R v RBA

Case [2018] QCA 338

SUPREME COURT OF QUEENSLAND

CITATION:

R v RBA [2018] QCA 338

PARTIES:

R
v
RBA
(appellant)

FILE NO/S:

CA No 250 of 2018
DC No 35 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:


District Court at Cairns – [2018] QChC 24 (Morzone QC DCJ)

DELIVERED ON:

7 December 2018

DELIVERED AT:

Brisbane

HEARING DATE:

21 November 2018

JUDGES:

Sofronoff P and Philippides JA and Boddice J

ORDER:

The appeal against conviction is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – TEST TO BE APPLIED – where after a judge alone trial the appellant was acquitted of one count of rape (count 1) and convicted of one count of rape (count 2) – where the appellant and complainant were drinking with friends on a beach at night when they left the group, kissed, the appellant touched the complainant’s breasts, they went for a walk and the appellant put his fingers in the complainant’s vagina (count 1) and had sex with the complainant (count 2) – whether the verdict of guilty for count 2 was unreasonable or cannot be supported having regard to the evidence

CRIMINAL LAW – EVIDENCE – OPINION EVIDENCE – OTHER MATTERS – where the complainant gave evidence that after she left the beach, she went home to have a shower and then went to the hospital to be examined by a doctor who gave evidence that there was redness in the groin areas consistent with skin on skin rubbing – where the trial judge found that significant weight should be afforded to medical opinion – whether the trial judge erred in finding significant weight should be afforded to the doctor’s evidence

CRIMINAL LAW – PROCEDURE – TRIAL HAD BEFORE JUDGE WITHOUT JURY – GENERALLY – where the appellant submitted that the trial judge erred in stating that the evidence of the complainant’s distressed condition provided strong support of the complainant’s account – where the trial judge failed to direct himself in accordance with Benchbook Direction as to distressed condition – whether the trial judge erred in holding that the evidence of distressed condition provided significant support such that there was a miscarriage of justice

Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37, cited
R v AW[2005] QCA 152, cited
R v Foster[2014] QCA 226, cited
R v GS[2005] QCA 376, cited
R v LSS [2000] 1 Qd R 546; [1998] QCA 303, cited
R v McDougall [1983] 1 Qd R 89, cited
R v NM [2013] 1 Qd R 374; [2012] QCA 173, cited
R v PAS[2014] QCA 289, cited
R v RH [2005] 1 Qd R 180; [2004] QCA…

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AGLC
R v RBA [2018] QCA 338
Case
[2018] QCA 338
Decision Date

CaseChat Overview and Summary

The case of R v RBA involved an appeal against the conviction of the appellant, who was convicted of one count of rape (count 2) after being acquitted of another count of rape (count 1). The appellant and the complainant had been drinking and socialising on a beach with friends before they left the group, engaged in intimate behaviour, and eventually had sexual intercourse. The appellant argued that the verdict of guilty for count 2 was unreasonable or could not be supported based on the evidence. The case also raised questions about the weight given to medical opinion and the relevance of the complainant’s distressed condition.

The legal issues in this case revolved around the weight afforded to the complainant’s distressed condition, the significance of medical opinion, and the overall reasonableness of the verdict. The appellant argued that the trial judge erred in determining the relevance of the complainant’s distressed condition, in determining that significant weight should be afforded to the medical opinion, and in concluding that the guilty verdict was unreasonable.

The court found that while the trial judge referred to the complainant’s evidence of distress as “strong”, this was an erroneous finding of fact given the nature of the evidence. The court acknowledged that the evidence of distressed condition was a matter for the trial judge to assess. However, the court noted that the risk of a distressed condition being feigned was known to the trial judge, and the omission of a specific direction regarding the weight to be attributed to such evidence did not result in a miscarriage of justice. The court also held that the trial judge’s finding that the evidence of distressed condition provided significant support for the complainant’s account was open to his Honour.

The appeal against conviction was dismissed, upholding the conviction for count 2.

Orders

Orders of the court

The appeal against conviction is dismissed.

Background

Background to the litigation

Three grounds of appeal are raised in the amended notice of appeal.1.The trial judge erred in determining the relevance of distressed condition.2.The trial judge erred in determining that “significant weight” should be afforded to medical opinion.3.The guilty verdict was unreasonable and cannot be supported having regard to the evidence.Trial judge’s findings of facts The complainant and the appellant were known to each other and had been friends. They had previous social media and flirtatious interaction, including sharing a kiss about a year previously.[1][1]R v RT [2018] QCHC 24 (Reasons) at [9].Meeting on the beach On the evening of 12 December 2017, the complainant was drinking with her girlfriends and had dinner. The complainant said that her brother drove her and her friends to a beach where they were greeted by other friends. The trial judge did not draw any inferences, as urged upon his Honour, from the complainant having invited the appellant to the gathering on the beach.[2] The trial judge found that the complainant was drinking bourbon and coke during the evening and that she became increasingly jovial, boisterous and uninhibited.[3] However, the complainant was not so intoxicated as to lose control over her behaviour or to have impaired memory. None of the witnesses testified that she demonstrated indicia of impairment by intoxication, for example, that she was unstable on her feet or incoherent in her behaviour or speech immediately before and after separation from the group with the appellant at the beach.[2]Reasons at [9].[3]Reasons at [12]. The complainant gave evidence that the appellant was touching her and trying to kiss her during the night and that she would stand up and walk away. The appellant accepted that he kissed and touched the complainant while lying down, but contended that the contact was mutual. He denied that he touched her as she described when standing. F, who was also lying next to the complainant, accepted that he “grabbed her ass”, but he did not see, nor did others see, the appellant do so. The trial judge found the complainant was mistaken about the appellant’s touching her buttocks at that stage.[4][4]Reasons at [14]. During her cross examination, the complainant denied she was “drunk”, but described her state as tipsy. His Honour found that the complainant had candidly agreed that she was dancing including “twerking” to lewd musical lyrics. She also accepted that she had pulled down her top in front of the girls, but with her back to the boys, and suggested going skinny dipping with the girls. The trial judge observed that this behaviour was also more or less described by the other witnesses, including the appellant, present at the time. The group were variously dispersed around the bonfire and were also listening to music, drinking, interacting and dancing. His Honour found that there were some differences in the description of each other’s drinking during the evening, including the complainant’s drink preparation, but that there was little material difference in her observable behaviour.[5][5]Reasons at [16].

Evidence

Evidence Before The Court

His Honour noted that, during her evidence, the complainant marked areas of faint bruising on photographs taken some time later on 14 December 2017.[23] The complainant’s mother also testified that when the complainant woke her in the early hours of 13 December 2017 she could see she had red welts across the front of her legs and red marks, and she demonstrated an area across the top of her thighs and front of her upper thighs.[23]Reasons at [38].Evidence of Dr Griffiths Evidence was given by Dr Griffiths, a medical practitioner employed by Queensland Health as a forensic medical officer, which was not subject to challenge or contradiction. His Honour observed that the doctor found no signs of injury, except redness that was in both of the inguinal (groin) areas, which he said the complainant had earlier identified, which was like “chaffing” and consistent with skin on skin rubbing.[24] The doctor found no injury to the complainant’s vagina, but he considered this would not be uncommon in his experience.[24]Reasons at [40]. The signs of injury were significantly less obvious than, but were consistent with, those seen by the complainant’s mother. The trial judge was satisfied that “those facts have been sufficiently established to afford significant weight to the doctor’s opinion” and that there was “no other evidence, which casts doubt on his expert view”.[25][25]Reasons at [41]. The complainant’s clothes were taken for DNA analysis on 13 December 2017. The DNA evidence was the subject of admissions.Preliminary complaint The trial judge directed himself that the evidence of the preliminary complaint was to be considered for the limited purpose of assessing consistency or inconsistency of the complainant’s statement or conduct[26] or to buttress, or otherwise, the complainant’s credibility about the commission of the offence,[27] but that it had no probative value or capacity to independently prove anything.[28][26]R v AW [2005] QCA 152; R v Foster [2014] QCA 226.[27]R v NM [2013] 1 Qd R 374; R v PAS [2014] QCA 289.[28]Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A; R v Van Der Zyden [2012] 2 Qd R 568; R v LSS [2000] 1 Qd R 546; Papakosmas v The Queen (1999) 196 CLR 297; R v RH [2005] 1 Qd R 180. The trial judge compared, for this limited purpose, the other witnesses’ accounts as follows:[29][29]Reasons at [43].“(a)L testified about the complainant’s [return] to the group after being away ‘five. 10 minutes’ saying – ‘… She was walking rapidly. … He was about a metre behind her. … She storms past the bonfire and sat down. … Upset and angry. … The way she was walking, you could tell she was angry and because she had her hands over her face, you could tell she was upset. … [De] and I walked up to [the complainant] and I sat on her left side and she sat on her right side. … She was crying. … I asked her what happened. … And then she said, “[The appellant] raped me.”… I got up and grabbed her mobile phone and I called her brother, N. … we started packing up the bonfire – Ka, Da, De, and I started packing up and gathering our belongings. … We walked up to the fence post, which is halfway between the sand and the Esplanade. … [the complainant] stopped and she said, again, “[The appellant] raped me.” … She started crying.’ (L also referred to a sketch of where exchanges occurred”).(b)De gave evidence about events following the complainant’s [return] to the group – ‘So maybe like around seven minutes later, she walked back from where she was, straight past the fire … […how did she look?] Distressed. … She wasn’t making eye contact with us, she had her head down and she was walking – like, her steps were, like, big. … both L and I followed after [her] [And what did you say to her?] “Hey, what’s wrong?” or something along those lines. … She was like, “I just got raped.” … She was really upset. … Just like in the tone of her voice. … It was dark where we were – where she was sitting, but she had her head down and, like, her arms, like – her hands on her face.’(c)Da described the complainant’s absence with the appellant and her return after ‘Around 20 minutes. …She ran back and just told us to pick up our stuff. [… how did she look?] … Panicked. … Because she was rushing through her words and was trying to pick up everything really fast. [Da did not see the appellant] … Then we got our stuff and we went up to where the grass area is and L called [the complainant’s] brother. … We asked her what happened, and she started breaking down in tears and told us what happened. … She said [the appellant] grabbed her by the back of the neck, pushed her to the ground, ripped her shorts off of her and raped her. [Did you say anything to provoke that conversation?] … Yeah, I asked her what happened. She said, “He just raped me.”’(d)Ka also testified about the complainant’s remarks when the complainant returned to the group saying – ‘We were there for roughly 10 minutes and then [the appellant] walked back towards the group. … [The complainant] was upset. … She looked very shaken up and she had tears in her eyes. [Did she say anything while she was in the car?] Yes. … She said that he raped her. ... [the appellant]. … She was crying.’(e)C, one of the boys, testified that when the complainant – ‘re-entered the group. …Couldn’t have been too long. Say, five minutes, maybe. Between four to six, something like that. … I could see she, like – she wasn’t the same as before she left. … Like, she wasn’t crying but I could see .. she was upset in the face but, like. She didn’t say nothing, that’s how we didn’t know what was – we didn’t know what was wrong at that time. She just looked to her friend and said we’re going out of here. Started kicking sand on the fire. … Her and her friends went, like, back to the, I think, it was close to the car park. … but I spoke to her myself. … Well, I went up to her just to see, you know, what was going on … the boys weren’t with me. I said, like, “What’s wrong?” …She – It’s hard to yeah, sort of, explain but yeah. She was sort of like your friend tried, like, pulling me down and fucking me. Push – holding me down and fucking me. … she was sad. … she wasn’t happy. You know, she wasn’t smiling, she wasn’t smiling, she had like – yeah, I don’t know. … I don’t know how to explain something like,… she was upset. I’d say upset. [Asked how she displayed that she was upset] Maybe just her tone of voice, I could tell she was upset. Yeah, tone of voice. I could just tell she was upset, just from her tone of voice and she wasn’t even really talking, so … she normally talks. … I’d seen her face …, her eyes might’ve been a little bit watery but she wasn’t crying. So I didn’t know what was going but her eyes … Might’ve been a little bit watery, yeah, but she wasn’t crying.’(f)Ka remarked about later at home saying – ‘So she’d come into the bathroom, and we were all standing with her. She told us what had happened. She said that [the appellant] came up to her, asking to speak to her and – so she went for a walk with him, as she trusted him. She said that they eventually sat down to talk and he pushed her shoulder into the sand. … She said that he’d told him to shut up. … She said that he came. [And how was she when she was telling you?] She was crying. … [A]fter that he had told her to shut up and basically she just said that he had pulled down her pants and entered her.’(g)During cross-examination Ka elaborated in answer to defence counsel’s questions as follows:‘At [the complainant’s] house, you have – you say that there was a conversation with [the complainant] in the bathroom with all of the girls present?---Yeah.You say [the complainant] told you that [the appellant] had asked her to go for a walk and they were – they had – they sat down together?---Yeah.And that he pushed her shoulder?---Mmm.You agree that she also told you that [the appellant] had – sorry. That – I withdraw that. That [the complainant] had kicked [the appellant]?---She had tried to pull out of his restraint. Yes.Yeah. That he pushed – pushed her shoulder and forced her face into the sand and said, “Shut up.” And that she’s then told you that, “I kicked him and tried to move away”?---Yes.Yeah, “And then he forced my pants down”?---Yeah.Okay, “And then I could feel him inside me”?---Yes.And that he came?---Yes.And the kick was before forcing the pants down?---Yes.In addition to calling the Kids Helpline and the police, [the complainant] also called her boyfriend?---I don’t recall that. Sorry.’(h)De also testified about events at the house: ‘…So when we went back, [the complainant] was confused on what to do and we tried comforting her and we told her to tell her mum what happened and ask her what to do. … She was, like, upset. She didn’t know what to do. … She said she just – she thought they were going to talk and then as soon as they got there, he pulled down her pants and his pants and then he did – he did it. … “He put his wet dick in me.” The first person she called was her boyfriend. … a kids helpline.’(i)During cross-examination De further testified in answer to defence counsel’s questions as follows:‘When all of you girls were back at [the complainant’s] house and she told you what happened, you were all together as a group when that happened?---Yes. Yes.And was that in the bathroom?---Yes, the bathroom and outside in the living room.And did she – did [the complainant] say to you, when she was telling you what happened, that she was walking along the beach with [the appellant] and they chose to sit down?---Yes.That you talked about he placed his wet thing inside her. Did – before that, did she tell you that she’d kicked him before he tried to – or before he did put his wet thing inside her?---I can’t remember now but that’s all I remember her saying that he stuck it in.’(j)L also spoke about events at the home saying – ‘We all had a shower. … She had a shower also and then she was sitting in the lounge room. … She called her boyfriend at the time. … She also – also called Lifeline and Lifeline told her to hang up and call the police.’ During cross examination L further elaborated in answer to defence counsel’s questions as follows:‘When you got back to [the complainant’s] house, was there a point in time where [the complainant], yourself, and all the other girls were in the bathroom?---Yes.And [the complainant] was telling you what she said happened between her and [the appellant]?---Yes.And you recall her saying along the lines of [the appellant] had come to her and told her that he needed to tell her something?---Yes.And so she went for a walk with him?---Yes.You agree?---Yeah.And that they walked down the beach and then they chose to sit down together?---Yes.And then that he pushed her shoulder and forced her into the sand - - -?---Yes.- - - said, “Shut up”?---Yes.She then kicked him - - -?---Yes.- - - and tried to move away?---Yes.And it was at that point then he forced her pants down - - -?---Yes.- - - and had sex with her?---Yeah.’(k)In her evidence, Da remarked that once at home – ‘… [the complainant] had a shower and then she called Kids Helpline and Lifeline.’ She was apparently out of earshot of other conversations.(l)The complainant’s brother, N, testified how the complainant woke him after he brought the girls to the house. He said – ‘Later that night, she texted me to see if I was awake. She then came and knocked on my door and then I had a chat with her then … about 2 am. … [the complainant] just asked me if I could take her into hospital to get a rape test. … I told her to go wake mum up. … She said she didn’t want mum to know, but I insisted that she go and wake mum up.’(m)The complainant’s mother testified that the complainant woke her just after midnight into 13 December 2017. She described the complainant was sitting on the side of the bed crying and told her that something bad had happened and that she’d been raped. She also recalled the complainant saying that it ‘happened so fast and – and that’s when she told me that [the appellant] had raped her.’ In cross-examination she said: ‘She had red marks on her legs and then she had, like, raised welts. She told me that that’s where [the appellant] forced her shorts down so it was from that force that had like raised welts from the – the shorts being forced down.’”

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

By referring to the complainant’s evidence of distress as “strong”, his Honour erred as to the weight and relevance that could be given to distressed condition in the overall assessment of a complainant’s account. Given the nature of the evidence at trial, in particular the evidence relating to intimacy being observed between the complainant and appellant only a short time prior to the act of sexual intercourse occurring, the use of the word “strong” was an erroneous finding of fact as to the weight of the evidence of distressed condition. It was submitted that in a case of “word against word”, and where, as was asserted to be the case here, the evidence did not support the complainant’s account in important respects, such as what occurred at the water’s edge, the trial judge erred in placing too much weight and relevance on the complainant’s distressed condition when she returned to the bonfire.Consideration In R v Roissetter,[42] McPherson J made the following cautionary observations in relation to evidence of distressed condition:“At the foundation of the court’s reluctance to allowing evidence of a distressed condition to be left to the jury without some particular warning as to its reliability there is evidently a fear that the condition in question may be feigned so that the jury may be led astray by a consideration of it. Such distrust hardly seems compatible with the traditional role of the jury as the assessors of matters of credibility and fact at a criminal trial. To require even that, unless the circumstances are ‘special’, there be a specific warning in particular terms against relying upon evidence of distress as a possible form of corroboration has the effect of elevating to the status of a rule of law a matter which in the end, is necessarily and entirely one of fact or inference or simply credibility.”[42][1984] 1 Qd R 477 at 482. The following remarks made by his Honour as to the use of evidence of distressed condition capable of affording corroboration are apposite in the present case:[43]“… the matter of the inferences if any to be drawn from, and the weight if any to be allowed to, a state of distress in a complainant is pre-eminently one for the jury. No fixed verbal formula is capable of being laid down for determining what direction should be given by judge to jury, or whether any specific direction as to the weight or lack of it is necessary or desirable in a particular case.”[43]R v Roissetter [1984] 1 Qd R 477 at 482. The appellant does not dispute the finding by the trial judge that the complainant’s distressed condition could support or corroborate the complainant’s evidence. It seems that the appellant’s complaint was that the trial judge did not inform himself that “little weight” should be attached to distressed condition because it can be easily pretended as is contained in the Benchbook direction.[44] As is apparent from Rossiter, such a direction is not mandatory. Furthermore, as the respondent submitted, while the particular risk that the direction is concerned to mitigate may not be apparent to a jury, it would be known, and was known, by the trial judge in this case.[45] It is not claimed that the omission gave rise to a miscarriage of justice. The trial judge excluded the other possible explanations for the complainant’s distressed condition.[46] It was a matter for the trial judge, as the relevant fact finder, to assess the weight to be attributed to distressed condition. Limiting the treatment of evidence of distressed condition in the manner contended for by the appellant is not supported by authority. The trial judge’s finding of fact that the evidence of distressed condition provided “strong” support for the complainant’s evidence was one that was open to his Honour.[44]Benchbook Direction 67.1 – distressed condition.[45]R v McDougall [1983] 1 Qd R 89 at 91 [E] and R v GS [2005] QCA 376 at [33].[46]Distinguish R v Rutherford [2004] QCA 481 at [4] and AB at 198 [35].