R v WCC

Case [2024] QCA 88

SUPREME COURT OF QUEENSLAND

CITATION:

R v WCC [2024] QCA 88

PARTIES:

R
v
WCC
(appellant)

FILE NO/S:

CA No 250 of 2023
DC No 629 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 16 November 2023 (Jarro DCJ)

DELIVERED ON:

21 May 2024

DELIVERED AT:

Brisbane

HEARING DATE:

8 April 2024

JUDGES:

Morrison and Boddice JJA and Cooper J

ORDERS:

1.   The appeal be allowed.

2.   The verdicts of guilty below be set aside.

3.   There be a re-trial.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of one count of sexual assault and three counts of rape – where a pre-text telephone call between the complainant and the appellant was admitted into evidence – where the appellant’s account to his partner XYZ was admitted into evidence – where there was no case made that the pre-text call contained admissions as to the charged acts – where the trial judge made directions substantially in accord with a Liberato style direction – where the direction only dealt with the evidence given by XYZ – where the trial judge failed to direct the jury to give consideration to the contents of the pre-text call – whether the failure to specifically direct the jury gave rise to a real risk that the jury may have the impression that disbelief of the appellant’s evidence, or preference for the complainant’s evidence over that evidence, meant that guilt had been proven beyond reasonable doubt – whether a miscarriage of justice occurred

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant had been charged on an indictment with five counts – where the appellant was acquitted of one count of rape by penetrating the complainant’s mouth with his penis (count 4) – where there were inconsistencies between the complainant’s evidence and the other evidence in relation to count 4 – where there was other evidence that supported the complainant’s evidence in relation to counts 3 and 5 – whether the verdicts on counts 3 and 5 are inconsistent with the acquittal on count 4 – whether the verdicts on counts 3 and 5 were irrational

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of one count of sexual assault and three counts of rape – where the appellant submits the complainant’s description of count 5 (rape by penetrating the complainant’s vagina with his penis) was inadequate and lacking in probative force – where the complainant’s memory was affected by her inebriation – whether it was improbable that an act of penile penetration occurred in the circumstances – whether a jury, acting rationally, ought to have entertained a reasonable doubt about proof of the element of penetration and therefore proof of…

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R v WCC [2024] QCA 88
Case
[2024] QCA 88
Decision Date

CaseChat Overview and Summary

The appellant was convicted of one count of sexual assault and three counts of rape. The case came before the court on appeal, where the appellant raised several grounds for appeal, including the trial judge's failure to direct the jury on the use of the appellant's account in a pre-text telephone call. The court was required to decide whether the failure to specifically direct the jury gave rise to a real risk that the jury may have formed the impression that disbelief of the appellant's evidence, or preference for the complainant's evidence over that evidence, meant that guilt had been proven beyond reasonable doubt. The court also needed to determine whether the verdicts on counts 3 and 5 were inconsistent with the acquittal on count 4 and whether the verdict on count 5 was unreasonable or insupportable having regard to the evidence.

The court found that the trial judge gave directions, substantially in accord with a Liberato style direction, but the direction given by the trial judge only dealt with the evidence given by XYZ. The court held that the failure of the trial judge to direct the jury in respect of the use of the appellant's account in the pre-text telephone call resulted in a miscarriage of justice. The court further found that the verdicts on counts 3 and 5 were not inconsistent with the acquittal on count 4 and that the verdict on count 5 was not unreasonable.

The appeal was allowed, the verdicts of guilty were set aside, and a re-trial was ordered.

Orders

Orders of the court

1. The appeal be allowed.

2. The verdicts of guilty below be set aside.

3. There be a re-trial.

Background

Background to the litigation

Leave was granted to amend the grounds of appeal to raise:(a)Ground 1: a miscarriage of justice occurred because the trial judge failed to direct the jury that they must acquit the appellant if they accepted that the appellant’s account in the pre-text telephone call, or his account to his partner XYZ, “might be true";(b)Ground 2: a miscarriage of justice occurred because the trial judge failed to adequately direct the jury about the use that could be made of the evidence of the pre-text telephone call;(c)Ground 3: the verdicts on counts 3 and 5 were unreasonable because they were inconsistent with the acquittal on count 4; and(d)Ground 4: the verdict on count 5 was unreasonable or cannot be supported having regard to the evidence.Background The appellant’s appeal outline set out a non-contested summary of the evidence at the trial. What follows draws upon that summary. The complainant was a work colleague of the appellant and his partner, XYZ. On 29 August 2020, the complainant attended XYZ’s birthday party, held at their house. During the night, the complainant consumed a considerable amount of alcohol and became intoxicated.[2] She went for a swim in the spa, along with other women at the party, including XYZ. As she had no swimmers she stripped to her underwear before she got in. She was wearing a black matching set of bra and underwear. She said:[3]“[The appellant] was in the kitchen, I’ve gone into the kitchen … to see [the appellant] who had laid out some shots. He had made a comment … and suggested … I looked okay and motioned his hands to me and kind of, like, a “wow”. … I awkwardly laughed it off but we had a shot together and … it was fine – just took it … as a nice compliment. … I think he stayed around the kitchen … and I’ve walked away … to get into the spa to join the other ladies.”[2]She described it as “heavily inebriated”: AB 111 line 33.[3]AB 100 lines 20-26. Feeling sick, she got out of a spa bath and vomited in the bushes. She then returned to the spa but felt unwell, so she went to have a shower. The appellant handed her a towel. She removed her wet underwear and had a shower. She had to sit while doing so as she felt ready to pass out. She then went to the spare bedroom, intending to stay the night. Once in the bedroom she closed the door, dropped her towel and laid down under a sheet.[4][4]AB 101 lines 13-30. Feeling sick, the complainant wrapped a sheet around her, left the spare bedroom, walked down the hallway to a sink, and vomited. The appellant gave her a bucket to use if she felt sick and then ushered her back to the spare bedroom.[5][5]AB 101 lines 34-45. The complainant said what happened then:[6] “So he’s ushered me back into the bedroom. … I went to lay down in the bed. I kept the sheet around me because … he stayed in the bedroom [indistinct] … I laid down in the bedroom and I just – kind of, shifted myself to – kind of, get a little bit comfortable but whilst in the situation he stayed standing by the bedside and roughly where – probably the towel was when I first dropped it, from the first time that I got into the bedroom. And I was laying down and I just went to shut my eyes and he decided – I didn’t ask him to but he’s decided to help move the sheet, I guess to help me be more comfortable. … he started manoeuvring the sheet around to pull away and I guess across from out under me. And in that process he’s been moving the sheet, I’ve started to be exposed because I was still naked underneath the sheet and … in the process where I’ve been trying to keep the sheet up, within a short time he’s placed his right hand on my leg and started feeling up my leg and across my body and across my chest which was starting to be exposed and then he’s continued on to move his hands – his hand down …”[6]AB 102 lines 22-36.

Evidence

Evidence Before The Court

The pre-text call was played for the jury. Relevant features of it are:[51][51]AB 286-291(a)the appellant apologised saying “I’m just sorry it happened”;[52][52]AB 288 line 43.(b)when asked if he remembered what happened he said a “bit of it”; he was asked what he remembered and said, “… the touching you and … you pushed my hand away and then I left”;[53] [53]AB 288 lines 49-56.(c)he said he could not remember anything else; the complainant asked if he remembered “you actually put your dick inside of me”, and he answered, “No. I don’t, I didn’t do that”;[54][54]AB 289 lines 2-6.(d)this exchange followed the complainant asking if he remembered particular things:[55][55]AB 290 lines 12-27.“COM: You’re saying you don’t even remember everything that happened though.APP: No.COM: Hey?APP: I don’t no.COM: I remember it, I remember you touching my leg, I remember you touching my vagina, I remember you putting your fingers in my vagina, I remember as I rolled over you put your, you put your penis in me.APP: I don’t remember that though. I remember touching you and yeah.”;(e)the appellant said he had tried to apologise:[56]“…I tried to message you to say I was sorry a couple days after it to you know wanted to apologise, I, like I’ve never done anything like that before, I regret it, doing it, I just felt sick for doing it”;(f)the appellant described the interaction as a “drunken lapse of judgment”.[57][56]AB 290 lines 47-50.[57]AB 291 line 37.The defence case - evidence of XYZ XYZ testified in the defence case. She described the events of the party, and that the women who went into the spa were wearing their “Bra and undies”.[58] Later she had a shower, went and got her dogs, saw the appellant in the kitchen, and went to bed.[59] She heard the appellant asking someone if they wanted a glass of water.[60][58]AB 230 line 40.[59]AB 231.[60]AB 232 limes 4-6. She saw the complainant in the morning. The complainant said that the appellant had brought her the bucket in the bedroom. The complainant seemed normal although a bit tired. The complainant sent some photos of the party to XYZ.[61][61]AB 234. She spoke to the complainant during the afternoon of 30 August 2020. The complainant was “really upset” and when asked if there was anything wrong, the complainant answered that it was the appellant. Pressed to explain, the complainant told her that the appellant had been “inappropriate last night” and had touched her “Down there”.[62][62]AB 236 lines 10-17. The complainant did not say anything about penetration by a penis. The complainant kept saying “sorry”.[63][63]AB 236 lines 24-27 XYZ said that she confronted the appellant about what the complainant had said, and that he “confirmed what she said”, and that he had “touched her down there”.[64][64]AB 236 lines 29-33. In cross-examination XYZ denied that she had been told more by the complainant.[65] However, when pressed to explain the source of the text comment by her about the complainant walking around the house naked, XYZ said “I don’t remember”.[66] She then said, “I was told she was naked”, and then “I was told she was walking around the house with a towel or a sheet on her”.[67][65]AB 239 lines 14.[66]AB 239 lines 16-41.[67]AB 240 lines 4-9.

Decision

Reasons for decision

Ground 4 fails.Conclusion For the reasons I have expressed above, the appeal should be dismissed. I propose the following order:1.Appeal dismissed. BODDICE JA: I have had the advantage of reading the judgment of Morrison JA. I agree with Morrison JA that the verdicts on counts 3 and 5 are not inconsistent with the acquittal on count 4. The lack of initial complaint of oral rape was a telling factor which may have caused the jury to doubt the accuracy of that aspect of the complainant’s account, whilst otherwise accepting the complainant’s reliability and credibility as to the remaining counts. There was a consistency in her account as to the remaining counts which was supported by the preliminary complaint evidence. I also agree that the verdict on count 5 was not unreasonable. A consideration of the record, as a whole, supports a conclusion that it was open to the jury to be satisfied, beyond reasonable doubt, of the appellant’s guilt of this offence. Whilst aspects of her evidence may have allowed for a submission as to the improbability of penetration being affected in such a circumstance, nothing in her evidence rendered the account so inherently improbable that it was not open to the jury to be satisfied, beyond reasonable doubt, as to the act of penetration. However, I would allow the appeal on the ground that there has been a miscarriage of justice, due to a failure of the trial judge to direct the jury in respect of the use of the appellant’s account in the pre-text telephone call. Morrison JA’s comprehensive summary of the evidence and directions, which I gratefully adopt, allows me to briefly state my reasons. First, whilst the trial judge gave directions, substantially in accord with a Liberato style direction, the direction given by the trial judge, which is set out at [54], only dealt with the evidence given by XYZ. The initial reference to “his evidence” at the start of that direction, is unlikely to have alerted the jury to the need to consider the pre-text call, in addition to the evidence given by XYZ, when considering whether they are satisfied beyond reasonable doubt that the prosecution had proved the case against the appellant. That conclusion is supported by a consideration of the terms of the direction that immediately followed, namely:“The proper approach is to understand that the Prosecution case depends entirely upon you accepting the evidence of the complainant, … was true and accurate beyond reasonable doubt, despite the sworn evidence given yesterday by [XYZ]. So the Prosecution must prove beyond reasonable doubt the elements of the offence, and if you are of the view that [XYZ’s] evidence was to cause reasonable doubt about an element, then you would find [the appellant] not guilty of the particular offence you are considering. So you would, therefore acquit”.Nothing in that direction directs the jury to give consideration to the contents of the pre-text call, either when considering whether XYZ’s evidence causes them to have a doubt, or separately.

Ratio Decidendi

Legal Principle Established

The trial judge then moved away from the pre-text call onto another topic, that concerned with one thing said by the appellant to XYZ, namely that he touched the complainant down there. As will be seen this evidence was referred to by the trial judge as “what he said to [XYZ] about his conduct”. His Honour said:[104]“Evidence was also given yesterday by [XYZ] that when she confronted [the appellant] about what she discussed with the complainant, she recalled [the appellant] telling her that he ‘touched her down there’. Now, there is nothing to do with penetration or anything of the sort. Reasonably, if you accept the defendant’s version given in the pretext call and/or what he said to [XYZ] about his conduct, then you would find him not guilty of the relevant charge.”[104]AB 57 lines 33-37. Emphasis added. The highlighted words made it clear that what was said as to the touching had nothing to do with counts 2-5, each of which had an element of penetration. It was in that context that the trial judge said the last sentence. In those circumstances, could it be said that there was a real risk, as opposed to fanciful risk, that the jury might have been under be the impression that the evidence on which the appellant relied on, would only give rise to a reasonable doubt if they believed it to be truthful. In my view, for several reasons that must be answered in the negative. First, the directions contained a Liberato direction which referred to “[XYZ’s] evidence”. XYZ’s evidence was as to her oral conversation with the appellant as well as the text messages. Both categories were included in the phrase “the evidence given by [XYZ]” in the passages quote in paragraph [54] above. Secondly, the Liberato direction was given only a short time before the impugned passage. And, the impugned passage was surrounded by directions that the appellant’s touching had nothing to do with the charged acts. I do not consider that the jury were likely to understand that as displacing what they had just been told about how to deal with the appellant’s evidence. Rather, it was likely that they understood it as referring to the Liberato direction just given. Thirdly, the passage referred to was dealing with one aspect of the evidence in particular. That is, it was referring to the fact that the appellant accepted he had touched the complainant on her vagina, something which was not a charged act. He had told XYZ that in the phone call and had said that in the pre-text call. The last sentence of the passage in paragraphs [63] and [80] above was, in context, an observation only on that aspect of the evidence. That this is so, is evident from the next part of the summing up, where the trial judge gave a specific direction as to how that evidence could be used as revealing the appellant’s sexual interest in the complainant.[105][105]AB 57 line 39 to AB 58 line 14. Fourthly, the earlier direction expressly told the jury that the burden of proof did not shift to the defence, and that the question of guilt had to be assessed upon the whole of the evidence, including that from the appellant. Then, just before the impugned passage the jury were reminded that the burden of proof did not shift to the defence.[106] That part of the summing up concluded shortly thereafter with this:[107]“You must still decide whether, having regard to the whole of the evidence, the offences charged have been proved to your satisfaction beyond reasonable doubt.”[106]AB 57 lines 1-3.[107]AB 58 lines 17-19.