R v Sej

[2024] QCA 162

SUPREME COURT OF QUEENSLAND

CITATION:

R v SEJ [2024] QCA 162

PARTIES:

R
v
SEJ
(appellant)

FILE NO/S:

CA No 87 of 2023
DC No 87 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich – Date of Conviction: 19 April 2023 (Horneman-Wren SC DCJ)

DELIVERED ON:

6 September 2024

DELIVERED AT:

Brisbane

HEARING DATE:

22 August 2024

JUDGES:

Bond and Flanagan and Boddice JJA

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of one count of rape – where it was admitted that the appellant had penetrated the complainant’s vagina with his penis – where the issue for determination by the jury was whether the Crown had established, beyond reasonable doubt, that penetration had occurred without the complainant’s consent – where, at trial, the defence submitted the complainant had a financial motivation for making the complaint – whether the verdict of guilty was unreasonable or could not be supported having regard to the evidence

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, cited

COUNSEL:

S R Lewis for the appellant (pro bono)
S L Dennis for the respondent

SOLICITORS:

No appearance for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. BOND JA:  I agree with the reasons for judgment of Boddice JA and the order proposed by his Honour.

2. FLANAGAN JA:  I agree with Boddice JA.

3. BODDICE JA:  On 19 April 2023, a jury found the appellant guilty of one count of rape, being a domestic violence offence.  He was sentenced to 6 years’ imprisonment.

4. The appellant appeals his conviction.  The sole ground of appeal is that the verdict was unreasonable and cannot be supported by the evidence.

   Indictment

5. The indictment charged the appellant with having raped the female complainant, on or about 3 January 2020.

6. The rape was particularised as penetrating the complainant’s vagina with his penis, without her consent.

7. At trial, it was admitted that the appellant had penetrated the complainant’s vagina with his penis on 3 January 2020.  The issue for determination by the jury was whether the Crown had established, beyond reasonable doubt, that penetration had occurred without the complainant’s consent.

8. The appellant elected not to give or call evidence at trial.

   Evidence

   Complainant

9. The complainant had been the appellant’s partner for approximately 20 years, before they separated in about 2014.  There were three daughters from that relationship.  Although separated, the complainant and the appellant continued to live at the same residence.  Their youngest daughter lived with them, as at January 2020.  She was still at high school.

10. After they separated, the appellant continued to sleep in the main bedroom.  The complainant slept in the loungeroom.  This arrangement was considered to be a more secure environment for raising their youngest daughter.

11. In January 2020, the complainant was not working.  She had undertaken some employment and volunteer work when she was in a relationship with the appellant.  Since separation, she had received Centrelink payments.

12. The complainant gave evidence that after their separation, she did not have sexual interactions with the appellant.  However, on the night of 2 January 2020, when she was at home alone with the appellant, she was awoken by the appellant calling her name.  The appellant said he “wanted a fuck”.[1]  The appellant then approached from the kitchen area, towards the bed, and lay on top of her.  He said he loved her.  He repeated he wanted “a fuck”.  The complainant said she did not want that and said no.

    [1]AB 91/10.

13. The complainant said the appellant started taking off her pyjama pants.  She tried to stop him, but he kept removing them.  The complainant tried to pull her top down to cover her vagina.  The appellant then asked her to open her legs.  She said no.  The appellant was not aggressive, he just said it in a normal way.

14. The complainant said the appellant then got onto his knees and spread her legs apart.  His penis was not erect and he asked her to help him.  The complainant said no, she did not want it.  The appellant then played with his penis to make it hard.  He put his penis in her vagina, moving up and down.  He was saying he loved her.  After about two minutes, he got off the bed.  He said he did not come.  She did not see him again that night or the next morning.

15. The complainant said she went to the toilet and then went back to bed.  She was in shock and did not know what to do.  She tried to call her youngest daughter, but there was no answer.  She left a message and then tried to get to sleep.  About 6.00 am the next morning, the complainant contacted her daughter who told her to get dressed and to go to the police station.

16. The complainant travelled to the police station, arriving at about 6.30 am or 7.00 am.  She sat in the car outside until it opened at around 8.00 am.  Whilst doing so, she rang family members, including her mother.  When the police station opened, the complainant spoke to a police officer.  Later, she went to the hospital and underwent an examination.

17. In cross-examination, the complainant accepted that her youngest daughter continued to reside with the appellant; that she has not been able to obtain any work since January 2020; and that when she was sleeping in the loungeroom, she would ask the appellant, if he was awake, to go outside to check if she had heard noises.  The complainant denied that she asked the appellant to do so on the night of 2 January 2020; that there was mutual touching and kissing; and that she directed his penis into her vagina.  The complainant said she was definitely an unwilling participant.  She did not consent.

18. The complainant accepted that there was a car available outside that night and that the house was not in a deserted place.  She agreed she did not leave her bed when the appellant first approached and did not call the police or anyone else immediately afterwards.  She was shocked and scared and did not know what to do.  She accepted the appellant was not holding her down by his hands, but said she could not get up over his body.

19. The complainant accepted that when she took her belongings from the house after 3 January 2020, she took a chain belonging to the appellant.  She was unaware it was in her belongings.  She discovered the chain about a month later.  The complainant accepted she sold the chain.  She had no money.

20. The complainant accepted they had always kept separate finances.  They had not been a couple since about 2014.  There were occasions when the appellant helped her out when she was short of money.  However, their relationship was completely finished in an emotional and sexual way.  They had verbally discussed dividing their assets, but had not engaged lawyers for that purpose, or brought court proceedings.

21. The complainant accepted that after January 2020, she had involved lawyers to assist in a property dissolution with the appellant.  She denied that she knew that she had to seek a property settlement within two years of separation.  She accepted she had previously given evidence that was her understanding, in January 2020.  She denied she was trying to rekindle her relationship with the appellant because she had lost the opportunity to bring an application for property settlement.

22. The complainant denied that since January 2020, she has been trying to make a case that will help the court to allow a property settlement out of time.  She accepted that when she started seeing a counsellor after January 2020, she told that counsellor she had been raped by her then-partner.  She accepted she had instructed her lawyers that she was in a de facto relationship with the appellant from 1993 to 2020 and that she sought a 50/50 settlement of their property.  She denied that she made the complaint of rape as a way to get money out of the appellant.

23. The complainant accepted that her Centrelink payment decreased after she moved out, as her child remained living with the appellant.  She accepted she had instructed her solicitors to write to the appellant, telling him that she had to sell the chain in order to financially support herself.  She accepted that her bank account had cash deposits of $1,805 over two months after January 2020.  She was getting help from her family.  She denied taking $5,000 from the appellant’s bank account.  She accepted that when she sold the chain, she falsely declared it was her property.

    Preliminary complaint

24. The complainant’s mother received a telephone call from the complainant, at about 7.30 am on the morning of 3 January 2020.  The complainant said she was sitting outside the police station; and that she had left home because the appellant had raped her.  She was very distraught.

    Police

25. Police gave evidence that the complainant attended the police station at about 8.15 am on 3 January 2020.  The complainant was upset.  Her initial conversation with police was recorded on a body-worn camera and played to the jury.  In that conversation, the complainant said that the appellant wanted sex and she said no.  The appellant then put his penis inside her without her consent.  He initially “couldn’t get it up”.  The complainant kept telling him she did not want it.

26. A detective took a statement from the complainant on 4 January 2020.  The complainant’s daughters were not willing to provide statements.  A forensic examination of the complainant’s mobile phone was unsuccessful.

    Allied health

27. A social worker spoke to the complainant on 3 January 2020, at the hospital.  The complainant told her she had been sexually assaulted by her former partner.  She did not go into details of the sexual act.

    Medical

28. During a forensic examination of the complainant at the hospital on the morning of 3 January 2020, the complainant gave a history of living in a house with her ex-partner for several years, whilst separated.  Her ex-partner had the bedroom, she had the loungeroom.  The complainant said she had been asleep when she was awoken by her ex-partner calling her name.  He walked towards her and then laid on top of her.  She was telling him to stop.  He started telling her that he loved her.  He pulled her pyjama pants down, kissed her on the neck and initially had trouble putting his penis into her vagina.  He succeeded, but did not ejaculate.  After he left the bed, she pulled her pants back up, went to the toilet and waited until the morning before going straight to the police station.  It was not open.  She waited for somebody to arrive.

29. The forensic examination revealed no injuries.  Swabs were taken from a breast, where the complainant said she had been held down, and a skin swab of the neck where she said she had been kissed by the appellant.

    Consideration

30. The determination of a ground of appeal, that the verdict was unreasonable and against the weight of the evidence, requires an appellate court to undertake its own independent assessment of the record, to ascertain whether it was open to the jury to conclude, beyond reasonable doubt, that the appellant was guilty of the offence.

31. In undertaking this task, the appellate court is to give due regard for the advantage the jury had in hearing and seeing the witnesses and for the position of a jury in the criminal justice system.  However, if the appellate court is satisfied that notwithstanding those advantages, by reason of inconsistencies, discrepancies or other inadequacies, or in light of other evidence, the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt, the verdict is to be set aside as unreasonable.[2]

    [2]Pell v The Queen (2020) 268 CLR 123 at 145 [39].

32. An independent assessment of the record as a whole, in the present case, supports a conclusion that it was open to the jury to be satisfied, beyond reasonable doubt, of the appellant’s guilt of the offence of rape.

33. First, the complainant’s evidence as to penetration, without her consent, was consistent and unshaken in cross-examination.  The preliminary complaint evidence was also consistent with the complainant’s account in material respects, including that she did not consent.  Her attendance at the police station the next morning, waiting for it to open, was also consistent with the complainant’s evidence that penetration had occurred without consent.

34. Second, the fact that the complainant’s mother recalled the complainant saying the appellant had just raped her, was not necessarily a discrepancy as to the timing of the rape.  It was open to the jury to properly consider that that statement involved an assertion of recency, not immediacy.

35. Third, to the extent that the complainant’s account was said to be improbable, in that the complainant made no attempt to initially leave the house or contact police or others, it was open to the jury to conclude that that was not a discrepancy that warranted a rejection of the complainant as an honest and reliable witness.  A jury, acting rationally, could readily accept that the complainant’s conduct immediately after forced sexual interaction with the appellant, was consistent with shock, in the context of a relationship where they had been living together, albeit separated, for a number of years.

36. Fourth, it was open to the jury, acting rationally, to reject as implausible, a motive for the complainant to make a false complaint.  Making a false complaint in relation to rape had no logical relevance to the establishment of an ongoing de facto relationship.

    Conclusion

37. There were no inconsistencies, discrepancies or other inadequacies in the complainant’s account, or other evidence, such as to support a conclusion that the jury, acting reasonably, ought to have entertained a reasonable doubt as to the appellant’s guilt.  There is no significant possibility that an innocent person has been convicted of the offence of rape.

38. The verdict of the jury was not unreasonable.

    Order

39. I would order:

    1.The appeal be dismissed.