R v Schafer

Case [2017] QCA 208

SUPREME COURT OF QUEENSLAND

CITATION:

R v Schafer [2017] QCA 208

PARTIES:

R
v
SCHAFER, Norman
(appellant)

FILE NO/S:

CA No 198 of 2016
DC No 21 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Bundaberg – Date of Conviction: 28 June 2016 (Shanahan DCJ)

DELIVERED ON:

19 September 2017

DELIVERED AT:

Brisbane

HEARING DATE:

10 March 2017

JUDGES:

Fraser and Philippides JJA and Boddice J

ORDERS:

Appeal against conviction is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty by a jury of three counts of rape – where the appellant was alleged to have supplied the complainant and another person with alcohol and cannabis at the appellant’s house – where the appellant engaged in sexual acts with the complainant and another person – where the complainant did not consent to the sexual acts – where the sexual acts involved both penile and digital penetration – whether the appellant was under an honest and reasonable mistaken belief that the complainant consented to the acts constituting rape – whether it was reasonably open to the jury to be satisfied beyond reasonable doubt of each element of those offences

R v Clapham[2017] QCA 99, cited

COUNSEL:

S G Bain for the appellant
V A Loury QC for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. JA AND BODDICE J:FRASER  On 24 June 2016, the appellant pleaded not guilty to three counts of rape.  Each count related to the one female complainant, aged 14 years.  On 27 June 2016, a jury found the appellant guilty of each count.  The appellant was convicted and sentenced to an effective head sentence of eight years imprisonment.  The appellant appeals his convictions.  The sole ground of appeal is that the verdicts of the jury were unreasonable in that it was not reasonably open to the jury to be satisfied of the appellant’s guilt on each of the counts of rape, beyond reasonable doubt.

Background

  1. The appellant was born on 27 April 1972.  The complainant was born on 23 December 1999.  All three offences were committed on 13 May 2014.  Apart from the appellant and the complainant, there was also present a second female, the complainant’s friend, NE (“NE”).  She was born on 5 August 1996.

  1. The Crown case was that on 13 May 2014, the complainant and NE went to the appellant’s house.  Whilst there, the appellant supplied each of them with cannabis and alcohol.  Thereafter, the appellant engaged in sexual acts with both the complainant and NE.  The sexual acts with the complainant all occurred without her consent.

  1. The appellant did not give or call evidence at trial.  The defence case was that no sexual acts whatsoever occurred between the appellant and the complainant and NE.  The defence contended the complainant made up the allegations.

Trial

  1. The…

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AGLC
R v Schafer [2017] QCA 208
Case
[2017] QCA 208
Decision Date

CaseChat Overview and Summary

The case of R v Schafer involved the appellant, who was found guilty by a jury of three counts of rape. The appellant was alleged to have supplied the complainant and another person with alcohol and cannabis at his house, and subsequently engaged in sexual acts with the complainant and another person without their consent. The court had to decide whether the appellant was under an honest and reasonable mistaken belief that the complainant consented to the acts constituting rape and whether it was reasonably open to the jury to be satisfied beyond reasonable doubt of each element of those offences. The court considered the evidence as a whole and concluded that it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of each count of rape.

The appellant argued that the verdict was unreasonable or insupportable having regard to the evidence. However, the court found that the jury's verdict was supported by the evidence presented. The court noted that the complainant and another person had provided consistent accounts of the events leading up to and during the alleged offences. The court also noted that the appellant's defence of honest and reasonable mistaken belief was not supported by the evidence. The court concluded that the jury was properly directed and that the verdict was open to them based on the evidence presented.

The court dismissed the appeal against conviction, stating that the verdict was reasonable and supported by the evidence. The court emphasized that it is necessary to consider the cumulative effect of the various imperfections and inconsistencies upon which the appellant relied in the context of the evidence as a whole. The court found that the evidence as a whole supplied a sound basis for the jury to find that the Crown had proved beyond reasonable doubt that the appellant engaged in each such act without the complainant’s consent and the appellant did not honestly and reasonably believe that the complainant consented to any of those acts.

The final order of the court was that the appeal against conviction is dismissed. The court's decision was based on its assessment of the evidence and its conclusion that the verdict was reasonable and supported by the evidence. The court emphasized the importance of according special respect and legitimacy to jury verdicts deciding contested factual questions concerning the guilt of the accused in serious criminal trials.

Orders

Orders of the court

Appeal against conviction is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The complainant denied NE and her brought alcohol to the house. She denied the appellant had asked NE to put her bong down. She denied the appellant yelled at them for touching the masks. She denied the appellant saw a cut on NE’s arm and asked her to get out. She denied they both left immediately after the mask incident. She denied they returned sometime later and had an altercation with the appellant. She denied NE and her agreed to punish the appellant for some transgressions towards his daughter. She denied NE and her cooked up the arrangement to do something bad to the appellant.NE’s evidence NE was 17 at the time of the offences. She knew the appellant through his daughter. She met the complainant in a foster placement when she was 16. The complainant stayed at her house on the evening of 12 May 2014. The next morning they called the appellant. He gave them directions to his new house. NE thought she had known the appellant for about a year at that time. She had previously been with him and the complainant at the same time. NE told the appellant the complainant was 14. She did not remember any response by the appellant. NE said they walked to the appellant’s house to catch up with him and to smoke weed. NE asked the appellant if they could have cones. They had a couple of cones. They smoked them in his lounge room through the appellant’s bong. The appellant gave them the bong to smoke the cones. The complainant smoked through the bong. It was given to her by the appellant. The weed was chopped up in a bowl on a table. The appellant smoked with them. NE said after they had smoked weed, the three of them walked to the Dan Murphy store. They left the complainant outside. The appellant and NE went in to purchase alcohol. They bought Cruisers and Jack Daniels. The three then walked back to the appellant’s house. They had a couple of drinks and a couple more cones at the house. NE and the complainant were drinking Cruisers. The complainant and NE had a couple of drinks each. It did not take long to drink them. The appellant was drinking Jack Daniels. All three smoked more cones. At one point, the appellant suggested they play games. The complainant was not sure but they agreed. At this time, the appellant was rubbing the complainant’s legs in the thigh area. Nothing was happening between the appellant and NE. Whilst the appellant was touching the complainant he was saying “she’s pretty gorgeous” and that kind of stuff. He was saying the same to NE. The complainant did not say anything back to the appellant. NE said they played truth and dare. During the game, the complainant and NE were dared to lose their clothes by the appellant. The appellant then took them to his bedroom. He had his arms around both of them. The complainant and NE were on either side of him. The appellant laid them both down next to each other. They were naked as they had lost their clothes during the game in the lounge room. The appellant was still clothed.

Decision

Reasons for decision

The appellant does not challenge the appropriateness of the trial judge’s directions to the jury about the onus upon the Crown to prove beyond reasonable doubt that each alleged act of sexual intercourse occurred, each such act occurred without the consent of the complainant, and the appellant did not have an honest and reasonable but mistaken belief that the complainant consented to any such act. In considering whether it was reasonably open to this properly directed jury to be satisfied beyond reasonable doubt as to the elements of the three offences, it is necessary to consider the cumulative effect of the various imperfections and inconsistencies upon which the appellant relied in the context of the evidence as a whole, and also in the context of the assertions put by defence counsel to the complainant and NE, and denied by each of them, that no acts of sexual intercourse occurred at all. Once the jury concluded that each alleged act of sexual intercourse by the appellant with the complainant occurred (a conclusion that was amply supported by the evidence of the complainant and NE, and other independent evidence), the evidence as a whole supplied a sound basis for the jury to find that the Crown had proved beyond reasonable doubt that the appellant engaged in each such act without the complainant’s consent and the appellant did not honestly and reasonably believe that the complainant consented to any of those acts.Conclusion Upon the whole of the evidence it was reasonably open to the jury, to be satisfied beyond reasonable doubt that the appellant was guilty of each count of rape.Proposed order The appeal should be dismissed. PHILIPPIDES JA: The issue on the appeal in the present case is whether this Court, as an appellate court, is of the opinion that the verdicts of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence pursuant to s 668E(1) of the Criminal Code. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court must always be whether the court thinks “that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”.[30] That concerns the determination of a question of fact, which as was emphasised in SKA v The Queen:[31] A determination of that question by this Court “involves a function to be performed within a legal system that accords special respect and legitimacy to jury verdicts deciding contested factual questions concerning the guilt of the accused in serious criminal trials”.[32] Accordingly, a failure to disclose the Court’s own assessment of the sufficiency and quality of the evidence renders the Court’s decision impeachable on the basis that it failed to make an independent assessment of the evidence in determining that it was open to the jury to convict the accused.[33][32]MFA v The Queen (2002) 213 CLR 606 at 624 [59] per McHugh, Gummow and Kirby JJ.[33]GAX v The Queen [2017] HCA 25 at [25].

Ratio Decidendi

Legal Principle Established

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