SUPREME COURT OF QUEENSLAND CITATION: R v RAX [2017] QCA 133 PARTIES: R v RAX (appellant) FILE NO/S: CA No 291 of 2016 DC No 224 of 2016 DIVISION: PROCEEDING: ORIGINATING COURT: Court of Appeal Appeal against Conviction DELIVERED ON: 16 June 2017 DELIVERED AT: District Court at Townsville Date of Conviction: 13 October 2016 Brisbane HEARING DATE: 31 May 2017 JUDGES: ORDER: Sofronoff P and North and Henry JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made Appeal dismissed. CATCHWORDS: CRIMINAL LAW APPEAL AND NEW TRIAL PARTICULAR GROUNDS OF APPEAL INFORMATION, INDICTMENT OR PRESENTMENT AVERMENTS UNCERTAINTY, DUPLICITY AND AMBIGUITY DUPLICITY where appellant found guilty by jury after trial of unlawful assault occasioning bodily harm and two counts of rape where appellant argued that a miscarriage of justice arose on the basis that appellant was convicted of duplicitous charges where issue of duplicity not raised below where court held the meaning attributable to particulars can be informed by the evidence adduced and trial judge s directions below where the court held there was no duplicity CRIMINAL LAW APPEAL AND NEW TRIAL PARTICULAR GROUNDS OF APPEAL MISDIRECTION AND NON-DIRECTION PARTICULAR CASES whether or not the trial judge gave inadequate directions about the complainant s unresponsive answers where the court held the direction given was adequate and involved no risk of a miscarriage of justice where appeal dismissed
COUNSEL: SOLICITORS: 2 Criminal Code (Qld), s 573 Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A Evidence Act 1977 (Qld), s 132B Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77, cited Kilby v The Queen (1973) 129 CLR 460; [1973] HCA 30, cited Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29, applied R v Chen [1997] QCA 355, applied R v Juraszko [1967] Qd R 128, applied R v S [2000] 1 Qd R 445; [1998] QCA 271, applied SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited A W Collins for the appellant N Rees for the respondent Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent [1] SOFRONOFF P: I agree with the reasons of Henry J and with the order his Honour proposes. [2] NORTH J: I have read the reasons of Henry J. His Honour s assessment and evaluation of the whole of the evidence accords with mine. For the reasons given by his Honour I agree with the order he proposes. [3] HENRY J: The appellant was convicted by a jury of one count of assault occasioning bodily harm and two counts of rape upon his estranged partner. The offences were committed in a single course of conduct overnight on 4 February 2016 at the appellant s residence in Home Hill. [4] The appellant appeals his conviction on three grounds: 1. counts one, two and three were duplicitous and have caused a substantial miscarriage of justice ( Ground One: Duplicity ); 2. the trial judge s directions about unresponsive answers given by the complainant were inadequate and caused a substantial miscarriage of justice ( Ground Two: Inadequate directions about the complainant s unresponsive answers ); 3. the verdicts on counts one, two and three were unreasonable and cannot be supported with regard to the evidence ( Ground Three: Unreasonable verdicts ). Facts [5] The complainant was in a relationship with the appellant for many years, living with him for most of that time. [6] The complainant was a disability pensioner who used a wheelie walker to assist her to walk and was ill with cancer by the time of the offences. The appellant acted as her carer and was evidently very supportive in that role, when sober. [7] However, their relationship was blighted by the appellant s occasional acts of domestic violence when he was under the influence of alcohol. Evidence was led at
3 trial of past acts of domestic violence, including threats and actual violence. No issue is taken about the admission of that evidence. 1 [8] In early December 2015 the complainant ceased residing with the appellant and lived with her daughter for about a month. She did not get along with her daughter and consequently moved back in with the appellant, pending the availability of alternative accommodation on receipt of a Centrelink loan. During the month or so after her return to living with the appellant, they would sleep in the same bed together but, as she put it, nothing usually happened. [9] On 4 February 2016 the complainant s daughter and her partner were present at the appellant s house during the afternoon, it having been planned they would stay for dinner to be cooked by the appellant. However, they left before dinner at about 6.30 pm. That upset the appellant who had been drinking wine. The appellant later called the complainant into the kitchen and there talked to her about a friend of the complainant s called Nicole, with whom the appellant had occasional sexual relations. The complainant returned to the lounge room. The appellant followed and undressed. He then went into the bedroom and called for the complainant. She went into the bedroom where he was naked. [10] The appellant told the complainant to get undressed and lie down on top of the bed. She did so because she was scared. There then began a course of repeated threats, violence and forced oral sex which the complainant estimated lasted from about 8 pm to 2 am. [11] The appellant lay next to the complainant, positioning himself with a leg over her. The complainant said of what followed: [T]hen he told me he said my time was up He said I was in the road of him and Nicole I had to go and then he started slapping me on my left-hand side of my face real hard and then he started punching me a bit with his fist [i]n my left-hand side [n]ear my eye. 2 [12] She estimated the appellant slapped her about four or five times and punched her about two times. 3 This was the assault which attracted count one, assault occasioning bodily harm. [13] The appellant then instructed the complainant to perform oral sex on him, saying the only thing that would keep her alive would be if she sucked him off. She complied and, as she performed oral sex upon him, he slapped her on the backside. 4 While he did not achieve a full erection it appeared to the complainant from what she could taste that he ejaculated to a minor extent. This act of forced oral sex attracted count two, rape. [14] The complainant testified the appellant then tried to strangle her. On her account this was the first of 15 instances during the ordeal when he placed his hands forcefully around her neck. 1 See 132B Evidence Act 1977 (Qld). The evidence was said to be relevant to the consent element, particularly the jury s proper understanding of the context in which the complainant acquiesced. 2 AR 35 L 43 AR 36 L 20. 3 AR 36 LL 25-30. 4 AR 36 LL 36-48.
4 [15] Then the appellant again told the complainant to suck him off and again she did so. 5 Again, she believed she tasted a small amount of ejaculate. This act of forced oral sex attracted count three, rape. [16] The complainant testified there were at least two further instances of her being forced to perform oral sex upon him, interspersed with instances of him putting his hands around her neck forcefully. [17] Towards the end of this ordeal the appellant went to hit the complainant again, but she grabbed his hand, pushing back, saying You re a better person than this...you know you re a better person. On her account he desisted, telling the complainant her time was up and that he had had enough of her and her daughter. He then fell asleep. [18] The complainant also fell asleep. When she awoke in the morning she noticed she had a black eye. The appellant noticed this and told her to tell everyone that she had fallen on her face. [19] The appellant returned to sleep and the complainant received a phone call from her daughter, who detected something was wrong and pressed her mother to indicate what it was. On the complainant s account, she told her daughter the appellant belted her up all night and expected her to perform sexual acts. On her daughter s account, her mother told her the appellant had done inappropriate things to her and that she didn t want to do it. Such general consistency of fresh complaint butressed the credibility of the complainant s testimony. 6 [20] The complainant s daughter rang the police who attended, followed by the ambulance. When the police attended, the appellant was still in the bedroom, asleep. When the police woke him up there was a smell of alcohol in the room. He had no injuries. [21] It was admitted at trial that at 5.15 pm on 5 February a penile swab was taken from the glands of the appellant s penis. It was admitted a DNA comparison of that swab with the DNA of the complainant revealed DNA on the swab taken from the appellant s penis matched the DNA of the complainant. This corroborated the complainant s evidence that oral sex had occurred. [22] The complainant s injuries were photographed. The photographs depict injuries which were also admitted at trial, namely a subconjunctival haemorrhage to the left eye, bruising to the left eye, bruising to the left side of the face and a small bruise to the left side of the neck. It was admitted at trial that the injuries amounted to bodily harm. As much was obvious from the photographs. The evidence of injury provided powerful objective support for the charge of assault occasioning bodily harm. The evidence in support of the charge of assault occasioning bodily harm was so strong that defence counsel, in the course of exchanges with the trial judge, acknowledged there appeared to be no defence for it and he later addressed the jury consistently with that concession. 5 AR 38 L 44 AR 39 L 33. 6 This being a legitimate use of such evidence (Kilby v The Queen (1973) 129 CLR 460), evidence which was admissible, pursuant to s 4A Criminal Law (Sexual Offences) Act 1978 (Qld), regardless of its temporal proximity to the offences.
5 [23] The evidence of injury also provided indirect support to the complainant s assertion she had not consented to oral sex, because of the improbability of such consent in the context of such violence. [24] Another, though less compelling, piece of supporting evidence came from the appellant s next-door neighbour who testified to being woken before 4 am during the night in question to the sound of a male yelling at the appellant s house. [25] Given the obvious strength of the case against the appellant it is as well to dispense immediately with ground three. Ground Three: Unreasonable verdicts [26] The assessment of the whole of the evidence, which must be undertaken for the purpose of this ground, 7 has largely been summarised above. It remains to highlight some matters in connection with the conduct of the defence case. [27] The defendant did not give or call evidence. He essentially chose to put the prosecution to the proof, using cross-examination to expose matters relevant to the credibility and reliability of the complainant, including her mental stability. [28] In the course of a cross-examination it was put to the complainant that she was prone to exaggeration and a liar. There were also questions asked about personal issues such as her mental health, incontinence and the smell of her pelvic-vaginal region. She was obviously irritated by some of the cross-examination, growing argumentative and volunteering information which was not always responsive to the question asked. In one instance she responded that what was put to her was bullshit and in another described the cross-examination of her as bullshit. [29] The complainant accepted in cross-examination that she had in the past been an inpatient in a mental health unit and as at the time of the alleged offences was taking prescribed anti-psychotic drugs. She testified she was no longer taking such medication by the time she was giving evidence, having ceased taking it when she learnt she had been misdiagnosed. She gave evidence of having given birth to a number of children. In confusing and sometimes inconsistent passages of her evidence the complainant seemed to maintain she gave birth to one such child, fathered by the appellant, when she was 11 years old. [30] The complainant agreed the normal form of sexual activity between her and the appellant had been oral sex and that he had difficulty in achieving an erection. She agreed she would often complain of the appellant s sexual disinterest in her. She agreed she knew of the appellant s sexual interest in Nicole and had even witnessed him have sexual relations with Nicole on one occasion. The complainant denied being jealous about the appellant although she mentioned one of her hospitalisations had been preceded by her wanting to cut his penis off. [31] The complainant agreed she had, in respect of a past complaint of domestic violence about the appellant, retracted an allegation she had made. She acknowledged she wrote letters to have a court order changed to permit the appellant to have contact with her so she could return from her daughter s home to live at the appellant s residence. She accepted that as at the era of the alleged offences she had mixed feelings about wanting to get back with the appellant, explaining that when he was 7 SKA v The Queen (2011) 243 CLR 400.
6 sober he wanted her and when he was drunk he wanted Nicole or others. She also accepted that when the police arrived on the morning of the alleged offences she had at one point said, when crying, And then he told me that we were not even in a relationship anymore and that he just wanted to be friends. [32] More significantly, when it was put to the complainant that on the night of the alleged offences she and the appellant had kissed and cuddled during the period where sexual activity occurred she responded: Yeah, because he d start kissing me. So I kissed him back because I loved the guy. Counsel did not seek more detail as to when in the sequence of events this actually occurred. However, directly after making the above concession, the complainant continued to reject any suggestion the oral sex had been consensual and maintained it occurred because of the appellant s threat she would be dead if she did not comply. [33] It is readily apparent the above aspects of the complainant s evidence detracted from her credibility and reliability. Nonetheless, even considered collectively, they are not so concerning as to be determinative. That is particularly so in a case where the uncontradicted evidence of the complainant did not stand alone. As already explained, there was powerful evidentiary support for the complainant s account from other sources. [34] On the whole of the evidence it was comfortably open to the jury to be satisfied beyond reasonable doubt the appellant was guilty of the three charges. Ground three must fail. Ground One: Duplicity [35] The particulars, listed in a document headed Particulars of the charges, tendered for identification at the outset of the trial, were: Count one: The accused delivered a blow or series of blows to [the complainant]. Count two: The accused put his penis in [the complainant s] mouth without her free and voluntary consent. Count three: The accused put his penis in [the complainant s] mouth without her free and voluntary consent. [36] The appellant s specific complaints in his amended notice of appeal in respect of the duplicity ground are: i. The particulars provided by the Crown did not properly identify the acts which rendered the appellant liable for imprisonment; ii. Count 1 focussed upon the injuries sustained rather than identifying the specific act relied upon and in reality amounted to a continuing offence; iii. Count 1 was particularised as a blow or series of blows, however evidence was led of multiple attempts to strangle the complainant; iv. There was no particularisation in count 1 of the injuries which were said to amount to bodily harm;
7 v. Counts 2 and 3 were particularised in exactly the same terms; vi. The particulars failed to differentiate between charged and uncharged acts. [37] A function of particulars is to enable an accused to know the nature of the charge which the accused is called on to meet, 8 such knowledge being important to questions of admissibility of evidence and the making of forensic judgments in the conduct of the defence. 9 At trial the appellant s counsel made no complaint about the adequacy of the particulars and expressed no concern that he did not know the case to be met on behalf of the accused. Had there been any such concern he would hardly have conceded the appellant s guilt of count one. [38] A further function of particulars in cases involving more than one instance of like conduct is to adequately identify the instance to which the charge relates so as to avoid latent ambiguity or duplicity in the charge. 10 It is important to appreciate that the present complaint of duplicity is not a complaint raised before or during a trial to the effect that the particulars are inadequate because of potential duplicity. Such a complaint was not raised below. 11 The present complaint is that the appellant was convicted of duplicitous charges. Whether there is substance to that complaint does not turn upon the solitary content of what was proffered below by the prosecution as particulars. That is because the meaning attributable to those particulars is now informed by the evidence actually adduced below and the trial judge s directions below as to what alleged conduct each charge related to. [39] Turning to count one, it was self-evident the particulars given on count one were not actually particulars of the charge as a whole but only particulars of the acts said to constitute the assault element of the charge. As to those acts the learned trial judge directed the jury count one related to the slaps and or punches to the face. This was consistent with the reference in the particulars to a blow or series of blows and could only have been understood from the evidence given as being the initial flurry of slaps and punches at the outset of the appellant s misconduct, immediately prior to the first act of oral sex. [40] As to the element of bodily harm in count one, it was readily apparent from the complainant s account that the subconjunctival haemorrhage to her left eye, the bruising to the left eye and the bruising to the left side of the face must have been occasioned in the initial flurry of blows. The complainant did not describe any other subsequent acts of such violence to the left side of her face. 12 [41] It is a matter of fact and degree in any case whether events are so close in time and place as to be properly viewed as one composite activity and thus able to attract a single charge without the charge being duplicitous. 13 In the present case, the 8 R v Juraszko [1967] Qd R 128, 135. 9 Patel v The Queen (2012) 247 CLR 531, 579. 10 Johnson v Miller (1937) 59 CLR 467; R v S [2000] 1 Qd R 445. 11 Had it been it would have been necessary for the court to consider whether it ought direct the prosecution to deliver further particulars, per s 573 Criminal Code. 12 At one stage of the complainant s evidence she made further brief reference to punching and slapping (R36 LL45-48). It is not clear whether that was a reference to punching and slapping before or after the first instance of oral sex, nor was anything said as to where those punches or slaps hit. It is not evidence which alters the overall effect of the complainant s evidence identified in these reasons. 13 R v Chen [1997] QCA 355.
8 initial flurry of blows occurred so close in time and unvaried circumstances as to be regarded without risk of duplicity as a single assault. [42] It is likely the bruise to the neck was caused later when the appellant squeezed the complainant s neck. The appellant s trial counsel admitted that was also an injury constituting bodily harm. However, that does not raise a concern as to duplicity because the squeezing of the neck cannot sensibly be regarded as a blow, punch or slap the descriptions to which count one related. [43] As to counts two and three, it is true the particulars were in precisely the same terms and did not of themselves indicate which of the four or more acts of oral sex they related to. However, the trial was clearly conducted on the common understanding counts two and three referred respectively to the first and second instances of oral sex. The learned trial judge so directed, telling the jury, [A]s I understand the Crown particulars, the first act of oral sex is count 2 and the second act is count 3. There is nothing in the trial record to suggest that defence counsel was of any other understanding than that. It was also the only sensible view of the matter given that during the complainant s evidence in chief it was only the first two acts of oral sex which attracted specific questioning by the learned Crown Prosecutor. [44] The apparently common understanding at trial of the specific acts to which each count related and the specific basis upon which each count was left to the jury shows the duplicity ground is without substance. Ground Two: Inadequate directions about the complainant s unresponsive answers [45] The direction given by the learned trial judge about the complainant s unresponsive answers was: You will also appreciate the complainant in cross-examination gave a number of non-responsive answers. Some of those answers were irrelevant. So unless counsel rely on particular responses or the responses relate directly to the charges, ignore any irrelevant responses. Of course, you re entitled to have regard to her performance in evidence when assessing her demeanour. [46] The appellant complains the direction was inadequate because it did not provide more detail about the answers to which it referred. [47] The direction had its genesis in the following exchange between Bench and the Crown Prosecutor in the absence of the jury towards the end of cross-examination of the complainant: HIS HONOUR: Counsel, there have been a lot of non-responsive answers to questions. What I was thinking about doing was telling the jury something like Members of the jury, you might appreciate the complainant has given a number of non-responsive answers to questions asked by defence counsel. Unless counsel rely on any particular response, I ll direct you to ignore those answers given by the complainant. What do you say about that? I m just concerned about that recent case where a direction was not given about--- MR COOK: Yes.
9 HIS HONOUR: ---non-responsive answers, and there was an appeal allowed, and there was a retrial ordered. Anyway, I don t have to give it now. Have a think about it. All right? MR COOK: If there s anything in particular--- HIS HONOUR: I mean, you know---- MR COOK: ---that makes me disagree, I ll let you know. HIS HONOUR: --- bullshit, bullshit, making comments about the bad character of the accused. All of that sort of thing. MR COOK: Right. Yes. Yeah, of course. I agree with that your Honour. HIS HONOUR: All right. But I might need to be more specific. That s all. So can you try and fashion a direction which you agree upon, bearing in mind you might not want to highlight it either, Mr Hibble, so but I ll leave it to counsel to consider before I sum up. All right? But I think I should say something about it. That s all. (emphasis added) [48] The topic was returned to at the close of evidence in the course of the learned trial judge discussing issues requiring direction with defence counsel: HIS HONOUR: there s the issue about the non-responsive answers; I d be assisted by submissions on that tomorrow morning. MR HIBBLE: Yeah. My preference at this stage would be just the general, without reference to--- HIS HONOUR: All right. Well, speak to--- MR HIBBLE: ---any specific statements she made. (emphasis added) [49] The following morning when the topic was again returned to the Crown Prosecutor, Mr Cook, submitted the proposed general direction appeared fair. Defence counsel, Mr Hibble, did not revise his earlier submission that the proposed general direction should remain general and should not refer to any specific statements made by the complainant. [50] It follows the direction now complained of as being inadequate complied with the express wishes of defence counsel at trial that the direction not refer to any specific examples of the non-responsive answers. It is readily apparent defence counsel favoured this course for a forensic purpose, namely avoiding the jury being reminded of irrelevant and, to some extent, prejudicial information. [51] It warrants emphasis that, to the extent some of the complainant s unresponsive answers contained adverse information about the appellant, none of that information was so prejudicial as to have prompted an application for the discharge of the jury. Further, as was properly conceded by the appellant s counsel in the appeal, none of it was as prejudicial to the appellant as the information legitimately before the jury about the appellant s history of domestic violence towards the complainant.
10 [52] Finally, the direction actually given was not conceptually complex or difficult to understand. In the circumstances of this case reference to the specific content of the unresponsive answers was not necessary to ensure the jury s proper understanding of the direction given. [53] The direction given was adequate and involved no risk of a miscarriage of justice. Order [54] I would order: Appeal dismissed.