R v Ngwira

Case [2017] QCA 294

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ngwira [2017] QCA 294

PARTIES:

R
v
NGWIRA, Musa Brandon
(appellant)

FILE NO/S:

CA No 257 of 2016
SC No 92 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Cairns – Date of Conviction: 7 September 2016 (Henry J)

DELIVERED ON:

1 December 2017

DELIVERED AT:

Brisbane

HEARING DATE:

25 August 2017

JUDGES:

Sofronoff P and Philippides JA and Flanagan J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant was found guilty by a jury of one count of rape and one count of murder – where the trial judge directed the jury in relation to accident, and in particular s 23(1A) of the Criminal Code – where accident was raised and the death did not result because of defect, weakness or abnormality – where counsel for the defendant at trial did not seek redirections at trial – whether the direction on accident given by the learned trial judge in the summing up was an error

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the prosecution case in respect of the rape charge was circumstantial – where forensic and other circumstantial evidence was presented – where the appellant contended that the circumstantial case of rape was answered by direct evidence of the appellant – whether it was reasonably open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt that the appellant had raped the deceased – whether it was reasonably open to the jury to be satisfied that penetration for the rape charge had occurred prior to the deceased’s death – whether time of death could be resolved on the evidence – whether the evidence could sufficiently establish that penetration occurred and that it occurred while the deceased was still alive

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – CONSIDERATION OF SUMMING UP AS A WHOLE – where the learned trial judge did not direct the jury that they must consider each count separately and consider only the evidence on each count in relation to that count – where the appellant contends that the learned trial judge erred in failing to give a separate consideration warning – where counsel for the appellant did not seek redirections at trial – where the elements of the offences are different – whether there was a substantial miscarriage of justice – whether there was a risk that the jury would use a conviction on one count to impermissibly reason guilt on the other – whether the direction was given in essence by the trial judge – whether the judge established that the verdicts of the jury did not need to be the same

Criminal Code (Qld), s 23(1A), s 668E(1)

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AGLC
R v Ngwira [2017] QCA 294
Case
[2017] QCA 294
Decision Date

CaseChat Overview and Summary

In this case, the appellant appealed against his conviction and sentence on three grounds. Firstly, that the trial judge misdirected the jury in relation to section 23(1A) of the Criminal Code in the summing up. Secondly, that the jury's verdict on the charge of rape was unreasonable. Thirdly, that the trial judge failed to give a separate consideration warning to the jury. The appellant was found guilty by a jury of one count of rape and one count of murder. The trial judge had directed the jury in relation to accident, and in particular section 23(1A) of the Criminal Code. The appellant raised accident as a defence and the death did not result because of defect, weakness or abnormality. The appellant's counsel did not seek redirections at trial.

The court considered the first ground of appeal, whether the trial judge's direction on accident was an error. The court held that the direction was not an error, as the judge's summing up as a whole did not result in a substantial miscarriage of justice. The court also considered the second ground of appeal, whether the jury's verdict on the charge of rape was unreasonable. The court held that the jury's verdict was open to them on the whole of the evidence, as the prosecution's case in respect of the rape charge was circumstantial, and it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant had raped the deceased. The court also considered the third ground of appeal, whether the trial judge failed to give a separate consideration warning to the jury. The court held that the trial judge did not err in failing to give a separate consideration warning, as the judge had directed the jury to consider each count separately and consider only the evidence on each count in relation to that count.

In conclusion, the appeal was dismissed. The court held that the trial judge's direction on accident was not an error, the jury's verdict on the charge of rape was open to them on the whole of the evidence, and the trial judge did not err in failing to give a separate consideration warning to the jury.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

There are three grounds of appeal. First, that the learned trial judge erred in directing the jury as to section 23(1A) of the Criminal Code where accident was raised and the death did not result because of defect, weakness or abnormality (ground 1). Secondly, that the verdict of the jury on count 1 was unreasonable (ground 2). Thirdly, that the learned trial judge erred in failing to give the jury the separate consideration of charges warning (ground 3).[1][1]Amended Notice of Appeal.Background The appellant was born on 15 December 1982. He was born and raised in South Africa. At the time of the offences he was 32 years old.[2] In March 2014, the appellant moved from Sydney to Mission Beach in Queensland to work as an Operations Manager for Echo Creek Adventure Centre.[3] He lived in the downstairs area of a house at 26 Jackey Jackey Street in South Mission Beach. Michelle Lloyd, the Manager of Echo Creek Adventure Centre, also resided at this address.[2]AB 633.[3]AB 44. The deceased was 26 years old. She was a photographer for a white water rafting company ‘Raging Thunder’. The appellant and the deceased had met before 19 April 2014. The appellant had previously visited Mission Beach for six weeks in 2013. During this time, he met people associated with the white water rafting community, including the deceased.[4][4]Outline of Submissions Filed by the Appellant, Annexure A, 1-2.Factual Overview and the Conduct of the Trial On 18 April 2014 the deceased was part of a ‘Raging Thunder’ rafting trip on the Tully River. The appellant was kayaking on the Tully River and had remained near those on the ‘Raging Thunder’ trip to minimise the risks of kayaking alone. After rafting, the deceased and others from the trip went to the Feluga Hotel to look at photos and enjoy refreshments. The appellant had not gone to the hotel and returned to his house. The deceased left Feluga Hotel at or about 4.30 pm with Warrick Daniel, Mark McKay and Paul Porteous. After dropping the deceased home, the others continued to Bingil Bay Café for drinks. The deceased went to her house to change her clothes. She then drove to Warrick Daniel’s residence at unit 1, 30 Bingil Bay Road, Bingil Bay. She intended to sleep there that night. She parked her car in front of Mr Daniel’s unit and walked to Bingil Bay Café, arriving at approximately 5.00 pm. She met up with the group, including Mr Daniel, Bradley Patterson and Stephen Bertucci. The group left for Jackaroo’s Hostel at or about 8.00 pm.[5][5]AB 223. The appellant had returned home at or about 4.30 pm. He had gone to dinner with Michelle Lloyd and Kenneth Fox who was a director of Echo Creek Adventure Centre.[6] Mr Fox’s wife also went to dinner.[6]Outline of Submissions Filed by the Appellant, Annexure A, 2. After arriving at Jackaroo’s, Mr Daniel texted the appellant inviting him to join. The appellant received that message when he returned home from dinner. He subsequently drove to Jackaroo’s and arrived between 9.30 pm and 10.00 pm. Alcohol was being served and there was free wine for an event called ‘Free Wine Friday’.[7] The area at Jackaroo’s was small, and consisted of a dance floor, bar and tables. It was described by numerous witnesses as a happy evening with a friendly atmosphere.[8][7]AB 207.[8]Outline of Submissions Filed by the Appellant, Annexure A, 2.

Evidence

Evidence Before The Court

The prosecution’s case in respect of the rape charge was circumstantial. It relied on both forensic evidence and other circumstantial evidence. This included the interaction between the appellant and the deceased the previous night, her statements to Mr Daniel and Mr Bertucci concerning the appellant and the evidence of Mr Norman and Ms Delaporte of hearing a woman scream. The jury also had the evidence of the appellant’s police interview and the advantage of observing the appellant giving evidence, which occupied approximately two hours including 40 minutes of cross-examination. It is necessary to consider this evidence in detail to determine whether it was open to the jury to determine that the appellant raped the deceased and that his guilt was proved beyond reasonable doubt. The evidence is analysed below particularly with a view to determining first, whether there was sufficient evidence to conclude that there had been penetration and secondly, whether there was sufficient evidence to determine if penetration happened before or after death.(a)Evidence from Jackaroo’s Hostel Bradley Patterson and Stephen Bertucci were part of the group who were at Jackaroo’s with the deceased on the night of 18 April 2014. Mr Patterson gave evidence that the deceased had asked him to dance. When he went to dance with her, the appellant began “sort of leading [the deceased] away”.[51][51]AB 55.29. Mr Bertucci also danced with the deceased during the evening. He said the deceased was “like one of [his] own daughters”.[52] He gave evidence that the appellant approached him and the deceased while they were dancing and grabbed the deceased’s arm. The appellant said words to the effect of “that’s not how women act or how women are supposed to be like”.[53] Mr Betrucci and the deceased continued dancing until the music finished, at which point Mr Bertucci returned to the bar and the deceased went to talk with a group of friends. Later in the evening, Mr Bertucci was again dancing with the deceased when the appellant grabbed her.[54] Mr Bertucci confronted the appellant and told him to “fuck off”.[55] The events described by Mr Bertucci were not seen by any other witness. Other witnesses described the evening as being pleasant and without any aggression.[56][52]AB 128.[53]AB 132.1.[54]AB 134.2.[55]AB 134.2.[56]AB 59.23. Mr Bertucci also gave evidence that the deceased told him that the appellant was “creeping her out”.[57] He recalled a conversation he had during this time with the deceased:“She said to me – she said, hey, Steve. This fellow’s really creeping me out, or he creeps me out, something like that.”[58][57]AB 134.26.[58]AB 134.25. The comment made by the deceased as recalled by Mr Bertucci is similar to the comment that Mr Daniel recalled being made by the deceased as described in [15] above. The appellant denied any confrontation at Jackaroo’s with Mr Bertucci in the following exchange with Counsel:“I’m going to suggest that he [Mr Bertucci] was dancing with Joanne, and you pulled her forearm?--- That’s incorrect.You also said, “That’s not how women act or how women are supposed to be like,” didn’t you?--- That’s incorrect.So is he lying is he?--- Yes. He is.…I’m also going to suggest there was another incident where Steve Bertucci was dancing with Joanne, again [indistinct] a slow dance, and you have again grabbed Joanne by the forearm?--- That’s incorrect.You grabbed her quite forcefully by the forearm?--- No.And the baldheaded man, Mr Bertucci, told you to, “Fuck off idiot”?--- No.Mr Patterson, the army boxer guy, you saw he was interested in Jo that evening, didn’t you?--- I wasn’t paying attention to what anyone else was doing.You were paying attention to Joanne that evening, though, weren’t you?--- Because I was talking to her. She was part of the group.Yeah. And when you weren’t with her, you were staring at her?--- [indistinct] incorrect, eh?You were watching her? --- [indistinct] incorrect.Because you were attracted to Joanne, weren’t you?--- Did say I was attracted to her.”[59][59]AB 444.21.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The learned trial judge summarised the defence contentions as follows:“Even before you get to Mr Ngwira’s account of events, on the prosecution’s own case you should have some doubts about whether or not the rectal swab was actually detecting a DNA inside the rectum, or just DNA innocuously outside. You should have regard, also, to the limitations of the evidence in being able to establish beyond reasonable doubt whether she was alive or dead at the time the event happened, if it did happen, and over and above all that, the defence say, in any event you would either accept what Mr Ngwira says happened, which plainly was not rape or indecent interference with a corpse, or at least would be left in a state of reasonable doubt either way on the topic.”[100][100]AB 582.17-25.Consideration of ground 2 The appellant submits that the only evidence in relation to the rape was the presence of his DNA (with spermatozoa fraction) in the rectum of the deceased. The appellant submits that such circumstantial evidence is not sufficient to prove beyond reasonable doubt that the appellant penetrated the deceased’s anus with his penis or another object at any time.[101][101]Appellant’s Outline, [32]. The appellant acknowledges that “there was a powerful circumstantial Crown case for murder” but “the circumstantial case (for) rape was much less strong and was ‘answered by direct evidence from the appellant’”.[102][102]T1-2, lines 19-32. The appellant submits that the DNA fraction found in the deceased could have occurred by transfer when he “manhandled” the deceased into the shower to stage her suicide.[103] In the appellant’s submission, that possible transfer “wasn’t a circumstance that could be rejected on the state of the evidence”.[104] These submissions should not be accepted. They are difficult to reconcile with the appellant’s own evidence at trial that there was nothing which he did to the deceased that could have resulted in the transfer of his spermatozoa to her rectum.[105] Further the appellant’s spermatozoa was found in the deceased’s rectum but not in her vagina. As a result it was open to the jury to reject the suggestion that the appellant’s spermatozoa came to be in the rectum of the deceased as a result of transfer by operation of water from the shower. The prosecution’s version of events was the more likely given that on the appellant’s version he ejaculated into his underpants and never took them off. Further at the time of ejaculation, on the appellant’s version, the deceased was also still wearing her underwear.[103]T1-6, line 32.[104]T1-6, lines 37-38.[105]AB 437.46. As outlined in [26] above, the appellant conducted a Google search on 22 April 2014 for “how long does it take to get forensic DNA results in Australia”. The inference capable of being drawn from this Google search is that the appellant knew he had transferred some of his DNA to the deceased sufficient for it to be found. I accept the submission of the respondent that the jury were entitled, in considering the circumstantial case, to reasonably infer that the appellant’s semen was in the rectum of the deceased due to penetration and not by innocent transfer. Even on the appellant’s own version there had been sexual activity between him and the deceased, who did not scream until after that sexual activity occurred.[106] It was open to the jury not to accept the appellant’s evidence of consensual sexual activity. Such activity was inconsistent with the statements of the deceased to both Mr Daniel and Mr Bertucci to the effect that she found the appellant “creepy”. The fact that the deceased screamed is also inconsistent with consensual sexual activity.[106]Respondent’s Outline, [13(b)].