R v Sollitt - [2019] QCA 44

SUPREME COURT OF QUEENSLAND

CITATION:

R v Sollitt [2019] QCA 44

PARTIES:

R
v
SOLLITT, Allan Gordon Desmond
(appellant/applicant)

FILE NO/S:

CA No 134 of 2018
CA No 266 of 2018
DC No 89 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction
Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 8 May 2018; Date of Sentence: 23 May 2018 (Coker DCJ)

DELIVERED ON:

19 March 2019

DELIVERED AT:

Brisbane

HEARING DATE:

18 February 2019

JUDGES:

Holmes CJ and Morrison and Philippides JJA

ORDERS:

1. The appeal against conviction is dismissed.

2. The application for an extension of time within which to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – RAPE – where after a retrial on the charge of rape, the appellant was convicted and sentenced to seven years imprisonment – where the appellant appeals against his conviction of rape to this Court – where the question for the appellate court must always be whether the Court considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty – where the predominant issue at trial was the issue of consent, including a mistake of fact as to the complainant’s consent – where the respondent submitted that it was open to the jury to conclude that the consent to sexual intercourse referred to by the complainant in cross examination evidence was not free and voluntary – where there was abundant uncontroverted evidence given by the complainant of sustained violence by the appellant in the period immediately prior to intercourse – where it was for the jury, and open to them, to find that the complainant gave an honest and reliable account, particularly given that it was corroborated by the evidence of both children and photographic evidence of her injuries – whether the verdict was unreasonable or insupportable – whether the appeal should be allowed

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – OFFENCES AGAINST THE PERSON – RAPE – whether directions as to mistake of fact were confusing and objectively inaccurate – whether in giving a final direction on mistake of fact there was error in failing to give a repeat direction on the standard of proof required of the prosecution to negate the defence of mistake of fact beyond a reasonable doubt – where the final redirection was given in conjunction with the aide memoire, which itself specifically identified the requisite standard of proof – whether there has been a misdirection – whether the appeal against conviction should be allowed

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – OFFENCES AGAINST THE PERSON – RAPE – where the applicant sought an…

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 Sollitt

Details

AGLC: R v Sollitt [2019] QCA 44
Case: [2019] QCA 44
Decision Date: 19 March 2019

CaseChat Overview and Summary

The appeal in the matter of R v Sollitt was heard by the court, where the appellant sought to overturn his conviction for rape and also challenged the length of his sentence. The core issue before the court was whether the jury's verdict was reasonable and supported by the evidence, with a particular focus on the question of consent. The respondent argued that the jury could reasonably conclude that the complainant's consent was not freely given due to the evidence of sustained violence prior to the intercourse. The court had to determine if the jury could have been satisfied beyond reasonable doubt that the appellant was guilty, considering the uncontroverted evidence of violence and the complainant's corroborated account. Another legal issue was whether the directions given to the jury regarding the defence of mistake of fact were confusing and objectively inaccurate, and if there was an omission in reiterating the standard of proof required to negate this defence.

The court found that the evidence presented was sufficient for the jury to conclude that the appellant was guilty of rape. The court noted the abundance of uncontroverted evidence of violence and the complainant's consistent and corroborated account, which supported the jury's verdict. The court also held that the jury directions on mistake of fact were not confusing or inaccurate, and there was no error in the standard of proof reiterated to the jury. The court further assessed the sentence and determined that it was not manifestly excessive given the appellant's history of violent offences.

The appeal against conviction was dismissed, and the application for an extension of time to appeal the sentence was refused. This decision underscores the importance of a comprehensive and corroborated account of events in sexual assault cases, and reaffirms the court's role in ensuring that verdicts are both reasonable and supported by the evidence presented.

Orders

Orders of the court

1. The appeal against conviction is dismissed.

2. The application for an extension of time within which to appeal against sentence is refused.

Background

Background to the litigation

In addition, the appellant seeks an extension of time in which to appeal his sentence. A separate outline was filed in support of this application on 19 December 2018.Background evidenceThe evidence In addition to the complainant’s evidence, which had been recorded, evidence was given by the complainant’s children; Ms Piggott, a forensic nurse at the Townsville Hospital; two police officers stationed in Townsville; and another police officer stationed in Cairns. The appellant elected not to give or call evidence, but at the commencement of the trial, the following admissions were made by the appellant:(a)A domestic violence and family protection order was made against him on 8 October 2014 for a period of two years, expiring on 7 October 2016, which named the appellant as the respondent and the complainant as the aggrieved.(b)That order was served upon the appellant on 12 October 2014 and was in force on 1 September 2016, being the date of the present offence.(c)The appellant attended the complainant’s home on 14 June 2014, between 12 and 15 October 2014, 24 December 2014, 29 May 2015 and 9 March 2016.(d)On 27 June 2015, the appellant attended the home of the complainant in his car, which he parked in the driveway. An argument developed. The appellant’s foot slipped off the brake. The complainant was knocked to the ground and the appellant drove over her legs and torso.(e)Between 11 and 17 November 2015, the appellant sent the complainant a series of abusive text messages. The messages included threats to ruin her reputation and job, threats to take his own life and abuse in relation to the complainant sleeping with other men. The text messages included vulgar language.The complainant’s evidence in chief As at 1 September 2016, the complainant was living with her son, who was 16 at the time, in a house she rented at Kirwan. The appellant was also residing there. He and the complainant had been in an on and off relationship for a couple of years at that time. On the afternoon of the day in question, the appellant and complainant were together at the house. They had been drinking for several hours. The complainant became tipsy. The appellant’s mood changed and he gradually became more aggressive and started arguing with the complainant and calling her a slut, whore and other derogatory names. The appellant became upset because the complainant’s children had spoken of their father. The complainant said the appellant blew it out of proportion. She asked him to leave “at least 20 times” but he did not. The complainant decided to leave the house herself to get away from the appellant and hoped that the appellant might leave in her absence. She went to the bathroom to get dressed to go out. The appellant was in the bedroom and started to pack some things. He was very angry and smashing things. He continued to call the complainant derogatory names. The complainant left the house and walked to the Kirwan Tavern, which was about 20 to 30 minutes away. At the tavern, the complainant had two drinks before walking back to the house. While she was at the tavern, she received abusive text messages from the appellant, saying that she was a slut and whore and accusing her of “sleeping around”.

Evidence

Evidence Before The Court

The appellant elected not to give or call evidence, but at the commencement of the trial, the following admissions were made by the appellant:(a)A domestic violence and family protection order was made against him on 8 October 2014 for a period of two years, expiring on 7 October 2016, which named the appellant as the respondent and the complainant as the aggrieved.(b)That order was served upon the appellant on 12 October 2014 and was in force on 1 September 2016, being the date of the present offence.(c)The appellant attended the complainant’s home on 14 June 2014, between 12 and 15 October 2014, 24 December 2014, 29 May 2015 and 9 March 2016.(d)On 27 June 2015, the appellant attended the home of the complainant in his car, which he parked in the driveway. An argument developed. The appellant’s foot slipped off the brake. The complainant was knocked to the ground and the appellant drove over her legs and torso.(e)Between 11 and 17 November 2015, the appellant sent the complainant a series of abusive text messages. The messages included threats to ruin her reputation and job, threats to take his own life and abuse in relation to the complainant sleeping with other men. The text messages included vulgar language.The complainant’s evidence in chief As at 1 September 2016, the complainant was living with her son, who was 16 at the time, in a house she rented at Kirwan. The appellant was also residing there. He and the complainant had been in an on and off relationship for a couple of years at that time. On the afternoon of the day in question, the appellant and complainant were together at the house. They had been drinking for several hours. The complainant became tipsy. The appellant’s mood changed and he gradually became more aggressive and started arguing with the complainant and calling her a slut, whore and other derogatory names. The appellant became upset because the complainant’s children had spoken of their father. The complainant said the appellant blew it out of proportion. She asked him to leave “at least 20 times” but he did not. The complainant decided to leave the house herself to get away from the appellant and hoped that the appellant might leave in her absence. She went to the bathroom to get dressed to go out. The appellant was in the bedroom and started to pack some things. He was very angry and smashing things. He continued to call the complainant derogatory names. The complainant left the house and walked to the Kirwan Tavern, which was about 20 to 30 minutes away. At the tavern, the complainant had two drinks before walking back to the house. While she was at the tavern, she received abusive text messages from the appellant, saying that she was a slut and whore and accusing her of “sleeping around”. On her return to the house, about two hours later, she decided not to go inside in case the appellant was still there and to sleep in her car instead. She was pretty drunk at that stage. She got inside the car and locked the car doors. About 10 minutes later, the garage roller door opened and the appellant came out to her car. He started punching the bonnet and roof, he also punched the driver’s side window. The appellant was “really aggressive” and telling the complainant to get out of the car and continued calling her derogatory names.

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 Sollitt [2019] QCA 44
PARTIES:	R v SOLLITT, Allan Gordon Desmond (appellant/applicant)
FILE NO/S:	CA No 134 of 2018 CA No 266 of 2018 DC No 89 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Townsville – Date of Conviction: 8 May 2018; Date of Sentence: 23 May 2018 (Coker DCJ)
DELIVERED ON:	19 March 2019
DELIVERED AT:	Brisbane
HEARING DATE:	18 February 2019
JUDGES:	Holmes CJ and Morrison and Philippides JJA
ORDERS:	1. The appeal against conviction is dismissed. 2. The application for an extension of time within which to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – RAPE – where after a retrial on the charge of rape, the appellant was convicted and sentenced to seven years imprisonment – where the appellant appeals against his conviction of rape to this Court – where the question for the appellate court must always be whether the Court considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty – where the predominant issue at trial was the issue of consent, including a mistake of fact as to the complainant’s consent – where the respondent submitted that it was open to the jury to conclude that the consent to sexual intercourse referred to by the complainant in cross examination evidence was not free and voluntary – where there was abundant uncontroverted evidence given by the complainant of sustained violence by the appellant in the period immediately prior to intercourse – where it was for the jury, and open to them, to find that the complainant gave an honest and reliable account, particularly given that it was corroborated by the evidence of both children and photographic evidence of her injuries – whether the verdict was unreasonable or insupportable – whether the appeal should be allowed CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – OFFENCES AGAINST THE PERSON – RAPE – whether directions as to mistake of fact were confusing and objectively inaccurate – whether in giving a final direction on mistake of fact there was error in failing to give a repeat direction on the standard of proof required of the prosecution to negate the defence of mistake of fact beyond a reasonable doubt – where the final redirection was given in conjunction with the aide memoire, which itself specifically identified the requisite standard of proof – whether there has been a misdirection – whether the appeal against conviction should be allowed CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – OFFENCES AGAINST THE PERSON – RAPE – where the applicant sought an…