R v WCD [2024] QCA 120 (21 June 2024)

Last Updated: 21 June 2024

SUPREME COURT OF QUEENSLAND

CITATION:	R v WCD [2024] QCA 120
PARTIES:	R v WCD (appellant)
FILE NO/S:	CA No 102 of 2023 SC No 42 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Rockhampton – Date of Conviction: 11 May 2023 (Clarke DCJ)
DELIVERED ON:	21 June 2024
DELIVERED AT:	Brisbane
HEARING DATE:	30 April 2024
JUDGES:	Morrison and Boddice JJA and Callaghan J
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNT TO MISCARRIAGE – where the appellant was convicted after a trial of one count of maintaining a sexual relationship with a child and four counts of rape – where the prosecution case turned on the evidence of a child complainant – where the defence argued that the complainant’s evidence was inconsistent – where the appellant claimed a miscarriage had been occasioned by the failure to direct the jury on the use of prior inconsistent statements that were not directly admitted – where the requested direction could have been given – where the requested direction would nevertheless not have had a reasonable possibility of affecting the verdict – whether there was therefore no miscarriage of justice Evidence Act 1977 (Qld), s 18, s 101(1) R v Fox (No 2) [2000] 1 Qd R 640; [1999] QCA 140, considered HCF v The Queen (2023) ALJR 978; [2023] HCA 35, cited R v SDQ [2022] QCA 91, cited Zhou v The Queen [2021] NSWCCA 278, cited
COUNSEL:	A M Hoare KC for the appellant S L Dennis for the respondent
SOLICITORS:	RK Law for the appellant Director of Public Prosecutions (Queensland) for the respondent

[1] MORRISON JA: I agree with the reasons and orders proposed by Callaghan J.
[2] BODDICE JA: I agree with Callaghan J.
[3] CALLAGHAN J: The appellant was convicted, after a trial, of maintaining a sexual relationship with a child (count one) and four offences of rape (counts two to five). He was sentenced to imprisonment for a period of 13 years.
[4] Mr Hoare KC (who did not appear in the trial) advances the appeal against conviction on a single ground, namely that:

“there was a miscarriage of justice occasioned by a failure to direct the jury as to the use of prior inconsistent statements of a witness that were not distinctly admitted by that witness.”

Prosecution case

[5] The complainant was born in March 2002. For a period between May 2011 and September 2014,^[1] she^[2] resided with her aunt and the appellant, who had been a couple since about the year 2000.
[6] The complainant alleged that whilst she resided with the couple the appellant raped her on a regular basis.
[7] This claim may first have been made to her twin sister, who reported a conversation to this effect occurring “a few months after” they moved out of the residence. Something similar was said by the complainant to her mother, although the date of that conversation was indeterminate.^[3] It is clear that in 2017 the complainant told the manager of her residential program “that she had been hurt and sexually interfered with” by someone who shared the unusual first name of the appellant. As a result of that, an appointment was made with police. The complainant was interviewed, the interview was recorded and received into evidence pursuant to section 93A of the Evidence Act 1977 (Qld).
[8] Details of the offending, as recorded in this interview, were spare. The complainant said that “the first time” anything happened was an occasion when the appellant began by choking her, then played with his penis in front of her, forced her mouth open, put his penis inside her mouth^[4] and ejaculated.^[5] He then penetrated her vagina with his penis.^[6]
[9] On another occasion, not identified by reference to any particular timeframe, the complainant said that she was asleep with her sister in the bedroom when the appellant walked in, pulled her off the bed and took her outside, where he “started to rape her”.^[7] She said – using her own terms – that he had then put his penis inside her vagina.^[8]
[10] On a separate occasion, the complainant said that she was travelling with the appellant between Rockhampton and Yeppoon. At some stage they stopped on a dirt track where it was “pitch dark.” In “the bush” somewhere the appellant came to the passenger door, opened it, remove the complainant’s belt and took off her pants, then told her to bend over. It was a case of “then, ah, just the same”^[9] – that is the complainant said that the appellant had placed his penis inside her vagina.^[10] After that finished she got back in the car, and sat in the back. They went home, she had a shower and went to sleep.^[11]
[11] These specific incidents were a reflection of the fact that, according to the complainant the appellant was “all over”^[12] her, and that he “just kept on coming back.”^[13] It was, she said, “an every day thing”^[14] and this fact - combined with the particular incidents described - provided the basis for the offence of maintaining a sexual relationship.^[15]
[12] The complainant gave evidence that when she moved out the appellant had threatened her by saying that if she ever told anybody, he would kill her, and if he could not get to her he would get to her siblings.^[16] This was said against a background of evidence about other threats and acts of violence committed by the appellant. These included an incident in which, it was alleged, the appellant hit her with a metal bar. The complainant allowed to having some memory of speaking to the police about that “metal bar” incident at or close to the time when it happened.^[17]

Defence case

[13] In cross examination it was put to the complainant that at no time was there any sexual contact between her and the appellant, but the appellant did not give evidence. Rather, his defence focused upon the lack of detail in the complainant’s accounts. It also involved the propositions that the complainant enjoyed living with him, and at no stage during her residence took advantage of opportunities to complain about his conduct.
[14] In an effort to make good those key propositions, the following cross examination occurred:

Defence Counsel: “Thank you. In July 2011, you told your carer from the Department of Child Safety that you were happy living with [the appellant], didn’t you?”

Authorities Cited5

Referred to (5)