R v Pollard - [2020] QCA 188

SUPREME COURT OF QUEENSLAND

CITATION:

R v Pollard [2020] QCA 188

PARTIES:

R
v
POLLARD, Joshua Cameron
(appellant)

FILE NO/S:

CA No 317 of 2019
DC No 55 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Emerald – Date of Conviction: 1 November 2019 (Reid DCJ)

DELIVERED ON:

4 September 2020

DELIVERED AT:

Brisbane

HEARING DATE:

10 August 2020

JUDGES:

Sofronoff P and Morrison and Philippides JJA

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was charged with three counts of rape of the same complainant – where a jury convicted him on count 2 and acquitted him on the other two counts – where the appellant submits that the jury’s guilty verdict on count 2 was unreasonable having regard to the acquittals on counts 1 and 3 – where the evidence of penetration was very slight on count 1 – where the evidence of penetration on count 2 was stronger and the defence case was largely concerned with the issue of consent – where the evidence of penetration on count 3 was that the penetration might have happened but, if it had, it had been inadvertent – whether the verdicts were inconsistent – whether the jury’s verdict of guilty was unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant was charged with three counts of rape of the same complainant – where a jury convicted him on count 2 and acquitted him on the other two counts – where defence counsel at trial sought “a Robinson-style direction in relation to the complainant’s evidence” – where the complainant’s evidence was the sole evidence to prove the charges, she had been drinking alcohol and smoking cannabis, she was mixing medication and alcohol, she was having mood swings, she had actually initiated sexual conduct by exposing her breasts, she had raised the question of sexual intercourse by asking, “Is this really happening?” and there were several inconsistencies in her evidence that were remarkable – where the learned trial judge accepted that submission and directed the jury to consider her evidence very carefully – whether the trial judge misdirected the jury

Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, considered

COUNSEL:

The appellant appeared on his own behalf
S J Bain for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: The appellant was charged with three counts of rape of the same complainant, whom I will call Ms Jackson. A jury convicted him on one count and acquitted him on the other two counts. The appellant appeals on two grounds. First, he contends that the guilty verdict was irrationally inconsistent with the two not guilty verdicts. Second, he contends that the learned trial judge erred in rejecting defence counsel’s application that he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Pollard

Details

AGLC: R v Pollard [2020] QCA 188
Case: [2020] QCA 188
Decision Date: 4 September 2020

CaseChat Overview and Summary

The appeal arose from a conviction by a jury of the appellant on one count of rape and acquittals on two other counts of rape of the same complainant. The appellant argued that the jury's guilty verdict on count 2 was unreasonable due to the acquittals on counts 1 and 3, given the varying degrees of evidence regarding penetration. The appellant also argued that the trial judge misdirected the jury by not providing a Robinson-style direction, which would have warned the jury to approach the complainant's evidence with caution due to the circumstances surrounding her credibility. The court was required to determine whether the verdicts were inconsistent and whether the trial judge had erred in the direction given to the jury.

The court first addressed the issue of inconsistent verdicts, noting that the evidence on counts 1 and 3 was much weaker than on count 2, where the issue of consent was central. The court found that the jury was entitled to convict on count 2 while acquitting on counts 1 and 3, as the differences in evidence and the focus on consent provided a rational basis for the verdicts. Regarding the misdirection, the court held that the trial judge had appropriately directed the jury to consider the complainant's evidence carefully, taking into account her circumstances and inconsistencies. The court concluded that the jury's verdict was not unreasonable and that the trial judge did not misdirect them.

The appeal was dismissed. The court found that the jury's verdicts were consistent and rational, given the varying evidence on each count. The trial judge's direction to the jury was considered adequate in light of the circumstances surrounding the complainant's credibility. Consequently, the conviction on count 2 was upheld, and the acquittals on counts 1 and 3 were maintained.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Pollard [2020] QCA 188
PARTIES:	R v POLLARD, Joshua Cameron (appellant)
FILE NO/S:	CA No 317 of 2019 DC No 55 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Emerald – Date of Conviction: 1 November 2019 (Reid DCJ)
DELIVERED ON:	4 September 2020
DELIVERED AT:	Brisbane
HEARING DATE:	10 August 2020
JUDGES:	Sofronoff P and Morrison and Philippides JJA
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was charged with three counts of rape of the same complainant – where a jury convicted him on count 2 and acquitted him on the other two counts – where the appellant submits that the jury’s guilty verdict on count 2 was unreasonable having regard to the acquittals on counts 1 and 3 – where the evidence of penetration was very slight on count 1 – where the evidence of penetration on count 2 was stronger and the defence case was largely concerned with the issue of consent – where the evidence of penetration on count 3 was that the penetration might have happened but, if it had, it had been inadvertent – whether the verdicts were inconsistent – whether the jury’s verdict of guilty was unreasonable CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant was charged with three counts of rape of the same complainant – where a jury convicted him on count 2 and acquitted him on the other two counts – where defence counsel at trial sought “a Robinson-style direction in relation to the complainant’s evidence” – where the complainant’s evidence was the sole evidence to prove the charges, she had been drinking alcohol and smoking cannabis, she was mixing medication and alcohol, she was having mood swings, she had actually initiated sexual conduct by exposing her breasts, she had raised the question of sexual intercourse by asking, “Is this really happening?” and there were several inconsistencies in her evidence that were remarkable – where the learned trial judge accepted that submission and directed the jury to consider her evidence very carefully – whether the trial judge misdirected the jury Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, considered
COUNSEL:	The appellant appeared on his own behalf S J Bain for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent