R v Mitchell

Case [2025] QCA 27

SUPREME COURT OF QUEENSLAND

CITATION:

R v Mitchell [2025] QCA 27

PARTIES:

R
v
MITCHELL, Wayne Trevor
(appellant)

FILE NO/S:

CA No 241 of 2024
DC No 103 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Maroochydore – Date of Conviction: 6 November 2024 (Smith DCJA)

DELIVERED ON:

14 March 2025

DELIVERED AT:

Brisbane

HEARING DATE:

21 February 2025

JUDGES:

Flanagan, Boddice and Brown JJA

ORDERS:

1.   The appeal be allowed.

2.   The verdicts of the jury be set aside.

3.   Verdicts of acquittal be entered for each count.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted after trial of indecent treatment of a child under 12 – where the jury found the appellant not guilty of one count of rape – where the appellant appeals his conviction on the ground that the verdicts are unreasonable and/or cannot be supported having regard to the evidence and that the verdict of not guilty of rape is inconsistent with the verdicts of guilt – where the complainant’s account of penetration remained consistent throughout police interviews and in evidence – where the complainant accepted in evidence that she had given a false account of sexual activity between her and the appellant to her friends – whether the verdicts of guilty were unreasonable having regard to all of the evidence – whether it was open to the jury to be satisfied of the appellant’s guilt of each count, beyond reasonable doubt – whether the jury ought to have entertained a reasonable doubt as to the appellant’s guilt of each of the offences

Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25, cited
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, cited

COUNSEL:

S B Neaves for the appellant
E L Kelso for the respondent

SOLICITORS:

DME Law Pty Ltd for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. FLANAGAN JA:  I agree with Boddice JA.

  2. BODDICE JA:  On 6 November 2024, a jury found the appellant not guilty of one count of rape, but guilty of an alternate count of indecent treatment of a child under 16, under 12.  The jury also found him guilty of two further counts of indecent treatment of a child under 16, under 12.

  3. The appellant appeals his conviction, on two grounds.  First, that the verdicts are unreasonable and/or cannot be supported having regard to the evidence.  Second, that the verdict of not guilty of rape is inconsistent with the verdicts delivered on the alternative and remaining counts, such that on the whole of the evidence and having regard to the doubt in respect of the penetrative act particularised as count 1, it was not open to the jury to be satisfied beyond reasonable doubt, that the appellant was guilty of the remaining counts.

    Indictment

  4. Each count concerned the one female complainant.  Each count was alleged…

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AGLC
R v Mitchell [2025] QCA 27
Case
[2025] QCA 27
Decision Date

CaseChat Overview and Summary

In R v Mitchell, the appellant was convicted after a trial of indecent treatment of a child under 12. The appellant was acquitted of one count of rape. The appellant appeals his conviction on the grounds that the verdicts were unreasonable or could not be supported by the evidence, and that the acquittal on the count of rape was inconsistent with the guilty verdicts. The complainant, who was 10 years old at the time, alleged that the appellant indecently treated her during a New Year’s Eve party. The complainant's account of penetration was consistent throughout her statements to police and in evidence. However, she admitted in evidence that she had falsely recounted detailed sexual activity with the appellant to her friends.

The court had to determine whether the jury was entitled to be satisfied beyond reasonable doubt of the appellant’s guilt on each count, and whether the jury should have entertained a reasonable doubt about the complainant's reliability and the consistency of her evidence. An independent assessment of the record revealed that the discrepancies in the complainant's evidence, coupled with her admission of providing a false account to her friends, meant that the jury should have had doubts about her reliability. The detailed account of penetration, while consistent, was not corroborated in a way that would negate the reasonable doubt caused by the inconsistencies and the admission of a previous false account. The court concluded that the verdicts were unreasonable.

The appeal was allowed, the jury's verdicts were set aside, and verdicts of acquittal were entered for each count.

Orders

Orders of the court

1. The appeal be allowed.

2. The verdicts of the jury be set aside.

3. Verdicts of acquittal be entered for each count.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The appellant elected neither to give nor call evidence.Evidence On New Years Eve 2018, the complainant, who was 10 years of age, was in the care of her father, pursuant to arrangements reached between the father and mother after their separation in 2014. The complainant returned to her mother on 2 January 2019. On 17 January 2022, the complainant sent a message, through Discord chat, to her friends, in the following terms:“ok – story time – I might get flashbacks and/or start crying from this but it’s a-o-k :)I live in a complex, if you don’t know what it is. It’s like a place with a bunch of units, and 3-story houses and shit, me and my family, became friends with everyone there. I made some friends too with the kids, one of the units which was my bsfs house was hosting a new years party and pretty much everyone went, including [the appellant] … I hate mentioning him – anyways [the appellant] was my rapist which I didn’t know until it happened obviously anywho we were having a good time playing and shit playing board games and stuff, doing just … blah blah, but little did I know [the appellant] was checking me out, most of the night – anyways – [the appellant], my dad, and some of [the appellant’s] friends went to [the appellant’s] house – they got drunk – like really really drunk – once the host ended the party dad was still hanging with [the appellant] so I had to go to [the appellant’s] house. I was tired from all the partying so I wanted to sleep – so [the appellant] said I could use the bed and stupid 10 y/o me agreed with him and slept in his bed – my dad was having some issues with his ex gf that night too so he wasn’t in the best shape or mindset – plot twist – In the middle of the night I wake up to see my dad fucking – so like I said my dad was having problems with his ex – each time my dad went outside [the appellant] used it as an advantage to get closer and closer to me each time my dad left the room – eventually he got close enough to my mouth and trying to tongue kiss me – and I was only 10 so when he said if I don’t let him do whatever he wanted to do he would’ve killed me – I had to let him touch me – lick me – kiss me whatever this sick man wanted – but he didn’t stop there – he made me do … – It was nightmarish – scary – horrible – and he wasn’t gentle … to hear my pretty little voice box moan for him.I was so fucking scared of this man – he mentally damaged me. I also shall mention he came inside of me but he thankfully didn’t impregnate me with a child as I didn’t have my first period yet at the time – I was also forced to suck him then touched down there – In fact he shoved his dick and fingers in there – he kept telling me how he wanted me to moan, call out his name he wanted to hear me telling him to stop – crying out for him – and then I lost track of time and it was morning – my dad was … knocking over shit – still drunk – hungover – etc. anyways [the appellant] woke and started waking up and giving me cuddles and shit while he was naked and I got really uncomfortable – then my dad started to finally notice what the dickhead was doing to me – dad and him had a massive fight – … – then we went home and dad made me talk about it with him – I didn’t want to talk about. I just kept using excuses that I miss his ex and shit – he knew what happened tho, he was too hungover to drive so he decided to tell the police the next day – but when we woke up the next day [the appellant] was gone – the fucking coward ran away – he knew he was gonna be sent to jail so he chose the pussy move – moved away – then a month or so later – I saw his mum at the shops – I tried to tell her everything he did, BUT NEWS FLASH THE BITCH DIDN’T BELIEVE ME OR SHE KNEW BUT SHE WAS STICKING UP FOR HER SON – and I’ve been traumatized ever since – I decided to bottle it all up inside and let it blow over – but I’ve learnt that I need to start telling people – waiting for it to die over isn’t going to help me –”[1][1]AB 147–148.

Decision

Reasons for decision

The complainant’s account of penetration was detailed and remained consistent throughout her interviews with police and in evidence. There was no logical reason to doubt the fact of penetration, in those circumstances, unless there was a doubt as to the complainant’s reliability generally. Such a doubt ought to have caused the jury to doubt the complainant’s reliability in respect of the other aspects of her evidence concerning sexual interaction between her and the appellant on the night in question.Conclusion An independent assessment of the record supports a conclusion that the discrepancies in the complainant’s evidence, together with her admission of having falsely recounted detailed sexual interaction between herself and the appellant in the Discord chat, meant the jury ought to have had a doubt as to the complainant’s reliability, in respect of each count. The verdicts of the jury were unreasonable.Orders I would order:1.The appeal be allowed.2.The verdicts of the jury be set aside.3.Verdicts of acquittal be entered for each count. BROWN JA: I agree with the reasons and the proposed orders of Boddice JA.

Ratio Decidendi

Legal Principle Established

The appellant’s mother gave evidence that she had seen the complainant on a single occasion since New Years Eve. It was about 12 months later at a shop on the Sunshine Coast. The complainant was with her mother. A modest, friendly conversation took place between the group.ConsiderationGround 1 The determination of a ground of appeal that the verdict of the jury was unreasonable and not supported by the evidence, requires this Court to undertake its own independent assessment of the record, to determine whether it was open to the jury to be satisfied of the appellant’s guilt of each count, beyond reasonable doubt. In so doing, due regard is to be given to the jury’s role and the advantages afforded to the jury in having seen and heard the witnesses at trial.[5][5]Dansie v The Queen [2022] HCA 25 at [9]; citing M v The Queen (1994) 191 CLR 487 at 493. However, if that independent assessment of the record reveals inconsistencies, discrepancies or other evidence which, even allowing for the jury’s advantages, are of such a nature that a reasonable doubt ought to have been entertained, the verdict is to be set aside as unreasonable.[6][6]Pell v The Queen (2020) 268 CLR 123 at [99]. In the present case, an independent assessment of the record, supports a conclusion that the jury ought to have entertained a reasonable doubt as to the appellant’s guilt of each of the offences. The complainant accepted in evidence that she had given a detailed but false account of sexual activity between her and the appellant to her friends. These were people she trusted and with whom she shared secrets. Her reasons for that false account was that she was tired and not thinking straight. Those reasons did not provide any satisfactory explanation for having given such a detailed account of being forced to engage in oral sex, of ejaculation inside her and of conversations said to have taken place between her and the appellant. The falsity of those detailed accounts was maintained by the complainant to her mother and her friends, because the complainant was concerned that her mother would be angry with her and because of concern as to the reaction of her friends to having made such untruthful statements. Against that background, the jury ought to have had a doubt that the complainant’s continued maintenance of a version of sexual conduct between the appellant and herself, was due to continued concern as to the impact any admission of falsity would have on her relationship with her mother and her friends. There was a further reason why the jury ought to have entertained a doubt. There was no logical basis upon which the jury could have entertained a doubt as to the complainant’s assertion of penetration of her vagina by the appellant with his fingers (which the jury must have had, in finding the appellant not guilty of the count of rape), yet not have had a doubt as to the reliability of the complainant’s account of what else had happened on that night. The complainant’s account of penetration was detailed and remained consistent throughout her interviews with police and in evidence. There was no logical reason to doubt the fact of penetration, in those circumstances, unless there was a doubt as to the complainant’s reliability generally. Such a doubt ought to have caused the jury to doubt the complainant’s reliability in respect of the other aspects of her evidence concerning sexual interaction between her and the appellant on the night in question.Conclusion