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[2004] QCA 152
respondent. Appeal dismissed. The conviction for deprivation of liberty remained undisturbed.
The Court of Appeal upheld the deprivation of liberty conviction. It treated the offence as depending on whether, in the circumstances, the appellant unlawfully restricted the complainant's freedom. The complainant's account was not the only evidence: her friend and police observed or heard evidence of restraint and distress. The jury could therefore reject the unsupported or less-supported sexual allegations while accepting the deprivation count. The later-discovered information about the complainant's compensation consultation went to her credibility, but the Court concluded it was not likely to have changed the verdict.
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2,391 words · generated 30/09/2026
The Queensland Court of Appeal dismissed Samuel Daniel Awang's appeal against his conviction for deprivation of liberty. The appeal followed a jury trial in the District Court at Toowoomba. The jury convicted Awang on that count but acquitted him of assault with intent to commit rape and sexual assault ([6]). The appeal raised two main matters: whether the conviction was unreasonable, including because it was said to be inconsistent with the acquittals, and whether fresh evidence concerning the complainant's credibility justified disturbing the conviction ([6], [28]).
No linked legislation citations have been extracted yet.
The events took place on 30 November 2002. Awang and the complainant knew each other through their shared dependence on alcohol. She had visited his home on previous occasions. On the day in question, she drank beer and red wine at his residence. Her evidence was that Awang took her to a bedroom, tied her hands with telephone cord, touched her sexually, and repeatedly said he wanted to have sex with her. She said she was scared and refused ([7]). There was an inconsistency in her account about whether her feet had also been tied: she had said so in a police statement, but at trial accepted she might have been told that this was not the case ([7], [10]).
Evidence from other witnesses was important to the appeal. While Awang was away from the room, the complainant used his mobile phone to call her friend Land. Land said he heard her crying and saying her hands were tied and that Awang was going to rape her ([8]). Land walked to the residence. He saw her lying on a bed with her wrists bound, heard her calling his name and yelling for help, and then decided to call police ([8]). Police officers also heard calls for help or to be let go. When they entered the bedroom, they found the complainant on the bed with her hands tied together by telephone cord. An officer cut the cord because it was too tight to untie ([9]–[11]). Another officer observed pressure marks on her wrists consistent with the cord ([12]).
At trial, the judge directed the jury to consider each charge separately. The jury was told that it could return different verdicts, but that doubts about the complainant's evidence on one charge had to be considered when assessing her evidence on other charges ([14]). The judge also highlighted reasons for scrutinising the complainant's evidence carefully, including her intoxication, criminal history, and inconsistencies between her trial evidence and earlier statements ([15]). The jury was directed to look for independent evidence supporting her account ([15]–[16]).
After the verdict, it emerged during sentencing submissions that the complainant had consulted solicitors about criminal compensation before trial. During cross-examination, she had denied that she had considered obtaining money as a result of the alleged offence, although she had acknowledged familiarity with compensation orders ([29]–[31]). The Court considered whether the newly known consultation could have affected the conviction.
The Court treated the statutory language as central. Section 355 of the Criminal Code 1899 (Qld) criminalised unlawfully confining or detaining another person against that person's will, or otherwise unlawfully depriving another of personal liberty ([20]). Williams JA said the statutory terms “confines”, “detains”, “deprives” and “liberty” should receive their ordinary and natural meanings ([21]). The Court did not attempt to create an exhaustive definition. Whether the accused's conduct deprived someone of liberty was, essentially, a question of fact for the jury ([22]).
The evidence supporting the deprivation count went beyond the complainant's account. Land saw her bound and heard her asking for help. The police heard similar calls, found her wrists tightly tied, and observed marks consistent with the cord ([8]–[12]). The jury could also consider the appellant's control over the relevant doors and windows, including the evidence that Land was denied access and the window was closed and covered ([8], [23], [25]). Williams JA considered that the combination of tying the complainant's hands, the appellant's conduct towards her, his control of access, and the delay in admitting police was evidence from which the jury could find deprivation of liberty ([25]).
The acquittals on the sexual offences did not require the jury to reject the deprivation count. The trial judge had explained that the counts could produce different verdicts, while cautioning the jury about relying on the complainant where her evidence was unsupported ([14]–[16]). Williams JA considered it unsurprising that the jury acquitted on the sexual counts given the weaknesses and inconsistencies in her evidence about those allegations ([18]). By contrast, the deprivation count had substantial supporting evidence from Land and the police. Williams JA said that evidence was not only capable of supporting the complainant's account, but could independently establish the offence in the absence of evidence suggesting consent to the relevant conduct ([26]). McMurdo P similarly observed that the complainant's calls for help and her request to be let go supported her evidence that she was detained against her will ([3]–[4]).
The fresh-evidence ground also failed. Williams JA noted that the new material went to a collateral matter and could only bear on the complainant's credit ([33]). The jury had already been directed to scrutinise her evidence carefully, and Williams JA regarded her credit as very poor on essential issues ([15], [33]). Most importantly, the guilty verdict on deprivation of liberty was based on evidence from witnesses other than the complainant. The Court therefore found no significant possibility that the additional information would have produced an acquittal ([33]–[34]). It did not decide whether the evidence would have been admissible, because the appeal could be resolved on the assumption that it was admissible ([34]).
The judgment explains the statutory context but does not purport to give a comprehensive history of the law. Williams JA noted that deprivation of liberty was not a common law offence, although common law recognised kidnapping and false imprisonment ([19]). The original Griffith Code contained offences of kidnapping and deprivation of liberty. Williams JA described kidnapping as initially limited to forcible taking or detention with intent to compel the person detained to work against that person's will, and said deprivation of liberty could be regarded as complementary because it did not require that specific intent ([19]).
For the appeal, however, the statutory words controlled. The relevant part of s 355 covered unlawfully confining or detaining a person against that person's will, “or otherwise” unlawfully depriving that person of personal liberty ([20]). The Court's approach was to give the operative terms their ordinary meanings rather than to impose a rigid formula ([21]–[23]). Williams JA drew on R v Inwood, which concerned whether a person had been arrested, as an illustration of why a person's loss of freedom depends on the circumstances and is generally a factual question ([22]–[23]). The Court also considered Reppas v The Queen, where a conviction for unlawful detention was upheld despite acquittals on indecent assault counts, in circumstances involving a complainant who was taken into a room, prevented from leaving, and asked to be let go ([24]).
The decision's contribution, as expressed in this judgment, is its application of those ideas to s 355 and to separate verdicts based on evidence of differing strength. It confirms neither that every restraint constitutes the offence nor that acquittals on related charges are irrelevant. Rather, the jury must assess the alleged deprivation in its factual setting, and the evidence supporting each count matters ([22]–[27]). The judgment does not describe a change in the law before and after its decision, or set out any later statutory amendments or later judicial developments. Any broader account of the current state of the law would require sources beyond this judgment.
At [21], Williams JA said: “The terms ‘confines’, ‘detains’, ‘deprives’ and ‘liberty’ should each be given their ordinary and natural meaning.” In plain English, the Court did not assign these words a specialised definition in this case. Their application depends on the ordinary sense of restricting another person's freedom, read in the context of s 355.
At [22], Williams JA said that whether conduct deprives another of liberty “will always be a question of fact for the jury.” This means the jury considers the whole situation. The judgment expressly cautioned that there is no simple definition that will cover every factual situation ([22]).
At [23], Williams JA observed that the complainant's hands were tied tightly, limiting her freedom of movement, and that Awang exercised control over relevant doors and windows. This passage illustrates that the Court did not require proof that the complainant was physically incapable of moving at all. The effect of the restraint and surrounding control was for the jury to assess in context.
At [26], Williams JA explained that the other evidence “was also capable of independently establishing the offence.” In practical terms, the deprivation count was supported by evidence from Land and the police, rather than depending solely on the complainant's credibility. This was central to why the acquittals on the sexual charges did not undermine the conviction.
At [34], the Court said it was unnecessary to decide whether the compensation-related evidence was admissible. Even assuming admissibility, the Court held it did not create a significant possibility of a different verdict. The judgment therefore leaves the admissibility point undecided; its conclusion on the appeal rested on materiality.
McMurdo P added at [2] that deprivation of liberty could occur where a sleeping or intoxicated person is locked in a room without knowing it and without trying to leave. That illustration explains the reach of the phrase “or otherwise” in s 355. It was an example, not the factual basis of Awang's conviction. McMurdo P then distinguished the actual case: the complainant had called for assistance and asked to be let go ([3]).
The judgment is relevant where a charge under s 355 turns on a disputed restriction of personal freedom. It directs attention to the particular circumstances: the nature and degree of physical restraint, the accused's conduct, control over exits or access, the complainant's capacity and awareness, and evidence about whether the person was free to leave ([21]–[25]). It does not establish a closed list of facts that must be present.
A fact pattern with tied hands, a person controlling access to doors or windows, and evidence that the complainant asked to leave or called for help resembles the evidence the Court found capable of supporting the verdict in this case ([8]–[12], [25]–[26]). The judgment also makes clear that a person need not necessarily know of the restraint for deprivation to occur: McMurdo P's sleeping-person example illustrates that point ([2]). That example should be read as an explanation of the statutory language, not as a finding about the facts before the Court.
The decision is also relevant where an accused is acquitted of some charges but convicted of another arising from the same events. It indicates that differing verdicts are not automatically inconsistent. The evidence supporting each count must be examined, including whether evidence independent of a complainant's disputed account supports the count of conviction ([14]–[18], [25]–[27]). Finally, it addresses fresh evidence that bears on a witness's credibility: the inquiry in this case focused on whether the material could create a significant possibility of a different verdict, given the evidence actually supporting the conviction ([31]–[34]).
The supplied judgment does not identify any later decisions considering or applying R v Awang. It therefore does not permit a source-grounded account of how later courts have treated the case, whether they have followed or distinguished it, or whether they have developed its reasoning.
The relationships that can be stated from the judgment itself concern earlier authorities. Williams JA considered R v Inwood as an analogy for the fact-sensitive assessment of whether a person had been deprived of liberty ([22]–[23]). The Court considered Reppas v The Queen as a comparable case involving separate verdicts on detention and sexual offences ([24]). McMurdo P cited Meering v Grahame-White Aviation Co Ltd and Go v The Queen in explaining that deprivation of liberty can occur even where the victim is unaware of the restraint or lacks capacity ([2]). McMurdo P distinguished R v Armstrong, where an honest and reasonable mistake of fact was equally relevant to deprivation of liberty and consent to the sexual offences; that defence was not raised on the prosecution case in Awang ([3]).
Those are the judgment's stated connections to precedent. They do not establish how the case was treated after 2004.
The judgment expressly left one evidentiary question unresolved. The respondent argued that the fresh evidence about the complainant's consultation with solicitors was inadmissible because it concerned a collateral issue and had little probative value. Williams JA said it was unnecessary to rule on that submission because, even if admissible, the evidence did not create a significant possibility of a different verdict ([34]). The admissibility of comparable evidence was therefore not decided.
The Court also did not formulate a comprehensive test or exhaustive definition of deprivation of liberty. Williams JA said it was not possible to provide a simple, all-inclusive definition and treated the matter as one of fact ([22]). The judgment gives examples and factors, but it does not set minimum duration, degree of restraint, or a complete boundary between unlawful deprivation and conduct that does not fall within s 355. The statutory wording and circumstances remain important to the assessment in this judgment ([20]–[25]).
The decision's treatment of different verdicts is tied to the evidence before the jury. It does not establish that independent evidence is invariably required to support a deprivation count, or that every combination of conviction and acquittal on related charges is consistent. Its conclusion was that the verdicts were not inconsistent on these facts because the deprivation count had substantial supporting evidence from Land and police ([25]–[27]).
Finally, the supplied text provides no later cases or legislative materials. The subsequent development of s 355, the later treatment of Awang, and the continuing application of its fresh-evidence reasoning cannot be established from this judgment alone.
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Director of Public Prosecutions (Queensland) for the respondent
[1] McMURDO P: I agree with Williams JA that the appeal should be dismissed for the reasons he gives. I only wish to add the following brief observations.
[2] The offence of deprivation of liberty under s 355 Criminal Code is based on the common law crime of false imprisonment. The essence of the offence is the deprivation of liberty of the complainant. The phrase "or otherwise" in s 355 recognises, as the common law recognised, that people may be deprived of their liberty not only against their will but also where the deprivation is achieved by fraud, done without knowledge or the victim lacks capacity. An example would be to lock a sleeping or intoxicated woman in a room to prevent her from leaving should she try. Even if she did not know that the offender had locked her in and did not try to leave, she would have been deprived of her liberty under s 355. See Meering v Grahame-White Aviation Co Ltd[1] and Go v The Queen.[2]
[3] That was not the evidence here. Despite the complainant's drunkenness, she was able to telephone her friend, Mr Land, and ask for assistance. Later when he arrived, she again called out for help. When the police attended she was pleading "please let me go". This evidence supported her testimony that she was detained against her will. Nor was this a case like R v Armstrong[3] where the defence of honest and reasonable mistake of fact was equally apposite to the offence of deprivation of liberty as to the issue of consent in the sexual offences. Here, that defence was not raised on the prosecution case and the appellant did not give or call evidence.
[4] The jury were entitled in this case to not be satisfied beyond reasonable doubt of the complainant's evidence as to the sexual offences. There were weaknesses and inconsistencies in her testimony. She was intoxicated and her evidence as to the sexual offences was unsupported. The jury were nevertheless entitled to be satisfied beyond reasonable doubt that the appellant unlawfully deprived her of her personal liberty because there was other evidence which supported her testimony as to this offence. The verdict was reasonably open on the evidence and was not so inconsistent with the verdicts of acquittal as to establish a miscarriage of justice. The appeal should be dismissed.
[5] McPHERSON JA: For the reasons given by Williams JA, with which I agree, I consider that this appeal should be dismissed.
[6] WILLIAMS JA: On 26 November 2003 the appellant was convicted of the offence of deprivation of liberty, but acquitted on the other counts on the indictment, namely assault with intent to commit rape and sexual assault. He appeals against the conviction on the ground that the verdict was unreasonable (relying as a subheading on the contention that the verdicts were inconsistent) and on the further ground that the prosecution failed to disclose material in its possession which in the circumstances was adverse to the complainant's credibility.
[7] The events in question occurred on 30 November 2002. The complainant and the appellant were acquainted primarily through the dependence of each upon alcohol. Prior to that date the complainant had visited the appellant's house on some three or four occasions for the purpose of having some drinks. On the day in question she went to the appellant's residence and had a few beers and some red wine. According to the complainant's evidence, whilst they were sitting in the lounge room the appellant asked her on a number of occasions to sit on his lap. She declined. Thereupon the appellant grabbed her by the back of her head and walked her to the bedroom where he threw her on the bed and sat on her. Shortly after that he took some telephone cord from a drawer and tied her hands together. The complainant's evidence was that thereafter the appellant kissed her neck, and touched her breasts and vagina on the outside of her clothing. He poured some red wine down her throat and repeatedly said he "wanted to fuck" her, to which she kept replying "no". According to the complainant she was "scared." In a statement to police the complainant said her feet were also tied together with rope. In evidence at the trial she said she believed that to be so, but acknowledged that she had been told that was not the case.
[8] When the appellant left the room to go to the toilet the complainant used his mobile phone to dial the number of a friend by the name of Land. His evidence was that he could hear her crying and she told him that her hands were tied and "he was going to rape her". She told him where she was, and that appears to have been the end of the conversation. Land then walked to the appellant's residence, taking between 30 and 40 minutes to do so. Relevantly his evidence was as follows:
"I knocked on his door, said could I talk to Denise - when he opened the door that was. He said that Denise was tired and he shut the door then - wouldn't let me see her.
[On looking through a bedroom window] I seen Denise laying on the bed.
Her hands are like that, she had white rope, or cord, around her wrists. I couldn't -
I could not see him in the room at first but he came along later and shut the window and the blinds.
I could still hear her screaming out my name and yelling for help so I said I'd go call the police."
Land made it clear that the complainant's arms and wrists were tied together when he looked through the bedroom window.
[9] Senior Constable Lear arrived at the appellant's unit at about 3.40 pm on the afternoon in question. On approaching the door he could hear a female calling out for help, saying "please help me" or "please let me go". When asked to describe the tone of the voice he answered: "It was upset, like she was almost crying or she was crying and it was reasonably faint." The door was closed as was a window near it; the curtains were drawn across the window. He banged on the window and door calling out "Police, open up". He again heard the voice calling out "Please help me". There was no response to his knocking on that door so he went to the back of the unit and knocked on the door there. Again there was no response and he returned to the front door. After what he described as a "few minutes" the appellant opened the door. On entering the bedroom the Constable saw the complainant lying on her back on the bed: "She had her hands tied in front of her body with her palms together with a phone cord ...". The Constable was unable to untie the cord because it was "too tight" so he used a pocket knife to cut it off.
[10] He agreed under cross-examination that there was no rope in the bedroom apart from the cord tying the hands and wrists. There was no rope around her feet.
[11] Lear was accompanied by Constable Watts: his evidence essentially confirmed that given by Lear.
[12] Constable Turner arrived at the appellant's residence shortly after the other police and took a statement from the complainant. In evidence he said: "On her wrists, I noticed that she had pressure marks around her wrists, which appeared to be consistent with a telephone cable that was shown to me by Senior Constable Lear." He went on to say that it "looked like the cable had been tied tightly to put pressure against her skin and cut off the circulation to a certain degree".
[14] On the hearing of the appeal no real challenge was made to the summing up by the learned trial judge. Given the matters which were raised in argument the following extracts from the summing up are relevant:
"You must consider each charge separately. . . . You could find him guilty of one or two of the charges, and not guilty of one or two of the charges. You should bare [sic] in mind, however, that if you are thinking of returning different verdicts in respect of the separate charges, each charge depends substantially on the credibility of the one complainant. If you have doubts about her evidence in respect of a particular charge, those doubts must be taken into account when considering her evidence in respect of other charges.
The final count on the indictment is a count of deprivation of liberty.
Detain means to keep in confinement or under restraint. It does not necessarily mean physical restraint in that restraint can be exercised by threats. The accused does not have to use force or take hold of the complainant to detain her. If the accused compels the complainant by threats to remain in a place against her will, then he has detained her. In this case the Crown says that the accused detained the complainant by restraining her in the bedroom by tying her wrists and by threatening her by his presence, that he would do something to her if she left the room.
You have heard evidence from which you might conclude that the complainant was severely intoxicated on this particular afternoon. If you were to conclude that the only reason the complainant was unable to leave the premises was because she was too intoxicated to walk or run away, you could not find the accused guilty on that basis alone of depriving the complainant of her liberty."
[15] A little later the learned trial judge dealt with issues going to the complainant's credibility. The following is an extract from the summing up on that topic; many points quoted were expanded upon by the learned trial judge but it is not necessary for present purposes to set out more than the critical statements:
"In this trial the Crown case in respect of each count depends substantially on the evidence of the complainant. . . . There are several reasons in this case why you must scrutinise the complainant's evidence with very great care. Firstly, at the time these offences are alleged to have been committed the complainant was on any view of the evidence, you might think, very intoxicated. . . . A police officer gave evidence, she was too intoxicated to be interviewed and she fell asleep at the police station. ...
A second reason why in this case you must scrutinise the complainant's evidence very carefully, indeed, is that she has an extensive criminal history. In particular, she has numerous convictions for offences of dishonesty. . . .
A third and important reason why you should and must consider the complainant's evidence and scrutinise it very carefully indeed, is because there are some major inconsistencies between her evidence in this Court and evidence of statements she has given in relation to the incident on previous occasions. Those inconsistencies are so significant that you must scrutinise her evidence very carefully indeed before acting on it.
When scrutinising the complainant's evidence, you should look to see whether there is any independent evidence which supports or confirms the complainant's evidence that the accused committed the offences on her that she alleges."
[16] Thereafter the learned trial judge referred to the police evidence that the complainant was found with her hands tightly tied up and was heard calling out to be let go. The jury were told that they could use that evidence to confirm evidence given by the complainant.
[17] In the course of summarising the Crown case the learned trial judge reminded the jury that the crown prosecutor "said that there can be no dispute that when the police arrived she was very tightly bound by the wrists, that she was calling out and that she was crying and appeared distressed." The jury was then reminded that defence counsel told the jury that the lies in the complainant's account had "a common thread". The learned trial judge reiterated that defence counsel said in his final address "that in this case the inconsistencies are so significant that they cannot be explained on the basis of honest confusion and that you would find that the complainant is a contemptible liar".
[18] In the light of the summing up it is not surprising that the jury acquitted on the charges of assault with intent to rape and sexual assault. Many of the inconsistencies referred to in the summing up related to the complainant's evidence as to those matters. Clearly the jury was not prepared to act on the complainant's evidence alone in order to found a conviction.
[19] There is little authority as to what in law constitutes deprivation of liberty for purposes of s 355 of the Criminal Code. There was no such offence at common law; the common law recognised offences of kidnapping and false imprisonment (the latter being both a crime and a tort). The original Griffith Code provided for offences of kidnapping and deprivation of liberty, though kidnapping initially was defined differently. In the original Code kidnapping was limited to the circumstance where a person was forcibly taken or detained with intent to compel the person detained to work against his will. In the light of that it could be said that the offence of deprivation of liberty was complementary to the offence of kidnapping; the latter involving a specific intent whereas the former did not.
[20] Regardless of that history it is the language of s 355 which must define the elements of the offence. Relevantly the section is in these terms:
"Any person who unlawfully confines or detains another in any place against the other person's will, or otherwise unlawfully deprives another of the other person's personal liberty, is guilty of a misdemeanour . . ."
[21] The terms "confines", "detains", "deprives" and "liberty" should each be given their ordinary and natural meaning. The most apposite meaning of "liberty" found in the Oxford English Dictionary is: "The condition of being able to act in any desired way without restraint; power to do as one likes." Again one finds in the dictionary "deprive" defined as including the denial of enjoyment of something, and "detain" has a variety of meanings including "keep in confinement", "hold back, delay, stop".
[22] Essentially it will always be a question of fact for the jury whether there has been conduct on the part of an accused person which deprives another of that person's liberty. It is not possible to provide a simple, all inclusive definition of the offence. Words of the Court of Appeal (Stephenson and Orr LJJ and Caulfield J) in a somewhat different context are apposite here. In R v Inwood [1973] 1 WLR 647 the court was concerned with the question whether or not a person had been arrested by police, that is had he been deprived of his liberty so that he was no longer a free man. In that context the court said at 652-3:
"It all depends on the circumstances of any particular case whether in fact it has been shown that a man has been arrested, and the court considers it unwise to say that there should be any particular formula followed. No formula will suit every case and it may well be that different procedures might have to be followed with different persons depending on their age, ethnic origin, knowledge of English, intellectual qualities, physical or mental disabilities. There is no magic formula; only the obligation to make it plain to the suspect by what is said and done that he is no longer a free man. However, what we think is clear is that it is a question of fact, not of law, and it must be left to the jury to decide whether a person has been arrested or not, at least where there is a real dispute as to the question whether the defendant understood that he was being arrested."
[23] As I have said that statement is apposite to the offence of deprivation of liberty. The factors as mentioned in that quoted passage could also be relevant in determining as a fact whether a particular person was deprived of liberty. Here the complainant was not so bound that she could not, for example, walk around. Her hands were bound together tightly and that did severely limit her freedom of movement. Further, the appellant exercised control over the relevant doors and windows.
[24] A somewhat comparable case came before the Court of Criminal Appeal in Western Australia: Reppas v The Queen (1998) 20 WAR 178. There the allegation was that the appellant forced a young girl into a room where he sexually assaulted her. The jury acquitted of the three counts of indecent assault but convicted of the charge of unlawful detention contrary to s 333 of the Western Australian Criminal Code. The majority (Wallwork and Murray JJ) upheld the conviction. The evidence in support of the unlawful detention was that the appellant:
". . . took hold of her right wrist and pulled her into a room at the rear of the shop behind the counter saying, 'Come here.'
Once in the back room she was forced to sit in a chair. She wanted to leave the room, but she was unable to do so because the appellant blocked her way. She cried and said, 'Please let me go.' . . .
. . . On that account it can be seen that the alleged unlawful detention commenced when the appellant was said to have taken her forcefully into the back room and it continued until she was allowed to leave that room."
[25] The learned trial judge in the instant case adequately directed the jury as to the elements of the offence of deprivation of liberty. It was a question of fact for the jury whether the conduct of the appellant in tying the complainant's hands together, acting in a threatening way towards her, refusing her to allow her friend Land access to her, closing the curtains so that Land could no longer see her, and refusing the police immediate access to her constituted the offence of deprivation of liberty. In my view the jury were entitled to conclude that the evidence of the police officers and Land satisfied them beyond reasonable doubt that the offence had been established.
[26] By returning verdicts of not guilty with respect to sexual counts the jury clearly indicated that, in conformity with the judge's directions, they were only willing to act on the complainant's evidence where it was supported. With respect to the charge of deprivation of liberty that other evidence not only supported the complainant's evidence, but it was also capable of independently establishing the offence in the absence of any evidence suggesting the complainant consented to the appellant's conduct.
[27] Given the state of the evidence there was no inconsistency between the jury verdicts and it could not be said that the conviction for deprivation of liberty was unreasonable.
[28] It is now necessary to turn to the second ground of appeal.
[29] During cross-examination the complainant was asked whether she had heard of criminal compensation; she replied that she had. The following exchange then occurred:
"Q. Has it entered your mind that you might be entitled to get some money as a result of what you say Mr Awang did to you? A. No.
[30] Subsequently she admitted that a female police officer whom she had assaulted had obtained an order for compensation against her. Under questioning it appeared that she was generally familiar with orders for compensation in such cases.
[31] Then during the course of submissions on sentence it emerged that prior to the trial the complainant had in fact consulted a firm of solicitors on the subject of compensation. That had not been communicated by the prosecution to the legal representatives for the appellant prior to that point of time. The material available to the prosecutor would appear to have been very vague and it is not a case where any criticism can be directed to the prosecution on the ground that there was failure to disclose material evidence. Nevertheless it is the appellant's contention that fresh evidence became available following the verdict of the jury which was potentially of great significance. It can be assumed for present purposes that the appellant's solicitors could not by the exercise of reasonable diligence have become aware of the evidence prior to the jury verdict.
[32] The appellant's contention is that if his counsel was aware of the fresh evidence when the complainant gave the answers quoted above she could have been confronted with the name of the solicitor she had consulted and her perjury could have been proved.
[33] The topic in question was collateral to the charges and the fresh evidence could only have been relevant to the complainant's credit. As already noted she was a witness virtually devoid of creditability on essential issues and it is clear that the jury was not prepared to treat her as a witness worthy of credit. Given, as already noted, that the guilty verdict on the charge of deprivation of liberty was clearly based on the evidence of witnesses other than the complainant, it is impossible to conclude that a jury would have arrived at a different result if that additional evidence had been before it. There was, in my view, no significant possibility that a jury, armed with this fresh evidence, would have acquitted the appellant on the count of deprivation of liberty.
[34] Counsel for the respondent submitted that the fresh evidence would not, in any event, have been admissible. That submission was primarily based on the proposition that the evidence went to a collateral issue and, further, the complainant's answers to the questions quoted above had no real probative value with respect to the issues. In the circumstances it is not necessary to rule on that submission. It is sufficient to say that in the circumstances of this case the fresh evidence, even if admissible, was not such as to give rise to a significant possibility that the jury's verdict would have been different.
[35] It follows that the appeal should be dismissed.
[1] (1919) 122 LT 44, Atkin LJ 53-54.
[2] (1990) 102 FLR 299; (1990) 73 NTR 1, 19-21, Asche CJ, Angel J agreeing.
[3] [2001] QCA 559; CA No 208 of 2001, 7 December 2001.
R
Awang [2004] QCA 152
(1990) 102 FLR 299
(1998) 20 WAR 178
Appeal dismissed. The conviction for deprivation of liberty remained undisturbed.