Background
William Michael Mallie was tried on four charges arising from alleged sexual offending against a 16-year-old complainant during a single night in May 2021. The jury found him guilty of indecent assault, assault with intent to rape, and rape by penile-oral penetration, but acquitted him of rape by penile-vaginal penetration.
The complainant reported the incident in a triple-zero call and gave accounts to attending police, in a written statement, and in pre-recorded evidence. Mallie told police that the sexual activity was consensual and denied intercourse. He appealed against the three convictions, arguing that the verdicts were unreasonable or inconsistent and that the trial judge wrongly refused leave under s 4 of the Criminal Law (Sexual Offences) Act 1978 (Qld) to cross-examine the complainant about earlier sexual conduct.
The Court’s Holding
The Court of Appeal unanimously dismissed the appeal. After independently assessing the evidence, it held that the complainant’s accounts were strongly consistent on their essential features and that it was open to the jury to be satisfied of Mallie’s guilt beyond reasonable doubt. Her account was supported in relevant respects by evidence of vomit at the scene and DNA evidence indicating that her DNA was extremely likely to be present on swabs from Mallie’s penis.
The mixed verdicts were logically reconcilable. Oral penetration was common ground, although consent was disputed, while the evidence of vaginal penetration was less certain because the complainant described Mallie’s penis as soft and said he had struggled to penetrate her. The jury could therefore accept her evidence generally while retaining a reasonable doubt about vaginal penetration alone.
The trial judge also did not err in refusing the proposed cross-examination. The complainant’s earlier sexualised conduct neither materially proved or disproved consent to the charged conduct nor, because of special circumstances, was likely to materially impair confidence in her reliability. Using it to infer consent from a general disposition was precisely the reasoning s 4 prohibited.
Key Takeaways
- Mixed guilty and not-guilty verdicts are not legally inconsistent when the evidence provides a logical basis for distinguishing between the charges.
- Minor inconsistencies, uncertainty about timing, and the absence of extensive injuries did not make the guilty verdicts unreasonable in light of the evidence as a whole.
- Prior sexual conduct cannot be used merely to suggest a complainant was generally more likely to consent or was less worthy of belief; the statutory tests of substantial relevance or materially impaired reliability must be met.
Why It Matters
The decision illustrates the appellate court’s obligation to assess the whole record independently while respecting verdicts that were reasonably open to the jury. An acquittal on one count does not necessarily undermine convictions on related counts arising from the same episode.
It also reinforces Queensland’s statutory limits on questioning sexual-offence complainants about prior sexual activity. Characterising such material as bearing on credibility will not avoid those limits unless the evidence satisfies the statute’s demanding relevance requirements.