The Queensland court of appeal has quashed the rape conviction of a Gold Coast man, and ordered a retrial, in a case where he followed a woman, 19, uninvited into the toilet of a Brisbane bar.
Darryl John Clancy, 50, of Highland Park, was found guilty of rape by a jury in 2021. The court of appeal ruling annuls the verdict on the basis that the trial judge’s interventions during the initial hearing amounted to a miscarriage of justice. This included that the judge effectively prevented defence counsel from questioning the alleged victim whether she had allowed Clancy to have sex with her.
The court also found that the trial judge’s summation lacked balance.
During the trial, the “surrounding circumstances” of the incident were not the subject of dispute. This included evidence that Clancy had followed the woman into the toilet stall without her knowledge, locked the door, stood in front of her, and watched her urinate.
The woman told the court she had been celebrating her 19th birthday and was waiting for friends to arrive when she chatted with Clancy at the Jolly Roger Bar in Fortitude Valley for about 10 to 15 minutes. Clancy bought her a tequila shot. She described him as being “a lot older than her or even her father”.
“The complainant was unaware that [Clancy then] followed her to the bathroom,” the court of appeal judgment, summarising the evidence from the trial, said.
“She went to the sink and commenced to wash her hands. [Clancy] then ran his hands up her thighs and hips and pulled her skirt up. He unzipped his jeans … and continued to thrust and have sex with her over the sink of the bathroom for approximately one minute.”
The court of appeal judgment said: “[It] is apparent … there was no issue that the appellant had sexual intercourse with the complainant in the toilet, nor was there any issue concerning the surrounding circumstances of the rape.
“The only two issues for the jury were, first, whether the appellant had sexual intercourse without the consent of the complainant, and secondly, whether the appellant did not honestly and reasonably believe that the complainant was consenting.”
The woman gave evidence at trial that she “did not say anything to [Clancy]”, and that she was too afraid to say anything.
The court heard that the woman told a friend, about a week after the incident, she just froze and couldn’t move.
Caselaw in Queensland, cited in the court of appeal judgment, establishes that consent is established by a representation “usually made by words or actions (but) in some circumstances, a representation might also be made by remaining silent and doing nothing”.
Under cross-examination, the woman was asked about what she was wearing and how it covered her body.
She was also asked during cross-examination about notes taken by a legal support officer of a meeting she had with the Crown prosecutor, which read: “she thought the sex was consensual and thought that she was a slut and felt vile about herself for doing that on her birthday”.
During the cross-examination, the trial judge made two interventions which the court of appeal found to be “of significant concern”, and which “effectively precluded defence counsel from asking the complainant whether she allowed the appellant to have sex with her”.
“The question was relevant to a critical issue in the trial, namely, consent,” the court of appeal judgment said.
“Her Honour’s intervention effectively shut-down any exploration of this critical issue and constitutes a miscarriage of justice.”
• In Australia, the crisis support service Lifeline is 13 11 14. If you or someone you know is affected by sexual assault, family or domestic violence, call 1800RESPECT on 1800 737 732 or visit www.1800RESPECT.org.au. In an emergency, call 000. International helplines can be found via www.befrienders.org.
