R v Nash

Case [2022] QCA 84

SUPREME COURT OF QUEENSLAND

CITATION:

R v Nash [2022] QCA 84

PARTIES:

R
v
NASH, Mark Kevin
(appellant)

FILE NO/S:

CA No 187 of 2021
DC No 61 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Gladstone – Date of Conviction: 22 July 2021 (Farr SC DCJ)

DELIVERED ON:

Date of Order: 19 April 2022
Date of Publication of Reasons: 20 May 2022

DELIVERED AT:

Brisbane

HEARING DATE:

19 April 2022

JUDGES:

Bowskill CJ and Sofronoff P and Martin SJA

ORDER:

Date of Order: 19 April 2022

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where the appellant was convicted on one count of rape – where the complainant conducted a pretext call with the appellant – where the appellant had unsuccessfully applied for the exclusion of the pretext call before the trial – where the trial judge refused to exclude the pretext call on the basis that a portion of the call was capable of constituting an admission against interest – where the appellant submits that the trial judge erred by failing to exclude the pretext call – whether the relevant portion of the pretext call contained a statement against interest – whether this statement was reasonably capable of being regarded as an admission by the jury – whether the relevant portion of the pretext call was intractably neutral, thereby lacking any probative force – whether a miscarriage of justice was occasioned by the failure to exclude the pretext call

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – CONSIDERATION OF SUMMING UP AS A WHOLE – where the trial judge directed the jury that in order to use the relevant portion of the pretext call, they would need to be satisfied that the appellant was being truthful at the time he made that statement – where the appellant also submitted that the trial judge was required to explain to the jury the other innocent inferences that could be drawn from the relevant portion of the pretext call – where the appellant also submits that the trial judge failed to direct the jury that, to accept the prosecution’s contention that the relevant portion of the pretext call constituted an implied admission, they needed to be satisfied of that beyond reasonable doubt – whether the trial judge was required to direct the jury that they must be satisfied that the words were accurate – whether the trial judge did in fact explain to the jury the other innocent inferences that could be drawn from the pretext call – whether the jury did in fact need to be satisfied of this beyond reasonable doubt

R v Booth and Combarngo[2018] QCA 74, considered
R v Ciantar (2006) 16 VR 26; [2006] VSCA 263, cited
R v Ferguson (2009) 24 VR 531; [2009] VSCA 198

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AGLC
R v Nash [2022] QCA 84
Case
[2022] QCA 84
Decision Date

CaseChat Overview and Summary

In the case of R v Nash, the appellant was convicted on one count of rape and appealed the decision. The appellant argued that the trial judge erred by admitting a pretext call between him and the complainant into evidence and by not directing the jury on certain matters. The court considered the appellant's arguments and concluded that the trial judge did not err in admitting the pretext call or in the directions given to the jury.

The court found that the relevant portion of the pretext call contained a statement against interest and was reasonably capable of being regarded as an admission by the jury. The court also found that the portion of the pretext call was not intractably neutral, but instead had probative force. The court further found that the trial judge did not err in the directions given to the jury, and that the jury was adequately directed on the matters that the appellant argued were not sufficiently addressed.

The appeal was dismissed, and the conviction was upheld. The court found that the trial was conducted fairly and that there was no miscarriage of justice. The jury was properly directed on the matters that needed to be considered, and the evidence presented was sufficient to support the conviction. The appellant's conviction on one count of rape was therefore upheld.

Orders

Orders of the court

Date of Order: 19 April 2022

Appeal dismissed.

Background

Background to the litigation

These are my reasons for joining in that order.Background This was the second trial of the charge against the appellant. He had been convicted in October 2019. On appeal, the appeal was allowed, the conviction set aside, and a re-trial was ordered. See R v Nash [2020] QCA 127. The offence of rape was committed on 11 March 2018. It involved the appellant having penile/vaginal intercourse with the complainant. It took place in the appellant’s residence which he shared with his wife and children. At the trial, the appellant formally admitted having sexual intercourse with the complainant. The prosecution case was that, at the relevant time, the complainant was asleep and so could not have consented. The complainant was a 24-year-old national of the Netherlands. She had travelled to Australia in December 2017 for a working holiday. At the time of the offence, she was working as an au pair for the appellant’s children. The complainant’s evidence was given in the form of a video recording. She had given evidence on 15 October 2019 when she was in the Netherlands. She was examined and cross-examined. That video recording was shown to the jury in the first trial and to the jury in the re-trial. For the purposes of this appeal, there are no relevant differences between the evidence given on the first trial and on the re-trial. In the first appeal, Boddice J set out the relevant facts and, for the sake of consistency, I will repeat some of them in these reasons:“…[11]On 2 March 2018, the complainant arrived at the appellant’s residence, having agreed by Facebook message to work as an au pair. The current au pair, a German national, gave the complainant a handover and stayed for a number of days to assist in teaching the complainant the routine with the appellant’s children. There were three children.[12]The complainant said she chose the appellant’s family because she wanted older children and two of their children had autism. The complainant had previous experience teaching children with autism.[13]The complainant was intending to stay for three months. The appellant’s family had previously had two au pairs. The first lasted only a short time. The second (and current one) had been there for six months. The appellant’s family had arranged for another au pair to start in June 2018.[14]The complainant’s duties included making breakfasts and taking the children to school, undertaking some cleaning before collecting the children from school and cooking dinner. She ate with the family. She was free to go during the day when she had finished those various duties.[15]The appellant’s wife worked, as did the appellant. He usually had left home before the complainant awoke each morning. He returned home at around four o’clock each afternoon. The complainant described her relationship with the appellant and his wife as “okay”. She “had a good time”.[16]The complainant described the appellant’s house as having two storeys. The children’s bedrooms were upstairs. The complainant’s bedroom was downstairs, as was the bedroom used by the appellant and his wife.[17]On the night of 11 March 2018, the complainant, the appellant and his wife had dinner together. The children were inside watching a movie or playing video games. They had a number of friends over at that time.[18]The complainant’s recollection was that she drank four or five glasses of wine. She was not drunk. The appellant drank more than the complainant. The appellant’s wife was quite drunk. She went to bed because she was so drunk. By that stage, the children were already in bed.[19]The complainant remained talking and drinking with the appellant after the appellant’s wife went to bed. One topic of conversation was that the complainant preferred girls. The complainant said it was important to her that they knew who she was and that they accepted that situation.[20]The complainant went to bed at around 11.30 that evening. The appellant also went to bed. However, he found his bedroom door was locked. The complainant, who was standing next to him, said “oh well, for me it’s not a problem … I want to go to bed. You can sleep next to me if you just go to sleep”. The complainant said she did not have any concerns about the appellant sleeping in her bed. She trusted him and it was normal for her to just sleep with men because there was zero attraction.[21]The complainant said the appellant confirmed that was okay. Otherwise, she would not have agreed to the appellant coming into her bed. The complainant could not recall if he indicated that confirmation by nodding his head or by saying yes or of course. She was, however, sure he confirmed that he would just go to sleep.[22]The complainant said she went to bed wearing a black singlet top, a bikini bottom and grey jean shorts. The shorts had a zipper at the front. The complainant said she fell asleep on the bed. She did not hear the appellant come into the bedroom.[23]The complainant next remembered waking up and realising after a minute that a body was on top of her, having sex with her. The appellant had his penis in her vagina. The appellant was making noises like “you’re horny”. The complainant said “hey, what you’re doing. Stop it”. The appellant stopped directly and said “oh, oh, oh, sorry”.[24]The complainant said the appellant was “just doing it while I was asleep. I couldn’t defend myself, so he didn’t have to force anything, and when I was realising he was just having sex, it was just normal. He didn’t have to force me because it just already happened. He didn’t have to force me, but he didn’t it wasn’t painful at all, or anything like that. When I was talking, he also just stopped”. The complainant assumed the appellant did not wear a condom as she did not feel or see it. The complainant said when the appellant stood up, he was naked. She was still wearing her black singlet top but her bottom was naked. The appellant had taken those clothes off. The appellant very slowly put his clothes on. She described the appellant as pretty calm when he left her bedroom. The appellant used the words “no worries. It’s okay”. The complainant said she became panicky and said “go away. Hurry up”.”…[30]The complainant remained in her bedroom with the door locked until police telephoned her about 10 minutes later to say they were at the front door. The complainant did not see the appellant at any stage when she was walking through the house to the police or whilst the police were at the house. The complainant later located her shorts and bikini bottom in the bedroom.[31]Police recorded their conversation with the complainant. She identified the clothing she had been wearing that evening. She told police they had commenced drinking together at about seven o’clock. They were drinking upstairs on the deck. She estimated they drank a bottle of wine each. She said the appellant’s wife was really drunk but that the complainant and the appellant were not really drunk. They went to bed around 12 o’clock.[32]The complainant told police the appellant’s wife went to bed early, locking the bedroom door. The complainant told the appellant he could sleep in her bed. She fell asleep. When she woke up, the appellant was having sex with her. He had taken her shorts off. He stopped when she said “don’t. Stop it”. She told him to go away and locked the door. The complainant said the appellant had his penis inside her and that she was not sure if he was wearing a condom.[33]The complainant said she did not know how long the appellant was having sex with her. She said “it was already happening but maybe he thought I was awake but I wasn’t … when I woke up, it was still happening”. The complainant said the appellant had not finished when she told him to get off.[34]The complainant was asked if she wished to make a rape complaint against the appellant. The complainant replied “Yeah, of course”. The complainant said she did not give the appellant permission to have sexual intercourse with her. The complainant also said she was not a light sleeper. She had previously slept through a fire alarm. On another occasion, she was sleeping so deeply that a person pinched her nose shut to wake her up.[35]On 11 March 2018, police arranged for the complainant to make a pretext call to the appellant. That call, shortly after 8.15 in the morning, was recorded by police. In it, the complainant asked the appellant to “please tell me why you had sex with me last night in my room? Why it did happen?”. In response, the appellant said he thought he was very drunk and asked if they could talk about it in person. There then occurred the following exchange:“COMPLAINANT: But did it already happen when I fell asleep or was it during the night? I think I woke up at 3:15. Can you please tell me what you did, did before because I really feel unsafe now while sleeping?APPELLANT: I, I really don’t know.COMPLAINANT: Well I think that’s not an answer. I think you have to try …APPELLANT: I, I …COMPLAINANT: To answer me.APPELLANT: I cannot remember, [complainant], I really can’t. I’m sorry.”[36]The appellant went on to say that he remembered the complainant slamming the door but, in response to the complainant’s statement “I can’t imagine that that’s the only thing you mean you remember. But you had sex with me” the appellant replied “I’m not sure. I, I cannot remember”. The appellant said he thought he had fallen asleep and that he could not remember anything after lying down.[37]The appellant also said that he did not know why the complainant would smash the door. He said that woke him up. The appellant went on to say “I obviously did something wrong and I fucked up. I, I just want to apologise, so that … [i]t just feels weird doing this over the phone, that’s all”.[38]There also occurred the following exchange:“COMPLAINANT: Well, what happened? Please tell me. I won’t, I don’t remember. I only remember that I woke up while your penis was in me and was it already taking a while? What did you do? Did you fell asleep? Please talk to me.APPELLANT: All I can remember is falling asleep and then all of a sudden you being grumpy and the door closing, so I really have a, a blank, I’m sorry.”[39]The appellant was later recorded as asking the complainant “did I say anything, I’m not sure?”. When the complainant told the appellant he had taken his time to take his clothes and to leave and that she found it frustrating, “like it was really normal that he was naked”, there occurred the following exchange:“APPELLANT: Yeah, I honestly don’t know, [complainant]. I can’t explain it to you. I was drunk. I cannot remember. I’m ridiculously sorry. I’m, I don’t know what happened.COMPLAINANT: And how do you think that I feel now?APPELLANT: I can imagine how you feel now, yes.COMPLAINANT: Mmhmm.APPELLANT: I am sitting here next to [my wife] as well. I can just imagine her going through it now, so …COMPLAINANT: Sorry, you’re sitting next to what?APPELLANT: [My wife].COMPLAINANT: Oh she knows it?APPELLANT: She, she can hear, hearing everything I’m saying so yeah.COMPLAINANT: Okay, what did you tell her?APPELLANT: Hey?COMPLAINANT: What did you tell her?APPELLANT: She just heard that I got drunk last night and I have no idea what I did. I, I woke up with that so, I’m assuming I did something wrong, so …COMPLAINANT: I have a feeling that you know, that you remember more than you’re telling me now. I can imagine that you only feel like you did anything wrong.APPELLANT: I, I don’t have any memory at all. I’m just all, up, up blanks, mental blanks from last night.COMPLAINANT: But did you first fall asleep before it started?APPELLANT: Hey?COMPLAINANT: Did you first fall asleep before it started?APPELLANT: I think I fell asleep. I’m not sure. I can’t, I remember lying down and that was it.COMPLAINANT: I was wearing my clothes, right?APPELLANT: I, I assume so yes.COMPLAINANT: Yep. But I was naked when I woke up.APPELLANT: I know.COMPLAINANT: You know?APPELLANT: You said that before. I’m sorry, [complainant], I really am.COMPLAINANT: Okay. Do you want to say anything else to me now before I hang up?APPELLANT: Just that I’m really sorry and I, I, I didn’t mean for anything to happen. I didn’t plan for anything to happen. I didn’t want to do this to you. I’m sorry, very sorry.COMPLAINANT: Yep. I feel the most sad about, that I was sleeping and that must be the most safe place in your house or whatever, where it is and then this happened. I trusted you.APPELLANT: Yep, I know.COMPLAINANT: I really trusted you.APPELLANT: I’m sorry.”[40]In cross-examination, the complainant denied flirting with the appellant. She denied putting her hand on his leg, shoulder and waist from time to time. She did not touch the appellant at all. She denied that, at one point, the appellant’s wife told the complainant they would have to review how long she stayed because the wife was not comfortable with how she was behaving with the appellant. She denied having any sexual interest in the appellant.[41]The complainant denied telling the appellant that her sexual preferences were both men and women. She was sure she had told him she preferred girls. She did not ever talk with him about sex. She denied that the appellant had told her he and his wife had an open marriage or that he told her about sexual activity with his wife and some friends. She denied ever having a discussion about her sex life or about drugs.[42]The complainant denied that when they were downstairs together, the appellant went to obtain spare keys in a cupboard next to her room. The complainant accepted there were other places where the appellant could have slept. There was the couch but no other bed. The complainant denied offering more than once for the appellant to sleep in her bed in her room. She denied the appellant hopped into bed first. She denied she was wearing only a G-string. She denied touching herself in an intimate way and that the appellant then performed oral sex on the complainant. The complainant did not know what the appellant did to her. She was sleeping and woke up with him in her bed. She denied ever willingly engaging in any sexual activity with the appellant.[43]The complainant denied using her hand to guide the appellant’s penis into her vagina; or, at one point, rolling over and hopping onto her knees before continuing sexual intercourse. She denied that, after the appellant went to sleep, she subsequently pushed him from the bed screaming “what are you doing in my room? Why are you in my bed?”. She may have screamed “why am I naked. Get out. Get out”. She denied having locked her bedroom door before she went to bed.[44]The complainant accepted that the purpose of the pretext call was to see if the appellant would say some things about what had happened that evening. It was the police who suggested she call him. The complainant accepted that the appellant did not want to speak to her on the telephone; he wanted to speak to her in real life. The complainant said she wanted him to say he had sex with her without permission because “he is the wrong guy in this situation. I did not do anything wrong”.[45]The complainant accepted she had asked questions in that pretext telephone conversation but denied asking those questions because she was not really sure what had happened that night. The complainant wanted to know what had happened when she was asleep. She did not know whether he was having sex for three hours or for only half an hour. She did not know what he did in the time between. The complainant accepted she did not know how she came to move from one side of the bed, where she fell asleep, to the other side. The complainant said the appellant had taken her clothes off without her waking up, so she did not know what he did in all the time she was asleep. She accepted she did not suffer any bruising or physical injury.[46]The complainant said, when she first woke up, she was on her belly. It took a minute or two before she fully realised what was occurring in her bed. It was about another 20 or 25 seconds before she said to the appellant “what are you doing? Stop it”. During that period, the appellant was continuing to have sexual intercourse with her. In the period before she realised what was going on, the appellant turned her from her belly to her back and was still having sex. The complainant accepted that nowhere in her statement to police did she mention anything about the appellant having sex with her whilst she was on her back. ” (citations omitted)

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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