R v Seh

[2024] QCA 114

SUPREME COURT OF QUEENSLAND

CITATION:	R v SEH [2024] QCA 114
PARTIES:	R v SEH (appellant)
FILE NO/S:	CA No 65 of 2023 DC No 653 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Southport – Date of Conviction: 1 March 2023 (Kent KC DCJ)
DELIVERED ON:	14 June 2024
DELIVERED AT:	Brisbane
HEARING DATE:	7 June 2024
JUDGES:	Mullins P, Boddice JA and Brown AJA
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was found guilty after trial before a jury on one count of rape – where the complainant visited the appellant at his place after consuming alcohol and cannabis and continued to consume alcohol and cannabis and take prescription medication – where there was no issue at the trial about whether sexual intercourse occurred – where the issues at trial were the complainant’s cognitive capacity to give consent to the sexual intercourse and whether the prosecution could exclude the defence of honest and reasonable but mistaken belief as to the complainant’s consent – whether the verdict was unreasonable
COUNSEL:	The appellant appeared on his own behalf S L Dennis for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent

1. THE COURT:  The appellant was found guilty on 1 March 2023 after trial in the District Court before a jury of one count of rape committed against the complainant on 31 March 2021.

2. The appellant was represented at trial but is unrepresented on this appeal.  There is one ground of appeal that the verdict is unreasonable or cannot be supported by the evidence.  The trial turned on the question of consent and specifically the complainant’s cognitive capacity to give consent.  The prosecution also had to exclude beyond reasonable doubt that the appellant had an honest and reasonable, but mistaken, belief that the complainant was consenting to sexual intercourse with the appellant.

   Summary of relevant evidence

3. The complainant’s evidence in chief included the following.  Before the incident, she had been friends with the appellant.  On one occasion they had a physical relationship when she gave the appellant oral sex.  The friendship continued for short periods of time when they would see one another.  They then had a dispute in which they ceased talking for between two to four months.  About a fortnight before the incident, the appellant contacted the complainant on Facebook.  They exchanged messages.  On the evening of 30 March 2021, the complainant was out drinking and smoking with friends, when she received a text message from the appellant.  The complainant had bought a litre bottle of Jack Daniels and was drinking that with Coke.  The appellant invited the complainant to go over to his place which she did after having consumed over half the bottle of Jack Daniels.  She described herself as “fairly intoxicated”.  She had also been smoking medicinal cannabis for anxiety and an eating disorder.  She went over to the appellant’s house to have a drink and smoke with him.  They sat in the lounge room with one of his housemates who was playing a video game and another one was sitting on the lounge.  They were talking.  There was also a third housemate but he was asleep.

4. When it got to about 4.00 am, the complainant realised she was “very tired”.  She went into the appellant’s room where she left her bag and took her night-time medication which was Topiramate, Clomipramine and the sedative Quetiapine which is also known as Seroquel.  She usually fell asleep “very quickly” after taking those medications.  After she took her medication, she returned to the lounge room but was falling sleep and the appellant called her.  She followed him and said she wanted to stay in the lounge.  He was pulling her top down and she kept pulling it up.  He pushed her in the bedroom door.  She remembered “falling back onto the bed” and that was it.  The appellant told her that he was watching her “get sleepy”.  The complainant did not recall anything else and said she fell asleep.  She remembered waking up about 10.00 am.  She noticed that the tie around the waistband of her trousers was undone and the two zippers on the outside of each of her ankles were also undone.  She got up and went home.  When she went to the toilet at home, she felt like she had had intercourse.

5. On 1 April 2021, the complainant had an appointment with her psychologist.  When she returned home from that appointment, she had a shower for the first time since being at the appellant’s house.  There was a discharge coming from her vagina and she noticed a hair come from inside her vagina.  She called her support worker and went to hospital where no rape kit examination was undertaken.

6. On 17 May 2021, the complainant attended the police station with the bag of clothing she wore the night of the incident which she had kept without washing it.

7. The complainant remembered nothing at all after she fell asleep on the bed.  She did not consent to having sexual intercourse with the appellant.  She made a pretext telephone call to the appellant from the police station on 28 July 2021.

8. The complainant’s evidence in cross-examination included the following.  Before she arrived at the appellant’s house on 31 March 2021, she had consumed one gram of cannabis.  That was not in her first statement to the police but was in a subsequent one.  She did not tell the psychologist on 1 April 2021 about what occurred, because she did not know at that time.  She had many conversations with her support worker about what happened.  She also discussed what happened with the psychologist in subsequent weekly appointments.  She estimated she had drunk about 70 per cent of the Jack Daniels bottle before arriving at the appellant’s house.  Throughout the night she had taken Valium (or Diazepam) tablets and some Phenergan (or Promethazine).  She drove to the appellant’s house.  After she fell asleep, the complainant had no memory at all of being awake until she woke up at 10.00 am.  She had smoked some cannabis while she was at the appellant’s house.  When the complainant smoked cannabis, consumed alcohol and took her night-time medication, especially the Seroquel, she blacks out and does not remember anything until she wakes.  It was not about not having no more memories but it was about whether she was awake.

9. The complainant was recalled and gave further evidence in chief as follows.  When she takes her medications, she has “a very deep level of sleep”.  She had no recollection of participating in sexual activity that night.  She used the expression “black out” to mean that she was no longer conscious or making movements or making decisions, as she was no longer awake but was asleep.  Her further cross-examination included the following.  She takes a low dose of Seroquel which is prescribed for her as a sedative.  It also assists with the regulation of her emotional state.  At the time she weighed 40 or 45 kilograms.  Before she arrived at the appellant’s home, they had a text conversation about her nipples.

10. In the pretext call on 28 July 2021, the complainant referred the appellant to the night she came over to his place and asked whether anything happened between them because she was having memories or flashbacks and she thought something did.  The appellant responded that they “hooked up”.  The complainant said that she could not remember because she had a lot to drink.  She asked whether they had sex and the appellant responded in the affirmative.  She asked whether she was conscious and the appellant responded affirmatively and, when she asked for further information as to what she was doing, he responded “Ah, you just enjoying yourself I guess”.  He confirmed that she was conscious.  He also commented that she was “pretty drunk”.

11. There were admissions made at the trial that a sample of the appellant’s DNA was examined and compared with a mixed profile of DNA found in several areas on the complainant’s underpants and the result of the examination was that it was 100 billion times more likely that the appellant had contributed DNA to that mixed profile, rather than if he had not.

12. The support worker gave evidence of preliminary complaint.  On 1 April 2021, in a telephone call, the complainant informed the support worker about “having bloating”, the discharge coming out of her genital area and the hair inside of her genital area that did not belong to her.  The complainant also told her about her pants had been undone and the zippers on each side of her legs were unzipped and she was concerned that something may have happened to her during that time.  The complainant told her about the appellant ushering her into the bedroom and that she believed she fell asleep.

13. Dr Mirakian who is a forensic medical officer with Queensland Health gave the following evidence.  In relation to the medications that the complainant said she had taken during the evening of 30 March 2021 and then at 4.00 am on 31 March 2021 and the information provided about the dosages and the complainant’s weight, Dr Mirakian explained that Diazepam (which can act as a sedative) taken with alcohol which also causes sedation multiplies that effect.  The complainant was on a small dose of Topiramate and that would not be particularly sedating but it is not recommended to be used with alcohol.  Clomipramine is very sedating and is also not recommended for use in combination with alcohol.  Seroquel is often used at night for anxious people who cannot sleep and should not be used with alcohol because it increases the sedation.  Promethazine is an over the counter antihistamine that has sedating properties.

14. Dr Mirakian could not say exactly how the complainant would have presented in the early hours of 31 March 2021, as people are affected differently by the various substances.  It was likely that the complainant was at least moderately sedated with all those medications in combination with the alcohol and the cannabis.  She would have been somewhere in the moderate to deep sedation state.

15. Dr Mirakian was cross-examined on the effects of the various medications, alcohol and cannabis on memory impairment.  Dr Mirakian agreed it was likely that the complainant’s memory and cognition were impaired significantly but she could not identify an exact level of consciousness or sedation but it was likely that her memory (in the sense of not remembering something had happened) was also significantly impaired.

16. The investigating police officer, Detective Harden gave evidence.  Detective Harden executed a search warrant at the appellant’s home on 4 August 2021.  There were two housemates present.  The two housemates told police they had no recollection of 31 March 2021 as they had been drinking heavily and smoking cannabis.

17. The appellant neither gave nor called evidence.

    Was the verdict unreasonable?

18. Even though the critical issue at the trial was the complainant’s cognitive capacity to give consent to the sexual intercourse that did occur with the appellant, the credibility and reliability of what the complainant did recall preceding her entry into the bedroom and immediately thereafter was in issue at the trial, particularly to the question of whether the prosecution could exclude beyond reasonable doubt that the appellant had an honest and reasonable, but mistaken, belief that the complainant was consenting to sexual intercourse with the appellant.

19. The appellant’s contentions at trial included that it was relevant that the complainant attended the appellant’s home in an intoxicated state after a sexualised texted conversation and brought a bag that she put in the appellant’s bedroom.  The primary contention of the appellant was that, in reliance on Dr Mirakian’s evidence, it was possible that the complainant did not remember having consensual sexual intercourse.

20. There was no issue at the trial about the extent of the alcohol, cannabis and prescription and other medication that had been consumed by the complainant leading up to her entry into the bedroom.  The difference between the prosecution and the appellant at the trial on the issue of whether the complainant did not have the cognitive capacity to consent or whether she did and had no memory of it was subtle.

21. As the jury found the appellant was guilty, the jury must have accepted the complainant’s evidence that she fell asleep as soon as she was lying on the bed and therefore found that the complainant did not have the cognitive capacity to consent to sexual intercourse with the complainant.  That finding had the consequence of also excluding the defence of honest and reasonable but mistaken belief.  That finding was also consistent with the level of medications, alcohol and cannabis consumed or taken by the complainant.  On the basis of the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.  The appellant has not shown that the verdict of the jury was unreasonable.

    Order

22. The order which should be made is: Appeal dismissed.