R v MCQ

Case [2018] QCA 160

SUPREME COURT OF QUEENSLAND

CITATION:

R v MCQ [2018] QCA 160

PARTIES:

R
v
MCQ
(appellant)

FILE NO/S:

CA No 268 of 2017
SC No 1068 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 2 November 2017 (Clare SC DCJ)

DELIVERED ON:

10 July 2018

DELIVERED AT:

Brisbane

HEARING DATE:

11 May 2018

JUDGES:

Fraser and Gotterson and Morrison JJA

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was found guilty after trial of two counts of rape and one count of sexual assault and acquitted of two counts of rape, one count of attempted rape and one count of sexual assault – where the offences occurred in the context of a marital relationship and the possibility of reasonable mistake about consent was raised – where it was submitted on appeal by counsel for the appellant that the jury could only have acquitted on the basis that they did not accept the complainant’s evidence of refusal and resistance on those particular dates and if they did not, the guilty verdicts were then irrational – where there existed several matters which could well have impacted upon the jury’s ability to reach a conclusion in relation to the counts the appellant was ultimately acquitted on – whether the different verdicts were logical with reference to the evidence – whether the verdicts were unreasonable and impermissibly inconsistent

R v Fanning[2017] QCA 244, cited

R v McLucas[2017] QCA 262, cited

COUNSEL:

A J Glynn QC for the appellant
J A Wooldridge for the respondent

SOLICITORS:

Tubaro Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. FRASER JA:  I agree with the reasons for judgment of Morrison JA and the order proposed by his Honour.

  2. GOTTERSON JA:  I agree with the order proposed by Morrison JA and with the reasons given by his Honour.

  3. MORRISON JA:  The appellant and the complainant were married in October 2012.  At that time she was 20 and he was slightly younger.  They remained together until late 2015.  During the course of their marriage, which ended in November 2015, they had three children: X, born in January 2013, Y, born in April 2014, and Z, born in September 2015.

  4. During the course of the marriage the complainant said that the appellant had either initiated or continued with sexual intercourse or intimate touching after she had told him not to, or to stop.  Her complaints in relation to those matters led to the appellant being charged with four counts of rape, one count of attempted rape, and three counts of sexual assault.  He was convicted on two counts of rape and one of sexual assault, and acquitted on the balance.  That has led to this appeal which is based upon the contention that the verdicts are inconsistent and therefore should be set aside.

  5. Set out…

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AGLC
R v MCQ [2018] QCA 160
Case
[2018] QCA 160
Decision Date

CaseChat Overview and Summary

The case of R v MCQ involved an appeal against a verdict of guilty on two counts of rape and one count of sexual assault, while being acquitted on two counts of rape, one count of attempted rape, and one count of sexual assault. The appellant was found to have engaged in non-consensual sexual acts with the complainant, who was his wife at the time, over a period of several years. The appeal focused on the inconsistency of the jury's verdicts, arguing that the acquittals on some counts rendered the convictions on others irrational.

The primary legal issue was whether the inconsistent verdicts amounted to a miscarriage of justice. The court had to determine if the jury's decision to convict on some counts and acquit on others was illogical or unreasonable, given the evidence presented. The appellant argued that the jury's acquittal on certain counts implied they did not believe the complainant's evidence of non-consent on those occasions, making the convictions on other counts irrational. The court considered whether the verdicts could be reconciled in a way that respected the jury's role and the evidence provided.

The court concluded that the verdicts, while seemingly inconsistent, were not irrational or repugnant to each other. The jury had been properly directed to consider each count separately, and there were sufficient differences in the evidence and circumstances of each incident to allow for differing conclusions. The court emphasised that it was not the role of the appellate court to substitute its judgment for that of the jury, provided the verdicts were logical and reasonable. The appeal was dismissed, affirming the trial verdict.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

The sole ground of appeal[1] is that the verdicts are unreasonable because the verdicts of guilty on counts 5, 7 and 8 are inconsistent with the verdicts of not guilty on counts 1-4 and 6.[1]Grounds 1 and 3 are no longer pursued.Background The complainant was about 19 when she first met the appellant. He was younger by about 18 months, and just short of 18 years old when the relationship began. They commenced dating towards the start of 2012 and the complainant fell pregnant with X in April 2012. They were living at Alderley at the time they married and stayed there until about July 2013. In about July 2013 they moved to Arana Hills, remaining there until about September 2014. During that time the second child, Y, was born. The complainant fell pregnant with Y in about August or September 2013. In September 2014 they moved again, to Narangba. The complainant found she was pregnant with Z on 31 December 2014. She suffered severe morning sickness for the whole of that pregnancy. They separated on 17 November 2015, when the complainant left with the children. Count 1 occurred at the Alderley house, counts 2-5 at the Arana Hills house, and counts 6-8 at Narangba. Before she had met the appellant, the complainant had been the victim of two sexual assaults by two other people. There were no details of those events, including as to their timing in relation to meeting the appellant. Further, the complainant had a long history of depression and anxiety, and had suffered some post-natal depression. After Y was born the complainant and appellant agreed that the Monday of each week was a day where “we would be able to sit down and talk and that we would have sex … to try and make sure that it happened on a regular basis”.[2] The Monday arrangement continued after they moved to Narangba, but the complainant was suffering severe morning sickness and was very unwell.[3][2]AB 35 ll 9-11.[3]AB 35 l 40. The complainant told the police in her interview that “throughout the whole pregnancy,[4] sex was very painful for me and I had no desire to have sex at all”.[5] The complainant said that the Monday arrangement was one she had felt pressured into making, and had agreed with reluctance.[6][4]This referring to the pregnancy with Z.[5]AB 62 l 6.[6]AB 64 ll 7-10. At trial the issues concerned only the question of consent. Not surprisingly, given that they were married for three years, the defence accepted that there had been an intimate relationship between the complainant and the appellant involving sexual activity. All that was put in issue was whether that activity happened with consent. The defence case was that there was no occasion where there was a lack of consent. The complainant gave evidence that there were numerous occasions when the appellant persisted with sexual activity notwithstanding her telling him not to or to stop. She also described occasions early in their relationship where, if they had an argument, the appellant would get angry and hold her against a wall or try and stop her from walking away.[7][7]AB 27.

Evidence

Evidence Before The Court

CML said that was all the complainant said to her. She was not cross-examined.Evidence of TEL TEL was another friend of the complainant and involved in the same church. He had known the complainant since early-2015. He said that the complainant had not ever disclosed to him anything about the appellant having sexual activity with her without her consent. He had referred the appellant and the complainant to the counsellor PJ. He said that the appellant told him, after he had had some counselling, that there was an occasion when he and the complainant were engaged in sex, and the complainant asked him to stop and he could not.[67] That was the only occasion on which the appellant mentioned it. He also said there was an occasion, towards the middle or end of 2016, when the appellant told him that the complainant “uses sex to manipulate men then calls rape when it goes too far”.[68] The example given by the appellant was that the complainant “would send him nude photos of herself while he was at work, how they would have a shower together, and then say no when it came to having sex”.[69] He described it as a conversation about how frustrating it was for the appellant.[67]AB 91 l 44.[68]AB 93 l 12.[69]AB 93 ll 17-19. TEL was not cross-examined.Legal Principles Recently the principles applicable to the issue of inconsistent verdicts was summarised in R v McLucas,[70] where Flanagan J said:[71][70][2017] QCA 262.[71]R v McLucas [2017] QCA 262 at [65]-[67], Sofronoff P and Boddice J concurring; internal citations omitted.“[65] In R v GAW Philippides JA (with whom Margaret McMurdo P and Holmes JA (as the Chief Justice then was) agreed) by reference to M v The Queen, Jones v The Queen and MacKenzie v The Queen summarised the principles concerning inconsistent verdicts as follows:“[19] The principles concerning inconsistent verdicts are well- established. Where alleged inconsistency arises in the jury verdicts upon different counts affecting an accused, the test is one of ‘logic and reasonableness’; that is, whether the party alleging inconsistency has satisfied the court that the verdicts cannot stand together because ‘no reasonable jury, who had applied their mind properly to the facts in the case could have arrived’ at them.[20]However, respect for the jury’s function results in a reluctance in appellate courts accepting a submission that verdicts are inconsistent in the relevant sense, so that:‘... if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.’[21]In that regard, ‘the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt’. Alternatively, the appellate court may conclude that the jury took a merciful view of the facts on one count; a function which has always been open to a jury.[22]It is only where the inconsistency rises to the point that the appellate court considers intervention is necessary to prevent possible injustice that the relevant conviction will be set aside. While it is impossible to state hard and fast rules, the following provide examples of relevant inconsistency; where the different verdicts returned by the jury are an affront to logic and common sense which is unacceptable, and strongly suggests a compromise in the performance of the jury’s duty, or which suggests confusion in the minds of the jury, or a misunderstanding of their function, or uncertainty about the legal difference between specific offences, or a lack of clarity in the instruction on the applicable law.”[66]In R v Conn; R v Conn; Ex parte Attorney-General (Qld) Sofronoff P (with whom Fraser JA and North J agreed) observed that it is not irrational for a jury to accept a witness’s evidence in relation to some events while holding a reasonable doubt in respect of other events sought to be proved by the same witness, particularly when that witness is the only witness to prove all issues. Juries are invariably directed to consider each count separately by reference to the evidence applicable to that count. Sofronoff P further stated:‘Frequently, the argument that a miscarriage of justice has occurred and can be demonstrated by what is said to be an irreconcilable inconsistency of verdicts is raised in cases in which the sole evidence implicating an accused is the uncorroborated evidence of a complainant. There will often have been a delay in the making of any complaint. Commonly it can then be said that there is no apparent difference in the character or quality of the evidence given by a complainant to prove each of the counts. However, it cannot be maintained that these factors alone would justify a conclusion that there has been a miscarriage of justice in any case in which a jury has convicted on some counts and acquitted on others. That is so because the significance of features like these will also depend upon the facts of a particular case, the way the trial has been conducted by the prosecution and the defence and the content of the Judge’s directions to the jury.’[67]Importantly for present purposes Sofronoff P observed:“It must constantly be borne in mind, when considering such a ground of appeal, that it is not for the Crown to justify or to rationalise verdicts of conviction and acquittal. Differing verdicts are inherent in trials of multiple counts, particularly when a jury is warned against propensity reasoning. It is for an appellant to demonstrate a miscarriage of justice by showing, by reference to the facts, the evidence, the witnesses and the conduct of the trial, that the differing verdicts are actually irrational or repugnant to each other and not merely that they might be.””

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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