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[2013] QCA 175
Court of Appeal (Qld)
2013-07-12
Muir and Gotterson JJA and Boddice J, Separate reasons for judgment of, each member of the Court, each concurring as to the orders made
Original judgment source is linked above.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Dunrobin [2013] QCA 175
PARTIES: R v DUNROBIN, Shannon Robert (appellant/applicant)
FILE NO/S: CA No 275 of 2011 / DC No 80 of 2011
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction & Sentence
ORIGINATING COURT: District Court at Bundaberg
DELIVERED ON: 12 July 2013
DELIVERED AT: Brisbane
HEARING DATE: 9 May 2013
JUDGES: Muir and Gotterson JJA and Boddice J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS: 1. Appeal be allowed. / 2. Convictions in respect of counts 1, 2, 4, 6 and 7 be set aside. / 3. New trial ordered in respect of counts 1, 2, 4, 6 and 7.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – OTHER MATTERS – where the appellant was convicted on count 3 of the indictment where no evidence had been given in support of that count – where the appellant contends the verdict on count 3 without evidence compromised all other verdicts such as to constitute a “poisoned well” – where the appellant gave evidence of sexual contact in respect of each of the remaining counts of rape – where the complainant’s evidence involved assertions of acts of intercourse in circumstances where any consent was obtained through fear or intimidation, including physical assaults – where there was evidence of a preliminary complaint in support of the complainant’s credibility – where there was medical evidence supportive of the complainant’s evidence of physical assault – where there was evidence telling against the complainant’s assertion of a fearful relationship – whether it was open to the jury to conclude beyond reasonable doubt that the appellant was guilty of each of the offences / CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – OTHER MATTERS – where the appellant relied on the defence of honest and reasonable, but mistaken belief as to consent under s 24 Criminal Code 1899 (Qld) – where the complainant accepted, in cross-examination, that there had been occasions of mutual oral and anal intercourse and there was evidence from other witnesses consistent with there being a relationship – where those close to the complainant disapproved of homosexuality – where the appellant contends the trial judge’s failure to give specific directions in respect of the defence under s 24 Criminal Code 1899 (Qld) devalued the relevance of the defence – whether the trial judge’s direction adequately directed the jury in respect of s 24 Criminal Code 1899 (Qld) – whether more comprehensive directions may have affected the verdicts / Criminal Code 1899 (Qld), s 24 / Criminal Law (Sexual Offences) Act 1978 (Qld), s 4 / Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, followed / M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied / Phillips v The Queen (2006) 225 CLR 303; [2006] HCA 4, applied / R v Dunrobin [2008] QCA 116, cited / R v Markuleski (2001) 52 NSWLR 82; [2013] NSWCCA 290, cited / SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited
COUNSEL: P J Callaghan SC, with A D Anderson, for the appellant / M R Byrne QC for the respondent
SOLICITORS: Legal Aid Queensland for the appellant / Director of Public Prosecutions (Queensland) for the respondent
MUIR JA: I agree with the reasons of Boddice J and with the orders he proposes.
GOTTERSON JA: I agree with the orders proposed by Boddice J and with the reasons given by his Honour.
BODDICE J: On 16 September 2011, a jury found the appellant guilty of five counts of rape (counts 1, 3, 4, 6 and 7) and one count of assault occasioning bodily harm whilst armed (count 2). As directed by the trial judge, the jury found the appellant not guilty of one count of rape (count 5). The appellant was sentenced to an effective period of imprisonment of 14 years and declared a serious violent offender.
The appellant filed a notice of appeal against conviction, and an application for leave to appeal against sentence, on 12 October 2011. The sole ground for the appeal against conviction was that the jury’s verdict was unsafe and unsound according to the evidence. On 17 August 2012, the Court of Appeal dismissed the appellant’s appeal against conviction, and refused leave to appeal against sentence.
On 15 February 2013, the High Court granted the appellant special leave to appeal. The High Court treated the appeal as instituted and heard instanter, and allowed the appeal. It ordered the applicant’s conviction on count 3 be quashed and a verdict of acquittal entered, and that his convictions on the remaining counts be remitted to the Court of Appeal for its further consideration. A similar order was made in relation to the applicant’s application for leave to appeal against sentence.
Upon the matter being remitted to this Court for its further consideration, the appellant was given leave to amend the notice of appeal in respect of conviction to rely on the following grounds:
1.the verdicts of the jury were unreasonable;
2.the learned trial judge erred when he directed the jury in relation to s 24 of the Criminal Code 1899 (Qld);
3.the trial miscarried as a result of the admission of evidence –
(a)about lack of consent; and
(b)about other sexual relations of the complainant.
Background
The six counts of rape, and one count of assault occasioning bodily harm whilst armed, all concerned the same male complainant. The offending conduct was alleged in the indictment to have occurred over a period of up to 18 months. During that relevant timeframe, the appellant was aged between 29 and 30, and the complainant between 17 and 18.
The Crown case was that the appellant had engaged in non-consensual sexual intercourse with the complainant commencing prior to his 18th birthday. It was alleged the sexual intercourse occurred against a background of threats and physical violence by the appellant to the male complainant.
The appellant’s defence was that no sexual contact had occurred prior to the complainant’s 18th birthday, and thereafter all sexual contact was on a consensual basis as part of a loving non-violent relationship. Whilst the appellant did not give evidence, his lengthy interview with police was played to the jury. It recounted instances of consensual, mutual acts of anal and oral intercourse against the backdrop of a relationship where each expressed their love for the other.
The indictment
Count 1 related to the first occasion the complainant alleged he was raped by the appellant. The complainant and the appellant were both living at the residence of AL and TC. It was alleged the appellant entered the complainant’s bedroom, climbed on top of him, pushed the complainant’s hands into his gut, pulled down the complainant’s pants and penetrated the complainant’s anus. The complainant said he tried to scream but could not scream loud because the appellant “pushed my head into the pillow”. The appellant ejaculated onto the complainant’s anus. The appellant said “if you tell anybody or anyone, I will hurt you”.
Count 2 was the offence of assault occasioning bodily harm whilst armed. It was alleged the appellant burnt the complainant on his right nipple with a lighter.
Count 3 alleged another occasion of rape. It was particularised as an occasion when the appellant punched the complainant, performed oral sex on the complainant, and then required the complainant to do the same to him. However, the complainant gave no evidence of penetration of his mouth at trial. It was in respect of this count, the High Count ordered a verdict of acquittal be entered.
Count 4 alleged another occasion of rape. It was particularised as being an occasion when the appellant had non-consensual anal sex with the complainant in a bedroom whilst the complainant was living at the residence of BK.
Count 5 alleged another occasion of rape. It was opened as being an occasion when the appellant again had non-consensual sexual intercourse with the complainant. However, the complainant gave no evidence to support that count at trial. The jury were directed to find the appellant not guilty of that count. That was the count the subject of a finding of not guilty by the jury.
Count 6 alleged another occasion of rape. It was alleged the appellant had non-consensual anal intercourse with the complainant when living in a caravan.
Count 7 also alleged an act of rape whilst the complainant was living in the caravan. The complainant alleged the appellant had non-consensual anal intercourse with him after the complainant had had a shower.
Complainant’s evidence
The complainant, who was born on 15 April 1991, was first introduced to the appellant when he was living at the residence of AL and TC for several months until just prior to his 18th birthday. The appellant was also residing there. The complainant said he was informed the appellant was a professional boxer.
The complainant and the appellant shared a bedroom in the house. It was adjacent to the main bedroom and another room used as a bedroom. The door to the room was not operating and a curtain was used for privacy. There was a bed and a mattress on the floor.
The complainant said the night after he first met the appellant, which was approximately one month before the complainant’s 18th birthday, he was woken by the appellant who was on top of him. The appellant pushed the complainant’s hands under his stomach, pulled his pants down and anally raped the complainant. The complainant felt scared and tried to scream but could not as the appellant pushed his head into the pillow. The appellant then threatened to hurt him if he told anybody. This alleged rape was count 1 on the indictment.
The complainant alleged that over approximately the next month the appellant had “anal and oral sex” with him two times a day, either in the bedroom or in the bathroom when the complainant was having a shower. These events occurred even though the complainant would lock the bathroom door and tell the appellant to “get out”. The appellant regularly threatened to hurt him if he told anybody.
The complainant said the appellant would punch him “in the mouth or the kidneys or the ribs” if he did not get his way. This would happen if the complainant struggled and tried to get the appellant off him. Every punch hurt. His lips were split several times. He also had bumps on his face. On one occasion the punch put his eye tooth through his gum. The appellant also threatened “every three or four days” to hurt him if he told anybody. The complainant felt scared of the appellant because of what “I got told”.
Just prior to his 18th birthday, the complainant went to stay at the residence of RB. Whilst living there, the appellant would “hassle” the complainant and request that he go with him in his vehicle. On one occasion, the complainant was taking the bus to the learning support centre he attended, when the appellant demanded he leave the bus. The complainant eventually agreed to leave the bus but asked the bus driver to “jump out with us” while the complainant talked to the appellant. The bus driver was told by the appellant to “jump” back into the bus and he would take the complainant to the centre. The complainant said that after the bus left, the appellant said it was lucky the bus driver left as he would “have bashed you and him”.
The complainant subsequently moved to live at the residence of BK. The appellant also lived at that residence. Whilst there, the appellant told BK they were in a relationship. That night the appellant slept in the complainant’s room. The appellant wanted oral sex. This episode was count 3 on the indictment. The next day they had anal sex in the shower.
“Question:Now, you told us that when he wouldn’t get his way, he’d punch you in the mouth?
Answer:Yes.
Question:Would he do anything else?
Answer:Not what I can recall; just punch me in the face or just punch me in the rib and kidneys.
Question:And did you want to have sex with Mr Robin – Dunrobin?
Answer:No.
Question:Did you ever want to have sex with Mr Dunrobin?
Answer:No.
…
Question:Did you want to engage in a sexual relationship with Mr Dunrobin?
Answer:No.
Question:And prior to this, had you ever been in a sexual relationship with another man?
Answer:No.
Question:And subsequent to this, were you ever – have you been in a sexual relationship with another man?
Answer:No.
Question:Now what was the reason why you did have sex with Mr Dunrobin on these various occasions?
Answer:That’s because I was afraid and scared.”1
In cross-examination, the complainant accepted that on the first occasion of alleged anal rape the appellant did not hit him and that there were times when his head wasn’t pressed into the pillow and he did not scream out during those times. The complainant also agreed he had anal intercourse with the appellant, and performed oral sex on the appellant, on several occasions. These occasions occurred after the appellant had had anal or oral sex with the complainant, and the appellant said it was now the complainant’s turn to do the same to the appellant.
The complainant also accepted on occasions he would go for a drive with the appellant, and on occasions would say no. There were also occasions when the appellant would invite him to come over. He agreed the appellant said he cared about the complainant. On more than one occasion, the appellant said he loved him. He agreed that when he told TC about being raped he did not want to make a formal complaint to police. He also agreed police came to the house that day.
The complainant agreed he stayed with the appellant at several places but said he only did so because the appellant told him to come with him and he had nowhere else to go. He also agreed he told a police liaison officer that he was alright but said he did so because the appellant was in the car with some of his friends at the time and he was afraid of them.
The complainant accepted he had given himself lighter burns to his arms. He denied he did so to his chest area. Another witness gave evidence the complainant, in the presence of the appellant, had said he had accidently burnt himself.
The complainant accepted he could have moved to stay with his grandmother or mother. He said he tried to move but could not because the appellant was keeping an eye on him. He agreed he knew that TC did not approve of homosexuality and he could have told TC and asked him to do something about it. The complainant said he was scared and afraid.
The complainant agreed that when police attended the address at which the complainant and the appellant were living on 24 November 2009, the complainant told a police officer, in the absence of the appellant, that he was not under any duress to stay there and that he chose to stay there. The complainant said what he told the police officer was not all the truth. He accepted he was causing trouble for the family by being with the appellant.
Other evidence
Both AL and TC gave evidence of having seen the complainant and the appellant lying in bed one morning when they were living in the first residence. The appellant and complainant were “spooning”, with the appellant behind the complainant and resting his arm over the complainant’s shoulders. Both said when they tried to speak to the complainant about the incident, the appellant would answer for the complainant.
AL said there was an occasion after the complainant moved out, when the complainant returned to see them. The appellant was present at that time. AL said the appellant’s demeanour changed, and he directed all of his attention to the complainant. The complainant seemed very uncomfortable. About a fortnight later the complainant returned to AL’s home with TC. The complainant requested she keep the appellant “away from me”. The complainant said “Shannon’s raping me”. It had started when the complainant moved into their residence.
AL said later that day the appellant turned up at her residence. The complainant was scared. An argument ensued and police were called to the residence. After the police left, the complainant showed AL cigarette burns to his body. She observed four or five distinct burns. One was underneath the complainant’s right nipple. AL asked what the appellant was doing to him, to which the complainant replied “whatever he wants, whenever he wants”.
In cross-examination, AL agreed the appellant told her the complainant and he were in a relationship, and she had later seen them together around town. She accepted the appellant seemed to have an attraction towards the complainant but described the appellant’s demeanour towards the complainant as “more overbearing than flirtatious”. She agreed she did not approve of homosexual relationships.
TC said after he and AL moved to another residence the complainant visited them. Towards the end of that night the appellant arrived at the house. The complainant’s composure and demeanour changed and he became “really quiet and staring into the distance”. The complainant left soon after. The appellant insisted on giving him a lift even though he only had to go about 200 metres.
TC said he later saw the complainant sitting in a vehicle in town. He told the complainant “if you want out, get out now”. The complainant just put his head down and sat there. A few weeks later he saw the complainant in the main street. He kept looking over his shoulder. The complainant said he was keeping an eye out for the appellant. The complainant said he was scared of the appellant who would not let him go and see his family or do anything that he wanted to do. TC walked home with the complainant. At home, the complainant said the appellant “was forcing him to have sex with him”. It had started at their previous house. TC telephoned the police who came to the house later that night.
TC said soon after that incident the appellant turned up at his residence looking for the complainant. The appellant said he was in a relationship with the complainant. TC told the appellant the complainant was saying the exact opposite and wanted nothing to do with him. TC said the appellant continued to turn up at their residence looking for the complainant. Ultimately, he had a physical fight with the appellant after which he threw the appellant out of his house. The complainant left with the appellant at that time. TC said the complainant “was scared”.
Appellant’s submissions
The appellant submits the fact the jury convicted him on count 3 of the indictment, in circumstances where no evidence had been given in support of that count, “betrays a compromise in the performance of their duty”. This compromise “infects” all of the other verdicts as they must be seen to have been drawn from a “poisoned well”.
The appellant further submits a number of circumstances compel the conclusion that any finding of guilt on any of the counts of rape was necessarily unreasonable. Those facts include that the complainant:
“(i)gave no evidence of two alleged rapes (counts 3 and 5);
(ii)was not directly asked questions about an essential element of the offences in counts 4, 6 and 7; and therefore
(iii)could not give any original evidence on the issue of consent;
(iv)gave, at best, disposition evidence as to his state of mind;
(v)was a participant in mutual oral and anal sex, at least several times;
(vi)was the subject of other evidence tending towards a mutually affectionate relationship;
(vii)could not have been the completely submissive individual that he portrayed himself to be;
(viii)gave evidence in terms which were bald, two dimensional and largely devoid of corroborative detail;
(ix)gave evidence which contained obvious, even outrageous, exaggeration and was often confusing.”
The appellant contends the complainant’s failure to give evidence in support of counts 3 and 5 was unexplained, and impacts upon any assessment of the complainant generally. Further, there was no admissible evidence the remaining counts of rape had occurred without the complainant’s consent. Lack of consent was “proved” only by the assertion of a general disposition on the part of the complainant. Such evidence was inadmissible and ought to have been excluded.
The appellant further submits the directions of the trial judge in respect of s 24 of the Code were inadequate, and diminished the availability of that defence. A significant aspect of the defence case was that those close to the complainant disapproved of homosexuality, which provided an explanation for the complainant’s subsequent complaints. By the time of the complaint, the complainant may have convinced himself that all of the admitted sexual activity was non-consensual, thereby presenting as more convincing to the jury. Against that background, the trial judge’s directions in respect of s 24 devalued the relevance of the defence and did not provide any meaningful direction on how it arose on the facts of the case. There was no attempt to apply the elements of s 24 to the particular factual context, and the directions did not adequately address the issues to be determined by the jury. The appellant was thereby deprived of a fair chance of acquittal.
Finally, the appellant submitted the trial miscarried as a result of the admission of evidence as to lack of consent in a form which was not admissible and as a consequence of the Crown being given leave, pursuant to s 4 of the Criminal Law (Sexual Offences) Act 1978 (Qld) (“the 1978 Act”), to address evidence in circumstances where the requirements of that section were not met. That evidence was not evidence that could “rationally affect, directly or indirectly, the assessment of the probability of a fact in issue in the proceeding”2 as the fact of the complainant’s engaging or not engaging in a sexual relationship with another male had no bearing on the nature of the relationship between the complainant and the appellant. Further, the jury were left without direction as to the use they could properly make of that evidence, giving rise to the risk that this evidence was misused and resulted in a miscarriage of justice.
As to sentence, the appellant submitted leave to appeal should be given even if the appeal against conviction be dismissed as the consequence of the appellant’s acquittal on count 3 meant he had now been convicted on only three counts of rape. That acquittal rendered the effective sentence of 14 years imprisonment manifestly excessive in the circumstances.
Respondent’s submissions
The respondent submitted the verdicts of the jury were not unreasonable having regard to the manner in which the trial was conducted and the advantage the jury had in seeing and observing the witnesses. The Crown case involved allegations of a lack of consent freely and voluntarily given on the occasion of each count in circumstances where the complainant was fearful of the appellant throughout the relationship. That state of fear was sufficient to vitiate any consent or acquiescence on the part of the complainant. Further, there was preliminary complaint evidence supportive of the complainant’s credibility as a whole.
The respondent submitted the complainant’s failure to come up to proof on counts 3 and 5 did not destroy his credibility. The jury were well placed to assess the complainant who was an unsophisticated, itinerant young man who attended supported learning facilities. The complainant’s evidence, when viewed in its totality, involved original evidence which, if accepted, established a lack of consent by the complainant in respect of each count of rape. That evidence left no real room for any honest and reasonable but mistaken belief as to consent.
The respondent further submitted leave was appropriately sought and obtained pursuant to s 4 of the 1978 Act. Such evidence was relevant to the likelihood of true consent having been forthcoming, and provided a background against which the jury could properly assess the complainant’s assertion of compliance through fear. The nature of the allegations as to why consent was not freely and voluntarily given were such that a full history of the complainant’s interaction with the appellant, and of the complainant’s prior and subsequent involvement in homosexual contact had a logical relevance to the determination of consent.
The respondent submitted the directions in respect of s 24 dealt with the real issues in the trial. Whilst those directions could have been more fulsome, there was no request for any redirection concerning s 24 by experienced counsel representing the appellant. Further, if the complainant was believed beyond reasonable doubt there was no room for an honest and reasonable but mistaken belief as to consent in respect of count 1 on the indictment, and no basis for a reasonable belief as to consent in respect of the remaining counts of rape on the indictment.
Finally, the respondent submitted the evidence concerning lack of consent was properly admitted as was the evidence concerning a lack of sexual relations with other males. Whilst there were no directions given as to how that latter evidence was to be used, there was no miscarriage of justice as there was no real chance that that evidence was impermissibly used by the jury.
As to sentence, the respondent submitted the acquittal on count 3 did not alter the seriousness of the appellant’s conduct. That count concerned an allegation of oral rape whereas the remaining counts all dealt with allegations of anal rape. Further, the appellant had a disturbing criminal history, and the offences were committed in circumstances where the appellant used physical violence in the event of resistance.
Discussion
Unreasonable verdicts?
Whilst it is always a matter of great concern that a jury found an accused person guilty of an offence in circumstances where there was no evidence to support that conviction, the jury’s verdict on count 3 must be considered in context.
At trial, no counsel contended in their addresses to the jury that there was no evidence to support count 3. Further, the trial judge specifically directed the jury, in the summing up, as to the basis for count 3:
“[The complainant] said Shannon punched him first, then pulled down his pants, and to use [the complainant’s] words, ‘Sucked him off’, and then told [the complainant] to do the same to him, which he did.
I should have told you when I was giving directions that count 3 is a different form of rape. Rape also includes this definition; that if the defendant penetrated the mouth of [the complainant] with his penis to any extent without [the complainant’s] consent, that also constitutes the offence of rape. So rape has a wider definition than what we call penile rape.” (my emphasis)
No counsel sought any redirection on that aspect of the summing up.
The complainant had given evidence of an occasion of oral sex by the appellant on him, and of the appellant requiring the complainant to perform oral sex on him. Whilst the complainant did not give evidence of actual penetration of his mouth by the appellant, it cannot be said the jury had not gone about their task conscientiously by reason of the fact that they found the appellant guilty of count 3. They were directed the complainant did perform oral sex on the appellant. Against that background, it is understandable the jury, acting conscientiously, incorrectly accepted that there existed evidence of penetration in support of count 3.
That the jury was acting conscientiously and with due regard to the trial judge’s directions is supported by their verdict on count 5. The trial judge expressly directed the jury that no evidence had been given to support count 5 on the indictment, and that they should find the appellant not guilty of that count. The jury plainly followed that direction as count 5 was the only count on which a verdict of not guilty was returned by the jury.
There is no proper basis to conclude the jury’s error in returning a verdict of guilty on count 3 involved such a lack of conscientiousness on the part of the jury as to so taint the remaining verdicts of that jury that those verdicts ought to be set aside as unreasonable. The jury’s finding of guilt, on count 3, does not constitute a “poisoned well” such as to vitiate its findings on the remaining counts.
The appellant did not merely rely on the jury’s verdict on count 3 as a basis for a finding that the verdicts were unreasonable. The appellant also contended that that fact, when viewed against the other identified matters, supported a conclusion the verdicts were unreasonable.
Whether the verdicts can properly be said to be unreasonable requires an independent assessment of the evidence, both as to its sufficiency and its quality, to determine whether it was open to the jury to conclude that the appellant was guilty of the offences beyond reasonable doubt.3 The test to be applied was set out in M v The Queen:4
“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”.
If, in asking itself this question, the evidence “upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted” this court is bound to set aside a verdict based on that evidence.5
Central to any assessment as to whether the verdicts were unreasonable is a consideration of the complainant’s evidence in respect of count 1. That evidence, if accepted, supported a finding that the appellant had engaged in an act of non-consensual anal intercourse with the complainant, using force and, later, had threatened the complainant should he tell anyone about the event. Whilst the appellant denied this event ever occurred, and further, denied there was any relationship before the complainant turned 18, it was ultimately for the jury to assess the reliability of the complainant’s evidence. If the jury accepted the complainant as being credible and reliable, which it obviously did, it was open to the jury, on the evidence, to find the appellant guilty of count 1.
The complainant’s evidence in respect of the remaining counts of rape involved assertions of acts of intercourse in circumstances where any consent was obtained through fear or intimidation, including actual physical assaults. The jury had evidence of the burn to the complainant’s nipple, and other evidence that the complainant was fearful of the appellant.
The manner in which the trial was conducted, the circumstances of the complainant, and the undoubted advantage the jury had in seeing and observing the complainant give evidence support a conclusion that the verdicts were reasonably open to the jury in all of the circumstances.
Whilst the complainant’s evidence was general, and involved multiple non-specific occasions of sexual contact between the appellant and himself, the appellant did give evidence of sexual contact in respect of each of the remaining counts of rape on the indictment. Further, there was evidence of preliminary complaint which supported the complainant’s credibility as a whole. There was also medical evidence supportive of the complainant’s evidence that the burn to the nipple area was caused by a lighter.
Whilst there were other factors telling against the complainant’s assertion that these acts occurred in the context of a fearful relationship, such as the complainant’s concession of engaging in mutual acts of anal and oral intercourse, his acceptance of moving to different residences to live with the appellant, and his statements to others, those factors were not such as to render the complainant’s evidence so improbable as to make the acceptance of his evidence by the jury unreasonable. The complainant gave an explanation for this conduct. It was a matter for the jury whether it accepted that explanation. If the jury did, that explanation explained the so called inconsistent conduct of the complainant. This is particularly so once the jury had accepted the complainant’s evidence on count 1.
“Question:And was there anything that happened at [BK’s] after you got there that night?
Answer:Yes.
Question:And what was that?
Answer:He slept with us again.
Question:You said he slept with you again; what do you mean by that?
Answer:He had anus sex again.
Question:And where did that take place?
Answer:In E’s room.
Question:Okay. And can you tell us anything more about him having anal sex with you on that night?
Answer:No.”
“Question:Yes. And what’d you do after that?
Answer:We put the mattress and everything in.
Question:Yes. And after that?
Answer:Yeah – ended up having sex with us.
Question:Right. And what kind of sex was that?
Answer:Anal.
Question:And where did that happen?
Answer:Inside the caravan.
Question:And are you able to tell us any more about the anal sex on that occasion?
Answer:No I can’t actually.”
“Question:Okay. And what’s the next thing that you remember happening?
Answer:He had sex with me after I had a shower.
Question:Okay. And what kind of sex was that?
Answer:Not oral, anal.
Question:And can you tell us anything more about them?
Answer:That he’d just spread my cheeks apart so he could get a-----
Question:Okay; he split your cheeks apart?
Answer:Yeah so he could get a better thrust and everything.
Question:Okay. And is there anything else you can tell us about that incident?
Answer:About the anal sex, no.”
In context, the complainant’s final answer to the questions in respect of each of those counts is plainly indicating that he is unable to give any further information about the act of anal sex. It cannot reasonably be contended those answers meant the complainant was unable to give any evidence as to whether each of those sexual acts occurred without his consent.
The appellant further contended there was no evidence of a lack of consent in respect of each of the acts of rape. At best, the complainant made a general assertion that he had “never” wanted to have sex with the appellant. That concept is different to whether the complainant ever consented to sexual intercourse.
The complainant’s general assertion, in response to general questions from the prosecutor, occurred against a background of evidence in which the complainant alleged he was threatened, and physically assaulted, by the appellant whenever he sought to resist the appellant’s advances. He had also given evidence the first act of intercourse involved a forced act where he was held down and his head forced into a pillow so that he could not call out.
Against that background, the complainant’s answer to the question “what was the reason why you did have sex with Mr Dunrobin on these various occasions”, namely, “because I was afraid and scared” left it open for the jury to reasonably conclude, if the jury accepted the complainant’s evidence, that the complainant on each of the occasions the subject of the charged and the uncharged acts, had only had sexual relations with the appellant by reason of his fear due to the prior threats and physical assaults. An acceptance of that evidence provided a proper basis for the jury to be satisfied beyond reasonable doubt that the complainant had not consented to each of the acts of rape the subject of counts in the indictment.
Even without that answer, there was ample basis for the jury to conclude each of the alleged acts of intercourse was without consent. A lack of consent can be inferred from the circumstances of the alleged offences. The complainant gave evidence of an initial forced act of intercourse and of a continuing, violent relationship in which he was physically assaulted if he resisted the appellant’s advances. There was medical evidence to support the complainant’s assertion he had a burn to his chest area. There was also evidence from other witnesses of a controlling relationship in which the complainant appeared fearful of the appellant. That evidence, if accepted, provided a proper basis for the jury to be satisfied beyond reasonable doubt that each act occurred without the complainant’s consent.
The evidence led pursuant to the application for leave under the 1978 Act, whilst not particularly probative in itself, was relevant to a determination by the jury as to the question of consent. That evidence went to the likelihood of true consent having been forthcoming from the complainant to the sexual offences alleged to have been committed by the appellant.
“And what happened that night?-- He wanted to have oral sex.
And can you tell us how that happened?-- Well, he – he punched me first so he – so I couldn’t say anything and then he’d pull down my pants and suck me off and then he’s say things like ‘I fucked off. It’s your turn to do me’.
And did anything else happen that night?-- No.”
Considering the complainant’s evidence against the background of what he said was a violent relationship with the appellant, and the surrounding supporting evidence, it was open to a jury, even allowing for the generality of the complainant’s evidence, the discrepancies in his conduct and words to others, and his failure to give evidence of the specific acts the subject of counts 3 and 5, to conclude, beyond reasonable doubt, that the appellant was guilty of each of the remaining offences.
The appellant has not established that the verdicts of the jury on the remaining counts on the indictment were unreasonable. This ground fails.
Were the directions on s 24 of the Code adequate?
The appellant contends that where the complainant accepted, in cross-examination, that there had been occasions of mutual oral and anal intercourse, and there was evidence from other witnesses that the complainant lived with the appellant at various addresses in circumstances consistent with their being in a relationship, there was a need for the trial judge to give specific directions in respect of s 24. The appellant contends the trial judge gave no such direction. Further, the direction that was given devalued its effectiveness.
The force of this submission is somewhat diminished by the fact that the appellant was represented at trial by experienced counsel, and no further directions were sought in respect of the defence under s 24 of the Code. That failure to seek any redirection is consistent with a conclusion that there was not a perception at trial that the directions were inadequate, or had in any way been devalued by the manner in which those directions had been given in the course of summing up.
The adequacy of the directions given also must be considered in the context of the case advanced at trial. Whilst the appellant’s defence, through cross-examination of the prosecution witnesses, was that he and the complainant were at all times in a loving, consensual relationship, the complainant’s evidence left little room for a conclusion that the relationship was loving or consensual. The complainant’s evidence involved assertions of repeated threats and acts of physical violence when he sought to resist the appellant’s advances.
Notwithstanding that evidence, it was accepted at trial that a defence under s 24 was open on the evidence. In those circumstances, whilst the complainant’s evidence, which must have been accepted by the jury, called into question whether there was any substance in a contention that s 24 was applicable, there was a real need for the jury to be given specific directions as to the relevant evidence and issues to be considered in respect of that defence. It was necessary to direct the jury to aspects of the defence such as “the appellant’s state of mind and what was said and done at relevant times which bore on the existence or non-existence of that state of mind”.9
In respect of s 24, the trial judge directed the jury as follows:
“… I also have to give you another direction, which you may think is unusual in the circumstances of the case, that if you find yourself in this position, you are satisfied beyond a reasonable doubt that the incident as described by [the complainant] did occur, and that he didn’t consent, then you have to consider whether the defendant honestly and reasonably, but mistakenly, believed that he was consenting.
Now, once again, the defendant doesn’t have to prove that he had an honest and reasonable but mistaken view that [the complainant] was consenting. In fact his case is that [the complainant] was consenting. But it arises on the evidence, depending on your view of the evidence, and I can’t anticipate how you’re going to make findings.
Once again its for the prosecution to satisfy you beyond a reasonable doubt and if you find yourself in that position that the defendant did not have an honest and reasonable but mistaken view that [the complainant] was consenting, if you accept [the complainant’s] evidence beyond a reasonable doubt, then you probably think – and in fact having regard to the defendant’s own account, you probably think that the prosecution would have satisfied you beyond a reasonable doubt that he didn’t have an honest or reasonable but mistaken belief that [the complainant] was consenting.”
In context, this direction failed to assist the jury as to the factors the jury were to consider in determining whether the prosecution had negatived a defence that the defendant honestly and reasonably but mistakenly believed the complainant was consenting to each of the sexual acts the subject of the counts in the indictment.
This failure to adequately direct the jury in respect of s 24 deprived the appellant of the opportunity for the jury to properly consider a central issue in his defence of the charges. The evidence giving rise to the defence was not so obvious that there was no need for it to be the subject of direction to the jury. That being so, it cannot properly be concluded that the failure to give adequate directions in respect of the defence under s 24 of the Code could not have affected the verdicts given by the jury on the counts of rape.
Whilst it may be contended that a defence of honest and reasonable but mistaken belief could not reasonably be available in respect of count 1, having regard to the evidence of the complainant, a jury’s assessment of the complainant’s reliability and credibility on this count may ultimately have been affected by a proper consideration of any defence under s 24 of the Code.
Specific directions in respect of s 24, identifying the particular matters the jury must consider when assessing whether the Crown had negatived that defence, may have caused the jury to reflect on the reliability of the complainant’s evidence in respect of count 1, not as to whether there could exist an honest and reasonable but mistaken belief that the complainant was consenting, but as to whether the event occurred at all. This is particularly so as this count is alleged to have occurred in a room which had only a curtain as a door, and which was in close proximity to other bedrooms. These factors, when considered against the relevant issues identified in a proper direction in respect of s 24, may well have raised a reasonable doubt as to the reliability of the complainant’s evidence on count 1.
The directions given by the trial judge in respect of s 24 of the Code were inadequate. As the failure to give more comprehensive directions on that matter may have affected the verdicts,10 the convictions in respect of the remaining counts of rape on the indictment must be set aside.
As there was evidence, if accepted by the jury, to support verdicts of guilty, there is no basis to enter verdicts of acquittal in respect of these counts. A new trial should be ordered in respect of those counts.
Was the evidence admissible?
Conclusion
Orders
1.the appeal be allowed;
2.the convictions in respect of counts 1, 2, 4, 6 and 7 be set aside;
3.there be a new trial in respect of counts 1, 2, 4, 6 and 7.
AB 107.40 – AB 109.10. ↩
Phillips v The Queen (2006) 225 CLR 303 at 319; [2006] HCA 4 at [50]. ↩
SKA v The Queen (2011) 243 CLR 400 at 406, 409; [2011] HCA 13 at [14], [22]. ↩
(1994) 181 CLR 487 at 493; [1994] HCA 63 at [7]. ↩
M v The Queen (1994) 181 CLR 487 at 494; [1994] HCA 63 at [9]; approved in MFA v The Queen (2002) 213 CLR 606 at 623-624 per McHugh, Gummow and Kirby JJ. ↩
See, generally, R v Wannan (2006) 161 A Crim R 465. ↩
Phillips v The Queen (2006) 225 CLR 303 at [50]. ↩
(2001) 52 NSWLR 82. ↩
R v Dunrobin [2008] QCA 116 at [32]. ↩
Dhanhoa v The Queen (2003) 217 CLR 1 at [38], [49], [60]. ↩
R
Dunrobin [2013] QCA 175
(2003) 217 CLR 1
(1994) 181 CLR 487
(2006) 225 CLR 303
(2001) 52 NSWLR 82
(2011) 243 CLR 400
(2002) 213 CLR 606
The complainant left BK’s residence and lived with his grandmother. Whilst living there he returned to visit AL and TC at their new residence. The appellant was there and insisted on driving him home. The complainant said he did not want to lead him back to his grandmother’s place. Instead they drove to BK’s residence and stayed there that night. The appellant had anal sex with him that night. This alleged rape was count 4 on the indictment.
The complainant returned to live with AL and TC at their new residence in August 2009. Whilst living there the appellant saw him probably twice a week. One day in August 2009 the appellant came over and started an argument. Police were called and the appellant was told by police to leave the residence. The appellant said to the complainant “you’d better watch out” when he was driving off. The complainant said he told police that day what had happened at AL and TC’s first residence.
On 18 August 2009, the appellant again came to the residence of AL and TC. Police were called and attempted to speak to the complainant. The complainant agreed he did not want to sit down with police, and did not speak to them.
On 25 August 2009 the appellant arrived at the residence with several other people. A physical altercation occurred between the appellant and TC. The complainant was asleep but woke up and went outside. He put on his shoes, intending to go back to his grandmother’s residence. TC told him to tell the appellant to his face “I don’t want to be with you” but he did not do so. Instead, he went with the appellant. The complainant said the appellant saw him sitting outside and told him to get into the car. When they drove down the road the appellant said he was lucky he didn’t come into the house with “the weapons”. The complainant said there were two golf sticks, a plank of wood and a cricket bat in the vehicle.
The complainant said later that day they returned to BK’s house. He stayed there for about a month. Whilst living there, the appellant punched him in the mouth and wrapped a broom around his legs. The complainant said he had been cleaning the house and the appellant said he had been sweeping it “wrong”. The punch split his top and bottom lip.
The complainant said the appellant also punched him in the face and the ribs and in the kidneys “when he never got his way or if I did something wrong … like if I made his breakfast wrong”. If the appellant could not get his way he would punch the complainant in the mouth until he got his way. If the appellant wanted to sleep with him, and the complainant said “no no no”, the appellant would punch him in the mouth so that he would drop and make his mouth bleed until he got his way or until the complainant said yes.
The complainant subsequently lived with the appellant in a shed at the back of the residence of SD until about 19 or 20 November 2009. Whilst living in the shed the appellant would have anal sex with the complainant once a night. The appellant “treated me like his wife”. On one occasion the appellant punched him in the mouth and burnt him with a lighter. The complainant said the lighter was still hot and that when he put his hand up to block the appellant from hitting him, the appellant burnt him on his right nipple with the lighter. This episode was count 2 on the indictment. The appellant also burnt the complainant on his left and right arm with a cigarette.
The complainant subsequently moved to live in a caravan with the appellant. They obtained a mattress. Whilst living there the appellant had anal sex with the complainant. This alleged rape was count 6 on the indictment. The complainant said one morning the appellant had anal sex with him after he had had a shower. The appellant “just spread my cheeks apart so he could get a … better thrust and everything”. This alleged rape was count 7 on the indictment. After that incident the complainant went to make the appellant some toast. The appellant punched him in the mouth because he had not buttered all the edges and put the vegemite to the edge as well.
Later that day police arrived at the caravan. They asked the complainant if he was alright and safe. The complainant said “yes”. The complainant said the appellant’s mother was standing behind him and he was scared she would tell the appellant. The complainant said about 10 to 20 minutes later his relations arrived and took him away. The appellant was standing behind him saying “don’t go, don’t go, don’t go”. The complainant wanted to go.
At trial, the complainant was not asked, in relation to each of the alleged offences of rape, specific questions in respect of consent. However, the complainant gave evidence he never wanted to have sexual intercourse with the appellant. He also gave evidence that when he resisted the appellant’s advances he was physically assaulted by the appellant. Relevantly, the complainant said:
TC agreed he did not like homosexuals, and that he had made that very clear to the complainant. They could not remain part of his family and live a homosexual lifestyle. TC also agreed he encouraged the complainant to go to the police.
The driver of the learning centre bus gave evidence of a verbal dispute between the complainant and a male matching the broad description of the appellant. The bus driver recalled the appellant saying “he was going to go to the police” to which the complainant said “no, don’t do that”. The bus driver sought to intervene but was told by the appellant that he didn’t need to get involved. At that point, the complainant agreed to leave the bus with the appellant. The complainant told the bus driver he would sort out the dispute.
The complainant’s aunt, SJ, gave evidence that on the day the family took the complainant home, the complainant told her the appellant “had been abusing him, raping him, bashing him physically and emotionally”. This had been going on “twice a day, every day, for some time”. The complainant said the appellant “was sticking his penis up his back passage and he was doing that every day”.
SJ said the complainant showed her the inside of his mouth. It had cuts on the inside of his cheek, either side. He had splits on the bottom of his lip. The complainant told her his ribs were sore and showed her a burn on his chest, not far from one of his nipples. The complainant said the appellant had burnt him with a lighter. The complainant told her the appellant had threatened him saying if he said anything about what was going on with him “he was going to get worse than he had already got”. The appellant also said he knew where the complainant’s grandmother lived and he would “go back there and I will stab her”.
SJ said prior to the complainant spending time with the appellant he was “a very bubbly kid”, but after being with the appellant he “closed himself off from the family”. It was like he was afraid to speak. She got this impression from his body language, no eye contact and just being nervous. She agreed she had once seen the complainant alone outside Centrelink, and he had told her everything was fine.
Another aunt of the complainant, BD, said when the family went to take the complainant back home, the complainant looked scared and did not know what to say to them. The complainant looked very intimidated by the appellant, who was standing beside him. The appellant ultimately said the complainant could go with them and gave the complainant a mobile phone. When they returned home, the complainant said he was raped by the appellant. The complainant was crying and said the appellant had said if he ever left him he would kill the complainant’s grandmother. In cross-examination, BD agreed that before he decided to go home with them, the complainant had said he was over 18 and can “do what I want”.
Evidence was given by SJ and FC of occasions when they had observed the complainant in the company of the appellant. SJ said the complainant appeared “really scared”. FC said the complainant looked “scared for his life”. RJ also had observed the complainant and the appellant together. On those occasions, the complainant “was frightened”. She said on one occasion she observed a burn mark on the right side of the complainant’s chest underneath his breast. The complainant said he had accidently burnt himself. At the time, the appellant was standing next to the complainant.
BK gave evidence she had known the appellant all his life. She did not know the complainant well. BK said for about seven or eight months the appellant and complainant lived at her residence. The complainant asked if he could live at her residence. At the time the appellant was already living there.
BK said she asked the complainant what kind of relationship they were having, and the complainant said they were “partners or defacto”. The complainant seemed shocked that he had been asked that question. This conversation occurred in the presence of the appellant and his mother. She thought the complainant may have said yes because he felt fear or intimidated because the appellant and his mother were in the same room. In cross-examination, BK accepted she did not ever notice the complainant having any bruises whilst staying with her.
Barry Reynolds was the Director of the Burnett Youth Learning Centre. The complainant attended that Centre as a student. He gave evidence the complainant initially was a hard worker who was keen to please but that towards the end of his time at the Centre his motivation “just disappeared”.
Detective Senior Constable Murray attended the residence of AL and TC on 10 August 2009. He gave evidence he spoke to the complainant about an allegation of a sexual nature. The conversation was recorded but when played back later, the tape was inaudible.
Senior Constable Helena Adamson attended the residence of AL and TC on 18 August 2009. When she arrived the appellant was standing in the driveway, and the complainant was walking away. The appellant was agitated, pacing backwards and forwards. The appellant said the complainant was “his boyfriend”, and “they won’t let me see him”. She attempted to speak to the complainant but he was non-communicative and indicated he did not want to speak to police. Senior Constable Patricia Craven also attended the residence on 18 August 2009. She attempted to speak to the complainant who walked away and appeared upset. The complainant did not want to speak with police.
Senior Constable Ricky Lynch gave evidence that whilst doing patrols on 3 November 2009 he stopped the appellant and the complainant. They were driving in the appellant’s vehicle. He attempted to speak to the complainant but when he asked for the complainant’s name the appellant answered the question. He also observed the complainant on 12 November 2009 outside the Centrelink office. At that time his accompanying officer, a police liaison officer, spoke to the complainant.
Samantha Johnson, a police liaison officer, knew both the complainant and the appellant. In July 2009 she observed the complainant in a vehicle with three other occupants. She tried to have a conversation with the complainant. Each time she asked a question the appellant answered for the complainant. On another occasion she observed the complainant sitting alone in a vehicle. She asked him if everything was alright. She specifically asked if the appellant had been doing anything to him. The complainant replied that he was okay. He seemed a bit frightened to tell her anything.
Ms Johnson gave evidence that sometime later the complainant came to stay with her, at the request of his family. He stayed for four days. At the end of that period she took the complainant to police to provide a statement. During those four days the complainant told her the appellant had raped him. When asked in what way the complainant said the appellant had had sex with him anally. She asked if he had allowed him to do it and the complainant said “no he didn’t want it”.
Ms Johnson said the complainant told her the first occasion occurred when he was in bed by himself, and the appellant hopped into bed and had sex with him. The complainant told her about a lot of other places where it had happened. The complainant told her if he didn’t give the appellant sex he would be assaulted. He would either be flogged or sometimes get burnt by a cigarette.
The complainant told her he used to be made to have sex up to six times a day sometimes. It happened all the time, every day. The complainant said he was not game to say anything because if he said anything he would get into trouble. He was always getting assaulted. The complainant said the appellant threatened that if he did not do what he wanted or tried to run away, the appellant would hurt his family “mainly his grandma”. The complainant showed her a badly scarred bottom lip and some burns on his arms. The scars to his lips had been caused by the appellant assaulting him. In cross-examination, she agreed her notes did not record the complainant saying the appellant had threatened his grandmother.
Detective Sergeant Cameron Schneider executed a search warrant on the premises of the appellant on 24 November 2009. The appellant and the complainant were both present, as were a number of members of the appellant’s family. He spoke to the complainant, outside the presence of the appellant. He asked the complainant whether he was able to come and go freely and if he had a support network. The complainant said he was able to go and did have a support network. The complainant also said he went to see his mother and grandmother from time to time.
Dr Ilian Kamenoff examined the complainant on 12 August 2011. He noticed a number of lesions on his body, including a burn mark around the right nipple. The complainant told him the burn was done by a lighter. Subsequent experiments confirmed the lesion was consistent with being caused by a lighter. Dr Kamenoff also examined two other lesions on the left forearm which were typical lesions from cigarette burns. The complainant told him he had been penetrated anally but did not report any complaint of bleeding, bruising or pain from that area.
NI, the father of the complainant, gave evidence he had once spoken to the complainant and the appellant about their relationship. One of them said they were in a relationship. He could not recall which one said it. The complainant was nervous when he saw him.
The owner of the property leased to SD also gave evidence. She said during the period of that lease she received a phone call from a male person who identified himself as Shannon. He was looking for accommodation. He wanted to use a shed at the rear of SD’s premises. That person was looking for accommodation because “he was having trouble finding it because he and his partner were homosexual”.
The owner subsequently attended the premises. When she inspected the shed there were two men in the shed which had a makeshift bed on the floor and a few belongings. One of the men was a young man in his late teens. The other gentleman was in his late twenties, early thirties. The younger gentleman looked embarrassed, and was shy and quiet. She felt he was dominated by the older man. The older man was in control of the conversation. He was defensive when asked questions. The younger man did not say anything. The older man confirmed he was the person who had rung earlier in the week.
The appellant asserts the complainant’s evidence was so sparse it included an inability on the complainant’s part to give any evidence as to whether the sexual act occurred without consent. In support of that submission the appellant relied upon the complainant’s answers, in respect of the events the subject of counts 4, 6 and 7, to a general question as to whether he could tell the court anything else about the incident. The appellant contends the complainant’s negative response on each occasion is properly to be interpreted as an inability on his part to say whether the sexual act occurred without his consent.
In respect of count 4, the complainant gave the following evidence:
The complainant’s evidence was that the first act of intercourse occurred due to force, and subsequent acts of intercourse occurred in circumstances where he was in fear of the appellant, having previously been threatened with violence if he told anybody, and being threatened and physically assaulted on occasions when he sought to resist the appellant’s advances. In those particular circumstances, a lack of prior or subsequent homosexual conduct was relevant to an assessment of the evidence that consent was obtained through fear.6 That evidence, in context, could rationally affect, directly or indirectly, the assessment of the probability of a fact in issue in the trial.7
The appellant also contended the complainant’s failure to give evidence of events the subject of counts 3 and 5 on the indictment was unexplained, and called into question his credibility in general such that this court should notionally direct itself in terms of R v Markuleski.8
The complainant’s failure to give evidence of events the subject of counts 3 and 5 must be viewed against the background of a relatively young, unsophisticated complainant giving evidence of multiple non-consensual acts of intercourse over many months in circumstances where those acts were alleged to have been engaged in through fear, having been threatened and subjected to physical violence. Those circumstances render explicable the failure to give evidence of the specific acts the subject of counts 3 and 5.
In the case of count 3, evidence was given of the incident, albeit not of actual penetration of the complainant’s mouth. The complainant said: