R v Trott

Case [2023] QCA 107

SUPREME COURT OF QUEENSLAND

CITATION:

R v Trott [2023] QCA 107

PARTIES:

R
v
TROTT, Zachary William
(appellant/applicant)

FILE NO/S:

CA No 240 of 2022
CA No 241 of 2022
DC No 391 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction & Sentence)

ORIGINATING COURT:

District Court at Townsville – Date of Conviction and Sentence: 18 March 2021 (Lynham DCJ)

DELIVERED ON:

26 May 2023

DELIVERED AT:

Brisbane

HEARING DATE:

8 May 2023

JUDGES:

Flanagan and Boddice JJA and Mitchell AJA

ORDER:

Application for extension of time within which to appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – OTHER MATTERS – where the appellant was convicted of rape contrary to s 349 of the Criminal Code (Qld) – where the appellant conceded that it required an extension of time within which to appeal, and that the question of whether an extension of time should be granted turned on whether that extension was required to avoid a miscarriage of justice – where the only element of the charged offence in issue at trial was the absence of the complainant’s consent – where, at trial, evidence was led of the appellant’s sexual interest in the complainant – whether a direction was required to warn the jury against the impermissible use of evidence of the appellant’s sexual interest in the complainant – whether the lack of such a direction in respect of that sexual interest evidence occasioned a miscarriage of justice – whether the application for an extension of time should be dismissed

Criminal Code (Qld), s 349

HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, cited
Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66, cited
Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7, considered
Phillips v The Queen (2006) 225 CLR 303; [2006] HCA 4, cited
R v Bauer (2018) 266 CLR 56; [2018] HCA 40, cited
R v CAP (No 2) [2014] QCA 323, cited
R v McNeish (2019) 2 QR 355; [2019] QCA 191, considered
R v SDU[2022] QCA 176, cited
R v Thomson (2022) 296 A Crim R 510; [2022] QCA 36, cited
R v UB (2007) 178 A Crim R 450; [2007] QCA 374, cited
R v WBN (2020) 5 QR 566; [2020] QCA 203, cited
Roach v The Queen (2011) 242 CLR 610; [2011] HCA 12, cited

COUNSEL:

E J Coker for the appellant/applicant (pro bono)
N W Crane for the respondent

SOLICITORS:

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

  1. THE COURT: On 3 February 2021, the appellant was convicted after trial by jury of one count of rape, contrary to s 349 of the Criminal Code (Qld).

  2. The appellant now appeals against his conviction of the rape offence on the following ground:[1]

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Details
AGLC
R v Trott [2023] QCA 107
Case
[2023] QCA 107
Decision Date

CaseChat Overview and Summary

In the case of R v Trott, the appellant was convicted of rape under section 349 of the Criminal Code (Qld). The appellant applied for an extension of time to appeal, arguing that such an extension was necessary to avoid a miscarriage of justice. The primary issue before the court was whether the lack of a direction to the jury regarding the impermissible use of evidence concerning the appellant's sexual interest in the complainant constituted a miscarriage of justice.

The court examined the evidence provided by both the complainant and the appellant, focusing on the events of the evening in question and the subsequent interactions between the parties. The complainant testified that she was uncomfortable with the appellant's persistent physical contact and had repeatedly asked him to stop. Despite this, the appellant continued to engage in such behaviour. The court noted that the trial judge did not provide a specific direction to the jury warning against the use of the evidence of the appellant’s sexual interest in the complainant for any purpose other than to prove the appellant’s state of mind. The appellant argued that this omission was significant because it allowed the jury to improperly consider this evidence in assessing the complainant’s credibility or in determining the absence of consent.

The court held that while it was true that the trial judge did not give a specific direction regarding the use of the evidence of the appellant's sexual interest, this did not necessarily lead to a miscarriage of justice. The court reasoned that the trial judge had adequately addressed the broader issues of consent and the need for the jury to consider the complainant's state of mind. The court concluded that the evidence of the appellant's sexual interest did not play a decisive role in the jury's decision, and thus the absence of a specific direction did not result in a miscarriage of justice. The application for an extension of time to appeal was dismissed.

Orders

Orders of the court

Application for extension of time within which to appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

It is convenient, therefore, to initially focus on the competing accounts of events given by the complainant and the appellant before turning to the evidence of the appellant’s phone calls to, and photographs of, the complainant.Complainant’s evidence The following is a summary of the complainant’s evidence given at trial. The complainant was 20 years old at the date of the alleged offending. She met the appellant on 5 May 2019 at the house of her friend, M. He showed up later in the afternoon when the complainant and M were having a few drinks together.[4] The three of them ended up going to the Bank Nightclub and then later to the Mad Cow and Flinders HQ. The complainant said:[5]“I wasn’t very comfortable that night. He kept following me around, slapping me on the bottom. There was a point where I was up in the smoking area of Mad Cow and I was sitting on a chair, and he pulled my chair closer to him and put his arm around me, and I had another girl come up and ask if I was okay.”[4]ARB 137.[5]ARB 138. The complainant kept telling the appellant to stop touching her. He was “just laughing and smiling”. At one point, the complainant had M follow her into the bathroom where she told M what was happening and tried to leave. During the evening, M called the complainant from the appellant’s phone. The complainant went home that night with another friend rather than M and the appellant.[6][6]ARB 138 ‑ 139. After that night, the complainant received “a lot” of phone calls from the appellant. She told him to stop calling her, to leave her alone and that she would call police if he continued to contact her. On one occasion, she saw the appellant when she was out in town. He was wearing a cowboy hat and followed her around. At one point on this occasion, the appellant came up to the complainant and stood up over her. She felt threatened and ended up hitting him in the chest screaming, “Fuck off”. The appellant “smacked at” the complainant, said, “That’s assault. I’m going to the police”. The appellant then walked across the road to “the police side on Flinders Street”.[7][7]ARB 139 ‑ 140. On the evening of 21 May 2019, the complainant was at Mad Cow with her friend, Y. She spoke briefly to the appellant. The complainant had a lot to drink that night. The complainant and Y decided to go home at a time when Y was really upset. The appellant followed them as they left. Y told the appellant, “You can go now, we’re okay”. The complainant and Y walked to the complainant’s car, with the appellant still following them. When they arrived at the car, the complainant lay on the ground, trying to make the appellant think she was too drunk to drive so he would leave them alone.[8][8]ARB 140 ‑ 141. The complainant got into the driver’s side of her car, and Y got into the passenger side. The appellant climbed into the back of the car behind Y. The complainant dropped Y about two houses away from where she lived, and the appellant climbed over into the passenger seat. The complainant thought she would drop the appellant home because he lived around the corner from her.[9][9]ARB 141.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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