R v McPartland

[2017] QCA 35

SUPREME COURT OF QUEENSLAND

CITATION:

R v McPartland [2017] QCA 35

PARTIES:

R
v
McPARTLAND, Brian Michael
(appellant)

FILE NO/S:

CA No 225 of 2016
DC No 257 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich – Date of Conviction: 25 July 2016

DELIVERED ON:

17 March 2017

DELIVERED AT:

Brisbane

HEARING DATE:

30 November 2016

JUDGES:

Margaret McMurdo P and Morrison JA and Ann Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

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 majority verdict of one count of rape as a domestic violence offence – where the appellant contends that the guilty verdict is “unsafe and unsatisfactory” and cannot be supported having regard to the evidence – whether a verdict of guilty was reasonably open to the jury on the whole of the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the appellant was convicted by majority verdict of one count of rape as a domestic violence offence – where the evidence at trial made clear to the jury that the appellant had been in prison for a lengthy period prior to the commission of the alleged offence – where the appellant contends that a miscarriage of justice occurred when the trial judge wrongly admitted evidence of his prior imprisonment and because of the failure of defence counsel at trial to object to it – where the judge directed the jury to ignore the fact that the appellant had been in prison – where the appellant contends that no direction was capable of curing the extraordinary prejudice created by that evidence – where the appellant contends there was no explicable forensic reason for defence counsel’s decision not to object to that evidence – whether there is reason to consider the jury did not follow the directions of the trial judge – whether defence counsel’s decision was objectively rational – whether a substantial miscarriage of justice has occurred

Criminal Code (Qld), s 668E(1)

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
Nudd v The Queen (2006) 80 ALJR 614; (2006) 225 ALR 161; [2006] HCA 9, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited

COUNSEL:

S R Lewis for the appellant
T A Fuller QC for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. MARGARET McMURDO P:  On 25 July 2016 after a four-day trial the appellant was convicted by majority verdict of raping the complainant on 28 October 2013, the offence being a domestic violence offence.  He has appealed against that conviction on the basis that it is unsafe and unsatisfactory and not able to be supported having regard to the evidence.  He also contends that there was a miscarriage of justice when the trial judge wrongly admitted evidence of discreditable conduct and because of the failure of the appellant’s counsel at trial to object to that evidence.

2. Consideration of the first ground of appeal requires this Court to independently assess the whole of the evidence at trial to determine whether it was open to the jury to conclude beyond reasonable doubt that the appellant was guilty.[1]  It is sensible to first consider the second and third grounds of appeal as their determination will set the parameters for consideration of ground one.  All grounds require an understanding of the evidence and other events at trial.

   The relevant evidence and events at trial

   [1]M v The Queen (1994) 181 CLR 487, 493 – 495; SKA v The Queen (2011) 243 CLR 400, 405 [12].

   The complainant’s evidence

3. Before the complainant gave evidence, defence counsel told the judge he would be cross-examining her about transcripts of her phone calls with the appellant when he was in prison.  He submitted this would reveal the nature of their relationship and suggest a reason for her to make a false complaint.[2]

   [2]Transcript of Prerecorded Evidence, T1-7 – T1-8, AB 14 – 15.

4. The complainant gave her evidence remotely and prior to the trial as a special witness under s 21AK Evidence Act 1977 (Qld) on 20 and 21 June 2016. She said she first met the appellant in 2001 as she was friendly with his niece. They had sexual intercourse over, she thought, three nights. She did not see him again until 2003, at the funeral of her uncle-in-law who was the appellant’s half-brother. Two or three months later they commenced a romantic relationship, contacting each other by phone, letters or weekly visits, but there was no sexual aspect to it. In October 2012 he came to live with her in Laidley.[3]  By this time their relationship involved daily sexual intercourse, “always on his terms.”[4]  Sometimes she would wake up and find him “inside” her.  Sometimes he would fall asleep during sex and she would try to get him to stop but he would not.  Sometimes she would wake up with his finger inside her vagina or that he had parted her “bum cheeks” and was masturbating.  These incidents occurred between January and June 2013, two or three times a week.  He would say he was “about to come” and she had to just lie there not moving, frozen.  They also had consensual sex throughout that period but he was not able to reach orgasm.  She had sleeping issues and was taking his Panadeine Forte.  She did not consent to penetration when she was asleep.  She told him she did not want him to do these things while she was asleep because she had been sexually abused as a child and this triggered memories.  He would just laugh and say “I can fuck you anytime I want.  You’re my woman.”[5]

   [3]Above, T1-14 – T1-15, AB 21 – 22.

   [4]Above, T1-16, l 29 – l 30, AB 23.

   [5]Above, T1-16 – T1-18, AB 23 – 25.

5. In June 2013 they had an argument at the Laidley Hotel about her belief that he had been unfaithful with another woman.  The previous Friday he had said that he was madly in love with the complainant and wanted to marry her; he was just going through a rough patch after smashing the car, which was registered in her name, and he was feeling pressured and everything was getting on top of him.  She accepted his reassurance that he did not have another girlfriend, even though he said he had had sex with another woman.  She was willing to forgive him.  When she saw him at the pub laughing with the woman with whom he was having the affair, she walked up and punched him.  There was a warrant out for his arrest because he had broken his parole and he was arrested at the end of June 2013.  He was then in custody until early October 2013.  She visited him every week, sent letters, and phoned him daily.  Upon his release in October 2013 he came to live with her again.[6]

   [6]Above, T1-19 – T1-21, AB 26 – 28.

6. On 25 October 2013 he was having a shower whilst she was sitting on the toilet.  They discussed how erratic his friends were.  When he entered the shower he was “all lovey-dovey and whatnot, showing [her] affection” but when he came out of the shower he was a different person.  He began to argue.  He bent her fingers back really hard and she cried; she thought he had broken her finger.  He said, “Well, don’t fuck with me.”  He then became “all lovey-dovey” again and the day continued normally with a shopping trip to Bunnings.[7]

   [7]Above, T1-21 – T1-22, AB 28 – 29.

7. On 28 October 2013, after she had taken her children to school, he wrestled her onto the bed and held her really tight in a foetal position with his right arm underneath and around her neck area.  They had been arguing over his affair and she was suspicious that it was continuing.  He was wrapped around her.  He put his left hand into her underwear and fingered her vagina.  He would regularly do this when they argued.  He said “Oh, somebody’s wet, somebody’s wet.”  She kept saying “No, no, no.”  He always thought that having sex would make everything better.  On this occasion he rubbed her clitoris and tried to kiss her on the neck.  She tried to get away but he held her tight.  She remembered “that heaviness” and could not move.  She kept saying, “No, Brian, no, Brian, just let me go, just let me go.”  He moved around to the side of the bed in front of her and jumped over her, holding her by the throat with his left hand.  She tried to take the pressure off her throat.  He slid her undies to the side and put his penis inside her vagina.  She tried to fight him off but he was too heavy and “his hands were just so big around [her] throat.”  He orgasmed and withdrew from her.  She was just trying to breathe.  He looked at her and said, “Do you think I raped you?”  She said “No” because she was really scared and did not know what was going to happen.  In evidence she confirmed that she had not consented at any stage.  Her throat and vagina were sore.  She told him she did not think he had raped her because she thought she was going to die; he had his hands around her throat; she could not breathe and was scared.  He was then nice to her, like it never happened.  She went into her study and worked.  The next time she remembered having sex with him was the following Sunday.[8]

   [8]Above, T1-22 – T1-25, AB 29 – 32.

8. One night, after the incident but whilst she and the appellant were still together, she was driving home in the dark, crying and upset.  She phoned her friend, JK, and told her what had happened.  After she and the appellant broke up in early November 2013, her friend AG was staying with her and she told her what happened.  AG encouraged her to go to the police.  She first made a complaint to police on New Year’s Eve 2013 and provided a formal statement on 4 February 2014.[9]

   [9]Above, T1-25 – T1-26, AB 32 – 33.

9. Prior to the alleged rape the appellant, she said, was regularly violent towards her.  She was much shorter than him.  He would grab her by the arm and wrestle her to the ground.  He once held her by the throat up against the bed.  He would slap her face, on one occasion because she would not give him money.  He was always rough and punching her in the leg.  She always had bruises on her leg and marks around her wrist where he would twist it.  He told her that if she ever left, he would stalk her and if he found her with anyone else, kill her.  He threatened her all the time.  She felt always on edge, controlled, manipulated and fearful.  His behaviour became much worse after his release from custody in early October 2013; it was as if he wished to have revenge on her.[10]

   [10]Above, T1-26 – T1-27, AB 33 – 34.

10. She was cross-examined over two days.  She agreed that at some point she became suspicious of the appellant whenever she could not contact him.  She rang his parole officer and reported him for drinking alcohol.  He had taken her car and mobile phone and said he was looking for work but she found him at a mate’s house.  She walked in and punched him because she was irate.  He had smashed a car that was registered in her name and had not been home for a few nights.  She was concerned he would drink drive and smash her other car too.  She rang his parole officer because she was concerned about his health and worried about his drinking and gambling.  She did not know at this time that he was seeing another woman.  She found that out later, the night she walked into the pub and saw them together.  When she punched him in the head and pushed the woman’s face against the wall, other people grabbed the complainant.[11]  She agreed she said, “I knew you were fucking my man, you little slut.”[12]  A week earlier she had seen them together in the pub and had become suspicious that something was going on between them.  On that occasion she said, “If I find out you’re fucking my man, you better watch the fuck out.”[13]  When the appellant said she was out of line she responded, “Shut the fuck up.  You’ve been out of line for two weeks, cunt.”[14]

    [11]Above, T1-29 – T1-31, AB 36 – 38.

    [12]Above, T1-32, l 7, AB 39.

    [13]Above, T1-33, l 16 – l 17, AB 40.

    [14]Above, T1-33, l 22 – l 23, AB 40.

11. She agreed that she performed consensual oral sex on the appellant the day after the alleged rape and probably again later that week.  They had always talked about having a child and she was particularly conscious about when she was ovulating because she was trying to fall pregnant.  On 30 October 2013 she assisted him to provide a sample of his sperm for testing by masturbating him until ejaculation.  They had talked about getting married but by this stage she was not keen, although she wanted to have his baby.[15]

    [15]Above, T1-34 – T1-34, AB 41 – 42.

12. On 4 November 2013 she packed his bag and put it in the trunk of the car.  She did not want to live with him because he had serious alcohol and gambling addictions.  On 8 November 2013 she applied for a domestic violence order which was granted on 20 January 2014.  She changed her phone numbers and had no contact with him after 4 November 2013.  She agreed, however, that after she got the order she would ring his phone to hear his voice; for eight years they had maintained a relationship through phone calls and she was mourning its loss.[16]

    [16]Above, T1-35 – T1-36, AB 42 – 43.

13. On 28 November 2013 she was at the pub with a friend when the appellant’s new girlfriend walked in and they had another fight which resulted in the complainant being charged with a public nuisance offence.  This was well after she knew her relationship with the appellant was finished.  The following day she distributed posters in the Laidley area defaming the appellant because she found out that he had been having sex with men behind her back for eight years.  She distributed 300 pamphlets and 10 A3 posters.[17]

    [17]Above, T1-36 – T1-38, AB 43 – 45.

14. She agreed that after reporting the rape to police on 31 December 2013 and giving them a statement on 4 February 2014, she gave them an additional statement on 25 April 2014 and a further statement on 24 September 2015.  She was cross-examined about inconsistencies between the statements.  She said that she was reluctant to report the alleged rape because she was still in love with the appellant, even after obtaining the domestic violence order.  She did not want him to contact her again but she did not want him to get into trouble.  AG persuaded her to make the complaint.  The police officers left a lot of things out of the first statement and that is why she had to make a second statement.  Police told her that the history of domestic violence was not relevant so that was why it was not in her first statement.[18]  She maintained that she was raped by the appellant on 28 October 2013 and that there was a history of non-consensual sexual activity.

    [18]Above, T1-40 – T1-41, AB 47 – 48.

15. She agreed that she was fearful of the appellant prior to the suspension of his parole in June 2013 and that his return to prison was an ideal opportunity to sever all ties with him.  Instead, she continued to support him by writing letters to the Parole Board.  She wanted him in her life and she thought things would change because he promised they would get better.  She agreed that in her statement of 25 April 2014 she said that on 28 October 2013 she did not want to have sex with the appellant because they had been fighting and she was still angry with him about the other woman.  She did not report the alleged rape to police because she was scared.  She agreed that in her application for a domestic violence order on 8 November 2013 she said that on Monday, 4 November 2013 he took the dog for a walk and did not return until 6 November 2013.  When she said in her evidence that he packed his bags and left on 4 November 2013 she had the dates wrong.  She said that if she swore at the appellant it was in retaliation for his verbal abuse.  She agreed that eventually their relationship got to the point where “he does it to me, therefore I will do it to him.”  She could never express her emotions because it was all about him.  She did not tell anybody about their troubled relationship because she was ashamed.  She tried to talk to him about their problems and they began relationship counselling at Uniting Care in Ipswich.[19]  In her application for the domestic violence order she made no mention of the alleged rape.  She said that was because at that stage she did not want to admit it had happened.  She did not even want to admit the domestic violence.  She left out a lot of things in that application.[20]

    [19]Above, T1-50 – T1-53, AB 57 – 60.

    [20]Above, T2-4, AB 66.

16. She agreed her relationship with the appellant was confused, toxic, complex and co-dependant.  She agreed that whilst she was in prison he would ring her and they would have “phone sex.”  She supported him emotionally and financially.  He regularly rang her from prison for 10 minutes, two, three, and even five times a day.  Defence counsel cross-examined her at length about her conversations with the appellant during their phone calls whilst he was in prison.  She said she continually asked the appellant to tell her the truth about his relationship with the other woman.  She became angry when he would not speak to her about the other woman and sometimes would tell him that their relationship was over.  By the end of the day he would “soothe” her and she would accept his apology and agree to take him back.  She was in love with him and wanted a relationship.[21]

    [21]Above, T2-4 – T2-6, AB 66 – 68.

17. When she visited him in prison on 11 July 2013 he told her that he had slept with the other woman once but he “couldn’t stay hard and that he didn’t orgasm and it was a huge mistake.”[22]  She always told him at the end of each day that she loved him because she knew that he hated going to his prison cell without hearing that.  She put money into his prison account to allow him to buy toiletries and make phone calls.  She considered that the appellant had lied to her about his affair and that it happened more than once.  She was depressed and suicidal.  She was having thoughts about hurting him.  She had to keep working because she had a mortgage.  She stopped being a parent and felt her world was caving in.  The only thing that made her happy was her visits to him in prison.[23]

    [22]Above, T2-6, l 43, AB 68.

    [23]Above, T2-6 – T2-11, AB 68 – 73.

18. On 23 September 2013 in a telephone conversation with the appellant from the prison she told him that their relationship was finished and she was “going to ring the parole lady” and tell her.  Someone had told her that the other woman was in love with the appellant and the complainant was concerned that he was in love with her.  The appellant pleaded with the complainant to continue their relationship.  She told him he had not been truthful about the extent of his relationship with the other woman.  The complainant told him she was having her phone number and address removed from the prison so that he could not ring or send her letters.  Her brain was saying their relationship was over but her heart was not.  She said their relationship was not tit for tat but that when he was in prison he needed her more than she needed him and she felt more in control because he was not physically able to intimidate her.  Whilst she could have stopped the relationship then, and her brain told her to do this, she did not want to as they had been together for so long.  She agreed that on 2 October he phoned her to say he would soon be coming out of jail and that she was quite excited about this and planned a special dinner.[24]

    [24]Above, T2-12 – T2-20, AB 81 – 82.

19. She agreed that later after their relationship had broken up she “skyped” the appellant to congratulate him about his pregnancy with and engagement to the other woman.  She wanted him to know that she knew and that she still did not wish to have any contact with him.  She agreed that in discussions with counsellors at the Centre for Sexual Violence she may have talked about her nightmares and flashbacks in which she was physically hurting the appellant.  She said that at this time she was still mourning the end of their relationship.  Some mutual friends asked her to drop the charges against him.  She informed the police but the friends would not provide the police with a statement.  She accepted that she wanted the appellant punished because he had punished her a lot.[25]

    [25]Above, T2-20 – T2-23, 82 – 85.

1. In re-examination she was asked about her domestic violence protection application in November 2013.  Whilst she did not refer to the alleged rape she did refer to other items of sexual abuse.  She said the appellant pressured her to have sex when she did not want to; he would never take no for an answer.  He said “You are my woman and I’ll fuck you whenever I want!”[26]  This made her feel violated and not heard.  When they fought, he would tackle her to the bed, manipulate her by kissing her neck and place his hands down her pants after she repeatedly said no.  That this made her feel violated, ashamed and embarrassed.  As to the alleged rape on 28 October 2013, she said she participated because she wanted to appease and soothe him.[27]

   [26]Above, T2-24, l 1 – l 2, AB 86.

   [27]Above, T2-24 – T2-25, AB 86 – 87.

   Other evidence

2. AG gave evidence that she had been a friend of the complainant for 35 years.  After the complainant’s relationship with the appellant ended, she came to AG’s house.  The complainant told her that the appellant had sexually abused her, that he had raped her.  AG asked her what happened.  She said one morning when the kids went off to school and they were home alone they started arguing.  They were on the bed in the bedroom.  During the argument he grabbed her throat, squeezed it, held her down on the bed, pulled her knickers down to one side and raped her.  She said she got up and put on a pair of shorts.  He asked if she thought he had raped her and she said no.  This conversation occurred in November 2013 just before Christmas and before she had made a complaint to police.  AG encouraged her to go to the police but that did not happen until December 2013.[28]

   [28]Transcript of Trial, T2-4 – T2-6, AB 124- 126.

3. JK gave evidence that she had been a friend of the complainant for 25 years.  She had never met the appellant but knew that he was in a relationship with the complainant.  She and the complainant often spoke by phone.  One night in 2013 when JK was travelling back from work whilst the complainant and the appellant were still in a relationship, the complainant phoned her and sounded upset and distressed.  She was talking about the appellant, the other woman and his alcohol addiction and during the conversation said that the appellant had raped her one morning.  She said they were fighting about the other woman and she did not want to have sex.  She kept saying no but he kept doing it.  At the end of it he asked “does it feel like I’ve raped you”.  She did not know when the rape had occurred but it seemed very recent.  The complainant’s relationship with the appellant ended within the following week.[29]

   [29]Above, T2-8 – T2-9, AB 128 – 129.

4. Police officer Flintham had the task of investigating the complainant’s allegations in January 2014.  As the complainant was no longer in the area, police officer Flintham arranged for a Mt Gravatt officer to take her statement.  When Flintham reviewed the statement she thought there were issues that needed further clarification and contacted the complainant to take a further statement which the complainant eventually signed on 25 April 2014.  Whilst taking that statement the complainant told her about instances of domestic violence.  She did not include them because she thought they may not be admissible.  In September the Office of the Director of Public Prosecutions asked her to obtain further information.  She took an additional statement which the complainant signed on 24 September 2014.  The complainant indicated that she was satisfied with the accuracy of her statements to police.[30]

   [30]Above, T2-12 – T2-13, AB 132 – 133.

   The defence case

5. The appellant did not give or call evidence.  The defence case, however, was that the jury could not be satisfied beyond reasonable doubt that the complainant was a witness of truth, given the nature of her relationship with the appellant.  She continued to have a sexual relationship with him after the alleged rape.  She did not make a timely complaint.  There were inconsistencies in her statements.  She was full of hate over the appellant’s affair with the other woman and was determined to have revenge on him.  She had previously had him returned to prison for a breach of parole and enjoyed the power this gave her.  When all these things were considered together, the defence case was that the jury could not exclude the possibility that she had made a false complaint to punish the appellant.  Alternatively, the defence case was that, even if the jury were satisfied beyond reasonable doubt that she was not consenting, given the nature of their relationship they could not exclude the possibility that the appellant honestly and reasonably believed she was consenting,

   The judge’s directions

6. Prior to counsel addressing the jury, the judge discussed with them the directions to be given.  The judge noted that it was obvious the eight year non-sexual relationship between the complainant and the appellant was being conducted whilst he was in jail and that their sexual relationship commenced after his release from jail when he was on parole.  It was therefore appropriate, his Honour considered, to tell the jury that they were not to speculate about this.  Defence counsel stated that he would be telling the jury that that was all part of the narrative of their relationship.

7. His Honour directed the jury on this matter, without objection from counsel, as follows:

   “As both counsel have mentioned, there is, as part of the narrative of the facts of this matter, evidence of the fact the [appellant] had been in prison before he came to live with the complainant in October 2012, that he returned to prison in mid-2013, having breached his parole by drinking, and that he again was released from prison on parole in October 2013, when he again returned to reside with the complainant.

   That evidence is irrelevant to your consideration of the charge.  It is probative of nothing and it can be – not be considered by you.  You are not to speculate as to why the [appellant] may have been in prison.  That, too, is entirely irrelevant.  It would be entirely improper for you to reason that the [appellant] may have committed some other offence in the past and that makes it somehow more likely that he may have committed the offence charged here.”[31]

   Grounds 2 and 3

   [31]Summing-up, p 7, AB 147.

   The appellant’s contentions

8. Grounds 2 and 3 are interconnected and are most conveniently discussed together.  The appellant contends there was no explicable forensic reason for defence counsel to allow the evidence in the trial to be given in a way which made clear to the jury that the appellant had been in prison for a lengthy period prior to the commission of the alleged offence.  The defence case that the complainant was angry with the appellant because of his affair with the other woman did not require revealing to the jury that the recorded phone conversations between the complainant and the appellant took place whilst he was in jail.  As the complainant’s evidence was pre-recorded, even if she volunteered inadmissible information in answering questions, this could have been edited out prior to trial.

9. Although the judge directed the jury to ignore the fact that the appellant had been in prison, the appellant contends that no direction was capable of curing the extraordinary prejudice created by that evidence.  The jury had difficulty reaching their majority decision in a finely balanced case and this prejudicial evidence of no probative value was likely to have been a significant factor in them convicting.  For these reasons, the appellant contends that on this ground, the appeal against conviction should be allowed, the guilty verdict set aside and subject to the outcome on ground one, either a verdict of acquittal entered or a new trial ordered.

   Conclusion on these grounds of appeal

10. The difficulty with the appellant’s contentions is that his trial counsel, no doubt after discussion with and on instructions from the appellant, conducted the trial on the basis that the jury, in understanding the full relationship between the appellant and the accused, would have to know that he had had his parole revoked on the word of the complainant.  On the way the defence was conducted at trial, this was a critical fact in portraying the complainant as a fickle, obsessed woman who continued to have a consensual sexual relationship with him both before and after the alleged rape and who may have made a false complaint of rape to get back at him for having an affair with another woman.  That approach having been unsuccessful with the jury and with the benefit of hindsight, he now argues that his counsel should have run the trial differently, avoiding any mention of the appellant’s time in jail.

11. It is important to note that the evidence that the appellant was in prison was not led as discreditable conduct or uncharged acts for the purpose of proving the offence.  The primary judge gave strong directions to the jury that the evidence was merely part of the narrative, was irrelevant to their consideration of the charge and was probative of nothing.  His Honour also warned the jury against propensity reasoning.  There is no reason for this Court to consider the jury did not follow those firm and clear directions.

12. These grounds of appeal focus upon the outcome and process leading to the appellant’s conviction and whether under s 668E(1) Criminal Code (Qld) a miscarriage of justice has resulted. Viewed objectively, defence counsel’s decision at trial to conduct the appellant’s case in a way in which the jury understood the appellant had been in prison and had his parole revoked was, viewed objectively, a rational decision. Had the complainant’s pre-recorded evidence been edited pre-trial so that all infelicitous references to his time in prison were removed, a great deal of the flavour of the relationship between the complainant and the appellant upon which the defence case was based would have been lost. Ordinarily as a criminal trial is adversarial in nature, parties are bound by the conduct of their counsel.[32]  Where counsel makes a forensic decision at trial which viewed objectively was rational, then an appeal ground gainsaying that decision would not ordinarily succeed.[33]  Defence counsel’s conduct of this case in leading evidence of the fact that the appellant had been in prison and had his parole breached was objectively capable of being viewed as a rational decision in the conduct of the case.  It follows that these grounds of appeal are not made out.

    Ground One

    [32]Nudd v The Queen (2006) 225 ALR 161, Gleeson CJ, 164 – 165 [9].

    [33]TKWJ v The Queen (2002) 212 CLR 124, Gleeson CJ, 130 – 131 [16], Gaudron J, 133 [26] – [27], McHugh J, 155 [95], Hayne J, 158 [107].

    The appellant’s contentions

13. The appellant emphasises the following matters which he contends demonstrate that the jury ought to have had a reasonable doubt about his guilt.  The complainant admitted to self-medicating with the appellant’s prescription medication during their relationship.  She failed to complain in her first police statement that the appellant had grabbed her by the throat during the alleged offence and said, “Somebody’s wet”.  There was an inconsistency between her evidence and her police statement as to which hand the appellant used to hold her by the throat during the offence.  She had a strong motive to lie because of the appellant’s affair with another woman; she had said she wanted to punish him and to have him “dig his own grave”.  She was so incensed after their relationship ended that she circulated defamatory leaflets and put up defamatory posters of the appellant.  The complainant’s evidence that she had consensual sexual experiences with the appellant after the alleged offence, including collecting a sperm specimen for a fertility clinic so that the complainant could have his child, was inconsistent with absence of consent during the alleged offence.  She did not mention the alleged offence in the domestic violence application which she sought a few weeks after the alleged rape, even though she included details of other sexual abuse.  Her demeanour during her tape-recorded evidence showed a vindictive, angry woman rather than an honest, reliable complainant.

14. For all these reasons the appellant contends that this Court would have a reasonable doubt as to the appellant’s guilt and conclude that the guilty verdict amounts to a miscarriage of justice.  He contends that the appeal should be allowed on this basis, the guilty verdict set aside and a verdict of acquittal entered.

    Conclusion on this ground of appeal

15. The fact that the complainant had taken Panadeine Forte when the appellant was living with her was no reason to doubt her credibility or reliability.  She did give a number of further statements to police, each disclosing a little more detail about the alleged offence and the background to it.  But police officer Flintham explained that she did not take the first statement and needed more detail.  The complainant had given her a history of domestic violence but she decided not to include it in the earlier statements.  She took a further statement at the direction of the DPP.  The fact that the complainant initially omitted to tell police that the appellant had grabbed her by the throat and said, “Somebody’s wet”, and that she was inconsistent as to which hand the appellant used to hold her by the throat did not compel the jury to reject her evidence as credible and reliable.  In any case, I note that AG’s evidence was that the complainant told her the appellant had grabbed her by the throat.

16. The appellant rightly points out that in re-examination the complainant did state she made a number of allegations of sexual abuse against the appellant in her domestic violence application in November 2013 and yet did not mention the alleged offence.  She explained in cross-examination that this was because she did not at that stage want to admit the rape had happened.  The jury were entitled to accept that explanation.

17. Of more concern was the volatile and dysfunctional relationship between the complainant and the appellant during which the complainant had demonstrated great jealousy towards the other woman and, at times, hatred towards the appellant.  She did, the defence emphasised vigorously at trial, have a motive to make a false claim of rape against him.  It was also an unusual feature that she had consensual sexual contact with him shortly after the alleged offence, including obtaining his sperm sample with a view to becoming pregnant.  These issues, however, were fully aired before the jury.  They were matters which made their task especially difficult.  But the offence of rape can occur during a sexual relationship even though preceded and followed by consensual sexual acts.  The complainant was entitled to refuse to have sex with the appellant on 28 October 2013.  If he forced her to have sex with him, without the rational possibility that he honestly and reasonably believed she was consenting, then he was guilty of rape.  The complainant’s credibility received support from the complaint evidence of her friends, AG and JK.

18. The possibility of the appellant honestly and reasonably believing the complainant was consenting was safely able to be rejected beyond reasonable doubt in light of the complainant’s evidence that he asked her afterwards, “Do you think I raped you?”.  It is telling that both AG and JK recalled the complainant stating that the appellant asked her after the alleged offence whether she thought he had raped her.  If the jury accepted the complainant’s evidence, which they were entitled to do, the appellant could have been in no doubt that she was not consenting to sex and that he was able to have sex with her only because he was holding her by her throat so that she could not escape.  It was plain from her evidence that she answered no to his question, only because she was in fear of him.

19. I have watched and listened to a significant portion of the complainant’s pre-recorded evidence and, contrary to the appellant’s contentions, I do not consider her demeanour required the jury to reject her evidence.  She was frank and forthright in admitting to her sometimes unsavoury behaviour towards the appellant during their relationship.  For example, she admitted attacking him and the other woman and to being filled with hatred and vengeance towards him from time to time, including when she distributed defamatory material about him.  She did, however, also show considerable insight into her emotions and the nature of their relationship.  I saw no reason for the jury to disbelieve or doubt the reliability of her evidence on the basis of her demeanour.

20. Having reviewed the whole of the evidence at trial I am confident it was open to the jury to conclude beyond reasonable doubt that the appellant was guilty.  This ground of appeal is not made out.

    Order:

21. As the appellant has not succeeded on any grounds of appeal, the appeal against conviction must be dismissed.

    The appeal against conviction is dismissed.

22. MORRISON JA:  I have had the benefit of reading the draft reasons of the President.  I agree with those reasons and the proposed order, but wish to add some comments of my own.

23. The complainant gave a compelling account of the relations between her and the appellant.  That is evident from the transcript as well as the pre-recorded evidence, which I have seen and to which I have listened.  She was asked to answer (both in examination in chief and cross-examination) questions of an intimate and, no doubt, embarrassing nature.  She dealt with that in a forthright manner that did not betray lack of candour, or confusion or lack of memory (except for inconsequential details).  There was no good reason why her evidence could not have been accepted by the jury as credible and reliable.

24. The relationship between the complainant and the appellant was graphically related by her.  It swung from what she described as the two being committed to each other even though not physically engaged, to a long-term but physically separated relationship conducted by phone (while he was in prison), to a full-on physical and emotional relationship once he left prison.  But, the relationship, from her description of it, was volatile and dysfunctional, and one where they were co-dependant on each other.  Some parts of her evidence will serve to illustrate the nature of the relationship between them.

25. At one stage they were trying to have a baby; they talked about having a child “the whole relationship. … We were engaged.”[34]

    [34]AB 41 lines 10-16 and 44.

26. The tumultuous nature of the relationship can be seen from this passage of her evidence in chief, which commenced with a question as to whether he verbally threatened her:[35]

    “All the time … The whole relationship.  Like, he’d tell me that if I ever left him, he would stalk me, he’d kill me if he ever found out that I was with anyone else.  He just threatened me all the time, all the time.  Like, when I look back, it was just all the time.  Like, I was on eggshells the whole relationship.  Like, even when, you know, during the eight, nine years that we lived apart, like, … I was always on edge, like I can remember it, always on edge.  I just felt controlled and manipulated and fearful.  I was very fearful.  I felt the most fearful when he come out in October 2013.  I felt the most fearful.  There was just things that he would say and do that … it was like he was just a different person altogether.

    … even from October ’12, like, the eight years he was …I wouldn’t say he was great, but he was a person who wanted things, and he manipulated me into thinking he wanted me, and I stayed.  Then he come home from October ’12 to June ’13, and it was chaotic every day.  Every day was chaotic.  I didn’t know who I was waking up to.  And then … that’s when the verbal abuse … a lot of verbal abuse, a lot of manipulation, and just chaos, chaos, chaos.  Every day was chaos.  And drama.  Every day.  Even if you walked down to the shop with him, you know, he’d steal something in the shop.  Every day, it was just chaotic.  It was so chaotic.  But was I fearful then?  Probably no, I don’t remember being fearful.  Even when he had me up against the bed by the throat, I wasn’t fearful of him.  The only time when I felt fearful was from October when he got out early October, to November … it was like I … didn’t even know who the person was.  And then he just got so – just more and more aggressive every day, every day.

    It was like he had come home to revenge me … even the manhandling – that happened straightaway, like, started happening straightaway.  It was like that was the real person, because the person from the eight years was totally different to this person in this month that I saw.”

    [35]AB 33 line 44 to AB 34 line 32.

1. He took her phone and car, and lied about where he was going.[36]  That led to this incident when she punched him:[37]

   “… he had … two weeks before that, he smashed another car that was in my name.  He hadn’t been home for a number of nights during … this period.  Then I walked down to that house, to Dean’s house, and I went to my car first.  I checked the whole car to make sure that nothing was wrong with it.  There was alcohol in the car, and it looked like that Brian was not driving the car, that someone else was driving the car, which made me furious, and then I walked in.  His friend Darren was there, and Dean was at the house, and I walked in the room, and I punched [the appellant].”

   [36]AB 37.

   [37]AB 38.

2. Then things really soured when she confirmed that he was having an affair with another woman.[38]

   [38]AB 38-40.

3. When she reported him to parole officer she said she was “worried about everything, because that’s how [the appellant] wants you to be, is – everything’s consumed about – around [the appellant].  He’s the victim in everything.”[39]

   [39]AB 38 line 25.

4. Her evidence otherwise revealed the dysfunctional nature of their relationship.  For example:

   (a)“… he would manhandle me all the time.  Like, him compared to me – I’m just really short compared to him.  Like, he’d just grab me by the arm, wrestle me to the ground.  He even held me once by the throat up against the bed.  He’d slap me in the face. … on that Saturday night I was talking about, he slapped me on the face because I wouldn’t give him money.  He was always rough, always punching me in the leg.  I always had bruises on my leg and stuff.  And, just, like, marks around my wrist.  Like, he’d hold my wrist.  And like, he’d twist it.”[40]

   (b)“I gave in to him all the time.  Because it was about him and making sure that I behaved.”[41]

   (c)“I just felt constantly defeated, like, in every other [indistinct] that he was abusing me.”[42]

   (d)“… if I reported it to the police, he’d go back to jail, and I didn’t want that to happen.  I didn’t. … I didn’t want him to be in trouble.  I just wanted him to change.  Like, I lived in this false hope.”[43]

   (e)after she obtained a Domestic Violence Order against him, she still called his number to hear his voice because for eight years that was how they had maintained their relationship (while he was in prison); “I was mourning the loss of the relationship.”[44]

   [40]AB 33 lines 35-42.

   [41]AB 47 lines 22-25.

   [42]AB 47 line 30.

   [43]AB 47 lines 34-38.

   [44]AB 43 lines 9-16.

5. After he was released from prison in October 2013 “he was wanting to get married [but] I wasn’t keen on … being married to him.”[45]  Early 2014 she obtained a Domestic Violence Order against him.  The relationship was, for her, over then.[46]

   [45]AB 42 lines 5-11.

   [46]AB 42 line 43.

6. From her evidence and the nature of the relationship it was open to the jury to draw several things.

7. First, they could not analyse the complainant’s evidence as though she should have reacted in the way one might expect from those in a more orthodox relationship.  This was a relationship quite out of the ordinary.  Thus the fact that consensual sexual acts occurred even after abuse did not mean that her evidence was necessarily to be doubted.  In particular the fact that the rape was not the subject of immediate complaint, and followed by consensual sexual acts, would not necessarily mean her evidence should be rejected.

8. Secondly, for a time there was hope on her part that he would change and the relationship would become better.  That persisted through many occasions of abuse by him.  That may seem perverse by ordinary experience, but was explicable in this relationship.

9. Thirdly, her account, peppered as it was with graphic details of the sexual behaviour between her and the appellant, was consistent.  It included frank acceptance of her own violent acts towards the appellant and another woman, as well as her actions to distribute posters revealing his alleged misconduct.  At no time was she evidently concealing things about herself, what happened or the appellant.

10. Fourthly, the true explanation for what may have seemed odd or inconsistent behaviour from the complainant was that she was hostage to the relationship.

11. I am confident that it was open to the jury to be satisfied beyond reasonable doubt as to the appellant’s guilt.

12. ANN LYONS J:  I agree with the reasons of Margaret McMurdo P and the order proposed by her Honour.