SUPREME COURT OF QUEENSLAND CITATION: R v Galigan [2017] QCA 231 PARTIES: R v GALIGAN, Robert Brian (appellant) FILE NO/S: CA No 53 of 2017 DC No 61 of 2016 DIVISION: PROCEEDING: ORIGINATING COURT: Court of Appeal Appeal against Conviction DELIVERED ON: 13 October 2017 DELIVERED AT: District Court at Townsville Date of Conviction: 20 March 2017 (Smith DCJ) Brisbane HEARING DATE: 31 July 2017 JUDGES: ORDER: Sofronoff P and Fraser JA and McMeekin J Appeal against conviction is dismissed. CATCHWORDS: CRIMINAL LAW APPEAL AND NEW TRIAL PARTICULAR GROUNDS OF APPEAL INCONSISTENT VERDICTS where the appellant was charged on indictment with three offences of rape against the same complainant where the offences were alleged to have been committed during the same evening where the appellant came home drunk wanting to have sex with the complainant where the complainant was awoken in the lounge room and told to move to a bedroom by the appellant where the complainant did so after telling the appellant that she did not want to have sex where the complainant moved to the bedroom because she did not want to have sex in front of the children where the jury found the appellant guilty of count 1 and not guilty of counts 2 and 3 where the appellant has appealed against the conviction on count 1 on the grounds that it was unreasonable as it was inexplicably inconsistent with the acquittals on counts 2 and 3 whether there was a rational explanation for the acquittal on counts 2 and 3 whether the conviction on count 1 was impermissibly inconsistent with the acquittal on counts 2 and 3 CRIMINAL LAW APPEAL AND NEW TRIAL VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE APPEAL DISMISSED where the appellant was charged on indictment with three offences of rape against the same complainant where the offences
COUNSEL: SOLICITORS: 2 were alleged to have been committed during the same evening where the appellant came home drunk wanting to have sex with the complainant where the complainant was awoken in the lounge room and told to move to a bedroom by the appellant where the complainant did so after telling the appellant that she did not want to have sex where the complainant moved to the bedroom because she did not want to have sex in front of the children where the complainant had protested and tried to push the appellant s hand away during the commission of count 1 where the appellant has appealed against the conviction on the grounds that it was unreasonable and cannot be supported having regard to the evidence whether it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty CRIMINAL LAW APPEAL AND NEW TRIAL VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE APPEAL DISMISSED where the complainant gave evidence on the first and second days of the trial where on the first day the trial judge had difficulty in hearing what the complainant said where the complainant explained that she suffered from a hearing impairment where the complainant was supplied with a hearing loop which appeared to solve the difficulties where the complainant could both hear and be heard on the second day of the trial where the complainant s evidence on the second day of the trial repeated her earlier evidence regarding her not consenting to the sexual acts where the appellant argued that portions of the complainant s evidence were particularly problematic because it must have been largely unheard by the jury whether the guilty verdict is unreasonable as the complainant s evidence was so fragile so as to render the conviction dangerous Criminal Code (Qld), s 668E(1) BCM v The Queen (2013) 88 ALJR 101; [2013] HCA 48, cited Hocking v Bell (1945) 71 CLR 430; [1945] HCA 16, cited M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited F D Richards for the appellant D Nardone for the respondent Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent
3 [1] SOFRONOFF P: I agree with the reasons of Fraser JA and with the order his Honour proposes. [2] FRASER JA: The appellant was charged on indictment with three offences of rape against the same complainant. The offences were alleged to have been committed during the same evening. The particulars of the Crown case, as they were put to the jury by the trial judge in summing up, were that the appellant inserted his fingers into the complainant s vagina and/or vulva without her consent (count 1), the appellant inserted his penis into the vagina or vulva of the complainant without her consent (count 2), and the appellant inserted his penis into the mouth of the complainant without her consent (count 3). The jury found the appellant guilty of count 1 and not guilty of counts 2 and 3. [3] The appellant has appealed against the conviction on count 1 on the grounds that it was unreasonable as it was inexplicably inconsistent with the acquittals on counts 2 and 3, and it was otherwise unreasonable and cannot be supported having regard to the evidence. The trial [4] As the trial judge commented in summing up to the jury, the real issues in each case appeared to be whether the Crown proved beyond reasonable doubt that the complainant did not consent and that the appellant did not do the alleged act under an honest and reasonable but mistaken belief that the complainant was consenting. [5] The complainant gave evidence on the first and second days of the trial. On the first day the trial judge had difficulty in hearing what the complainant said. The complainant herself had trouble hearing the prosecutor on many occasions. At the end of the first day s proceedings, the prosecutor said that, although at a previous trial he had no difficulty in the complainant hearing what he said, on this occasion she explained that she was deaf. The complainant was supplied with a hearing loop. That appeared to solve the difficulties. The complainant could both hear and be heard on the second day of the trial. [6] On the first day of the trial, the complainant referred to the appellant having woken her and told her to move from where she was asleep to go into a different room. (It appears from subsequent evidence that the complainant meant to convey that she was asleep in the lounge room and the appellant woke her and made her go into their bedroom to have sex.) The complainant said: [the appellant] went into the room and he I just told him to get off me not to have sex with me. I told him I don t want to have sex but [the appellant] put his finger in my vagina and I just lay there done it let him do it and and finger my vagina and I let him do it. Then, well, I just told him to get off me and didn t want to listen. And Ijust let him do it to me, let him have sexin front of my children. 1 [7] The complainant confirmed that this occurred in the front room (apparently a reference to the bedroom) and said that when the appellant put his finger in her 1 Transcript 25.
4 vagina, she just lay still and said and did nothing. The complainant gave evidence that she had had enough of sex because she had six children to the appellant. She gave evidence that the appellant had inserted his penis in her vagina (count 2). [8] On the second day of the trial, the complainant s evidence was given in more detail. She explained that the appellant came home drunk at 8.30 pm. He woke her in the lounge room wanting to have sex. The complainant told him that she did not want to have sex because I had the girls in the lounge. She said that she just kept telling the complainant that she did not want to have sex. The complainant continued: So I just got up just walked in I get up for him and wentinto the bedroom with him followed him to the bedi said I can t have sex with the girls in the lounge. So [the appellant]told me to get up and I went and followed him in the bedroom. And [the appellant] pulled out his I tried to sleep told him not to do it, but he just keep going, waking me up to have sex. And I just said No to him. Then he just, sort of, pulled his penis out and put it in my mouth. I just remember that part, and then I just keep telling him not to do it 2 [9] The complainant then said that the appellant woke her from just in the bedfrom the bedroom from the lounge room. When asked to tell the prosecutor about the room she was in when the appellant woke her, the complainant said that she was in the front room (the bedroom) and only the front room. The complainant gave this evidence: He just pulled my pants down when I was asleep. I told him I pushed his hand away and I told him not to have sex with me then he just keep going on and on about the sex, Yeah, give it to everybody else, couldn t give me sex, and I just had enough of it. The sex what he was doing with me, he sort of hurt me. 3 When asked about pushing the appellant s hand away, the complainant said that she just sort of pushed it away, told him not to do it. She said that the appellant s hand was in her pyjamas. She subsequently explained that this was a reference to her vagina. The complainant said that the appellant s fingers were into her body and I just sort of pushed him away, didn t want to have sex, that s all, to him. The complainant was asked whether the appellant was putting his fingers into her vagina. After answering, yes, she said that the appellant just keep want to have sex and I just keep telling him, I don t want have to sex, and it was too much for me for him, and I just keep telling him not to do it, keep doing it, and [the appellant] just hurt mehe does this all the time when he s drunk, when he s come home drunk, just want to have sex and I just keep telling him, No. No. No. In front of the children you can t have it in front of the children [10] The complainant then gave evidence that supported count 3 and count 2, referring to events in the bedroom. In that context, the prosecutor asked the complainant to say more about her having said no. She replied, I just keep telling [the appellant] that I just didn t want to have sex because it s just too much for me, I just keep telling him, telling him then I just got sick of it, but him, he sort of hurt me. 2 Transcript 106-7. 3 Transcript 37.
5 [11] The complainant gave evidence of the appellant having punched her on the following morning and of her having wanted to hurt herself because she was sick of it. The complainant then gave evidence relating to count 3. She referred to the appellant having his penis in her mouth and her just keep telling him, No, about the sex assault, about the sex what he was going to have to me. [12] In cross-examination, the complainant gave evidence that: when the appellant asked the complainant for sex, she did not want to have sex because her daughters were lying next to her on the mattress in the lounge room; the appellant went into the front room and she followed him; she went so she could have sex with the appellant in the front room; the complainant said He forced me to go with him and she agreed that she walked behind the appellant as he walked into the front room. She agreed that she knew that she was going to have sex in the front room. The complainant agreed with suggestions that the appellant put his penis into her vagina and afterwards into her mouth. She said she gave the appellant oral sex because he asked for it. She said that if she hadn t done so he would have told her to Give it to everybody else. [13] The complainant agreed that in the lounge room earlier in the night she told the appellant that she did not want to have sex and the appellant was touching her on her vagina trying to get her into the mood to have sex. That was about 10.30 pm or 11 pm in the lounge room. The appellant relied particularly upon this passage: [the appellant] was trying to get you in the mood for sex, wasn t he? --- Yes. He was rubbing your vagina? --- Yes. And you told him you were too tired? --- Yes. And [the appellant] stopped, didn t he? --- Yes. So you both fell asleep? --- Well he took me into the room and I had to go follow him. I want to suggest that was later in the night. That was about 1.30, maybe 2 o clock in the morning? --- Yes. So you actually went to sleep in the lounge room and woke up later and then [the appellant] was still interested in trying to have sex with you, wasn t he? --- Yes. Yes. When you woke up, [the appellant] was keen to have sex again, wasn t he? --- Yes. And you said to him. Not having sex with you here with the kids? --- Yeah. your recollection is [the appellant] said, Let s go into the front room? [The appellant] woke me up and told me to go into the front room. I take it he was touching you again? --- Yes. And you told him, Not having sex here with the kids? --- Yes. And [the appellant] said, Let s go into the front room? --- Front room, yes. Yeah. And you followed him into the front room? --- Yes. I know that. Yeah? --- For sex? Yeah? --- If I didn t want to give [the appellant], then he would have went on about sex.
6 And once you got into the front room, [the appellant] started to do to get you in the mood? --- Mood, yes. Yeah? --- But I didn t want it. Whether you wanted it or not, did you you didn t, in fact, say anything to [the appellant], did you? --- No. 4 [14] The complainant subsequently agreed that she was silent when the appellant started to do sexual things. She said that she was scared. She agreed that throughout the whole time the appellant was having sex with her in the front room she was silent. She said that she did not want to wake up the children. [15] A doctor gave evidence in the Crown case that upon examination of the complainant shortly after the alleged offences were committed, the complainant had tenderness over the left side of her head. The doctor agreed in cross-examination that there were no other observable injuries and no other complaint of injury by the complainant to her. In re-examination the doctor explained that the absence of injuries in the genital region did not mean that there had not been sexual intercourse. The doctor s evidence is therefore not significant in this appeal. [16] There was evidence from two witnesses in the Crown case to the effect that, shortly after the offences were allegedly committed, the complainant was crying, walking with a rope in a bag, distressed, and complaining that the appellant had bashed her for sex. The respondent did not submit that this evidence supplied any support for the conviction on count 1, no doubt because the complainant did not give evidence that, before the alleged digital penetration the appellant had assaulted or threatened to assault her. She did give evidence that on the morning after the alleged offences, the appellant hit her in front of her daughters. The complainant gave evidence that she asked her daughter-in-law to ring the police, and that the complainant walked out of the house wanting to hang herself. The injury of which the doctor gave evidence and the evidence of the complainant s distressed condition may have been attributable to that alleged assault. In any event, the respondent did not rely upon that evidence in support of count 1. [17] The appellant did not give or call evidence. Consideration [18] The appellant accepted that the complainant s evidence was that she did not consent to the acts charged in counts 1, 2 and 3, but the appellant argued that the effect of her evidence also was that, after the appellant pestered her for sex, the complainant acquiesced in the appellant s suggestion that they leave the room where the children were sleeping and the complainant thereafter remained quiet and still while the appellant performed various acts in an attempt to get the complainant in the mood for sex. The appellant argued that this explained why the jury could not exclude beyond reasonable doubt that the appellant honestly and reasonably believed that the complainant consented to the acts charged in counts 2 and 3, but that there was no relevant difference in the evidence concerning the act charged in count 1. The appellant argued that the guilty verdict on count 1 was therefore unreasonable and inconsistent with the acquittals on counts 2 and 3. That was submitted to be so because those acquittals established that the jury must have accepted evidence that 4 Transcript 49-50.
7 required them to acquit on count 1; 5 an explanation for the acquittals on counts 2 and 3 was that the jury had a doubt about the evidence of the complainant that she pushed the appellant s hand away, but the jury must have relied upon that evidence in finding the appellant guilty on count 1. [19] The appellant also argued that the guilty verdict is unreasonable as the complainant s evidence was so fragile so as to render the conviction dangerous. The evidence on day one was submitted to be particularly problematic, because it must have been largely unheard by the jury. It was submitted that this deprived the jury of the chance properly to weigh all of the complainant s evidence, a fact that that was important particularly because of the complainant s concessions to the effect that she complied with the appellant s requests. In that respect, the appellant argued that the evidence of the complainant was to the effect that she let the appellant put his finger in her vagina, she let him have sex with her, she did not say anything, she gave him sex twice although she did not want to, and the appellant s penis was in her vagina but nowhere else. The appellant also argued that, even if regard was not had to the complainant s evidence on the first day of the trial, her evidence on the second day of the trial ought to have left the jury with a reasonable doubt whether the Crown had proved beyond reasonable doubt that the complainant did not honestly and reasonably consent to the act charged in count 1. [20] I accept the respondent s submission that the effect of the complainant s evidence on each of the first and second days of the trial was that she communicated to the appellant her lack of consent to count 1 immediately before the act of digital penetration charged in that count, but her evidence allowed room for the jury to think that the appellant might have honestly and reasonably, but mistakenly, believed the complainant consented to the other sexual conduct of the appellant. For that reason, if the jury did not clearly hear the complainant s evidence on the first day of the trial that did not prejudice the appellant. [21] The complainant s evidence on the first day of the trial unequivocally conveyed that the appellant digitally penetrated her vagina after she had made it clear that she did not want him to touch her in a sexual way: I just told him that I didn t want to move from the [indistinct] room to go into the room to have sex [indistinct] but he forced me. Yeah, [the appellant] went into the room and he I just told him to get off me not to have sex with me. I told him I don t want to have sex but [the appellant] put his finger in my vagina and I just lay there done it let him do it and He just sort of [indistinct] down and finger my vagina and I let him do it. Then, well, I just told him to get off me and didn t want to listen. And I just just let him do it to me let him have sex [indistinct] in front of my children. 5 The appellant cited Osland v The Queen (1998) 197 CLR 316 at 356-357 (McHugh J).
8 And what were you doing when he put his finger in your vagina? --- I just stay still and [indistinct]. 6 [22] In the following passage the complainant said that she was not saying or doing anything after the appellant digitally penetrated her. The appellant relied upon that evidence (which the complainant also repeated on the second day of the trial), but it did not preclude the jury from excluding any reasonable doubt that the appellant digitally penetrated the complainant s vagina after she had communicated to him that she did not consent to any such act. The jury could readily find that the complainant s subsequent silence during the continuing digital penetration resulted from the appellant having overborne her will in disregard of her initial protests and was in no way inconsistent with her evidence that she had voiced those protests. [23] On the first day of the trial, the complainant also gave evidence that she did not want to have sex with the appellant, but nevertheless acquiesced in other sexual conduct of the appellant after the appellant had digitally penetrated her vagina. (Again, that evidence was repeated on the second day.) A rational explanation for the acquittals on counts 2 and 3 is that the jury gave the appellant the benefit of the doubt whether he appreciated or should have appreciated that the complainant s initial protests to the digital penetration continued to subsist in relation to counts 2 and 3. [24] At the commencement of the complainant s evidence on the second day of the trial she repeated her earlier evidence to the effect that, when the appellant woke her in the lounge room indicating that he wanted to have sex, she made it plain that she did not consent. The complainant gave evidence that she just keep telling him, I don t want to have sex I said, I can t have sex with the girls in the lounge told him not to do it, but he just keep going, waking me up to have sex and I just said No, to him I just keep telling him not to do it I just keep telling him, No. No. No., because I have the girls with me. 7 Specifically in relation to count 1, the complainant gave evidence that when the appellant pulled her pants down when she was asleep she pushed his hand away and I told him not to have sex with me then he just keep going on and on about the sex. 8 [25] The appellant relied upon the complainant s evidence that she went with the appellant from the lounge room into the front room knowing that the appellant wished to have sex with her in the front room. In relation to count 1, however, the jury could reasonably regard the complainant s evidence as conveying that she went into the front room only because the appellant told her to go: He forced me to go with him he forced me to go into the front room. 9 [26] Furthermore, in the passage of cross-examination mentioned in [11] of these reasons, 10 it is significant that defence counsel did not refer to or clearly challenge the evidence earlier given by the complainant that the appellant had digitally penetrated her vagina after she had made it clear that she did not wish to engage in sexual relations with the appellant. The jury could regard the complainant s evidence in that passage as 6 Transcript 25. 7 Transcript 36. 8 Transcript 37. 9 Transcript 46. 10 Transcript 47.
9 contributing to a doubt only in relation to counts 2 and 3 whether the Crown had proved beyond reasonable doubt that the appellant did not honestly and reasonably believe, albeit mistakenly, that the complainant consented to those acts acquiescing in them. [27] Notably, when the cross-examination apparently turned to count 1, defence counsel commenced with an acknowledgment that out in the lounge room earlier in the night you told him you didn t want to have sex 11 It was in that context that defence counsel put to the complainant that [the appellant] was touching you on your vagina trying to get you into the mood, with which the complainant agreed. 12 Similarly, a subsequent exchange in which the complainant agreed that the appellant stopped rubbing her vagina when she told him she was too tired occurred in the context of the complainant s evidence that she had earlier told the appellant that she did not want to have sex. 13 In neither of those passages did defence counsel put to the complainant that there was an error in her earlier evidence to the effect that she made it clear to the appellant that she objected to his sexual touching. [28] The appellant also relied upon the complainant s last answer in the passage in crossexamination quoted in [12] of these reasons 14 that, although the complainant said that she didn t want it, she didn t say anything to the appellant. However in that passage defence counsel referred to an occasion upon which the appellant touched the complainant again, 15 and the immediately following questions and answers suggest that this may have been a reference to the appellant engaging in the conduct charged in count 3. 16 The jury was in a distinctly better position than this Court to appreciate the effect of this ambiguous evidence given in answer to leading questions, but on its face it is not inconsistent with the complainant s repeated evidence that she voiced her opposition to the act in count 1. [29] In relation to the ground of appeal contending that the verdict on count 1 is inconsistent with the acquittals on counts 2 and 3, in MacKenzie v The Queen, 17 Gaudron, Gummow and Kirby JJ observed of cases involving alleged inconsistency between verdicts that the test is one of logic and reasonableness and that if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In this case, the differing verdicts are logically and reasonably reconcilable upon the footing that a reasonably open view of the complainant s evidence was that, although she clearly communicated to the appellant before the event that she did not consent to the digital penetration charged in count 1, her evidence allowed for a reasonably doubt whether the appellant might have honestly and reasonable, but mistakenly, believed that, by the complainant s apparent acquiescence in his subsequent sexual acts, she 11 Transcript 49/10 16. 12 Transcript 49/19 20. 13 Transcript 49/35 42. 14 Transcript 50/40. 15 Transcript 50/23. 16 Transcript 51/24 27. 17 (1996) 190 CLR 348 at 367.
10 consented to the acts charged in counts 2 and 3. This ground of appeal therefore fails. [30] As to the remaining ground of appeal, the principles to be applied in determining whether a verdict of a jury is unreasonable, or cannot be supported having regard to the evidence, are discussed in SKA v The Queen. 18 Even if there is evidence upon which a jury could convict, the conviction must be set aside if it would be dangerous in all the circumstances to allow the verdict of guilty to stand. 19 The Court must conduct an independent assessment of the sufficiency and quality of the evidence and decide whether, upon the whole of the evidence, it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence, but the starting point is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses ; and [i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. 20 [31] In this appeal the respondent appropriately emphasised statements in MFA v The Queen 21 that stressed the special respect and legitimacy to be afforded to jury verdicts that resolved contested factual questions and referred to the ability of juries to evaluate conflicts and imperfections of evidence. More recently, in R v Baden-Clay 22 the High Court described it as fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is the constitutional tribunal for deciding issues of fact and that the setting aside of a jury s verdict on the ground that it is unreasonable within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. [32] For the reasons I have given, and bearing in mind the importance of a jury verdict and the advantage this jury had in seeing and hearing the evidence as it was given at the trial, I conclude that it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence charged in count 1. Proposed order [33] I would dismiss the appeal. [34] McMEEKIN J: I have read the reasons of Fraser JA and agree with the order his Honour proposes. 18 BCM v The Queen (2013) 88 ALJR 101 at [31], referring to SKA v The Queen (2011) 243 CLR 400 at [11]-[14]. 19 SKA v The Queen (2011) 243 CLR 400 at [14], quoting M v The Queen (1994) 181 CLR 487 at 492-493. 20 SKA v The Queen (2011) 243 CLR 400 at [13], quoting M v The Queen (1994) 181 CLR 487 at 493-94. 21 (2002) 213 CLR 606 at 624,634. 22 (2016) 258 CLR 308 at 239 [65].