R v MCS; R v AAZ

Case [2018] QCA 184

SUPREME COURT OF QUEENSLAND

CITATION:

R v MCS; R v AAZ [2018] QCA 184

PARTIES:

In CA No 312 of 2017

R
v
MCS
(appellant)

In CA No 317 of 2017

R
v
AAZ
(appellant)

FILE NO/S:

CA No 312 of 2017
CA No 317 of 2017
DC No 2138 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 1 December 2017 (Devereaux SC DCJ)

DELIVERED ON:

7 August 2018

DELIVERED AT:

Brisbane

HEARING DATE:

18 May 2018

JUDGES:

Sofronoff P and Fraser JA and Atkinson J

ORDERS:

In CA No 312 of 2017

1.   The appeal against conviction is dismissed.

In CA No 317 of 2017

2.   The appeal against conviction is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – where the appellants were convicted of two counts of rape and acquitted on one count of rape and one count of sexual assault – where the appellants were charged on an indictment with another person – where the trial against that person was adjourned after it was found that an interview with the person had been translated wrongly – where the wrong translation inserted that the person had said they intended to take the complainant somewhere “and do something bad” – where the appellant in CA 312 of 2017 argued that there was a miscarriage of justice where the trial against the appellant was not also adjourned – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – where the appellant in CA 312 of 2017 argued that there was a miscarriage of justice in the failure to adequately direct the jury about the use of circumstantial evidence, in the failure to adequately direct the jury after the evidence of that appellant was replayed at the request of the jury, and globally in the conduct of the trial – whether there was, individually or cumulatively, a miscarriage of justice arising from these events

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where each appellant appealed on the basis of inconsistent verdicts – where each appellant was acquitted of one other count of rape and one other count of sexual assault – where these other two counts were reported later than the counts on which the appellants were convicted – whether the verdicts of guilty on counts 3 and 4 were reasonable because they were inconsistent with the acquittals on counts 1 and 2

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – MENS REA, HONEST AND REASONABLE MISTAKE AND RECKLESSNESS – where the appellants appeal the convictions on the basis of honest and reasonable, but mistaken, belief – whether the defence of honest and reasonable mistake was enlivened

Criminal Code (Qld), s 7, s 24
Jury Act 1995 (Qld), s 60

Gilbert v The Queen

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AGLC
R v MCS; R v AAZ [2018] QCA 184
Case
[2018] QCA 184
Decision Date

CaseChat Overview and Summary

The appeal against conviction by MCS and AAZ, both convicted of two counts of rape and acquitted on one count of rape and one count of sexual assault, was heard by the court. The appellants argued that the trial judge's handling of the proceedings constituted a miscarriage of justice, particularly in relation to the use of circumstantial evidence and the jury's handling of the evidence. Additionally, they contested the inconsistency of the verdicts and the impact of a wrongly translated interview on the trial. The court assessed whether the verdicts were reasonable and whether any errors in the trial process constituted a miscarriage of justice.

The court addressed several legal issues, including the admissibility of evidence against the appellants, the sufficiency of jury instructions regarding circumstantial evidence, and the impact of wrongly translated statements on the trial's fairness. The court considered whether the verdicts were inconsistent and whether the appellants' convictions were supported by the evidence. Furthermore, the court examined whether the appellants' acquittals on certain counts negated their convictions on others, and whether the trial judge's handling of the jury's request to replay evidence amounted to a miscarriage of justice.

The court concluded that the jury was properly instructed on the admissibility of evidence and the need to consider each charge separately. It found that the jury likely followed the judge's directions, and there was no evidence suggesting they misused the wrongly translated interview. The court held that the verdicts were reasonable and supported by the evidence. The inconsistent verdicts did not render the convictions on counts 3 and 4 unreasonable because the jury was adequately directed to consider each charge independently. The court found no miscarriage of justice in the trial process, and the convictions were affirmed.

The court dismissed the appeals, upholding the convictions of both appellants. The trial judge's handling of the proceedings was deemed fair, and the jury's verdicts were reasonable. The court found no basis for a new trial or appeal on the grounds presented.

Orders

Orders of the court

In CA No 312 of 2017

1. The appeal against conviction is dismissed.

In CA No 317 of 2017

2. The appeal against conviction is dismissed.

Background

Background to the litigation

Leave was given at the hearing of the appeal to amend MCS’s Notice of Appeal so that the following were his grounds of appeal:1.The verdicts on counts 3 and 4 were unreasonable and/or cannot be supported by the evidence;2.The verdicts on counts 3 and 4 were unreasonable, being inconsistent with the verdicts on counts 1 and 2;3.In respect of count 3, the learned trial judge failed to adequately direct the jury about the use to be made of circumstantial evidence, resulting in a miscarriage of justice;4.The learned trial judge failed to discharge the jury after the playing of an inadmissible recording, resulting in a miscarriage of justice;5.The learned trial judge failed to warn the jury not to give undue weight to excerpts from a recording replayed on a redirection, resulting in a miscarriage of justice; and6.The aggregate of errors made during the trial resulted in a miscarriage of justice.Background The prosecution at trial alleged that in the early hours of Saturday, 7 March 2015, the complainant willingly got into a car driven by RTG at or near the Woodridge Railway Station. The appellants, MCS and AAZ, were also present in the car. MCS sat in the front passenger’s seat and AAZ sat in the rear seat next to the complainant. The prosecution alleged in its particulars that there was inferentially a common unlawful purpose to take the complainant to an isolated location and rape and sexually assault her. The facts which were alleged to constitute count 1, sexual assault, were that while in RTG’s vehicle, AAZ forced the complainant to touch his penis without the complainant’s consent. Both RTG and MCS were alleged to be parties to that offence under s 7(1)(b) and s 7(1)(c) of the Criminal Code (Qld): in RTG’s case because he aided and/or encouraged by driving the car, ignoring the complainant’s request to go home; and in MCS’s case in that he aided and/or encouraged by being in the car, ignoring the complainant’s request to go home. The facts which were alleged to constitute count 2, rape, were that while in the vehicle AAZ penetrated the mouth of the complainant with his penis without the complainant’s consent. RTG was alleged to be a party to that offence again pursuant to s 7(1)(b) and s 7(1)(c) of the Criminal Code in that he aided and/or encouraged by driving to an isolated location, ignoring the complainant’s request to go home, getting out of the vehicle to enable AAZ to commit the offence, and allowing AAZ to commit the offence in his vehicle. MCS was alleged to be a party in that he aided and/or encouraged by being in the car, ignoring the complainant’s request to go home, and getting out of the vehicle to enable AAZ to commit the offence. Both appellants were acquitted of counts 1 and 2. The case against RTG did not go to verdict for reasons that will be explained later. The facts which were alleged to constitute count 3, rape, were against AAZ, as a principal offender, that on 7 March 2015 while in RTG’s vehicle, AAZ inserted his penis into the complainant’s vagina without her consent. MCS was alleged to be a party to the offence committed by AAZ under s 7(1)(b) and s 7(1)(c) of the Criminal Code in that he aided and/or encouraged by being in the car, ignoring the complainant’s request to go home, and getting out of the vehicle to enable AAZ to commit the offence. RTG was also alleged to have been a party to this offence as before.

Evidence

Evidence Before The Court

There are a number of aspects of the summing up which are relevant to the grounds of appeal.Evidence admissible only against RTG In addition to the directions given by the judge during the trial, the judge’s summing up referred to the police record of interview with RTG in this way:“And I remind you at this point that the interview between the police and RTG, whose trial has been adjourned, and the drawings made by him and a photograph taken of his clothing are no longer exhibits and are no longer part of the evidence, too, so you will not have those. That follows, of course, members of the jury, from what I said and what I will repeat later. Certain parts of what you have heard are evidence only in the case of one accused and you do not consider it outside that case.” This was in the context of directions about the requirements of separate verdicts in trials of each accused:“You must consider each charge separately, evaluating the evidence related to that particular charge to decide whether you are satisfied beyond reasonable doubt that the Prosecution has provided the essential elements. You will return separate verdicts for each charge. The evidence in relation to the separate offences is different, in the sense that each count relies on a different act or occasion and so your verdicts need not be the same. The elements of the offences are different; even though three of them are counts of rape, one is a certain type of rape and the others are different. And, of course, there is a different kind of charge – the sexual assault. So, again, your verdicts need not be the same.Evidence of – for example, how the accused and the complainant came to be in the car and evidence of intoxication or statements made by the complainant in the car – this kind of evidence might be relevant to all of the charges, but with respect to each charge is the evidence of a particular act relating to the charge. And so, in that sense, you consider the evidence relating to each charge separately. There is some evidence that might be of use for all of them, but you have to consider whether you are satisfied beyond reasonable doubt that the acts alleged in respect of each charge were committed with the essential feature that the complainant did not consent to the act and that the accused did not act under an honest and reasonable, but mistaken, belief that she was consenting. So the point I am trying to be clear about here, members of the jury, is there are separate charges. To some degree, the evidence about them is different and you have to consider the evidence relevant just to each charge before you can be satisfied beyond reasonable doubt and convict. To some degree, there is evidence which is relevant to all the charges.…What I’ve said so far is about the fact that there are different charges and you must separately consider each charge. Of course, in this trial there are also two defendants and you must give the cases against and for each of them separate considerations. That means you separately consider the evidence admitted against each defendant. In respect of each charge, each defendant is entitled to have the case decided on the evidence and on the law that applies to him and as it relates to each particular charge. I have already covered this to some degree because the law is different because of the basis on which each is charged with each offence.Some evidence is generally admissible. As I’ve already outlined, you might think that the evidence about how the evening commenced, how the car journey commenced, what happened in the car might be admissible against all accused. Other evidence is admissible only against him. The police interview, for example, which each took part in, is admitted only in the prosecution case against each – that accused. So anything one says to the police cannot be used against the other. That is to say, any statement made by each accused to the police is relied on by the prosecution only to prove that accused guilty.So, members of the jury, you return separate verdicts in respect of each defendant and separate verdicts on each charge. As the evidence is different in relation to the separate cases and in respect of different offences, your verdicts need not be the same, whether in respect of the charges or the defendants.”

Decision

Reasons for decision

As to count 3, of which MCS was convicted as aiding AAZ’s commission of the offence of rape, the jury were specifically instructed that to convict they had to be satisfied beyond reasonable doubt that MCS aided AAZ in its commission by getting out of the car, in circumstances where he had been told by RTG that a woman would be bound to have sex at this spot and would be afraid at this spot. The reference to this spot was the isolated place where the car had been driven down a bumpy road. The evidence was capable of showing, and I am satisfied did show, that MCS got out of the car so that AAZ could have sexual intercourse with the complainant without the others being present. In the circumstances, he knew that she had not consented and believed from what he had been told by RTG that she would be bound to have sex because she would be afraid in such an isolated place negating any defence of honest and reasonable but mistaken belief.Conclusion In the circumstances I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt of the appellants’ guilt. My independent assessment of the evidence does not lead me to conclude that there is any reason by the jury verdicts should not stand.

Ratio Decidendi

Legal Principle Established

The respondent submitted that the evidence in question, whether accurately interpreted or not, was not admissible against MCS. MCS did not bring an application to sever his charges from those of RTG at any point of the prosecution, much less prior to the interview being played which contained the damaging assertion that was now said not to be able to be removed from the jury’s mind even with a specific direction. When it is considered however that any statement made by RTG in his police record of interview was not admissible against MCS in any event, no unfairness or prejudice could be said to flow. The jury should be assumed to have acted in accordance with that direction.Consideration The judge’s decision to discharge the jury was made within his inherent jurisdiction to ensure a fair trial and also in accordance with the powers given by s 60 of the Jury Act 1995 (Qld) which provides:“60 Jury may be discharged from giving verdict(1)If a jury can not agree on a verdict, or the judge considers there are other proper reasons for discharging the jury without giving a verdict, the judge may discharge the jury without giving a verdict.(2)If proceedings before a jury are to be discontinued because the trial is adjourned, the judge may discharge the jury.(3)A decision of a judge under this section is not subject to appeal.” On this occasion the proceedings against RTG before the jury were to be discontinued because his trial was adjourned and the judge therefore exercised his discretion to discharge the jury. Without RTG as a defendant, his record of interview was not admissible at all. Even with RTG as a defendant, it was only admissible against him and not admissible against the other defendants. In a joint trial it is critical to the fairness of the trial that the jury is carefully informed by the judge of the use that may be made of any evidence that is admissible against one or more, but not all, of the defendants. A defendant’s record of interview with the police is an obvious example of evidence that is admissible only against that defendant. The experienced trial judge had alerted the jury to that in his opening remarks. The judge repeated the warning about admissibility of evidence immediately after the evidence-in-chief of YDS, reminding them that some evidence may be admissible only against one of the defendants. When the judge discharged the jury from returning a verdict against RTG he told them the reason – that certain parts of the interpretation of his police interview were inaccurate – and reminded them, when telling the jury that the trial would continue against the other two that “what each accused person says to the police is only relevant to the case against him.” And further that “[n]othing that one of them has said to the police helps you decide the case against one of the others.” I have already set out the detailed instructions that the judge gave in his final summing up to the jury about the effect on the admissible evidence of the adjournment of RTG’s trial, the need to give separate consideration to the evidence relevant only to each of the appellants and in particular to the use that could be made of their records of interview with the police. In doing so, the judge struck the appropriate balance between thoroughly instructing the jury and not over-emphasising the point. His directions were clear and not cloaked in complex language. While RTG’s record of interview was, as it transpired, not admissible at all, one must assume that the jury followed the judge’s instructions and did not misuse RTG’s record of interview. That assumption, as McHugh J observed in Gilbert v The Queen[3] is fundamental to the criminal jury trial. As His Honour said:“Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials.”[3](2000) 201 CLR 414 at 425 [31].