R v Nash

Case [2020] QCA 127

SUPREME COURT OF QUEENSLAND

CITATION:

R v Nash [2020] QCA 127

PARTIES:

R
v
NASH, Mark Kevin
(appellant)

FILE NO/S:

CA No 308 of 2019
DC No 61 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Gladstone – Date of Conviction: 24 October 2019 (Dearden DCJ)

DELIVERED ON:

Date of Orders: 13 May 2020
Date of Publication of Reasons: 12 June 2020

DELIVERED AT:

Brisbane

HEARING DATE:

13 May 2020

JUDGES:

Sofronoff P and Boddice and Ryan JJ

ORDERS:

Orders delivered: 13 May 2020

1.   The appeal is allowed.

2.   The conviction is set aside.

3.   A re-trial is ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was found guilty by a jury of one count of rape – where the appellant was sentenced to six years’ imprisonment – where the appellant appeals against the conviction on the ground that the trial Judge erred in ruling that the appellant’s false statements about the state of his memory were available to the jury as lies told in consciousness of guilt – where the complainant was working as an au pair for the appellant’s children – where the appellant admitted the act of intercourse with the complainant – where the appellant accepted he lied in a pretext call with the complainant following the offence – where the appellant accepted he remembered more than he suggested in the pretext call – where the prosecutor at trial relied on the contents of the pretext call as lies indicative of a consciousness of guilt – where the appellant’s counsel submitted at trial that the lies were explained by the appellant’s fear for his marriage if his wife, who was beside him during the pretext call, found out what had happened – where the appellant’s counsel on appeal submitted that the directions given to the jury regarding the appellant’s lies were insufficient and gave rise to a miscarriage of justice – whether the appellant’s lie as to a lack of memory was capable of being used by the jury as evidence implicating him in the offence – whether the jury may have used the lies to impermissibly reason that the appellant was guilty of the offence – whether there was a miscarriage of justice

Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, cited
R v Brennan [1999] 2 Qd R 529; [1999] QCA 522, cited
R v SCL; Ex parte Attorney-General (Qld) [2017] 2 Qd R 401; [2016] QCA 107, cited

COUNSEL:

B J Power for the appellant
C W Wallis for the respondent

SOLICITORS:

Fisher Dore Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. SOFRONOFF P:  I agree with Boddice J.

  2. BODDICE J:  On 24 October 2019, a jury found the appellant guilty of one count of rape.  The appellant was sentenced to six years’ imprisonment.

  3. The appellant appealed…

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AGLC
R v Nash [2020] QCA 127
Case
[2020] QCA 127
Decision Date

CaseChat Overview and Summary

In the case of R v Nash, the appellant was convicted of one count of rape and sentenced to six years' imprisonment. The appellant appealed the conviction, arguing that the trial judge erred in allowing the jury to consider his false statements about his memory as evidence of a consciousness of guilt. The appellant admitted to having intercourse with the complainant but claimed that she had consented. The central issue for the jury was whether the act of intercourse occurred without the complainant's consent. The appellant argued that the trial judge's directions to the jury regarding his lies were insufficient and amounted to a miscarriage of justice.

The court examined whether the appellant's false statements about his memory could be used as evidence of his guilt. The court noted that for a lie to be admissible as evidence of guilt, it must be related to a material issue and the appellant must have known that the truth would implicate him in the offence. In this case, the appellant's false claims about his memory did not implicate him in the offence of having intercourse without consent because he admitted to having intercourse. The court held that these lies were only relevant to the appellant's credibility and could not be used to infer guilt.

The court further found that the jury's consideration of the appellant's lies as evidence of guilt led to a miscarriage of justice. The trial judge's directions did not adequately guide the jury on how to properly assess the lies in relation to the issue of consent. This misdirection prevented the appellant from receiving a fair trial. As a result, the appeal was allowed, the conviction was set aside, and a re-trial was ordered.

Orders:
1. The appeal is allowed.
2. The conviction is set aside.
3. A re-trial is ordered.

Orders

Orders of the court

Orders delivered: 13 May 2020

1. The appeal is allowed.

2. The conviction is set aside.

3. A re-trial is ordered.

Background

Background to the litigation

These are my reasons for joining in those orders.Background The appellant was born on 24 May 1976. He was aged 41 at the time of the offence and 43 at the date of conviction and sentence. The offence of rape was committed on 11 March 2018. It took place in the appellant’s residence. The appellant shared that residence with his wife and children. 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.Offence The offence of rape involved the appellant having penile/vaginal intercourse with the complainant. The Crown case was that the complainant could not have consented to that act of intercourse because she was asleep. At trial, the appellant admitted the act of intercourse with the complainant. The issue for determination was whether the Crown had satisfied the jury beyond reasonable doubt that that act of intercourse occurred without the complainant’s consent.Evidence 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. 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. 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. 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. 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”.[1] She “had a good time”.[2][1]AB198/45.[2]AB199/5. 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. 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. 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.

Evidence

Evidence Before The Court

At trial, the appellant admitted the act of intercourse with the complainant. The issue for determination was whether the Crown had satisfied the jury beyond reasonable doubt that that act of intercourse occurred without the complainant’s consent.Evidence 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. 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. 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. 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. 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”.[1] She “had a good time”.[2][1]AB198/45.[2]AB199/5. 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. 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. 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. 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. 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.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The respondent further submits that the directions given to the jury were sufficient, having regard to the only issue in dispute at trial, namely, consent. In those circumstances, it was self-evident how the lies were concerned with a circumstantial event connected with the alleged rape. No redirection was sought by defence counsel at trial. In those circumstances, there was no miscarriage of justice as the appellant had not been denied a fair chance of acquittal.Consideration A lie can only be used as evidence of the appellant’s guilt if it is open to the jury to find that the lie was “concerned with some circumstance or event connected with the offence”, that is, that it related to a material issue and that the appellant told the lie because he knew that the truth of the matter about which he lied would implicate him in the offence.[43][43]Edwards v The Queen at 210, 211. As Philip McMurdo JA observed in R v SCL; Ex parte Attorney-General (Qld)[44]:“It was what (if anything) the lie itself revealed about the appellant’s mind which was critical. Did the lie reveal a consciousness by the appellant of his guilt? It could do so only if it revealed a knowledge of the offence or some aspect of it and a fear that the truth of the matter would implicate him. As Callaway JA (with the agreement of the other members of the Court) said in R v Kondstandopoulos: “It is the combination of knowledge and fear that evinces guilt”” (citations omitted)[44][2017] 2 Qd R 401 at [61]. The defendant’s false assertions in the pretext telephone call and later to his wife, that he had no memory of the events of that night were not capable of constituting lies which would implicate him in the commission of the offence of rape. The truth, that is, that he did remember having sexual intercourse with the complainant would only implicate him in having had intercourse with the complainant. By the time of trial, the appellant was admitting that an act of intercourse had taken place on that night. The sole issue for the jury was whether it occurred with the complainant’s consent. A lie as to a lack of memory, in the circumstances of the case, was not capable of being used by the jury as evidence implicating him in the offence of having sexual intercourse with the complainant without her consent. It was relevant only to his creditworthiness. Courts have consistently cautioned against a reliance by prosecuting counsel on lies by an accused person as evidence of consciousness of guilt. As McPherson JA observed in R v Brennan[45]:“As was decided in Edwards v The Queen, the telling of lies is something that in some instances is capable of being considered as circumstantial evidence amounting to an implied admission of guilt on the part of an accused person; but the directions needed in order to correctly explain the conditions in which it is available for that purpose are convoluted and not at all easy for a judge to give, or for a jury to understand. The result often is to obscure rather than to simplify the issue to be determined. That is particularly so in a case where, like this, the accused gave one account in his evidence at the trial, after having given another and contradictory statement at an earlier time. In circumstances like that, the prior inconsistent statement simply forms a basis for doubting the credibility of his testimony at trial. His admission in evidence that he had told a lie about it on a previous occasion is a factor to be considered by the jury in deciding whether his testimony at the trial is credible. It adds nothing to the process of assessing his credibility for the jury to be told, if the explanation given at the trial of the falsity of his earlier statement is itself a lie, it may demonstrate a consciousness of guilt on his part on that or an earlier occasion. If it was not itself a lie, it is no evidence at all of his guilt, which is the very question which the jury is asked to decide.” (citations omitted)[45][1999] 2 Qd R 529 at 530.