R v Rose - [2021] QCA 262

SUPREME COURT OF QUEENSLAND

CITATION:

R v Rose [2021] QCA 262

PARTIES:

R
v
ROSE, Daniel Raymond
(appellant)

FILE NO/S:

CA No 107 of 2021
DC No 524 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Cairns – Date of Conviction: 6 May 2021 (Reid DCJ)

DELIVERED ON:

Date of Orders: 15 November 2021
Date of Publication of Reasons: 3 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

15 November 2021

JUDGES:

Sofronoff P, Mullins JA and Daubney J

ORDERS:

Orders delivered: 15 November 2021

1.   Appeal allowed.

2.   Set aside the conviction on count 1.

3.   Retrial ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant was convicted after trial before a jury of one count of rape – where the trial judge made an order declaring the complainant to be a special witness with the special measures that a screen be placed in front of the appellant pursuant to s 21(A)(2)(a) of the Evidence Act (the Act) and that a support person be present while the complainant give evidence pursuant to s 21(A)(2)(d) of the Act – where the trial judge explained the purpose of these special measures to the jury before the complainant gave evidence, stating that the procedures were common and should not affect the way the jury assessed the evidence – where there was no further direction referable to the mandatory requirements of s 21A(8) of the Act – whether there was a substantial compliance with s 21A(8) of the Act – whether the failure to direct the jury in accordance with s 21A(8)(a) of the Act was an error of law

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant was convicted after trial before a jury of one count of rape – where there was a pretext call where the complainant asked the appellant to explain what happened and the appellant responded by apologising and stating that he had thought that the complainant was awake and consented to sexual intercourse – where the trial judge proposed giving a direction to the jury in accordance with that outlined in Liberato v The Queen (1985) 159 CLR 507 – where the trial judge failed to give a Liberato direction – whether the trial judge erred in failing to give a Liberato direction – whether the failure to give a Liberato direction in combination with the failure to direct the jury in accordance with s 21A(8)(a) of the Act resulted in a substantial miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – VERDICT UNREASONABLE OR INSUPPORTABLE BY EVIDENCE – where the appellant was convicted after trial before a jury of one count of rape – where there were issues with…

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 Rose

Details

AGLC: R v Rose [2021] QCA 262
Case: [2021] QCA 262
Decision Date: 3 December 2021

CaseChat Overview and Summary

The appeal was brought by the appellant against his conviction of one count of rape. The Court of Appeal was required to decide whether the trial judge's failure to direct the jury in accordance with s 21A(8) of the Evidence Act and the failure to give a Liberato direction resulted in a miscarriage of justice. The Court of Appeal was also required to decide whether the verdict was unreasonable or insupportable by evidence.

The Court of Appeal held that the trial judge's failure to direct the jury in accordance with s 21A(8) of the Evidence Act and the failure to give a Liberato direction resulted in a substantial miscarriage of justice. The court held that the trial judge erred in not giving a direction to the jury in accordance with the decision in Liberato v The Queen (1985) 159 CLR 507. The court also held that the trial judge erred in not giving a direction to the jury in accordance with s 21A(8) of the Evidence Act. The court held that these errors, taken together, amounted to a substantial miscarriage of justice. The court held that the evidence of the complainant was unreliable and that there were substantial inconsistencies between the complainant’s evidence and her preliminary complaints. The court held that the verdict was unreasonable or insupportable by evidence.

The appeal was allowed. The conviction on count 1 was set aside and a retrial was ordered.

Orders

Orders of the court

Orders delivered: 15 November 2021

1. Appeal allowed.

2. Set aside the conviction on count 1.

3. Retrial ordered.

Background

Background to the litigation

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Evidence

Evidence Before The Court

There were two issues at the trial that were the focus of the evidence and the arguments put to the jury. The first issue was whether the prosecution had proved beyond reasonable doubt that the complainant had not given her consent to sexual intercourse with the appellant. If the jury were satisfied beyond reasonable doubt on the first issue, the second issue was whether the prosecution could exclude beyond reasonable doubt that the appellant had an honest and reasonable, but mistaken, belief that the complainant had given her consent to having sexual intercourse with him. In other words, the prosecution had to prove beyond reasonable doubt that the appellant did not honestly and reasonably believe that the complainant had given her consent. The appellant also advanced the contention at trial that the complainant was so intoxicated on the evening in question that she did not have a reliable memory and that she was “rewriting history” to justify to herself and others that she would never have consented to have intercourse with the appellant.Summary of the relevant evidence On Friday 9 November 2018 the complainant and C (who was one of the complainant’s female friends from the backpackers’ hostel where they were staying) arrived at a bar sometime between 11.30 pm and 11.45 pm. They met up with ER who was another female friend from the hostel. At one stage, the complainant was chatting to the appellant and got his phone number, as he said he could help her get a job. The complainant was drinking alcohol and spoke to the appellant’s friend Ethan. She took a photo of the appellant and Ethan. They continued to socialise at the bar until it closed at about 2 am. The appellant’s group invited the complainant and her friends back to their unit. That offer was accepted and the two groups walked back and continued to drink alcohol at the unit. Not long after arriving, the complainant, C and ER with some of the appellant’s group went for a swim in the pool. The complainant was “really drunk by this point”. While in the pool, she kissed Ethan. After up to 45 minutes in the pool, C and ER decided to get out and leave, but the complainant stayed at the unit. After a conversation with C and ER when they were leaving, the complainant’s evidence in chief included the following. The complainant’s next memory was waking up to the appellant on top of her, kissing her cheek, touching her breasts, and with his penis in her vagina. She shouted “Get off. Get off”. He got off her immediately. She was on a double bed in a bedroom. She did not have a memory of what had happened immediately prior to the memory of what happened on her waking up. The complainant got dressed immediately. She thought she went into shock, because she did not recall what happened exactly in what order for her to get back to the hostel. She went out into the corridor and there were lots of male voices saying they needed to check out of their unit and that she had to leave. She got into a utility with two men and they dropped her back to the backpackers’ hostel where she was staying. She did not remember any conversation with the men in the utility. She thought she wanted to pretend it did not happen.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Rose [2021] QCA 262
PARTIES:	R v ROSE, Daniel Raymond (appellant)
FILE NO/S:	CA No 107 of 2021 DC No 524 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Cairns – Date of Conviction: 6 May 2021 (Reid DCJ)
DELIVERED ON:	Date of Orders: 15 November 2021 Date of Publication of Reasons: 3 December 2021
DELIVERED AT:	Brisbane
HEARING DATE:	15 November 2021
JUDGES:	Sofronoff P, Mullins JA and Daubney J
ORDERS:	Orders delivered: 15 November 2021 1. Appeal allowed. 2. Set aside the conviction on count 1. 3. Retrial ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant was convicted after trial before a jury of one count of rape – where the trial judge made an order declaring the complainant to be a special witness with the special measures that a screen be placed in front of the appellant pursuant to s 21(A)(2)(a) of the Evidence Act (the Act) and that a support person be present while the complainant give evidence pursuant to s 21(A)(2)(d) of the Act – where the trial judge explained the purpose of these special measures to the jury before the complainant gave evidence, stating that the procedures were common and should not affect the way the jury assessed the evidence – where there was no further direction referable to the mandatory requirements of s 21A(8) of the Act – whether there was a substantial compliance with s 21A(8) of the Act – whether the failure to direct the jury in accordance with s 21A(8)(a) of the Act was an error of law CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant was convicted after trial before a jury of one count of rape – where there was a pretext call where the complainant asked the appellant to explain what happened and the appellant responded by apologising and stating that he had thought that the complainant was awake and consented to sexual intercourse – where the trial judge proposed giving a direction to the jury in accordance with that outlined in Liberato v The Queen (1985) 159 CLR 507 – where the trial judge failed to give a Liberato direction – whether the trial judge erred in failing to give a Liberato direction – whether the failure to give a Liberato direction in combination with the failure to direct the jury in accordance with s 21A(8)(a) of the Act resulted in a substantial miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – VERDICT UNREASONABLE OR INSUPPORTABLE BY EVIDENCE – where the appellant was convicted after trial before a jury of one count of rape – where there were issues with…