R v PBC

Case [2019] QCA 28

SUPREME COURT OF QUEENSLAND

CITATION:

R v PBC [2019] QCA 28

PARTIES:

R
v
PBC
(appellant)

FILE NO/S:

CA No 316 of 2017
DC No 768 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 1 December 2017 (Durward DCJ)

DELIVERED ON:

26 February 2019

DELIVERED AT:

Brisbane

HEARING DATE:

25 October 2018

JUDGES:

Fraser and Morrison and McMurdo JJA

ORDERS:

1.   Allow the appeal.

2.   Quash the appellant’s conviction.

3.   The appellant be re-tried.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PRESENTATION OF CROWN CASE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant was convicted of indecent treatment and rape – where the complainant had consensual sexual activity with a person other than the appellant – where the appellant at trial argued that the alleged conduct was fabricated because there were similarities between the complainant’s description of the alleged conduct and the complainant’s description of the consensual sexual activity – where the prosecutor in their closing address suggested that the similarities were the result of the sexualisation of the complainant by the appellant – where the appellant at trial was not permitted to ask the complainant about their sexual history other than the single instance of consensual sexual activity – where defence counsel at trial did not seek a direction about the prosecutor’s argument – whether it was unfair that the appellant was not able to ask the complainant about any other previous sexual activity – whether defence counsel made a forensic decision not to seek a direction – whether there was an unfairness as there were distinct risks to the appellant’s case at trial if defence counsel chose to seek a direction or chose not to seek a direction

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – CONTROL OVER PROCEEDINGS – DISCHARGE OF JURY – where the appellant was convicted of indecent treatment and rape – where the complainant had consensual sexual activity with a person other than the appellant – where the appellant at trial argued that the alleged conduct was fabricated because there were similarities between the complainant’s description of the alleged conduct and the complainant’s description of the consensual sexual activity – where the prosecutor in their closing address suggested that the similarities were the result of the sexualisation of the complainant by the appellant – where the appellant at trial was not permitted to ask the complainant about their sexual history other than the single instance of consensual sexual activity – where the appellant at trial applied to discharge the jury – whether it was unfair that the appellant was not able to ask the complainant about any other previous sexual activity – whether the trial judge erred by failing to discharge the jury – whether defence counsel made a forensic decision…

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Details
AGLC
R v PBC [2019] QCA 28
Case
[2019] QCA 28
Decision Date

CaseChat Overview and Summary

In the case of R v PBC, the appellant was convicted of indecent treatment and rape. The respondent argued that there were similarities between the complainant's description of the alleged conduct and the complainant's description of the consensual sexual activity, suggesting that the alleged conduct was fabricated. The prosecutor in their closing address suggested that the similarities were the result of the sexualisation of the complainant by the appellant. The appellant at trial was not permitted to ask the complainant about their sexual history other than the single instance of consensual sexual activity. The appellant argued that it was unfair that they were not able to ask the complainant about any other previous sexual activity, and that there was a risk of miscarriage of justice due to the prosecutor's argument.

The legal issues the court was required to decide were whether it was unfair that the appellant was not able to ask the complainant about any other previous sexual activity, whether there was an unfairness as there were distinct risks to the appellant's case at trial if defence counsel chose to seek a direction or chose not to seek a direction, and whether the prosecutor's argument was an advocate's flourish. The court found that the prosecutor's argument was flawed and had the potential to mislead the jury, and that it warranted some intervention by the trial judge. The court found that the conviction on each count should be set aside because of the risk of miscarriage of justice.

The court concluded that because of the risk of miscarriage of justice, the conviction on each count should be set aside. The complainant's credibility about the particular count of penile rape was clearly relevant also to the jury's consideration of the case on the other counts. The court ordered that the appeal be allowed, that on each count the conviction be quashed, and there be a re-trial. The court found that the prosecutor's argument was not an advocate's flourish but had the potential to mislead the jury, and that it warranted some intervention by the trial judge.

Orders

Orders of the court

1. Allow the appeal.

2. Quash the appellant’s conviction.

3. The appellant be re-tried.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The convictions are challenged on the ground that there was a miscarriage of justice from what was said by the prosecutor in his closing address to the jury. Another ground of appeal, that the verdicts were unreasonable, was abandoned.The evidence at the trial The only evidence of the offences was given by the complainant. Her evidence consisted of a statement under s 93A of the Evidence Act 1977 (Qld) (the Act) and pre-recorded testimony under s 21AK of the Act. There were in fact three separate s 21AK recordings. In the s 93A statement, which was given to police on 21 April 2016, the complainant described the occasion on which the two offences of rape were committed. One of those offences involved the appellant requiring the complainant to suck his penis. The other involved penile penetration and, in describing that offence, the complainant said that when she stopped sucking on the appellant’s penis:“… [H]e grabbed me and pulled me onto his lap and then tried to insert his penis into me … and I think he did it and I started bleeding …”She also said:“… once I finished sucking him, he grabbed me and then pulled me onto his lap and he had my pants down … and then he started fiddling with himself and trying to fit it in and then he eventually did …”After a short time, she said she went to the bathroom and locked herself in. There was some evidence of uncharged sexual acts, described by the trial judge in his summing up as evidence that the appellant had touched the complainant and that it had been going on for a while. The appellant was permitted to cross-examine the complainant about an incident in which there was consensual sexual activity between her and a teenage boy, who was aged 14 and whom I will call E. The incident occurred on 3 October 2015 in a lavatory in a shopping centre. It appears that the incident became known at the complainant’s school and the school reported the matter to police. A few days later the complainant was interviewed by police about the incident. The complainant described an incident in which E sat on the floor and grabbed her hands so that she would sit on his lap. She told police that “then he pulled his pants down a bit and then took his thing out and then tried inserting it into me”. The police officer asked her “did it happen?” and she answered:“He sort of got it in, but he kept moving so it came out pretty much directly after …”The police officer asked for more detail and the complainant then said:“He pulled me onto his lap and pulled his thing out … When I was on his lap, he tried to get his penis inside of me. … And then he kept moving around, so it wouldn’t go in. And when he finally did get it in, he moved so it came back out.” In pre-recorded testimony, the appellant’s counsel suggested that the complainant’s version of the penile rape, given in the s 93A statement in April 2016, was a fabrication in which the complainant was employing the details of the incident with E in order to describe an act of intercourse with the appellant. The complainant denied the suggestion.

Decision

Reasons for decision

The respondent’s submission that the prosecutor’s “comment” was insignificant in the scheme of the entire address cannot be accepted. It is not unlikely that the jury considered and was persuaded by the argument, although it was not specifically mentioned in the trial judge’s summary of the respective arguments in his summing up. The prosecutor’s argument was more serious than an “advocate’s flourish”;[6] there was a real risk that this argument wrongly influenced the verdict, resulting in a miscarriage of justice.[7][6]cf R v Smith [2007] QCA 447; (2007) 179 A Crim R 453 at 464 [38].[7]R v MCT [2018] QCA 189 [40].Conclusion and orders Because of that risk, the conviction on each count should be set aside. The complainant’s credibility about the particular count of penile rape was clearly relevant also to the jury’s consideration of the case on the other counts. I would order that the appeal be allowed, that on each count the conviction be quashed, and there be a re-trial.

Ratio Decidendi

Legal Principle Established

There is no submission that the proviso under s 668E(1A) should be applied.Consideration The argument by defence counsel to the jury was that there was such a similarity between what had happened with E in October 2015 and the complaint of the penile rape offence which she made to police in April 2016, that it should be inferred that this was a false complaint inspired by the incident which had occurred with E. The prosecutor’s response, to the extent that there was not such a similarity, was relevant and fair, if not compelling. But the prosecutor went further by arguing, in effect, that the complainant’s experience with the appellant might explain her conduct with E. He suggested that there was a “very plausible explanation” for the incident with E which was the conduct of the appellant of which she complained. The prosecutor said that if there was such a similarity between the intercourse with E and the alleged intercourse with the appellant, the jury might infer that she had applied her experience of sex with the appellant in choosing “the same position” with E. The effect of that argument was that the incident with E was something which was probative of the appellant’s guilt. That was not an argument which defence counsel should have anticipated. It was an argument which was flawed in at least two ways. The first was that in describing the particular position in which the complainant and E had had sex, the prosecutor misrepresented the effect of her evidence. The complainant had not said that she had chosen that position for intercourse with E, yet this was part of his argument. The second was that the submission did not recognise the possibility that, if the incident with E was in any way attributable to a previous sexual experience of the complainant, the experience had been with someone other than the appellant. The submission had the potential to make the jury think that the complainant had had no other experience, an inference that might have been fortified by the fact that she had been cross-examined only about the incident with E. I do not accept the respondent’s submission that the prosecutor had simply “reversed” the proposition which had been put by defence counsel to the jury. As I have said, he went further by suggesting that the incident with E was a piece of circumstantial evidence which assisted in the proof of the offence. Nor do I accept that the prosecutor made it clear that he was referring only to the charged acts as the conduct by which the complainant had become “sexualised”, but in any case, it would be no answer to the flaws in the prosecutor’s argument which I have described. Because the prosecutor’s argument was at least potentially misleading, it warranted some intervention by the trial judge. It must be said that when the judge was asked to discharge the jury, the transcript of the prosecutor’s address was not available and, understandably, the full implications of the prosecutor’s argument may not have been understood. Nevertheless, an appropriate response by the trial judge might have been to require the prosecutor to correct his misstatements to the jury. Another appropriate response might have been to direct the jury as to those flaws in the prosecutor’s argument. In particular, the jury might have been directed that it was not the complainant’s evidence that she had chosen the position in which she and E had intercourse and that there was no evidence that the complainant was without sexual experience prior to the event with E, apart from that which was alleged against the appellant.