R v Mitchell
[2025] QCA 27
•14 March 2025
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 2023DIVISION:
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, citedCOUNSEL:
S B Neaves for the appellant
E L Kelso for the respondentSOLICITORS:
DME Law Pty Ltd for the appellant
Director of Public Prosecutions (Queensland) for the respondent
FLANAGAN JA: I agree with Boddice JA.
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.
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
Each count concerned the one female complainant. Each count was alleged to have occurred on New Years Eve 2018, into the early hours of 1 January 2019.
The count of rape (count 1) was particularised as the appellant having inserted his fingers into the complainant’s vagina without her consent. The remaining counts were particularised as the appellant having kissed the complainant on her lips (count 2) and having unzipped the complainant’s swimmers (count 3).
Trial
The Crown accepted that its case was dependent upon an acceptance of the complainant’s evidence as reliable and credible, beyond reasonable doubt. The defence case was that none of the particularised acts were committed by the appellant.
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.
On 26 January 2022 (when the complainant was 13 years of age), the complainant’s mother confiscated her mobile phone. The mother found messages which had been sent via Discord chat. The mother took screen shots.
The complainant’s mother gave evidence that she spoke to the complainant about the contents of the Discord chat. She asked her if what was said in them was true. The complainant said “yes”. The complainant’s mother had a detailed chat with the complainant. The complainant maintained that the majority was true. The mother replied that if the messages were true, they needed to go to the police. She organised for the complainant to attend a police station.
The complainant’s mother later deleted the Discord chat, along with all other social media on the complainant’s phone. She did so of her own accord because she did not want the complainant having access. The complainant’s mother said she was not advised by police to retain that evidence. All that was retained was the screen shot.
The complainant was first interviewed by police on 28 January 2022. She told police that on New Years Eve, when she was 10 years of age, she was “raped”. She had gone to bed in the appellant’s bed. She awoke to “my dad’s friend on top of me and my dad”. The appellant was on top of the bedsheet “leaning across me and my dad’s legs”.[2] The appellant’s legs were on her father’s legs and the rest of his body was on her legs. She was under the sheet, as was her father. The complainant told her father, who told the appellant to move. The appellant immediately did so.
[2]AB 224/50.
The complainant said after she went back to sleep, she again awoke to the appellant on top of her. The appellant was under the sheets. Her father was outside talking on his phone. The appellant touched her and attempted to kiss and undress her over the course of several hours.
The complainant described the touching of her by the appellant as “inside the swimmers” and “down there between my legs”. It involved “putting his fingers inside”, “where babies come from”, and that “it felt like they were bony”. It went on for maybe five minutes. It stopped when her father came back into the bedroom.
The complainant said she next woke up to the appellant kissing her on the lips while she was in bed. Her father was again outside. The appellant got off and pretended to be asleep when her father returned to the bedroom. When she next awoke, there was an attempt by the appellant to unzip her swimmers. She resisted that attempt by saying “stop” and pushing his hand away.
The complainant said she again went back to sleep. When she awoke in the morning, the appellant was naked and hugging her in bed. Her father saw him hugging her and got angry. Her father told her to go home. The complainant said that despite being questioned by her father, she had not told him what the appellant did.
The complainant was further interviewed by police on 12 March 2023. During that interview, she was asked about the Discord chat found on her phone by her mother on 26 January 2022. The complainant said she was the author of those messages; that most of the parties to the messages were her close friends from school; and that she was speaking of the appellant.
The complainant said part of what was said was not a truthful account. The appellant did not say if she did not let him do whatever he wanted, he would kill her. The complainant “didn’t mean to write it”.[3] Further, when she wrote that he also forced her to suck him, she meant to say she was forced to kiss him. She was not forced to perform oral sex by the appellant. When she said in the message that she had spoken to the appellant’s mother at the shops, it was correct that she saw her at Bunnings, but she did not have a conversation with her. It was her father who spoke and she did not really listen to what he was saying. The complainant said she was really tired that night so did not know what she was saying in the chat.
[3]AB 244/20.
The complainant gave evidence on 6 December 2023. That evidence was pre-recorded and played to the jury. In cross-examination, she accepted that parts of the Discord chat were untruthful. The complainant accepted that when she had written that the appellant “came inside of me”, that part of the chat was not true. The complainant said that while she was in bed she saw some sexual activity between her father and the appellant. She was able to see them through the doors.
The complainant also said that on the night in question, her father walked in and out of the subject room; there was a time that her father was in bed with her and she awoke to the appellant on top of her; she told her father and the appellant got off her; that there were at least two times her father would have seen the appellant on top of her; and her father saw the appellant with his arm over her. She agreed she did not tell her father the appellant was touching her throughout the night. She also did not tell her mother about that touching until after the Discord chat was found by her mother.
The complainant said the Discord chat remained available to her friends, at least until her mother found it. The friends were people she trusted and with whom she shared important secrets.[4] She agreed that when she told the police she did not mean to write something, she meant that she wished she had said something different because it was not true. She accepted it was her choice to write it at the time, but said that she was not really thinking straight. She agreed that she had written in the Discord chat that the appellant kept telling her he wanted to make her moan and to hear her suffer. She agreed they were things that were not said and that it was something she had made up. She had also made up that her father had told the police about it the next day.
[4]AB 261/5.
The complainant accepted that she had told her mother that the things in the Discord chat were true. The complainant had maintained that story, as she knew her mother would be angry with her if she told her mother that she had posted a series of untruthful things about someone doing sexual stuff to her. She also did not want to have to tell her friends of her untruths. The complainant was doing her best to remember something consistent with what she had said, just to keep the story up.
The complainant also gave evidence that she did now remember the appellant doing things to her. She said that what she told the police was true.
The complainant’s father gave evidence that on the night of New Years Eve, he became very intoxicated and at some stage went to bed in a room directly next to the patio. He remembered seeing the appellant and the complainant “in very close proximity”, under the covers. He could not, however, tell what was happening.
The complainant’s father accepted that during that night, the complainant saw sexual interaction between him and the appellant. There was a line of sight between the bed in which she was sleeping and the patio.
The complainant’s father said that the only time he saw the appellant and the complainant in bed together, was in the morning, just before leaving. Had the appellant not been clothed when he emerged from the bed, he would have “completely lost it”. He asked the complainant twice that morning if anything had happened with the appellant. Each time the complainant indicated nothing had happened.
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.
Consideration
Ground 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
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.
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