then ... me and then when I saw he took his pants ... he went around to the other side of the bed and I'm like, oh I'll just go to the bathroom ... and then went to the bathroom and spent time in there’.”
The appellant’s trial counsel did not mention the preliminary complaint evidence in his closing address to the jury. As to the call to the Policelink operator, he argued that the jury would need to be satisfied that the complainant’s apparent distress was caused by her “non-consent”, rather than being due to some other factor, such as regret on the part of the complainant.
Text messages sent by the appellant
The Crown tendered a series of text messages sent by the appellant to the owner of the apartment. Amongst those text messages was the following exchange, commencing with a text message sent by the appellant at 1.33 am:
“Appellant: Bro, think I crossed a line…
[Apartment owner]: ??
Appellant:Explain in the morning when I’m sober Will call you”
The apartment owner gave evidence about the arrangements made with the complainant via Airbnb to rent a room in his apartment to her. He confirmed that the
appellant rented the other room in his apartment and that they had a landlord/tenant relationship but were on a friendly basis. He confirmed he had received the text messages sent by the appellant.
In cross-examination, the apartment owner agreed that he rented his apartment through Airbnb as a business and that he relied upon good reviews from people who had stayed there. He accepted that he would be unhappy if there was any issue that made one of his tenants unhappy during their stay. When asked if it would create an issue in his mind about whether the appellant should stay at the apartment if the appellant had done something to make a tenant unhappy, the apartment owner said, “Absolutely”. He agreed that if the appellant did create an issue with a tenant that he would expect the appellant to tell him straight away.
In her closing address to the jury, the prosecutor submitted that the appellant’s text messages were a piece of circumstantial evidence, capable of supporting the complainant’s account that she had not consented, and that the appellant knew that she had not. However, the prosecutor conceded that, in light of the evidence of the apartment owner it could be argued that by engaging in any form of sexual activity with another Airbnb tenant the appellant may have “crossed the line.”
Defence counsel did not refer to the appellant’s text messages in his closing address to the jury.
The summing up
The trial judge appropriately directed the jury that they would need to be satisfied beyond reasonable doubt of the credibility and reliability of the complainant’s account before they could convict the appellant. The trial judge clearly identified for the jury that the two issues in dispute were the element of an absence of consent by the complainant to the act of penetration and the defence of mistake of fact. There was no challenge on the appeal to the comprehensive directions given by the trial judge on each issue.
Trial counsel for the appellant had sought a Robinson1 direction in respect of the complainant’s evidence and had detailed the circumstances he contended should be included in the direction. The Crown had conceded it was appropriate for the direction to be given. The trial judge gave the direction as sought, incorporating the matters that counsel for the appellant had identified.
The trial judge commenced her directions on this issue in this way:
“I said that I would give you a special warning in this case in relation to the complainant’s evidence. The complainant is the critical witness in the case, and you will need to scrutinise the evidence of the complainant with great care before you could arrive at a conclusion of guilt. This is because of the following factors, and I’m going to put them under topic heading…”
Her Honour then detailed the various factors, which included the following matters that were accurately extracted and summarised in the appellant’s written submissions, with headings added for clarity and convenience:
Robinson v The Queen (1997) 197 CLR 162.
“The complainant’s intoxication
…firstly, the state of intoxication of the complainant. The CCTV evidence shows that they were drinking at the Jubilee Hotel in [sic. ‘and’] Netherworld. The complainant accepts that her head was spinning. She said that she’d had too much to drink that night, and that she’d had more to drink than she usually drinks, and that she was under the influence of alcohol by the time she got back to the unit after visiting the various bars.
The complainant’ state of mental health
Secondly - and I’ll put this under the heading of the mental health state or the mental health of the complainant - she accepts that she’d seen a number of psychologists, psychiatrists and counsellors since her teenage years. The complainant accepted that that may affect her perception of what occurred that night. She accepted that she has internal conversations with herself.
She accepted that because of her mental health diagnoses, she is impulsive, and in the moment she can make an impulsive decision to do something, which, on reflection, is not a good idea.
The complainant’s experience of life is that sometimes people misinterpret her behaviour as flirting, and she has experienced that men think that she is flirting with them when she’s not... and that sometimes people are sending out positive sexual behaviour signs, and the complainant misses it completely.
The complainant’s account of interaction with the appellant at bars they visited
Thirdly, there are significant differences between the accounts given by the complainant and/or the CCTV recordings. Now, there are significant differences between the picture that the complainant painted of her interaction with the defendant and the CCTV recordings of those interactions. She painted a picture of her being a reluctant participant, who was tired, anxious to get home, who was being encouraged to drink, and who was annoyed and unreceptive to any physical contact with the defendant. The CCTV recordings reveal a completely different picture.
The complainant’s evidence of the kissing in the bedroom
...in relation to the kissing, the complainant’s evidence is that she continued for an extended period kissing the defendant with an open mouth because she was considering her options as to what to do. That was her evidence in this court. She said to the Dutton Park police that it was ‘kind of an automatic response’ and made no reference at all to her claim in evidence in this court that she was trying to think about what to do or planning what to do next.
The complainant’s evidence that the defendant shooshed her when she said ‘no’
There’s also the claim made by the complainant that the defendant shooshed her in the bedroom, and I’ll just take you to the evidence in that regard. In cross examination she was asked this question:
‘I’ll put something else that you’ve said in the course of these events. You were asked during the committal - when you were saying that you were telling him, no, that’s after he started to push up your dress, and when you were saying that you were telling him, no, you answered…I don’t specifically remember him responding to that.’
‘So you don’t now have any recollection of him shooshing you? Answer: No. Not of the shooshing. No.’
The complainant’s statement to the police that she did know whether the defendant had misheard her
The complainant, when interviewed at that Dutton Park Police Station, said that she didn’t know whether the defendant had misheard her or not, which is compared with the certainty she now has in this trial that the circumstances were such that he must have heard her.
The complainant’s statement about being questioned by police The complainant when she was responding to questions in cross- examination about how she had reacted to the police, said: ‘I’ve never been through this sort of thing before – ’ that is, in relation to police questioning. She then accepted that she had been interviewed by police previously and that she had made an allegation of rape against her ex- husband. Under the same heading, the complainant accepted that she thought more and more about the events over time and in effect she has rationalised them in her own mind.”
The trial judge concluded her directions on this issue with the following instruction:
“You should only act on the evidence of the complainant if, after considering it with that warning in mind and all the other evidence, you are convinced of its truth and accuracy.”
Was the verdict unreasonable?
The principles applicable to an appeal against conviction on the basis that “the verdict of the jury is unreasonable or cannot be supported having regard to the evidence” are well-settled. As stated by the High Court in M v The Queen:2
“[T]he 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 had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
…
It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice
(1994) 181 CLR 487.
occurred. That is to say, 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.”3
These principles were reiterated in R v Baden-Clay,4 where the Court, emphasising the role of the jury as a “constitutional tribunal for deciding issues of fact”, stated:
“Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is ‘unreasonable’ within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.”5
In Libke v The Queen,6 the Court reiterated:
“[T]he question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.”7
More recently, and in a statement that is particularly apt having regard to the nature of the challenge to the jury’s verdict in this case, the High Court stated in Pell v The Queen:8
“The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment
— either by reason of inconsistencies, discrepancies, or other
Ibid, 493–495 (Mason CJ, Deane, Dawson and Toohey JJ) (citations omitted).
(2016) 258 CLR 308.
Ibid, 329 [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ).
(2007) 230 CLR 559.
Ibid, 596–597 [113] (Hayne J, Gleeson CJ agreeing at 562 [1] and Heydon J agreeing at 597 [117]).
(2020) 268 CLR 123.
inadequacy; or in light of other evidence — the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.”9
The appellant submitted that, having regard to the inconsistencies in the complainant’s evidence, both internally and when contrasted with what was shown on the CCTV footage of her interactions with the appellant, and the concessions she made in cross-examination, including crucially about how she behaved immediately before and during the incident, the jury could not rationally have accepted her evidence and ought to have entertained a reasonable doubt about his guilt.
The appellant placed particular reliance upon the fact that, in respect of the complainant’s evidence that she had said “stop” or “no” to the appellant immediately before the alleged rape, the complainant had nonetheless admitted in cross- examination that about three hours later she told police, “I don’t know if he just misheard me or whatever.” The appellant contended that in light of that concession, even if it was accepted that the complainant had said “stop” or “no”, the jury could not rationally be satisfied beyond reasonable doubt that the appellant had heard her. Accordingly, the appellant further submitted that when that matter was considered together with the complainant’s complete lack of resistance to being kissed (for perhaps 10 minutes) or being penetrated (for perhaps twice as long as that), the jury could not rationally be satisfied beyond reasonable doubt that the appellant did not honestly and reasonably believe that she was consenting. In making these arguments, the appellant emphasised the matters that were the subject of the extensive directions the trial judge had given the jury on the defence of mistake of fact and the forceful Robinson direction given in respect of the complainant’s evidence.
In my view, this was not a case where the evidence established any real basis for the jury to doubt the complainant’s credibility. However, I readily accept that the cross- examination exposed ample reasons why the jury might have considered her to have been an unreliable witness in several respects. It was for that reason that the trial judge gave the jury the Robinson direction referred to above and that it was necessary for the jury to scrutinize her evidence with great care before accepting any of it.
Ultimately, on my assessment, none of the matters that were the subject of the directions given by the trial judge compelled a conclusion that it was not open for the jury to be satisfied beyond reasonable doubt of the appellant’s guilt. The jury had the advantage of seeing and hearing the complainant give her evidence. By its verdict, the jury clearly accepted she gave a truthful and accurate account when she said that she had told the appellant “stop” or “no” before he digitally penetrated her, and that by doing so she did not give her consent to that act.
On the disputed issue of consent, the underlying premise of the appellant’s case at trial was that it was simply implausible that the complainant had not consented to the act of penetration. The jury were invited to reject her evidence and conclude that the Crown had failed to prove its case beyond reasonable doubt because of the way she had behaved in her earlier interactions with the appellant and throughout the events immediately before, and during, the act of digital penetration. The defence case was that the complainant’s behaviour was inconsistent with an absence of consent.
Ibid, 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (citations omitted).
Whilst the entirety of the preceding interactions between the complainant and the appellant were to be considered by the jury, the critical point at which the Crown was required to prove the absence of consent was at the time of the act of digital penetration. Nothing that had earlier transpired, including the complainant not stopping the appellant from coming into her room and not resisting when he kissed her or pushed her back onto the bed, necessarily compel the conclusion that the jury could not rationally have accepted, beyond reasonable doubt, her evidence that she did not consent.
Aside from the earlier interactions, the appellant’s case at trial was that the complainant would not have failed to resist, call out in protest, or remain passive during the act, unless she was consenting. This aspect of the appellant’s case invited the jury to make an assumption about how a victim would “ordinarily respond” when subjected to a non-consensual sexual act and to compare that with the complainant’s lack of resistance or response to being digitally penetrated. The reality is of course that there is no such thing as an “ordinary response” by a victim of rape or sexual assault. The jury’s task was to consider the complainant’s evidence that she did not consent in the context of the entirety of the evidence and determine if they were satisfied beyond reasonable doubt that she had not consented to the act of digital penetration. In doing so, it was open for the jury to accept the complainant’s evidence that she “froze” when the appellant penetrated her and that her response in no way indicated her consent to that act.
The jury were also entitled to reason that the complainant’s evidence that she did not consent was supported by the preliminary complaint evidence and the evidence of her distressed condition. Her behaviour in escaping to the bathroom to get away from the appellant, sending panicked texts to her friend when she returned to her room, leaving the apartment in the early hours of the morning to seek out police assistance, calling her former partner in an upset state and making her complaint to police when they finally arrived, was consistent with her account that she did not consent. So too was her demeanour during the telephone call to the Policelink operator. Having listened to the recording of that call, I consider it was open for the jury to conclude that the complainant was distressed at the time, consistent with her account that she did not consent to the act of digital penetration.
As to the defence of mistake of fact, whilst the jury was required to consider all the relevant circumstances established by the evidence, the critical point agitated at the hearing of this appeal was whether the jury ought to have had a reasonable doubt as to whether the appellant heard her say “stop” or “no” before the act of penetration.
There was no direct evidence that the appellant had not heard, or had misheard, the complainant. Her evidence was that she had said words to the effect of “Stop. I’m too drunk to be doing this. I’ve had too much to drink” and “No”, as he pulled her underwear aside after lifting up her skirt. The jury were entitled to accept the complainant’s evidence that she said those words and that she spoke at a normal volume level when she did so. In circumstances where there was no challenge to the complainant’s evidence that the incident happened at night, when the pair were alone in the room, in close proximity, and when there was no other noise at the time, the jury were entitled to conclude that the appellant heard the complainant voice her protest. Further, it was open to the jury to accept the complainant’s evidence that the appellant shushed her and to therefore conclude that he did in fact hear her but disregarded her clear verbal expressions that she was not consenting to the “pretty obvious” act that was about to take place, and which then occurred.
The jury was also entitled to place little significance, if any, upon the concession made by the complainant about what she had said to the Dutton Park police about whether the appellant may have “misheard” her. The statement did not amount to positive evidence that the appellant had misheard her. It also provided no real basis for such an inference to be drawn. It was open to the jury to accept the complainant’s explanation about the making of that statement. The jury could reasonably have concluded that the complainant was simply verbalising a potential possibility as she sought to process and rationalise what had happened to her and as she tried to understand why the appellant had ignored her protests. It was reasonably open to the jury to consider that her statement to police did not provide any evidence admitting of a reasonable possibility that the appellant did not hear her or had misheard her.
In my opinion, it was open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt of the appellant’s guilt. Accordingly, the appeal must be dismissed.
Order
I would order that:
1. The appeal be dismissed.
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