R v HCB

Case [2020] QCA 164

SUPREME COURT OF QUEENSLAND

CITATION:

R v HCB [2020] QCA 164

PARTIES:

R
v
HCB
(appellant)

FILE NO/S:

CA No 103 of 2019
DC No 38 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 29 March 2019 (Moynihan QC DCJ)

DELIVERED ON:

11 August 2020

DELIVERED AT:

Brisbane

HEARING DATE:

17 March 2020

JUDGES:

Sofronoff P and Morrison and Philippides JJA

ORDER:

The appeal against conviction is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted by a jury of one count of sexual assault and four counts of rape committed against an 18 year old complainant – where the complainant, after a night out at a nightclub, stopped at a convenience store where the appellant worked and asked to use the bathroom, which the appellant refused – where the complainant subsequently returned to ask to use the bathroom again, to which the appellant agreed – where the appellant locked the door to the store and took the complainant to the toilet cubicle at the back of the store where the offending occurred – where the appellant initially denied any sexual contact between himself and the complainant to police – where, at trial, the appellant’s evidence was that the sexual activity with the complainant was consensual – whether, on the whole of the evidence, it was open to the jury to be satisfied, beyond reasonable doubt, that the appellant was guilty of the charged offences

Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12, cited
R v TAI[2018] QCA 282, cited

COUNSEL:

The appellant appeared on his own behalf
C N Marco for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

  1. SOFRONOFF P:  I agree with Philippides JA.

  2. MORRISON JA:  I have read the reasons of Philippides JA and agree with those reasons and the order her Honour proposes.

  3. PHILIPPIDES JA:

    Background

  4. On 29 March 2019, the appellant was convicted by a jury of one count of sexual assault (count 1) and four counts of rape (counts 2 to 5).  The offences were committed in the early hours of 22 September 2018 against an 18 year old complainant at the convenience store in Fortitude Valley where the appellant was working when the complainant used the toilet of the store.

  5. The appellant was sentenced to concurrent terms of imprisonment of five years and six months on counts 2, 3 and 5; imprisonment for three years on count 4; and 18 months imprisonment on count 1.

  6. The appellant appeals against his convictions on the grounds that they were unsafe and unsatisfactory.

    The evidence

    The complainant’s evidence

  7. The complainant gave evidence that on 21 September 2018, at about 10.30 pm, she went with her friend P to a nightclub in Fortitude Valley, where they met P’s friend,…

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Details
AGLC
R v HCB [2020] QCA 164
Case
[2020] QCA 164
Decision Date

CaseChat Overview and Summary

In the case of R v HCB, the appellant appealed against his convictions for one count of sexual assault and four counts of rape. The appellant was convicted by a jury following a trial in the Supreme Court of Queensland. The complainant, an 18-year-old woman, had consumed alcohol and drugs before visiting a convenience store where the appellant worked. The complainant asked to use the bathroom, which the appellant initially refused. After insisting, the appellant allowed her to use the bathroom, subsequently engaging in non-consensual sexual acts with her. The appellant claimed the sexual activity was consensual, but the jury found otherwise.

The primary legal issue was whether the jury's verdict was unreasonable or insupportable given the evidence presented. The appellant argued that the complainant's failure to resist or call for help indicated consent. The court considered whether the jury could reasonably infer consent from the complainant's behaviour and the effects of the drugs she had consumed. The court also evaluated the appellant's initial lies to police and their relevance to his credibility.

The court found that the jury was entitled to reject the appellant's arguments about consent and the effects of MDMA. The jury's decision was supported by the complainant's testimony, the inconsistencies in the appellant's account, and the CCTV footage. The court held that the jury was best placed to assess the credibility of the witnesses and the weight of the evidence. Therefore, the appeal against conviction was dismissed, and the appellant's convictions were upheld.

Orders

Orders of the court

The appeal against conviction is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant appeals against his convictions on the grounds that they were unsafe and unsatisfactory.The evidenceThe complainant’s evidence The complainant gave evidence that on 21 September 2018, at about 10.30 pm, she went with her friend P to a nightclub in Fortitude Valley, where they met P’s friend, W.[1] She was wearing a lingerie one piece and striped pants. The complainant stayed at the club for about four to five hours.[2] During that period, she had about nine mixed vodka drinks and took two or three “pingers” (MDMA tablets).[3] At about 2.15 am, she left the club with P and W and walked down the street to look at getting an Uber to go home.[4][1]AB2 at 133.16-27.[2]AB2 at 134.32.[3]AB2 at 134.39-46.[4]AB2 at 135.6; 135.26-29. The complainant stopped at a convenience store and asked the attendant (the appellant) if she could use the bathroom in the store.[5] He responded, “No” and she left the store.[6] CCTV footage showed W then entering the store to buy chewing gum while the complainant and P waited outside and P rolled a cigarette.[7] W returned and he and P became distracted and started kissing and trying to order an Uber.[8] The complainant kept saying that she needed to go to the toilet and said she would ask again. She walked back into the store and asked again if she could use the bathroom and started to “beg and say that [she was] not going to do anything” and that she just “need[ed] to use the bathroom”.[9] The appellant eventually agreed. He then locked the front doors of the store and told her to follow him to the bathroom.[10] She followed him through a storeroom. There was no light on in the storeroom. They went through to a bathroom which contained a hand basin and a separate toilet cubicle. There was a light in the bathroom.[5]AB2 at 135.41-136.6.[6]AB2 at 136.4-8.[7]AB2 at 209.36-38; 210.12-14.[8]AB2 at 137.6.[9]AB2 at 137.25-27.[10]AB2 at 138.13-17. The complainant entered the cubicle and was looking to see if there was a hook on the door for her to hang her bag. She was standing facing the toilet seat when she noticed the appellant. She “kind of blanked” and told him to turn around.[11] She had taken her pants off and her underpants were “halfway off”.[12] She noticed that the appellant had come closer to the toilet and she “started to freeze”. The appellant told her to “be quiet”.[13] The appellant then took the shoulder straps off the top part of her one piece, leaving her breasts exposed.[14] He started to touch her breasts and put his mouth on her nipples, sucking them.[15] This conduct constituted the count of sexual assault, count 1.[11]AB2 at 139.33-35; 140.30-31.[12]AB2 at 140-35-141.17.[13]AB2 at 141.33-35.[14]AB2 at 141.39-142.1.[15]AB2 at 142.3-6. The complainant tried to push the appellant and he then turned her around so that she was no longer facing him and pushed her so that she was leaning on the toilet. He then put his penis into her vagina.[16] That conduct constituted count 2, rape. The penetration was painful.[17] The appellant kept calling her “baby” and told her to be quiet. She asked whether he had a girlfriend, to which he said he did.[18] The complainant told him she had a boyfriend and the appellant said he did not care.[19] This continued for about 10 minutes.[16]AB2 at 142.[17]AB2 at 143.9.[18]AB2 at 142.36-47.[19]AB2 at 143.3.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The respondent submitted that the complainant’s evidence was supported by the appellant’s initial lies to police. Had the sexual activity been consensual, as the appellant later claimed, it was difficult to understand why he would have told such lies to police. It was open to the jury to conclude that the appellant lied out of a consciousness of guilt to divert police attention from the non‑consensual sexual activity that actually occurred. The appellant’s lies were relevant also to his credibility and the jury could well have been unpersuaded that it was an honest account because they found it implausible. His evidence was essentially that a young woman whom he did not know, who entered his store, because as he accepted, she urgently needed to use the toilet, offered in very strong terms to have sex with him and sexually asserted herself.Consideration The jury had the advantage of hearing the witnesses give evidence, including the complainant and the appellant. The appellant referred to various pieces of evidence in support of his contention that the jury ought to have entertained a reasonable doubt as to the issue of lack of consent. In my view, the jury were entitled to reject the submission made by the appellant on appeal and at trial that the failure of the complainant to hit or forcefully resist the appellant supported an inference of consent, given the complainant’s evidence that she froze and was scared. Furthermore, it may have been possible for the complainant to use her phone to call 000 for help when the appellant left the toilet cubicle as shown in the CCTV footage. However, her evidence is that she did not notice he had left. Nor was her evidence inconsistent with P’s evidence of having received a call from the complainant, since that call was made by the complainant using W’s phone after she had returned to the club and found him outside the club. As to the complainant’s lack of attempts to seek help, her account that she was scared of getting to her phone and that it was too far away is, on its face, a plausible account that was open to the jury to accept. The appellant’s argument that she could have had time to call for help when the appellant was not in the cubicle was again something that ought properly be left for them to determine in relation to the issue of consent. As to the appellant’s submission concerning the effects of MDMA, as the respondent correctly submits, the jury were entitled to have regard to the complainant’s denial that it had the effect of making her have feelings of increased closeness and to the evidence of Dr Robinson who spoke of the many variables at play in relation to the effect of MDMA on any particular person. It was for the jury to consider the weight to be given to the evidence. As to the submission that the complainant’s behaviour appeared “normal” when exiting the store, it was for the jury to determine what they made of the CCTV footage of the complainant when considered with the whole of the evidence, including the evidence of P and W that she was crying hysterically when she found them. Further, as the respondent submitted, inconsistencies in the complainant’s evidence were matters for the jury to consider in light of the whole of the complainant’s evidence, including her early, immediate and consistent complaints to friends when she was visibly distressed.