R v Sunderland

Case [2020] QCA 156

SUPREME COURT OF QUEENSLAND

CITATION:

R v Sunderland [2020] QCA 156

PARTIES:

R
v
SUNDERLAND, Lee James
(appellant)

FILE NO/S:

CA No 182 of 2019
DC No 352 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Rockhampton – Date of Conviction: 4 June 2019 (Burnett DCJ)

DELIVERED ON:

Date of Order: 20 February 2020
Date of Publication of Reasons: 24 July 2020

DELIVERED AT:

Brisbane

HEARING DATE:

20 February 2020

JUDGES:

Sofronoff P and Morrison and Mullins JJA

ORDER:

Order made 20 February 2020:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL –VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where a jury found the appellant guilty of one count of rape (count 2) – where the jury acquitted the appellant of one count of indecent assault of the same complainant (count 1) – where the complainant was 16 years’ old and was a family friend of the appellant – where the complainant regularly cleaned the appellant’s home – where the appellant’s hand began to rub the complainant between her legs in the area of her vagina (count 1) – where the complainant felt frozen and had made no overt verbal or physical protest against the appellant’s touching – where the complainant went to leave the appellant’s home and the appellant locked the door to prevent her from leaving – where the appellant encouraged the complainant to give him a massage – where the complainant massaged the appellant and the appellant then massaged the complainant – where the appellant digitally raped the complainant (count 2) – where the complainant made several statements to demonstrate that she was not giving her consent – where the appellant submits that there was no basis to differentiate between the verdicts –whether the verdicts are inconsistent – whether the jury ought to have acquitted on both counts – whether the inconsistent verdicts demonstrate that the conviction on count 2 was unreasonable and should be set aside

Criminal Code (Qld), s 245, s 348, s 349, s 351, s 352
Criminal Law Amendment Act 2000 (Qld)

Alford v Magee (1952) 85 CLR 437; [1952] HCA 3, cited
Commonwealth v Tuck (1951) 82 A 2d 283, cited
R v FAV[2019] QCA 299, cited
R v Case (1850) 169 ER 381; [1850] EngR 99, cited
R v Day (1841) 173 ER 1026; [1841] EngR 86, considered
R v Makary [2019] 2 Qd R 528; [2018] QCA 258, explained
R v Shaw [1996] 1 Qd R 641; [1995] QCA 45, considered
R v Sutton (2008) 187 A Crim R 231; [2008] QCA 249, cited
R v Wollaston (1872) 12 Cox CC 180, considered

COUNSEL:

A Hoare, with T Morgans, for the appellant
P J McCarthy QC for the respondent

SOLICITORS:

McGowran & Cagney Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. SOFRONOFF P:  A jury found the appellant…

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R v Sunderland [2020] QCA 156
Case
[2020] QCA 156
Decision Date

CaseChat Overview and Summary

The appellant was found guilty of one count of rape by the jury, but acquitted of a charge of indecent assault against the same complainant. The complainant was 16 years old and a family friend of the appellant, who regularly cleaned the appellant's home. The appellant's hand rubbed the complainant's vagina while she was unable to protest due to feeling frozen, and he subsequently locked the door to prevent her leaving. When she attempted to leave, the appellant encouraged her to give him a massage, which he reciprocated before digitally raping her. The appellant appealed against his conviction on the basis that the jury's verdict was unreasonable or insupportable when considering the evidence, and that the verdicts were inconsistent. He argued that there was no basis to differentiate between the verdicts, and that the jury should have acquitted him on both counts.

The court considered the appellant's arguments and examined the evidence presented to the jury. The court found that the jury was entitled to accept the complainant's evidence that she did not consent to the appellant's touching, and that her freezing was a natural reaction to the situation. The court also found that the jury was entitled to accept that the complainant's lack of protest did not necessarily mean that she consented to the appellant's actions. The court held that the jury's verdicts were not inconsistent, as the jury could have reasonably found that the appellant was guilty of rape but not guilty of indecent assault based on the evidence presented. The court found that the jury's verdict on count 2 was not unreasonable or insupportable when considering the evidence.

The appeal was dismissed, and the appellant's conviction on count 2 of rape was upheld. The court held that the jury's verdicts were not inconsistent and that the jury was entitled to accept the complainant's evidence. The court found that the appellant's submission that the jury should have acquitted him on both counts was not supported by the evidence. The court held that the conviction on count 2 was not unreasonable or insupportable when considering the evidence, and that the appeal should be dismissed. The court made an order dismissing the appeal on 20 February 2020.

Orders

Orders of the court

Order made 20 February 2020:

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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