R v Melton

[2001] QCA 333

SUPREME COURT OF QUEENSLAND

CITATION:

R v Melton [2001] QCA 333

PARTIES:

R
v
MELTON, Kevin John
(appellant)

FILE NOS:

CA No 260 of 2000
DC No 2 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against conviction

ORIGINATING COURT:

District Court at Longreach

DELIVERED ON:

22 August 2001

DELIVERED AT:

Brisbane

HEARING DATE:

14 August 2001

JUDGES:

Davies and Thomas JJA, Byrne J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDER:

Appeal against conviction allowed; conviction set aside; verdict quashed; new trial ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – FRESH EVIDENCE – GENERAL PRINCIPLES – appellant convicted of rape – where facts newly discovered consisting of pre-trial statements by the complainant that the appellant had not raped her – whether the conversations constitute apparently credible pieces of evidence that directly relate to the critical issue at the trial – where evidence not divulged prior to the trial – whether significant possibility that the jury, acting reasonably, would have acquitted had the fresh evidence been adduced at trial – new trial ordered

Mickelberg v The Queen (1989) 167 CLR 259, 273, considered

COUNSEL:

W J Cuthbert for the appellant
R G Martin for the respondent

SOLICITORS:

Witheriff Nyst (Southport) for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. DAVIES JA:  I agree with the reasons for judgment of Byrne J and with the orders he proposes.

1. THOMAS JA:  I agree.

BYRNE J:

New Facts

1. In August last year, after a trial in the Longreach District Court, the appellant was convicted of the rape of his niece and sentenced to imprisonment. Of the many grounds of appeal, only one need be considered: that facts newly discovered expose a significant possibility that the jury, acting reasonably, would have acquitted had the fresh evidence been adduced at trial.[1] This information consists of pre-trial statements by the complainant to two acquaintances that the appellant had not raped her.

   [1]See Mickelberg v The Queen (1989) 167 CLR 259, 273.

Prosecution Case

1. The complainant was aged 14 when, in January 1999, she and her younger brother spent the weekend at the house of the appellant and a woman with whom he maintained a de facto relationship. The complainant testified to an encounter with the appellant in an upstairs room.

1. The complainant told the jury that she was changing her clothes when the appellant entered, saying he was going to close a window. He did so and left the room. According to the complainant, she was about to pull her pants up from below the knees when the appellant returned, put his hands on her, turned her to face a bed, bent her over and inserted his fingers into her vagina. Then he took his fingers out, placed his hand around her waist, and put his penis into her vagina. After a “couple of minutes”, he withdrew. The complainant saw “white cloudy kind of stuff” on the carpet. The appellant rubbed the substance into the carpet with his “back foot”. The incident was their “little secret”, he said to the complainant, asking her not to tell her parents.

Pre-trial investigation

1. Not until September 1999, when she told two friends, did the complainant mention the incident. The story was repeated to a school counsellor, who then spoke to the complainant. Thereafter, the matter was investigated.

1. On medical examination, the appearance of the vagina was consistent with sexual intercourse having occurred at some, indeterminate time.

1. Much of the carpet in the room where the rape was said to have occurred was examined. No semen residue or seminal fluid was detected.

Fresh evidence

1. Samantha Hoskin has known the complainant for more than seven years. They had attended school together and, according to Ms Hoskin, were good friends.

1. In an affidavit sworn in May this year, Ms Hoskin deposed to a conversation with the complainant as the two of them walked to a Longreach supermarket not long before the appellant’s trial began. Ms Hoskin asked what was happening with the case.  The complainant said it was going ahead. When the complainant was asked: “Did Kevin really rape you?”, she responded: “No he didn’t really rape me”. Ms Hoskin says she inquired why the case was proceeding to trial if the appellant was not a rapist.  The complainant replied: “Because I’ve already told my father that he did”.  Ms Hoskin asked: “Why don’t you just tell your father that it’s not true?”, receiving the response: “I’m scared of my father. I can’t tell him that it’s not true or else I’ll be in big trouble”.

1. Ms Hoskin did not tell of the conversation until after the trial had finished. In her affidavit, she explains her reticence as founded on a belief that the appellant would not go to jail “as Tamara told me that he did not rape her”.

1. Ms Hoskin testified before us via video link.  Her oral account substantially accorded with her affidavit. She was cross-examined, uneventfully.

1. Chantelle Smith, aged 15, attended school with the complainant. After the trial, she provided information to Rose Melton, the appellant’s sister, concerning a conversation with the complainant. In her affidavit, she deposes that she asked the complainant, “What’s happening with your rape matter?” and received the response: “It didn’t really happen. I made it all up”.

1. In testifying before us, Miss Smith said that the conversation occurred before the appellant was sentenced. She also summarized the effect of what the complainant had told her as a confession that the appellant had not raped the complainant.

1. Miss Smith’s mother was a close friend of the appellant’s sister, which explains why Miss Smith’s account eventually came to light. Miss Smith explained her omission to speak of the conversation before the trial concluded by describing the complainant’s denial of rape as something which seemed not to be of real importance. Her evidence, too, was unshaken by cross‑examination.

1. Although the complainant denies that the conversations with Ms Hoskin and Miss Smith ever took place, both conversations constitute apparently credible pieces of evidence that directly relate to the critical issue at the trial. This material was not divulged prior to the trial. So the appellant could not by the exercise of reasonable diligence have adduced it.

1. In a case where the complainant’s testimony was uncorroborated, her complaint was late and reluctant, and examination of the carpet did not reveal a trace of semen or seminal fluid, the nature of the newly discovered information is such that there is a significant possibility that the jury, acting reasonably, would have acquitted had it been divulged at trial.

Orders

1. The appeal must therefore be allowed, the conviction set aside, the verdict quashed, and a new trial ordered.