R v Doran; R v Zevenbergen; R v Butler; R v Sealey - [2023] QCA 177

SUPREME COURT OF QUEENSLAND

CITATION:

R v Doran; R v Zevenbergen; R v Butler; R v Sealey [2023] QCA 177

PARTIES:

In CA No 4 of 2022:

R
v
DORAN, James Gareth
(appellant)

In CA No 12 of 2022:

R
v
ZEVENBERGEN, Steven
(appellant)

In CA No 13 of 2022:

R
v
BUTLER, Joshua Bruce
(appellant)

In CA No 14 of 2022:

R
v
SEALEY, Leon James
(appellant)

FILE NO/S:

CA No 4 of 2022
CA No 12 of 2022
CA No 13 of 2022
CA No 14 of 2022
DC No 138 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Appeals against Convictions

ORIGINATING COURT:

Date of Conviction: 13 December 2021 (Loury KC DCJ)

DELIVERED ON:

1 September 2023

DELIVERED AT:

Brisbane

HEARING DATE:

6 March 2023

JUDGES:

Morrison and Dalton JJA and Wilson J

ORDERS:

1.   In CA No 4 of 2022, appeal dismissed.

2.   In CA No 12 of 2022, appeal dismissed.

3.   In CA No 13 of 2022, appeal dismissed.

4.   In CA No 14 of 2022, appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellants were convicted on multiple counts where each had raped the complainant, and aided or encouraged during the acts of rape engaged in by the others – where three of the four appellants contended that the verdicts were unreasonable – where the principal evidence was that of the complainant, and there was also evidence of photographs, diagrams, recorded interviews, admissions, and a Snapchat video – where, save for one of the appellants, the only issue was that of consent – where the complainant had engaged in paid sex work, but her evidence was that this had occurred after the incident constituting the offending – where the complainant had a history of drug use – where the events took place in a motel where the appellants and the complainant were consuming drugs and alcohol – whether the verdict was unreasonable or could not be supported having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant Zevenbergen contended that there was a misdirection as to the use to which exculpatory statements in his police interview could be used – where the appellant Butler submitted that there was a misdirection to the jury in respect of the complainant’s criminal history – where the appellant Sealey contended that there was a misdirection by reason of the failure to direct the jury not to use questions asked by police officers during his police interview, particularly questions which put the complainant’s version of events to him, and due to the failure to direct, with sufficient detail, how the records of interview with the appellant Zevenbergen could be used – whether there was a misdirection or misdirections

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant Zevenbergen submitted that evidence of his two police interviews conducted the day after the incident should have been excluded – whether the trial judge erred in admitting the evidence

Police Powers and Responsibilities Act 2000 (Qld), s 418, s 423
Police Powers and Responsibilities Regulation 2012 (Qld), Sch 9, s 23

Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25, applied
De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48, cited
Duke v The Queen (1989) 180 CLR 508; [1989] HCA 1, cited
Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66, considered
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, applied
R v Beck [1990] 1 Qd R 30, cited
R v Buckett (1995) 126 FLR 435, cited
R v Butler & Lawson & Marshall [2011] QCA 265, cited
R v Coyne [2021] QCA 110, cited
R v Dalton (2020) 3 QR 273; [2020] QCA 13, cited
R v Ferguson; Ex parte Attorney-General (Qld) (2008) 186 A Crim R 483; [2008] QCA 227, cited
R v Glennon (1992) 173 CLR 592; [1992] HCA 16, cited
R v Kirkby [2000] 2 Qd R 57; [1998] QCA 445, cited
R v LR [2006] 1 Qd R 435; [2005] QCA 368, distinguished
R v Miller (2021) 8 QR 221; [2021] QCA 126, applied
R v Peter; R v Banu; R v Ingui[2023] QCA 1, cited
R v Zevenbergen [2021] QDCPR 79, related
Smith v Kelsey; Dalley v Kelsey (2020) 4 QR 1; [2020] QCA 55, cited

COUNSEL:

S R Lewis for the appellant, Doran
N V Weston for the appellant, Zevenbergen
Y Chekirova for the appellant, Butler
C J Tessman for the appellant, Sealey
E L Kelso for the respondent

SOLICITORS:

Legal Aid Queensland for the appellants, Doran and Zevenbergen
O’Sullivans Law Firm for the appellant, Butler
Dib & Associates for the appellant, Sealey
Director of Public Prosecutions (Queensland) for the respondent

MORRISON JA: On 30 September 2018, the complainant and a man called Mr Y booked into a motel room at the Runaway Bay Motor Inn. During that day, the complainant and Mr Y consumed alcohol and methylamphetamine.
Later that evening, the complainant wished to obtain further drugs and invited the appellant, Zevenbergen[1] to “[c]ome party”.
[1]Known to her at that time as “Steve”.
During the evening, Zevenbergen, the appellant Sealey, and the appellant Doran arrived at the motel room. At that time, Mr Y was still present. The group consumed methylamphetamine, alcohol, and the drug Fantasy.[2] At some point during the evening, the appellant Butler also arrived.
[2]Gamma-hydroxybutyrate, or GHB.
At about 9.20 am on 1 October 2018, an unsuccessful attempt was made to book the motel room for an extra night. What followed was the subject of conflicting evidence at the trial.
The complainant said she was raped by all four appellants. She said Zevenbergen and Doran restrained her, holding her down and covering her mouth. She said that Zevenbergen, Butler, and Sealey raped her by penetrating her vagina with their penises, and Doran raped her by placing his penis in her mouth and her vagina.
The activity was interrupted when the motel staff knocked on the door. All of the appellants packed up their things and left. The complainant then went and had a had a shower. The complainant got out of the shower and went to the door, and found Mr Y and the motel manager. She told them that she had “basically just got raped”. The police were called and she was taken to hospital, where she remained for three days.
Arising out of those events, the appellants were each charged with five counts of rape (Counts 3–7). Zevenbergen was also charged with two counts of sexual assault: Count 1: touching the complainant on the vagina, without her consent, while in the spa; and Count 2: touching the complainant without her consent, on the bed.
Each of Doran, Zevenbergen, and Butler were charged with other counts, unrelated to the events concerning the complainant. It is not presently necessary to deal with those other charges.
Each of the appellants were convicted of rape, on all of Counts 3–7. They challenge their convictions on various grounds which can be summarised as set out below.
Doran challenged his convictions on the sole ground that the verdicts were unreasonable and could not be supported by the evidence.[3]
[3]Doran also filed an application for leave to appeal against sentence, CA 141 of 2022. That was abandoned prior to the hearing of the appeal.
Zevenbergen’s grounds of challenge[4] were that a miscarriage of justice occurred because:
(a)the trial judge failed to direct the jury as to the use to which exculpatory statements in his police interview could be used (a Liberato direction); and
(b)the trial judge refused to exclude the evidence of his two interviews with police, conducted on 2 October 2018.
[4]Zevenbergen also filed an application for leave to appeal against sentence, CA 88 of 2022. That was abandoned well prior to the hearing of the appeal.
Butler’s challenge to the verdicts was on two grounds:[5]
(a)the verdicts in respects of Counts 3–7 were unreasonable and could not be supported by the evidence; and
(b)the trial judge’s direction to the jury in respect of the complainant’s criminal history was inadequate.
[5]Butler also filed an application for leave to appeal against sentence, CA 76 of 2022. That was abandoned at the hearing of the appeal.
Sealey challenges his convictions on three grounds:
(a)the verdicts were unreasonable or cannot be supported having regard to the evidence;
(b)a miscarriage of justice occurred by reason of the failure of the trial judge to direct the jury not to use, as evidence, questions asked by police officers during the appellant’s record of interview, and in particular questions which put the complainant’s version of events to the appellant; and
(c)a miscarriage of justice occurred by reason of the failure of the trial judge to direct, with sufficient detail, how the records of interview with Zevenbergen could be used.
The rape counts – principal and parties
The way in which the rape counts were framed were a combination of principal offender and party offenders. They can be summarised as set out below.
Count 3 – Rape
Zevenbergen penetrated the complainant’s vagina with his penis. Zevenbergen was aided and/or encouraged by:
(a)Doran: by putting his hand over the complainant’s mouth, and/or inserting his penis into her mouth (Count 4), and/or his continued and deliberate presence during the rape;
(b)Butler: through his continued and deliberate presence during the rape; and
(c)Sealey: through his continued and deliberate presence during the rape.
Count 4 – Rape
Doran penetrated the complainant’s mouth with his penis. Doran was aided and/or encouraged by:
(a)Zevenbergen: by his act in Count 3, and/or by holding onto the complainant and/or his deliberate or continued presence during Doran’s act;
(b)Butler: through his deliberate and continued presence during Doran’s act; and
(c)Sealey: through his deliberate and continued presence during Doran’s act.
Count 5 – Rape
Butler penetrated the complainant’s vagina with his penis. Butler was aided and/or encouraged by:
(a)Doran: by his act in Count 3 and/or his deliberate and continued presence during Butler’s act;
(b)Zevenbergen: by his act in Count 3 and/or his deliberate and continued presence during Butler’s act; and
(c)Sealey: through his deliberate and continued presence during Butler’s act.
Count 6 – Rape
Doran penetrated the complainant’s vagina with his penis. Doran was aided and/or encouraged by:
(a)Zevenbergen: by his act in Count 3, and/or by holding onto the complainant and/or his deliberate and continued presence during Doran’s act;
(b)Butler: through his deliberate and continued presence during Doran’s act, or by his own act of rape that occurred immediately before it; and
(c)Sealey: through his deliberate and continued presence during Doran’s act.
Count 7 – Rape
Sealey penetrated the complainant’s vagina with his penis. Sealey was aided and/or encouraged by:
(a)Doran: by his previous act(s) of rape and/or his deliberate and continued presence during Sealey’s act;
(b)Zevenbergen: by his act in Count 3 and/or by his deliberate and continued presence during Sealey’s act; and
(c)Butler: through his deliberate and continued presence during Sealey’s act, or by his own act of rape that had occurred immediately before it.
Approach to the grounds of appeal
As each appellant raises a ground of appeal contending that the verdicts were unreasonable or cannot be supported having regard to the evidence, it is convenient to commence with those grounds first. Success on that ground would lead to verdicts of acquittal.
Unreasonable verdicts – legal principles
The legal principles applicable where the ground is that the verdict was unreasonable are well known. They were recently restated in Dansie v The Queen.[6] Dansie reaffirmed the approach set out in M v The Queen:[7]
[6](2022) 96 ALJR 728; [2022] HCA 25.
[7](1994) 181 CLR 487; [1994] HCA 63.
The Court reaffirmed the relevant task as being that laid down in M v The Queen:[8]
“[8] That understanding of the function to be performed by a court of criminal appeal in determining an appeal on the unreasonable verdict ground of a common form criminal appeal statute was settled by this Court in M. The reasoning in the joint judgment in that case establishes that ‘the question which the court must ask itself’ when performing that function is ‘whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’, that question being ‘one of fact which the court must decide by making its own independent assessment of the evidence’.
[9]The joint judgment in M made clear that ‘in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses’. The joint judgment equally made clear how those considerations are to impact on the court’s independent assessment of the evidence. That was the point of the carefully crafted passage in which their Honours stated:
‘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 [on the unreasonable verdict ground]. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by a jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.’”
[8]Dansie at [8]–[9]. Citations omitted.
The High Court also said:[9]
“[12] The authoritative guidance to be gained from the joint judgment in M has not diminished with time. M was unanimously affirmed in MFA v The Queen and again in SKA v The Queen, where it was spelt out that the ‘test set down in M’ required a court of criminal appeal to undertake an ‘independent assessment of the evidence, both as to its sufficiency and its quality’ and that consideration of what might be labelled ‘jury’ questions does not lie beyond the scope of that assessment. Coughlan v The Queen illustrates that an independent assessment of the evidence in a case in which the evidence at trial was substantially circumstantial requires the court of criminal appeal itself ‘to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard’ and in so doing to form its own judgment as to whether ‘the prosecution has failed to exclude an inference consistent with innocence that was reasonably open’.”
[9]Dansie at [12]. Citations omitted.
In Pell v The Queen,[10] the Hight Court said:
“[39] The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.”
[10](2020) 268 CLR 123; [2020] HCA 12 at [39]. Citations omitted.
In R v Miller,[11] this Court said:
“[18] An appellant who contends that the verdict of the jury was unreasonable or that it was unsupported by the evidence must identify the weaknesses in the evidence and must then also demonstrate that these weaknesses reduced the probative value of the evidence in such a way that the appellate court ought to conclude that even making full allowance for the advantages enjoyed by the jury there is a significant possibility that an innocent person has been convicted. The mere identification of weaknesses in the prosecution case is not enough to sustain the ground. As Brennan J said in M v The Queen, and as criminal practitioners and trial judges know very well, it is a sad but salutary experience of counsel for the defence that the prosecution’s ‘weak point’ is often brushed aside dismissively by a jury satisfied of the honesty of the prosecution witness.”
[11](2021) 8 QR 221; [2021] QCA 126 at [18]. Citations omitted. Emphasis in original.
The evidence at the trial
The principle evidence at the trial was given by the complainant. In addition, the motel manager was called to give evidence about the events on the morning, and a guest was called to give evidence about what was heard in the early hours of 1 October 2018.
Apart from those witnesses, the bulk of the evidence came from police investigators dealing with the recorded interviews with Zevenbergen and Sealey, forensic testing and DNA results, and other products of the investigations such as CCTV.
A large number of photographs of various items in the motel room were tendered, together with photographs of the complainant when she was in hospital, and diagrams associated with the layout of the room.
The recorded interviews with Zevenbergen were played to the jury, as was the recorded interview with Sealey.
In addition, there were two sets of formal admissions.
A Snapchat video recording was also tendered in evidence. This was taken on the night and shows the complainant asleep in bed while three of the four appellants (Doran, Zevenbergen, and Butler) are visible in the recording.
The complainant’s evidence
The complainant was 18 years and 9 months at the date of the events the subject of the trial. She had met Mr Y only shortly before and booked into a motel room paid by him because she had nowhere else to go. She and Mr Y had a few drinks and engaged in consensual sex.
She described the room in the motel as having a queen bed or double bed in the middle of the room, a lounge area next to that, a kitchen area with a bathroom, and a spa inside.
She identified a number of photographs of the inside and outside of the room.[12]
[12]Exhibits 1–10.
She and Mr Y were drinking and smoking methylamphetamine. She could not recall how many cans of Bundaberg rum she had. Nor could she recall how much methylamphetamine she had during that day. She said she was tired because she had been awake (she thought) for a few days beforehand.[13]
[13]AB 519, lines 31–32.
She said the sexual intercourse she had with Mr Y did not leave any bruises or marks on her body, nor did it leave her with vaginal pain.[14]
[14]AB 518–519.
During the course of the evening, she wanted to get some drugs, particularly Fantasy, and so she communicated with the person known to her as “Steve”, telling him to “[c]ome party”. At the trial, she identified “Steve” as Zevenbergen.[15]
[15]AB 520, line 10.

Zevenbergen, Doran, and Sealey arrived together, after dark. The complainant identified herself and those three appellants on CCTV footage.[16] She also identified the four appellants on CCTV footage showing them leaving on 1 October 2018.[17]
[16]Exhibit 11.
[17]Exhibit 12.
Dealing with the sequence of events in the motel room, the complainant’s evidence in chief contained these elements:
(a)when Zevenbergen, Doran, and Sealey arrived, Mr Y was still there; they were all smoking methylamphetamine, drinking alcohol, and consuming Fantasy;[18]
[18]AB 525.
(b)the drugs were brought to the motel room by Zevenbergen;
(c)she remembered feeling tired, but did not think that the Fantasy had affected her much at all;[19]
[19]AB 526, lines 8–17.
(d)the complainant, Zevenbergen, and Sealey got in the spa; Doran was sitting near the spa; while in the spa, Zevenbergen “came up to [the complainant] and, like, rubbed [her] vagina”; he rubbed her vagina on the outside of the bikini she was wearing;[20] she told him to “fuck off”, and he went away;[21]
[20]AB 526, lines 35–46.
[21]AB 527, lines 3–7.
(e)at the time that happened, Sealey was still in the spa; the complainant got out and went into the shower, where she showered in her bikini; she was alone until Sealey joined her (uninvited), but there was no physical contact;[22]
[22]AB 527, lines 20–47.
(f)when she got out of the shower, she changed into a shirt and underwear and got onto the bed; she identified the shirt and underwear from photographs;[23]
[23]AB 528–529; exhibits 13 and 14.
(g)when she got out of the shower, she noticed another person there, who was introduced to her as “Blaine”;[24] that was Butler;[25] she had not invited him to the motel and had no further interaction with him at that point;
[24]AB 529, lines 16–23.
[25]AB 621, lines 29–39.
(h)when she got onto the bed, there was no one on the bed with her; the four appellants were in the kitchen area, standing around, talking;[26]
[26]AB 529, lines 39–45.
(i)the next thing she recalled was waking up at about 9 am or 9.30 am, and Zevenbergen was next to her, asleep on the bed;[27] Zevenbergen rubbed her vagina again using his hand over the outside of her underwear; she tried to brush him away by grabbing his hand and pushing it away;[28]
[27]AB 530, lines 1–12.
[28]AB 530, lines 16–31.
(j)the complainant was “freaking out a bit” because she had to call Mr Y and see if she could stay another night “because [she] had nowhere else to go and he wasn’t there”;[29]
[29]AB 531, lines 1–4.
(k)at that time, all four appellants were in the room, in the kitchen area;[30]
[30]AB 531, lines 12–16.
(l)when she finished the phone call with Mr Y, she was lying on her stomach; Zevenbergen came up behind her, grabbed the back of her legs and turned her over onto her back; at that point, the other three men were in the room;[31]
[31]AB 531, lines 20–26.
(m)Zevenbergen ripped her underwear off and, when she tried to wriggle away, Doran “came up to [her] and he put his hand over [her] mouth”; while Doran had his hand over her mouth, Zevenbergen started putting his penis in her vagina; Doran was holding her down while Zevenbergen had sex with her; Doran’s hands were on her shoulders and arms; Sealey and Butler were still in the motel room, though she could not see them;[32]
[32]AB 532, lines 24–45.
(n)while Zevenbergen was putting his penis in the complainant’s vagina, Doran put his penis in her mouth; while that occurred, Zevenbergen “came around and came on [her] face”; at that particular point, Doran did not have his penis in the complainant’s mouth, having taken it out;[33]
[33]AB 533, lines 6–28.
(o)once Zevenbergen had removed his penis from her vagina and Doran had removed his penis from her mouth, Butler “put his penis in [her] vagina”; asked how long that occurred for, she said it “wasn’t that long, but he really hurt [her] … [l]ike [her] vagina hurt”;[34]
[34]AB 533, lines 30–46.
(p)while Butler was having sex with her, the complainant said that the other men were still in the room, close to the bed, and “just watching”; but, while Butler was having sex with her, Zevenbergen was holding her down;[35]
[35]AB 534, lines 3–17.
(q)when Butler eventually took his penis out of her vagina, the complainant said that Doran jumped in front of her and put his penis in her vagina;[36]
[36]AB 534, lines 19–24.
(r)she described what had occurred in these terms:[37]
[37]AB 534, line 33 to AB 435, line 9.
“Did that cause you any pain?---Not really. [Butler] caused me a lot of pain – is what I remember - - -
…
When [Doran] was having sex with you, do you remember where the other men were?---[Zevenbergen] was holding me down while [Doran] was having sex with me, and I can’t remember where the other people were, but they were in the room.
All right. In the room – you mean in the sort of bed area?---Yes.
Once [Doran] – or did [Doran] take his penis out of you?---Yes.
And what happened after that?---And then [Sealey].
What did [Sealey] do?---Put his penis in my vagina.
Did you give [Sealey] any consent to do that?---No.
Do you remember what the other men were doing while [Sealey] was having sex with you?---Watching.
And was anyone else touching you?---I can’t remember. I was just looking at the ceiling thinking I was going to die.”
(s)the complainant said she was trying to tell the four men to stop, but she couldn’t “‘cause they had their hand over [her] mouth”; she said both Doran and Zevenbergen did that, “[p]retty much the whole time”; as well, Doran gagged her with a sock at the start;[38]
(t)the complainant said that Sealey did not have sex with her for long, because someone was knocking at the door;[39]
(u)during the course of the incident, the complainant said “someone was holding down [her] legs”, though she could not remember who it was; they were using their hands to hold her legs down; no one was saying anything and no one used a condom;[40]
(v)while Sealey was still having sex with her someone knocked on the door; all four appellants started packing up their things to get out of there; the complainant said she was in shock and didn’t know what to do, but then she jumped in the shower, crying and in a lot of pain in her vagina;[41]
(w)before she got in the shower, Zevenbergen told her, “[d]on’t fucking say anything”;[42]
(x)when she got out of the shower, she answered the door, and Mr Y and the motel manager were there;
(y)she recalled that Doran took a photograph of her ID; that happened before she fell asleep;[43]
(z)the complainant told Mr Y that she had “basically just got raped”, and the police were called;
(aa)the complainant described her injuries in this way: “My vagina was torn and I had bruises … [l]ike, my knee area and my … all down, like, my legs”; asked if she had bruises elsewhere, the complainant said “[m]y arms”;[44]
(bb)when she woke up, the complainant saw that Butler had drawn on her arm and her leg with a Sharpie pen; it was only when she was in hospital that she noticed that there were also drawings on her stomach;[45] the complainant identified photographs of the markings that had been drawn on her.[46]
[38]AB 535, lines 11–26.
[39]AB 535, lines 31–32.
[40]AB 535, line 37 to AB 536, line 1.
[41]AB 536, lines 3–19.
[42]AB 536, lines 26–27.
[43]AB 536, lines 30–38.
[44]AB 537, lines 7–13.
[45]AB 537, lines 15–21.
[46]Exhibits 15–18.
The complainant was taken to hospital where she stayed for several days. She said she was bleeding and in pain. She identified photographs of herself while in hospital, showing the bruises on her legs and arms.[47] She said she did not have those bruises before the four appellants had sex with her.
[47]Exhibits 19–24.
The complainant also identified what could be seen in the Snapchat video, namely herself asleep on the bed, Doran filming it, and Butler and Zevenbergen in the background.[48]
[48]AB 544–545; Exhibit 27.
Cross-examination of the complainant
It is convenient to deal with the cross-examination of the complainant in several compartments. She was cross-examined by counsel for each appellant. Each followed some similar areas, with some areas individual to each appellant. One central feature that was common to all was the cross-examination concerning the complainant’s drug history, drug use, and personal background. It is to that area that I turn first.
Complainant’s background
The complainant was cross-examined about the fact that she had an account on a website called Locanto. As the complainant explained, it was a website for people to pay other people for sex. The appellant explained that she advertised personal services, but “that was after everything happened with this, yes”.[49] As to that, the complainant accepted:
[49]AB 547, lines 43–47.
(a)she advertised sexual services on that website;[50]
[50]AB 548, lines 1–29.
(b)one of the persons she had been communicating with on Locanto was a man called Mr S, who told her that he wanted to be part of a threesome; she met Mr S at the house of a friend of her then boyfriend, Mr N, and introduced Mr N as her brother;[51]
[51]AB 557–558.
(c)Mr S came to pick the complainant up. Both Mr N and the complainant got into Mr S’s car. Mr N originally asked to be taken to a service station to meet some friends. When those friends did not arrive, Mr N requested to go back to Mr S’s residence to which Mr S agreed; they all went to the Helensvale Tavern to play pokies and then back to Mr S’s house; at the house, the complainant and Mr N smoked methylamphetamine together; the complainant asked Mr S if he wanted to have sex with her; she explained that she was “really bad on drugs back then … and in a very abusive relationship”; she produced a knife which she pointed at Mr S, and Mr N produced a gun; they then searched the bedroom for items of value, stabbed holes in the bed linen, and caused a wound across Mr S’s arm with the knife; the complainant and Mr N then took Mr S’s personal property and demanded eight hundred dollars from him; Mr S was put in the front passenger seat of his own car and, still brandishing the handgun, Mr N drove while the complainant was seated behind Mr S holding a knife to the back of his neck; Mr N forcibly removed a CB radio set from the car and at one point threatened Mr S with the firearm; they travelled back to where the complainant had been picked up and made further demands for eight hundred dollars; Mr N threatened Mr S and warned him against going to the police;[52]
[52]AB 558–561.
(d)on another occasion, the complainant connected with a person called Mr M, via Locanto; she stayed one or two nights with him at a motel in Surfers Paradise following which they both checked into another motel; the arrangement the complainant had with Mr M was for the provision of sexual services; while Mr M went to play the poker machines, the complainant contacted two men, via the Locanto site, asking them to come over; the two men were friends of the complainant; the friends eventually left and then Mr M returned; Mr M emptied her handbag onto the bed and discovered that the complainant was carrying a knife in it; he started throwing the complainant around the room so she grabbed the knife and accidently slit him on the hand; Mr M was being abusive towards her and was going to lock her in the room, so she took his wallet and car keys; though she was not aware of it at the time, the wallet contained four thousand dollars in cash and a TOB chip for two thousand two hundred dollars; Mr M did not get the money back;[53]
[53]AB 561–563; AB 570.
(e)the complainant was cross-examined about her criminal history which extended to New South Wales and Queensland, and included a conviction for dishonesty and for offences of violence;[54] the complainant agreed that she had committed criminal offences when she was using drugs, and had had a drug habit since she was 16;[55]
(f)some of the offences that she was cross-examined about included drug related offences,[56] negligent driving, and not paying for petrol;[57]
(g)other offences included fraud in respect of a client from the Locanto website,[58] unlawful wounding and stealing property, and armed robbery in company; sentences were imposed against the complainant in respect of those events, which concerned Mr M and Mr S;[59]
(h)the complainant agreed she had been under the care of psychologists for many years, from the age of 5;[60]
(i)as to the events on 30 September and 1 October 2018, the complainant accepted she was, at that time, a heavy user of both drugs and alcohol, but mostly drugs, and had built up a tolerance to drugs; in the lead up to those events, she had been smoking a lot of methylamphetamine over the previous day or so;[61]
(j)in the period after the events in question, the complainant saw a psychologist; she told the psychologist she wanted to stop frequent high risk unprotected sexual activity; she meant that she had had sex with people when she was intoxicated;[62]
(k)the complainant agreed she had attended drug rehabilitation on two occasions, and had been kicked out once;[63] she said she had been kicked out because she and another person were flirting and that was making other people feel uncomfortable;[64]
(l)in terms of her criminal history, the complainant was asked about an occasion where she and Mr N met the person Mr S; she agreed that they tied Mr S’s hands together;[65]
(m)the complainant accepted that she was using the Locanto service, at least in part, to rip people off;[66] and
(n)the complainant accepted that when she was interviewed by police after the incident involving Mr M, she agreed with them that she had a tolerance for methylamphetamine; she said at that time she was “very bad on drugs”.[67]
[54]AB 548–549.
[55]AB 549, lines 11–17.
[56]Such as driving with an illicit substance in the blood, possession of prohibited drugs, and possession of utensils or pipes used for the consumption of drugs.
[57]AB 549–553.
[58]Taking part of the negotiated price for services and then leaving.
[59]AB 557–558.
[60]AB 578, lines 7–12.
[61]AB 601, lines 27–47.
[62]AB 636, line 37 to AB 637, line 16.
[63]AB 637, lines 37–42.
[64]AB 638, lines 1–4.
[65]AB 638, lines 6–21.
[66]AB 638, lines 27–28.
[67]AB 641, line 44 to AB 642, line 20.
Cross-examination on behalf of Butler returned to the complainant’s use of the Locanto website. The complainant was asked about the occasion when she left having taken some money from a client, and she agreed that she had pleaded guilty to those offences, and that they involved ripping off people she had met through Locanto.[68] She explained that occasion in this way:[69]
“Can I just say that I was in a very, very abusive relationship. It was a drug-fuelled relationship and he used to sell me off to these guys and that’s why I went to jail with a black eye – you can even look up the photo – because he was – yeah. … So I didn’t really have a choice in the matter but to rip ... people off and get money for him. Yep.”
[68]AB 645, lines 39–45.
[69]AB 645, lines 30–39.
The complainant accepted that when she had earlier said she only had one offence of dishonesty, that was not true, now it was put that way. However, she reiterated that she did not really have a choice.[70]
[70]AB 646, lines 1–18.
She was cross-examined about the incident with Mr M and accepted that she had stolen his wallet, but reiterated that she did not realise it had any money in it at all.[71] She accepted that she had pleaded guilty to having stolen the cash in the wallet.
[71]AB 646, lines 20–25.
She was then cross-examined further about the incident with Mr S. When it was put to her that a gun had produced, she disagreed saying it was a “gel blaster”.[72] Once again, she accepted that she had pleaded guilty to the charges. She explained the use of false names for herself and Mr N, and said that “we never used our – I never used my real name ever … even just working, actually working, I never used my real name”.[73]
[72]AB 647, lines 3–4.
[73]AB 648, lines 22–24.
She accepted that a review of the occasions on which she had gone to court and pleaded guilty revealed about thirteen offences, five drug related, one breach of trust, two frauds, a robbery, a stealing, a deprivation of liberty, an unlawful use of a motor vehicle, an unlawful wounding, and a further stealing of property.[74] She also accepted that, in New South Wales, there were seven offences including twice driving with illicit drugs in the blood, and two charges of possession of a prohibited drug.[75]
[74]AB 648, lines 31–43.
[75]AB 648, line 45 to AB 649, line 14.
The complainant agreed that her background included:
(a)she ran away from home when she was 13;
(b)she began smoking cigarettes and drinking alcohol when she was about 13;
(c)she commenced smoking cannabis at 13;
(d)from about 16 she commenced with methylamphetamine; thereafter she became addicted;
(e)she had a car accident when she was about 19;[76]
(f)from about 5 years of age, she was seeing psychologists and counsellors;
(g)as a consequence of the car accident, she experienced flashbacks; she was able to move past them with the help of a psychologist.[77]
[76]AB 649–650.
[77]AB 652.
The complainant was cross-examined about her knowledge of Mr Y and Zevenbergen. It was suggested that she had only known Mr Y for a short period of time, and that she did not even know his last name, and she agreed. She said that she did know Zevenbergen’s last name.[78] She said of Mr Y that he had given her a lift to get her things from Toowoomba, then booked a motel room for her because she had nowhere to go. She accepted that she was in a “pretty bad way” in terms of her own personal circumstances at that time. When she booked into the motel, all her worldly-possessions were packed up in five bags.[79]
[78]AB 655.
[79]AB 655–656.
She accepted that she was on a methylamphetamine “bender”, but it was not as long as a week, but only “for a few days”.[80]
[80]AB 656, line 29 to AB 657, line 9.
In re-examination, the complainant was asked to clarify some parts of her evidence concerning her background and some of the offences she was involved in. Relevant points made were as follows:
(a)when she said she carried a knife “after it all happened”, she said that meant after the four appellants had raped her; she explained she was “scared to meet up with other guys and … scared it was going to happen again. So [she] always carried a knife”;[81]
(b)the thirteen offences she had in Queensland were all subsequent to the events in which the four appellants were involved;[82]
(c)all of the New South Wales offences were related to drug offending and driving with drugs, and four of them occurred on the one date (27 June 2018), with the remainder having been committed after the events concerning the appellants;[83]
(d)as to the occasion when she left having taken money from a Locanto sourced client, she explained that Mr N was waiting for her in the carpark the whole time, and it was Mr N with whom she had a domestic violence relationship; she explained that it was Mr N’s idea to scam and rip people off, and he was the one who created her Locanto account; explaining why she agreed to do those things with Mr N, she said, “I don’t know … I thought I loved him. I don’t know, I was just stuffed up on drugs, I suppose”;[84]
(e)in relation to the incident involving Mr M, she explained that, prior to him being cut with the knife, he was throwing her around the room, emptied out her handbag on the bed, grabbed her and pushed her on the bed, and that was “how [she] grabbed the knife in the first place”; she went on, that Mr M “came up behind [her] trying to grab [the knife] off [her], and that’s how he cut himself”; she gave the wallet back to the police, but agreed she spent the money;[85] and
(f)in relation to her drug addiction, the complainant said she was in a worse position when she committed the offences than she was in October 2018; she said she “was worse after all of that happened”; asked if there was something in her life which she could pinpoint that had increased her drug use and addiction, she said “[d]efinitely what happened with those guys and my car accident”.[86]
[81]AB 677, lines 34–41.
[82]AB 678, line 46 to AB 679, line 1.
[83]AB 679, lines 3–11.
[84]AB 679, line 25 to AB 680, line 2.
[85]AB 680, lines 14–33.
[86]AB 681, lines 4–17.
Cross-examination – Events at the motel

The sequence in which the complainant was cross-examined (by a reference to the appellants) was: Zevenbergen, Doran, Butler and then Sealey. Cross-examination occupied more than 130 pages of transcript over two days, commencing at 11.48 am on day two and finishing at about 1.20 pm on day three.
Cross-examination for Zevenbergen
The complainant said that, when she spoke to police outside the motel and at the hospital later that day, her memory was clear and she “knew exactly what had just happened to [her]”.[87] She said she was not affected by drugs at that point because she had just slept.
[87]AB 580, lines 20–32.
She explained that her responses to the police while seated in Mr Y’s car outside[88] were because she was not comfortable with telling someone she had just met what had happened to her. She said she “wasn’t comfortable talking about it to anyone”.[89]
[88]That she only remembered “[a] little bit” of what happened.
[89]AB 581, lines 21–27.
The complainant denied that, at that time, her short-term memory was affected, saying “if anything, it was [her] long-term memory”.[90] She explained her reluctance to speak to the police officer while she was in the car was because she had just met that person, and she was really traumatised about what had just happened, “[i]t was probably not even half an hour after. It just happened”.[91]
[90]AB 582, lines 19–22.
[91]AB 583, lines 3–12.
The complainant was cross-examined about her response to the police officer outside. When asked by the police officer if she had been sexually assaulted, she replied no. When asked further by the police officer if she wanted to talk about it, she responded no. She responded to counsel’s line of questioning in these terms:[92]
“Why would I admit myself to a hospital, then, and why did – why did all my – yeah, everything, like, was torn and all the rest of it and – you know?”
[92]AB 582, lines 42–44.
Still being questioned about her memory and whether it was affected by drug use, the complainant explained she was not on drugs at the time she was giving evidence, having ceased a few weeks beforehand. She was asked about a comment she made to the prosecutor that she had experienced a lot of dreams and flashbacks. The complainant agreed she said that. The exchange continued:[93]
“Dreams about what?---What had just happened.
What had – what was it that had just happened?---Being brutally raped by four guys.
It’s not the case that your drug use over many years has affected your memory?---No.
Does the use of methylamphetamine cause you to have dreams and flashbacks?---No.
Does the use of GHB – Fantasy, Frank, ecstasy - - -?---I don’t even – when I was on it, I did not even use it that often, no.”
[93]AB 584, lines 25–35.
The complainant explained why she disagreed that she had a poor memory as to the particular events:[94]
“You’ve got a poor memory, haven’t you?---Yes, I do have a poor memory when it comes to certain things, but not things like that.
And your poor memory is consistent with your long-term drug use?---Probably, but I remember traumatic things that happened to me.”
[94]AB 585, lines 5–9.
The complainant was cross-examined about clothing that was found near the spa and the absence of any sign of a bikini. She explained that when Zevenbergen was leaving the motel, he had a bag full of her clothing and “everything was missing after they left”.[95] She denied the propositions that, when she was in the spa bath with Zevenbergen, she was not in a swimsuit, but rather in a bra and underwear, and that when Zevenbergen went to touch her vagina, she stood up and removed her underpants before throwing them over the side of the spa.[96]
[95]AB 579, lines 42–46; AB 587, lines 5–8.
[96]AB 587, lines 17–23.
The complainant agreed that, when she invited Zevenbergen over, she was running low on methylamphetamine, and Zevenbergen brought methylamphetamine and the Fantasy. She denied that the Fantasy was produced by herself.[97]
[97]AB 588, lines 21–38.
The complainant agreed that, when she got in the spa, it was with Sealey and Zevenbergen.[98] Mr Y left at about the same time. The complainant denied the proposition that, when Mr Y left the apartment, she removed her underwear, saying she disagreed “a hundred-and-ten per cent”.[99]
[98]AB 589, lines 31–35.
[99]AB 589, lines 40–44.
The complainant denied the proposition that, whilst in the spa, she was tracing the tattoos on Zevenbergen’s chest and torso.[100]
[100]AB 589, line 46 to AB 590, line 7.
The complainant said that all of the assaults on her (with the exception of those which occurred in the spa) occurred in the period between when she woke about 9.30 am and when someone banged on the door at about 10 am.[101] When the knock came on the door, the appellants were still in the room. It was the knocking on the door that “made them stop”.[102]
[101]AB 590–591.
[102]AB 592, lines 9–14.
A number of propositions were put to the complainant on behalf of Zevenbergen, and the complainant responded to them:
(a)when there was knocking on the door, Mr Y started yelling out; the complainant disagreed with that saying she just remembered the knocking, “really loud knocking”;[103]
[103]AB 593, lines 40–44.
(b)it was suggested that a telephone call had been made to motel reception at about 8 am or shortly thereafter from the room she was in, but she did not remember that occurring; she denied that she asked Zevenbergen to check to see if the room could be extended;[104] she also denied that Zevenbergen called reception;
[104]AB 594, lines 23–33.
(c)she disagreed that Zevenbergen and the other appellants left after Mr Y and the motel manager appeared at the door, saying they left before that;[105]
[105]AB 594, lines 35–47.
(d)she said that they were all gone when she got out of the shower, and denied the proposition that, when she opened the door to Mr Y, the appellants “piled out”, and that Mr Y was upset to see them still in the room;[106]
[106]AB 595, lines 1–5.
(e)she agreed that she invited Zevenbergen over for the purposes of bringing methylamphetamine because she was in the middle of a methylamphetamine bender and was running low; Zevenbergen said he was with a friend, and the complainant said that was fine; then Zevenbergen “rocked up with two guys … then when [she] got out of the shower, after the spa, there was a third guy”;[107]
(f)it was put to her that she did not go to the police and did not want to make any drama out of what had occurred; she replied: “Yeah, but I wouldn’t be here today … there’s no way … [i]t’s not that I didn’t want to. I found it very, very, very hard to be here today”;[108]
(g)the complainant was questioned as to why she had missed going to court on a previous date, and explained:[109]
“Well, there’s a lot of reasons why I didn’t show up. I haven’t seen my family for over a year because of the border closures. I just got out of jail. I just got kicked out of my house. Lucky enough, I have a really good friend with me right now that actually cares enough, like, as much as my family does. And so – yeah. I’m here now because I have support and – to get through this, you know? I can’t get through this by myself. There’s no way.”
(h)the complainant denied, when it was put to her, that sexual activity with Zevenbergen was consensual, that he climbed into bed beside her and masturbated her to orgasm, that she performed oral sex on Zevenbergen in the morning and he had sexual intercourse with her, that he was not the first person to have sexual intercourse with her that morning, and at no point did he ejaculate on her;[110]
(i)the complainant explained that, when Zevenbergen ejaculated onto her face, she did not wipe it off because she “was being held down. [She] was being held down and gagged”;[111]
(j)the complainant denied, when it was put to her, that at no point did either Zevenbergen or anybody else apply a gag to her;[112] and
(k)the complainant denied the propositions put to her that there was no sexual assault, that everything had happened with her consent, and that the sexual activity had begun much earlier than she said, namely just after the sun came up.[113]
[107]AB 595, lines 7–28.
[108]AB 595, line 45 to AB 596, line 4.
[109]AB 596, line 44 to AB 597, line 3.
[110]AB 597, line 30 to AB 598, line 5.
[111]AB 598, lines 19–20, AB 600, lines 29–40.
[112]AB 600, lines 42–46.
[113]AB 601, lines 1–10.
Cross-examination for Doran
In reviewing this area of the case, I intend only to deal with points that are additional to, or different from, those dealt with in respect of the cross-examination for Zevenbergen.
The complainant agreed that she was a heavy user of drugs as at the date of the events, and had built up a tolerance to them, but she was still capable of making her own decisions and, whilst she had tolerance, that did not mean that the drugs had no effect on her.[114]
[114]AB 601, lines 27–39.
The complainant was asked about a statement she made to police that “[o]ver the last couple of days [she] probably smoked a ball of meth”. She did not deny telling that to police, but said, “I don’t know how much meth I smoked back then”.[115] She agreed that she had quite a bit of methylamphetamine with Mr Y on the evening in question.
[115]AB 603, lines 15–21.
It was put to her that, around 3 am, she would have been out on the balcony. She replied, “I don’t know. I’m sure that I was asleep by … 3 am”.[116] She disagreed with the proposition that, at about 3 am, she would have been in the spa, talking loudly, and listening to music.[117]
[116]AB 604, lines 41–46.
[117]AB 605, lines 1–2.
It was suggested to the complainant that she must have promised something to Mr Y in return for him picking her up, taking her from the Gold Coast to Toowoomba and back, and then renting the motel room with one bed. The complainant denied that, saying, “[n]o, it wasn’t like that at all. He was just being kind because I had nowhere to go”.[118] She denied the proposition that her consumption of drugs increased her desire to want to have sex with Mr Y. She accepted that she had at least three pipes of methylamphetamine with her, that she was in the mood to party that afternoon, and that it was probably correct that she had sex with Mr Y at about 7 pm.[119] The complainant said that, during the sex with Mr Y, he did not have hold of her legs or arms.
[118]AB 607, lines 26–30.
[119]AB 607, line 35 to AB 608, line 13.
She denied the proposition that some of the bruises she had were from the sex with Mr Y, and denied that she had sex with anyone else in the two days prior to the events in question.[120]
[120]AB 608, lines 15–43.
It was put to her that, when she spoke to Zevenbergen, she knew that one of the friends coming with him was Doran. The complainant disagreed. She also disagreed that she had been messaging Doran on Facebook on the night of 30 September 2018, even though they were Facebook friends.[121]
[121]AB 610, lines 19–30.
The complainant said that Zevenbergen simply said he was with a friend, and she did not know who that friend was until they arrived and Doran introduced himself.[122]
[122]AB 611, lines 1–3.
The complainant was cross-examined about her knowledge of Fantasy. It was suggested that it was a drug she had had before, that it was a party drug, and that it can increase sex drive.[123] It was also suggested that she wanted to feel those effects on that night, and she responded:[124]
“No. I didn’t want to feel those effects. I just took it in this instant [sic].
Well, you knew what the drug did. You wouldn’t have taken it if you didn’t want the drug to have that effect on you, isn’t that right?---I didn’t ask for any of what happened to me to happen to me. And by taking a – by taking a little bit of Frank, I didn’t ask for anything of that to happen to me.”
[123]AB 612, lines 1–15.
[124]AB 612, lines 20–26.
The complainant denied the proposition that Doran did not have any of the Fantasy.[125] The complainant agreed she felt energised and happy after taking the Fantasy and that was consistent with the effect she had experienced from it in the past.[126]
[125]AB 612, lines 40–41.
[126]AB 612, line 43 to AB 613, line 3.
The complainant agreed that Doran sat on a chair outside the spa and did not actually get in. She also agreed that she was telling him he should come in.[127] However, she denied the propositions that she really wanted him to get in the spa, that she was flirting with him, and that she was keen on him.[128]
[127]AB 613, lines 40–44.
[128]AB 614, lines 1–6; AB 619, lines 3–5.
The complainant denied the proposition that Doran asked, “at first jokingly”, whether the complainant would sleep with him, and that she said she would.[129]
[129]AB 619, lines 7–11.
As to the incident in which Zevenbergen touched the complainant in the spa, she was asked whether she was suggesting that she got out of the spa because Zevenbergen had touched her. The complainant said that was what she was suggesting.[130]
[130]AB 620, lines 4–21.
The complainant denied the proposition that, having got out of the spa, she got back in a second time with Zevenbergen and Sealey.[131] When it was put to her that, on the second occasion, she took her “bottoms off” and only had her top on, she denied that proposition.[132]
[131]AB 620, lines 40–47.
[132]AB 621, lines 1–3.
As to the presence of Butler, the complainant said that the others did not say anything about bringing anyone, nor that Butler was a tattoo artist. However, she could remember Butler saying that he was a tattooist. She denied saying in the conversation that she was interested in getting a tattoo herself.[133]
[133]AB 621, lines 16–39.
The complainant denied that she was asked if Butler could come around, that she was told his nickname, that she was happy for him to come over, and that at some point Doran referred to Butler being there and left the unit. She said that when she got out of the shower, Butler was there and she “didn’t have a choice in the matter”.[134]
[134]AB 621, line 38 to AB 622, line 16.
The complainant accepted that she told police that she had been in the shower with Sealey for 15 minutes, because she “had a very clear memory back then because it had just happened, so”.[135] However, she accepted that she told police that, when Butler arrived, she greeted him, saying: “Hi, I’m [the complainant]. Nice to meet you”.[136]
[135]AB 622, lines 22–33.
[136]AB 623, lines 18–23.
A number of propositions were put on behalf of Doran, and denied by the complainant, including that:[137]
[137]AB 624–627.
(a)after Butler arrived, she continued to smoke methylamphetamine with the other three;
(b)she did not go to bed straight away and stayed up;
(c)Doran fell asleep on a dining chair in the kitchen;
(d)the drawings on her leg were done whilst she was awake, but Doran was asleep;
(e)at the moment Zevenbergen and the complainant were having sex, Doran was not in the room, and only came into the room after sex between the complainant and Zevenbergen had started;
(f)the complainant and Zevenbergen were both on their sides on the bed, and the complainant was moaning in pleasure;
(g)Doran then made a smartass comment like, “I thought you were going to sleep with me”;
(h)the complainant replied that she would;
(i)she then consensually sucked Doran’s penis;
(j)she then consensually engaged in vaginal sexual intercourse with Doran;
(k)Doran was nowhere near the bed when she engaged in sexual activity with Butler;
(l)after all the sex finished, she announced she was going to contact Mr Y to see if she could get the room for another night;
(m)Doran never took a picture of the complainant’s ID;
(n)Doran never put his hand over her mouth or a sock in her mouth;
(o)Doran never held her down; and
(p)Sealey never had sex with her.
Counsel put to the complainant that Doran never threatened her in any way. Her response was that, “[a]fter it all finished [Zevenbergen] was the only [one] who threatened [her]”.
The complainant reiterated her evidence that she was being raped by Sealey when the knocking on the door commenced.[138] The complainant accepted that she could have told a paramedic that morning that she had been vaginally raped by four men.[139]
[138]AB 628, lines 17–18.
[139]AB 628, lines 44–46.
It was put to the complainant that Mr Y suggested she make a false rape complainant because of the state of the room and the fact that the police had already been called. She disagreed. She denied that she had made a false rape complainant so that she might have somewhere else to go, and denied the suggestion that sexual activity with Doran “and in his presence” occurred with her consent.[140]
[140]AB 636, lines 17–32.
It was put to the complainant that, on the night in question, she had taken intoxicants, already slept with Mr Y, then wanted to keep partying, willingly had sex with Doran, and engaged in sexual activity with others. The complainant answered: “Absolutely not. I think I’ve made it very clear that I consensually had sex with [Mr Y] and did not consent to any of those men even touching me”.[141]
[141]AB 637, lines 31–35.
Cross-examination for Butler
As indicated before, when reviewing this cross-examination, I intend only to deal with points that add to or depart from what has been reviewed earlier.
The complainant agreed that once she woke up and told Zevenbergen to “fuck off out of bed”, the sequence of events involving the four appellants must have happened within about 20 to 30 minutes.[142]
[142]AB 661, lines 4–20.
The complainant accepted that, when she had a conference with the prosecutors in July 2020, she told them that she did not have a good memory of what had happened on the night in question.[143] She was then asked whether she had read her statement to refresh her memory and she answered:[144]
“Do I take it that you had to read your statement a day or two ago to refresh your memory?---To refresh my memory about, like, little things and stuff, you know. Obviously I know exactly what happened – what – the reason why we’re here today. Obviously that’s not a blur. Never will be. So - - -
Well?---But I’m just – yeah.
It – it’s not a blur?---Like, timelines and things like that, because – yeah.
All right. But one of the things you told [those in the conference] was that – you said this in relation to your memory: you can’t remember a lot; that your memory was, in fact, blurry?---Yeah. I meant of things that didn’t matter as much.”
[143]AB 663, lines 9–27.
[144]AB 663, line 38 to AB 664, line 3.
A series of propositions were put to the complainant on behalf of Butler, and she disagreed with them, occasionally adding a comment:[145]
[145]AB 664, line 19 to AB 667, line 26.
(a)when Butler arrived, he was introduced as a tattooist;
(b)she started talking to Butler about getting a tattoo;
(c)the drawings on her leg were done while she was awake; she answered by saying “[s]trongly disagree … [t]hat’s not the truth at all … I don’t see a reason why I would want someone to draw all over me like that. Especially all the dicks on my stomach”;
(d)when she woke up, she spoke to Zevenbergen about trying to get the room for another night;
(e)there was “a series of events which occurred with these men that were consensual”; she responded by saying: “That’s not the truth. That’s not the truth. … Wouldn’t be here today if it was consensual”;
(f)that, while she was lying in the bed, she motioned Butler to come to the bed; she responded: “Disagree. … That’s not the truth at all. ... That is not the truth at all”;
(g)she told Butler that she wanted to have sex;
(h)he lied on the bed and each of them started rubbing each other; she responded: “Disagree. That’s all a lie”;
(i)she was rubbing his penis but he could not get an erection;
(j)Butler went outside and came back a few minutes later to where she was, and she grabbed his penis through his pants;
(k)he was having trouble getting an erection;
(l)he then pulled his penis out and started masturbating and, as a result, ejaculated over her face; and
(m)at no stage did Butler hold her down.
Cross-examination for Sealey

The same approach is taken in respect of this cross-examination as with the others.
The complainant agreed that she had a particular mobile phone number on the night in question. She had never met Sealey before. She had never spoken to him, nor did she know anything about him. While she could not remember the conversation she had with him, she did sit down and have conversations with everyone there.
She denied the proposition that Sealey got out of the spa before her, then getting into the shower where the complainant joined him.[146] However, she agreed that whilst they were in the shower, there was no inappropriate or sexualised behaviour by him.[147]
[146]AB 670, lines 37–39.
[147]AB 670, line 41; AB 671, lines 4–7.
The complainant denied telling Sealey that Mr Y considered that he owned her, and that Mr Y considered that the complainant was “his thing”. She responded that she was attracted to Mr Y and that was why she slept with him.[148] She denied telling Sealey that she did not want to be there but had nowhere to go, and that the only reason she was there was because Mr Y was paying.[149]
[148]AB 671, lines 38–44.
[149]AB 672, lines 1–5.
The complainant denied that Sealey had said that he and the complainant could leave and he would help pack her gear. She also denied that she gave Sealey her mobile phone number and that she had a text conversation with him. That passage included this exchange:[150]
“All right. I suggest to you that you provided ... Sealey with your mobile phone number?---No.
And I suggest to you that you had a – a text conversation with him. What do you say about that?---Why would I have a text conversation with him when he was right there.
I suggest that he was typing to get you to leave and he didn’t want the others to know?---That didn’t happen.
Didn’t happen?---No.”
[150]AB 672, lines 10–25.
The complainant was then shown a document containing text messages.[151] She was directed to the telephone number at the top, being the telephone number she had already agreed was her own. She then denied that that was her number.[152]
[151]MFI #B.
[152]AB 672, lines 34–47.
A number of propositions were then put to the complainant and she disagreed with them:[153]
(a)Sealey helped her put her belongings in bags, and put them near the TV; the complainant added that, in the Snapchat video, “you can clearly see [Zevenbergen] packing up all my bags … while I was asleep”;
(b)Sealey came and laid beside her on the bed; she added, “I just remember falling asleep. I never invited anyone into the bed. I never wanted anyone in the bed”;
(c)Sealey asked her if it was okay to lie down before he got in the bed;
(d)she asked one of the other men to draw on her leg because she was considering getting a tattoo; and
(e)in the Snapchat video, Sealey was in the bed next to her, under the covers.
[153]AB 673–675.
The complainant was asked about where Sealey was whilst the other men were having sexual intercourse with her in the following exchange:[154]
[154]AB 675, line 40 to AB 676, line 32.
“Now, at the time that the other three men were having sexual intercourse with you, or dealing with you in a sexual way, do you know where ... Sealey was?---They were all there.
What was ... Sealey doing?---Watching.
Where was he standing in the room?---On the bed.
He was on the bed?---They were all on the bed, yes.
All on the bed. All right. Can I – you can’t place him in any particular position?---I didn’t really take attention to detail. I was just staring at the sealing [sic] thinking I was going to die, to be honest.
All right. And when ... Sealey was having intercourse with you his face would have been close to your face; is that correct?---Yes.
You would have been able to see his face, wouldn’t you?---I was trying not to look at him.
…
What I’m going to ask you is, did you see anything drawn with a black sharpie on Mr Sealey’s face, whilst he was on top of you?---No.”
The complainant denied that Sealey was asleep in bed at any time that anyone else was having sexual interaction with the complainant. She denied that Sealey was asleep in bed at any time that anyone else was having any type of sexual interaction with the complainant. She denied that he did not get on top of her and denied that he never had sexual intercourse with her.[155]
[155]AB 677, lines 1–8.
Evidence of the motel manager
The motel manager said she received a phone call from someone in the complainant’s room at about 9.20 am. The call was from a male person who did not identify himself, but asked if that room could be booked for an additional night. She told him that the room was already booked and they would have to leave by 10 am.[156]
[156]AB 685.
At about 9.50 am, she spoke to Mr Y who said he could not get access to the room. The manager went to the front door and knocked several times, probably about five or six knocks. There was no response, so she knocked again another five or six times, still getting no response.[157]
[157]AB 685–686.
She went to an adjoining unit and looked over to the complainant’s room. She saw three or four men in the rear courtyard area. She told one of them that the man who had booked the room wanted to gain access. The response from one of the men was that “the girl was in the shower and that they would only be about another five minutes”. She told them they had fifteen minutes and then she would call the police.[158]
[158]AB 686, lines 4–24.
She went back and spoke to Mr Y where the decision was made to call the police. That only took a few minutes. She then saw three of the men, and then a fourth, coming out of the room.[159]
[159]AB 686, lines 29–38.
When she eventually entered the unit, she saw a girl sitting on the floor packing her belongings into a bag.
Counsel for Doran cross-examined the motel manager. It was put to the motel manager that she was still on the phone with the police when she walked to the front of the room and spoke to the female inside. The motel manager disagreed.[160] She was pressed that she might be mistaken and had truly been on the triple 000 phone call when she went into the room. She responded:[161]
“Well, no. I – I can’t see how I could possibly be. But I don’t see how I could be because the police just – when I was on the phone to the police, they just asked me to follow – just see what direction the gentlemen were heading in to see whether they were hopping into a vehicle or whether they were on foot. And then after that, … well, this is what I thought had happened – was that we had hung up from the call and that I then went back to unit 6 to hand [Mr Y] back his phone.”
[160]AB 687, lines 34–41.
[161]AB 688, lines 11–17.
Counsel continued to press that she had the sequence the wrong way round. Eventually, the motel manager said that she could not remember because it was three years ago.[162]
[162]AB 688, lines 27–28; AB 689, lines 16–18.
It was put to the motel manager that she did not see the complainant crying. The motel manager said she did, but it was later, outside the unit.[163]
[163]AB 689, lines 28–31.
Police evidence
The first police witness was the senior constable who spoke with the complainant while she was sitting in the passagenger seat of a car outside the motel at about 10.20 am. She said she had seen the four appellants and stopped and took their names. As she was speaking to them, she noticed that Sealey’s face had some black ink on the righthand side of it in the shape of a penis. She described it as quite a large drawing, extending from around the corner of his right eye down to the corner of his mouth.[164] At that point, she had not been told that there was a rape complaint.
[164]AB 691, lines 11–23.
Having arrived at the motel, she had a conversation with the complainant. She described the complainant as “shaking, physically shaking, and … terrified”, and said she was crying.[165] The conversation she had with the complainant was recorded on her body worn camera. That recording became exhibit 28. A transcript was provided to the jury and became MFI #C.[166] In the course of that interview, the complainant said:
[165]AB 691, lines 44–47.
[166]The jury were directed that the transcript was merely for assistance and was not the evidence.
(a)that things had been done to her without her consent by all of the four appellants; she did not want to get into trouble with the appellants;
(b)they forced her to have sex with them;
(c)she was not consensually sleeping with any of them;
(d)all of them forced themselves onto her;
(e)all of them were holding her at the same time;
(f)they penetrated her vagina, but not her anus;
(g)they had things towards her mouth;
(h)she had been in the shower since;
(i)they had ejaculated on her face;
(j)asked if she was thinking of making a complaint to police, the complainant said she was “not sure yet”;
(k)that it “really hurts”, her vagina was very sore and the four of them were involved;
(l)asked if the pain down below felt like cuts or stinging, she answered yes;
(m)one of them had taken a photo of her licence, to obtain her address, and “if I make a complaint, they will maybe go to my house or something, I don’t know”; and
(n)that she had put on different underwear from those she was wearing when she was raped, and the ones she had been wearing had not been washed and were in her bag.
In cross-examination, the officer agreed that all four appellants had stopped when asked, had given their names, and admitted they had come from the motel.
When she spoke to the four appellants, Sealey reacted in a surprise manner when he found out he had a drawing of a penis on his face, and it was the cause of laughter, not only for the police, but also the other three appellants.
Evidence of the motel guest
A person who was staying the night at the motel on 30 September 2018 said that, at 3 am, she was woken up by noises coming through her bathroom and kitchen window on the second level. The noises sounded like there was a bit of a party happening, with music and people talking and the sound of spa jets going. She could hear three males and a female. She did not hear any noises of distress and it sounded like a party.
Other police witnesses
Senior Constable Lilley was made available for cross-examination. He attended at the motel on the morning of 1 October 2018 and spoke with Mr Y and another man who was with Mr Y. He said Mr Y was forthcoming with information at that time.
Mr Trezise, a former plainclothes constable, was part of the team who attended at the motel in the afternoon on 1 October 2018 to collect and take photographs of various items, including pillowcases, pillow, cans, and underwear.[167] Mr Trezise was involved in interviewing Sealey. In the course of that interview, he obtained pictures of messages on Sealey’s phone, being messages between Sealey and the complainant. That was tendered into evidence.[168]
[167]Exhibits 30–40.
[168]Exhibit 41.
In Zevenbergen’s bag, he found two black Sharpie marker pens.[169] On Zevenbergen’s phone, he located a photograph of the complainant’s driver’s licence.[170]
[169]A photograph of them became Exhibit 42.
[170]AB 712, lines 19–20.
He said police had attempted to gain a statement from Mr Y, but Mr Y was unwilling to assist.
In cross-examination, Mr Trezise said, that as part of the search of the room, he found a broken glass pipe which was the sort of implement used to smoke methylamphetamine.[171]
[171]AB 714, lines 9–13.
Mr Trezise explained the steps that were taken to attempt to get a statement from the man who was with Mr Y on the morning after.
Senior Sergeant Thompson was a police officer who was part of the scientific section in 2018. She was provided with a number of the items which police had seized from the motel including sheets, a bed cover, pillowcases, and items of clothing worn by the complainant. She tested those items to identify if seminal fluid was present. In her evidence, she explained the process by which that is done. By reference to photographs, she explained how pieces of the material were excised so they could be tested, and how that was determined by the positive chemical reaction revealed by initial testing. She also did some of the tape-lifts that were used for DNA testing.
Ms Lloyd, a senior scientist working at Forensic DNA Analysis, gave evidence as to the results of DNA testing on various objects. She explained a number of aspects of DNA: (i) what DNA is; (ii) where it is found on the human body; (iii) how it can be transferred between persons;[172] (iv) that the DNA in seminal fluid or semen comes from the spermatozoa or cellular material from the penis; (v) DNA can be left by skin cells shedding, and fabric can be more likely to retain cellular material than a smooth surface; (vi) activities can affect how much cellular material is left, e.g if the body is hot and sweaty, it is likely to leave more than when sitting comfortably; (vii) washing, particularly with detergents, can remove DNA, as would vigorous rubbing with a towel rather than patting; and (viii) that a DNA likelihood ratio was a measure of the weight one gives to whether a certain person has potentially provided their DNA to a particular crime scene DNA profile, and how likely that profile is to have occurred if that particular person has given their DNA to it.
[172]Direct transfer by leaving DNA on an object; secondary transfer, e.g. by someone else touching an object which has another person’s DNA on it already; and tertiary transfer, where a third person is involved.
She explained the scale applicable to the likelihood ratio:[173]
“Okay. We … it’s like a seesaw. When we have a profile and ... we are inconclusive or we can’t tell whether someone has contributed DNA or if they haven’t, we’ll give them a likelihood ratio of one, which is inconclusive. And we use that as the apex of that seesaw. Now, on one hand, we will have all the numbers from one up to 100 billion, and that will be favouring contribution. So that – the crime scene DNA profile is up to 100 billion times more likely to have occurred if the person of interest has contributed their DNA to that profile. On the other hand of the seesaw, we go from one down to 100 billion, but in the opposite direction. So that DNA profile is up to 100 billion times more likely to have occurred if that person of interest has not contributed their DNA. So a seesaw.
All right. So if we consider that seesaw, one is the middle?---Yes.
And then up to 100 billion, in terms of support for contribution?---Yes.
All right. And on the other side, down to 100 billion, but support for non-contribution?---That’s correct.
So support for contribution, that’s a positive result that it’s more likely they’ve contributed DNA to that profile?---Yes.”
[173]AB 734, lines 10–30.
Then, by reference to some examples in Exhibit 52, the DNA Table, she explained how to read the results.
In cross-examination for Zevenbergen, Ms Lloyd agreed that the DNA Table did not show any DNA profile for Zevenbergen from spermatozoa. She explained that there were several possible reasons for that: that he did not ejaculate, or not many spermatozoa were found in that particular ejaculate, or the differential lysis process has not been quite effective in that case.[174]
[174]AB 740, lines 16–30.
In cross-examination for Butler, Ms Lloyd agreed that the results for the complainant’s vaginal, vulval, and peri-anal swabs excluded Butler as a contributor.[175] His DNA was found on her face swabs and shirt, and that could be explained by his ejaculating on her face and onto the shirt.[176]
[175]AB 741, lines 1–14.
[176]AB 741, line 20 to AB 742 line 6.
DSC Harnden said he was aware of attempts to contact Mr Y to get a statement, that they were unsuccessful, and that Mr Y had indicated he now had no memory of the events.
DSC Imhoff was made available for cross-examination. Counsel for Doran established that Doran had identified a mobile phone to the police, provided the number, and volunteered the passcode.
The Forensic Medical Officer who examined the complainant at hospital explained her qualifications and experience. By reference to her notes and a diagram she made (Exhibit 61), she gave evidence as to what her examination revealed. Relevant points included:
(a)several small split lacerations between the urethra and the clitoris; the lacerations were due to blunt force trauma; “the skin basically just splits because the elasticity of the skin cannot keep up with the force of the blunt trauma”;[177]
(b)several, small, split lacerations to the posterior fourchette; the fourchette is the area towards the anal area below the base of the vaginal opening;[178]
(c)abrasions on vaginal wall at 10 o’clock; these were caused by blunt force trauma, such as a penis;[179]
(d)injuries can occur in both consensual and non-consensual sexual intercourse, and in many instances, there may be no injuries in both consensual and non-consensual sexual intercourse;[180]
(e)it was not possible to put a speculum into the complainant’s vagina because she was experiencing significant pain;[181]
(f)as to the bruising on the legs, many of them were very small, circular, 1cm in diameter; there was also a pattern injury on her left lower leg, which consisted of four oval bruises which were around 1.5 to 3cm long, and just under a centimetre wide; these were arranged in parallel; in this instance, where there may have been touching or holding, one explanation for that sort of pattern, is being held by a hand; so bruises due to fingers applying pressure to that leg; on the back of her right thigh, there were three similar bruises, also about 1.5 to 3cm in length and just under a centimetre wide, also roughly arranged in parallel;[182]
(g)it was not possible to age the bruises except that, if a bruise was yellow, that meant it was at least 18 hours old; there was no yellow bruising;[183] and
(h)there was no bruising to the complainant’s shoulders.
[177]AB 766, lines 29–30.
[178]AB 768, line 43 to AB 769, line 6.
[179]AB 769, lines 11–27.
[180]AB 769, lines 29–32.
[181]AB 679, lines 34–45.
[182]AB 770, lines 9–24.
[183]AB 770, lines 37–46.
Admissions
Several sets of formal admissions were made.
The first concerned forensic results:
(a)while at the hospital on 1 October 2018, the following areas of the complainant’s body were swabbed: two face swabs, one wet and one dry; one mouth swab; one vulval swab; two high vaginal swabs; and one perianal swab;
(b)the swabs were taken from the hospital by police to Southport Police Station and securely stored until analysis occurred;
(c)each appellant and the complainant provided DNA reference samples which were taken by police and securely stored until analysis occurred;
(d)police seized items from the motel, including two bed sheets, the bedcover, five pillowcases, and the items of clothing depicted in exhibits 13, 14, and 26; these items were securely stored until forensic examination occurred; and
(e)an analysis of the reference samples provided, along with samples from the swabs and items seized from the motel, was conducted at Queensland Health Forensic Scientific Services; the results of that analysis are set out in the table tendered as an exhibit and labelled DNA table.[184]
[184]Exhibit 52, AB 831.
The second was a three-page document (Exhibit 60) containing 21 admissions relating to various matters:
Medical
(a)On 1 October 2018, the complainant attended at the Gold Coast University Hospital, where she was examined by a forensic medical officer at approximately 3 pm.
(b)Upon examination, the doctor observed bruising on the back of her arms, the front of both legs, and the back and inside of her right thigh. The doctor noted the following about the bruising:
(i)most bruises on the front of the complainant’s lower legs were around 1cm, circular, and red-brown in colour.
(ii)there was a pattern injury on her left lower leg consisting of four brown bruises which were roughly parallel, just under 1cm wide, and 1.5 to 3cm long.
(iii)there was a similar pattern injury of three parallel bruises, just under 1cm wide and 1.5 to 3cm long, on the back of her right thigh.
(iv)on the front of her left shin, there was a small, dry, 1cm abrasion surrounded by bruising.
(v)there were bruises on the outside of her right leg near the knee, and on the inside of the same leg – one on the inner thigh and two just below the knee.
(vi)there were three bruises on the back of her left arm; a roughly circular 2cm blue bruise above the elbow; and two faint brown bruises on the back (or top) of the forearm. The latter were just under 2 by 1cm in size.
(vii)on the back (or top) of her right forearm, there was a 3 by 3cm brown bruise with an indistinct edge.
(viii)she had a small, scabbed injury on her right middle finger.
(c)Photographs of the complainant’s bruises were taken at approximately 3.45 pm.
(d)The complainant did not have any visible injuries to her mouth.
(e)A number of genital injuries were observed. The doctor noted the following about the genital injuries:
(i)There were several small, shallow, ‘split’ lacerations between the urethral opening and the clitoris, as well as in the posterior fourchette.
(ii)There was an abrasion on the vaginal wall at 10 o’clock. The position of the injury had been described from the perspective of the examiner viewing the genitalia when a woman is examined whilst lying on her back with her hips and knees flexed, and externally rotated.
(iii)There was swelling of the labia minora, hymen, and the vaginal wall anterior to the hymen.
Fingerprints
(f)On 1 October 2018, a Scenes of Crimes officer attended the motor inn. She conducted a forensic examination on the unit, including locating fingerprints and taking photographs of them. Those photographs were forwarded to the police Fingerprint Bureau, to allow for comparison against known fingerprint impressions. That analysis was done by a fingerprint expert.
(g)In addition to Doran’s fingerprints being found on some cans of Bundaberg Rum, his left ring-finger and left palm were located on the mirror in the room. The location of his fingerprint is next to the barcode labelled ‘1’ and the location of his palm print is next to the barcode labelled ‘2’ in exhibit 35.
(h)Butler’s fingerprint was located on a can of Bundaberg Rum.
(i)Fingerprints cannot be dated, meaning an expert cannot tell when the surface where the fingerprint was left was touched. It is not possible to determine how long a person contacted the surface for when leaving a fingerprint. It is possible to touch a surface and not leave a fingerprint.
Phone Evidence
(j)On 1 October 2018, police obtained Zevenbergen’s phone. There was a ‘Snapchat’ video that had been received to his phone. Police recorded the video, and that recording by police is tendered as exhibit 27 in the trial. The time the video was taken cannot be determined.
(k)The phone number[185] was registered to a person with a surname matching the complainant’s between 13 July 2016 and 17 April 2019. Zevenbergen had the same number saved in his phone under an abbreviation of the complainant’s name.
[185]The phone number referred to in paragraphs [93] and [97], above.
Previous Statements by the complainant
(l)Just after midday on 1 October 2018, at the Gold Coast University Hospital, the complainant told a police officer, that:
(i)She had consumed ice and added, “the tiniest little bit, though” and, “just a couple of puffs”.
(ii)she thought it was going to be just Zevenbergen coming over.
(iii)she knew Doran’s surname.
(m)On the afternoon of 2 October 2018, at the Gold Coast University Hospital, the complainant told a Detective Senior Constable that she was not sure who took the photo of her licence.
(n)In her first typed statement, dated 3 October 2018, the complainant told police Doran’s given name and his surname.
(o)In a statement to police dated 14 August 2019, the complainant told police, “I remember we took a couple of photos with my polaroid camera”.
(p)When giving evidence in court on 14 August 2019, it was suggested to the complainant that she cleaned up the unit for about 10 minutes after Mr Y arrived on the morning of 1 October 2018; she replied, “Yeah”.
(q)On 12 January 2021, the complainant participated in an interview with police about the incident at The Island, the previous day. In the course of that interview, the complainant told police:
(i)the two males who came to The Island were customers from Locanto;
(ii)the men were trying to organise a threesome (or “3-way”); and
(iii)she had identified those two males to Mr M as her mates.
(r)On 12 August 2021, the complainant told an employee from the Office of the Director of Public Prosecutions that she had not slept for “about a week or so” prior to 1 October 2018.
Queensland Ambulance Service Notes
(s)The ambulance officer who spoke to the complainant on the way to the hospital made notes which included the following:
“Pt stated that she was woken from her sleep to find 4 males standing over with 1 male on the bed rubbing her leg, pt stated that she was then held down, with each male person sexually assaulting her. Pt disclosed to QAS and QPS that she personally knew one of the offenders, the other 3 male persons are unknown to her. Pt stated that each Male persons undertook penile penetration, pt further stating that she was gagged with a sock at one point, then removed after she had difficulty breathing. Pt also stating that each male persons undertook penile penetration orally. Pt stated that she had a shower post assault. Pt denied any bleeding or vaginal bleeding post assault.”
(t)These notes were commenced in the ambulance and finished shortly after 12.30 pm on 1 October 2018. The officer was monitoring the complainant’s vitals and performing patient care at the time of the conversation. It is not known when the portion of the note contained in admission 19 was written.
000 call
(u)The manager of the Runaway Bay Motor Inn was still on the phone call with the 000 operator when she attended the front door of the unit and spoke to the complainant.

I have watched the first interview as well. I respectfully agree with the description above. I also agree with her Honour’s findings as to what Zevenbergen’s position was in that interview:[344]
“[31] In my assessment:
(a)the applicant was oriented as to time, place and circumstance when the first interview started;
(b)whilst the police failed to ask him whether there was someone he wanted to talk to, this is somewhat ameliorated by the fact they said they could arrange someone if he didn’t have someone. This statement should have assisted the applicant to understand he could have someone present if he wanted;
(c) he explained that he was on medication but he said that he understood what was occurring. His general ability to follow the police questions and answer them suggests that he understood what was occurring;
(d)the questioning on the occasion when the police officer said to him it is important to be one hundred percent honest is not improper. It arose after an answer which was improbably vague. The questioning was cast in terms of the importance of getting the best detail possible; and
(e)he was able to say to the police that he wished to stop answering questions, by reason of his medication. Whilst my assessment is that he continued following what was going on, in view of the indication he gave, at that point (being the point jointly agreed by the parties) the interview should have stopped.”
[344]R v Zevenbergen [2021] QDCPR 79 at [31]. Citations omitted.
Having watched both interviews, her Honour further found that s 423 had no application until Zevenbergen indicated that he no longer wished to answer questions until he felt he was no longer under the influence of his medication.[345] As a consequence, the pre-trial hearing judge redacted various parts of the first interview but otherwise ruled it admissible.
[345]R v Zevenbergen [2021] QDCPR 79 at [32].
In my respectful view, no error has been established in relation to the pre-trial hearing judge’s conclusion as to the first interview. No relevant unfairness was created by the failure to adhere strictly to s 418 of the PPRA or s 23 of the Responsibilities Code.
The second interview commenced at about 8.30 pm and lasted for about one hour and 45 minutes. It was conducted by two interviewers, only one of whom was present at the first interview.
Counsel for Zevenbergen accepted below that it was apparent from watching and listening to this interview that Zevenbergen was no longer affected by whatever medication or drugs he had taken. However, he submitted that, because Zevenbergen was not asked or tested on his recollection of what he had been told at the first interview about the cautions and rights, the pre-trial hearing judge could not know what understanding he had of his rights while in the second interview.
The submission continued that, whilst the account Zevenbergen gave to the police in the interview would be entirely consistent with the conduct of his defence at trial,[346] the unfairness arose from the context in which the interview was conducted, the language he used,[347] and observing that he presented as arrogant, sexist, and obnoxious. It was submitted that the second interview would not be well received by a jury. Therefore, he would be prejudiced if the jury heard what he said and how he said it.
[346]Supplementary AB 2, Zevenbergen’s outline in pre-trial hearing, paragraph [3]; Supplementary AB 11, lines 7–9.
[347]This was explained as being “not so much what he says but how he says it”.
The Crown’s submissions on the second interview accepted that the police did not comply with the requirements in s 418 of the PPRA or s 23 of the Responsibilities Code, and thereby that the discretion to exclude the interview was enlivened. However, it pointed to the fact that the interview was voluntary, and submitted that the question governing whether such evidence would be excluded for unfairness is the effect of the unlawful conduct on the defendant. It was submitted there was no link between the unlawful conduct,[348] and what the complaint was, namely how Zevenbergen presented in the interview. Relying on R v LR,[349] the Crown submitted that non-compliance did not of itself mean the interview should be excluded.
[348]The failure to give him the information required in s 418 of the PPRA.
[349][2006] 1 Qd R 435; [2005] QCA 368 at [51].
The second interview commenced with the police administering some of the required cautions, namely: (i) that there was no threat or promise to participate in the interview; and (ii) that he had the right to remain silent.[350] The interviewer then recounted some of the events surrounding the first interview, and that it was stopped because of how Zevenbergen was feeling due to the medication he took. Zevenbergen agreed with what was said, saying he had nothing to add to that.
[350]He was asked to explain what that meant, and he did, saying “Anything I say can be used as evidence”, and he confirmed that he did not have to answer any of the police questions.
He was then asked how he was feeling now:
“CON TREZISE: How are you feelin’ right now?
ZEVENBERGEN: I’m feeling’ yeah, right.
CON TREZISE: You.
ZEVENBERGEN: But still a bit drowsy but yeah, a bit better.
CON TREZISE: Yep.
ZEVENBERGEN: A bit better.
CON TREZISE: Are you happy to go ahead?
ZEVENBERGEN: Yeah, yeah, yeah.”
As the interview continued, Zevenbergen appeared eager to put forward his account of the events, and particularly that the complainant was a willing participant in all sexual contact and even the initiator of some. That was the conclusion reached by the pre-trial hearing judge, and one that I have come to as well by both reading the transcript and viewing the recording.
At one point Zevenbergen said, “… can I just explain this whole situation …”,[351] and then did so without interruption by the police.[352] He explained why he wanted to speak up:[353]
“… I never even do these fuckin’ interviews you know but I wanna get this story straight so I can get my point across to youse to what has happened. It’s not you know. … So you can fully understand ... what’s happened that night you know. So … well, my recollection of what has happened that night.”
[351]AB 1000, lines 9–11.
[352]AB 1000, line 19 to AB 1001, line 39.
[353]See above at footnote 342.
Zevenbergen ended the interview maintaining that all the sexual contact was fully consensual and the allegations were “absolutely bullshit”.[354]
[354]AB 1069, lines 45–46.
Notwithstanding his eagerness to explain his account, Zevenbergen declined to answer some questions, particularly those that would give the names of the other appellants.[355]
[355]AB 1005, lines 15–36; AB 1046, lines 37–39; AB 1047, lines 9–12.
The situation then was that:
(a)at the first interview, Zevenbergen had been given a substantial part of the information required under s 23 of the Responsibilities Code, and even though it was not repeated, he was reminded of that at the start of the second interview;
(b)he was not affected by his medication to the extent evident at the first interview;
(c)he was willing to proceed with the interview even though he knew he was not obliged to do so; his history was “I never even do these fuckin’ interviews”, a comment which, in context, could only mean that he normally did not participate in police questioning;
(d)he was willing to proceed with the interview even though he knew he was not obliged to answer questions, and that his answers could be used as evidence against him;
(e)he exercised the right to refuse to answer questions when he so chose;
(f)he was eager to explain his version of the events, particularly that all acts were consensual; and
(g)he wanted to emphasise that the complainant’s allegations were “bullshit”.
They are conclusions which I hold as a result of reading and watching the interview. In large part, they are conclusions which the pre-trial hearing judge reached as well.[356]
[356]R v Zevenbergen [2021] QDCPR 79 at [48].
Those circumstances mean that Zevenbergen’s case is, as the pre-trial hearing judge found, well removed from that in R v LR. There, the defendant was seriously affected by alcohol but the interview was not delayed, the defendant’s ability to understand his rights and decide whether to answer questions was affected, the police ignored the defendant’s father’s attempts to have a solicitor present, the interview content went well beyond–and contradicted–the complainant’s evidence, and the defendant at one point invited police to “[j]ust fucking lock me up”.[357]
[357]R v LR at [33], [39]–[40], [53]–[54].
In R v LR, Keane JA said:[358]
“[51] The circumstance that the record of interview was obtained in contravention of the PPR Act does not of itself mean that it should have been excluded by the learned trial judge. Illegality or impropriety on the part of law enforcement officers that results in the making of a confession merely enlivens a discretion to exclude the confession on the grounds of unfairness. The provisions of the PPR Act to which I have referred do not purport expressly to govern the admissibility of evidence, but the authorities suggest that they are to be ‘regarded as a yardstick against which issues of unfairness (and impropriety) may be measured’.
[52] The decision of the High Court in The Queen v. Swaffield, and in particular the joint judgment of Toohey, Gaudron and Gummow JJ., requires that the discretion to exclude confessional evidence should be exercised, where voluntariness is not in issue, by reference to considerations of reliability and respect for the right of an accused to stay silent. As their Honours said:
‘… the purpose of that discretion is the protection of the rights and privileges of the accused. Those rights include procedural rights. There may be occasions when, because of some impropriety, a confessional statement is made which, if admitted, would result in the accused being disadvantaged in the conduct of his defence.’”
[358]R v LR at [51]–[52]. Citations omitted.
The central consideration of the reliability of the admission is also to be seen from what Brennan J said in Duke v The Queen:[359]
“The unfairness against which an exercise of the discretion is intended to protect an accused may arise not only because the conduct of the preceding investigation has produced a confession which is unreliable but because no confession might have been made if the investigation had been properly conducted. If, by reason of the manner of the investigation, it is unfair to admit evidence of the confession, whether because the reliability of the confession has been made suspect or for any other reason, that evidence should be excluded. Trickery, misrepresentation, omission to inquire into material facts lest they be exculpatory, cross-examination going beyond the clarification of information voluntarily given, or detaining a suspect or keeping him in isolation without lawful justification – to name but some improprieties – may justify rejection of evidence of a confession if the impropriety had some material effect on the confessionalist, albeit the confession is reliable and was apparently made in the exercise of a free choice to speak or to be silent. The fact that an impropriety occurred does not by itself carry the consequence that evidence of a voluntary confession procured in the course of the investigation must be excluded. The effect of the impropriety in procuring the confession must be evaluated in all the circumstances of the case.”
[359](1989) 180 CLR 508 at 513; [1989] HCA 1.
The present case is one where voluntariness is not in issue. Considerations of reliability and respect for the right of an accused to stay silent are the two matters that should govern the question of whether to exclude the evidence in the interviews. In my view, neither call for exclusion here. Zevenbergen was well aware of his right to silence and exercised it when he wished to do so. His condition did not call into question his reliability, given the first interview stopped short of the critical events, and he was relevantly unaffected by medication when those matters were discussed in the second interview. His responses were accepted to be entirely consistent with the way his defence was to be conducted. This is a case where, notwithstanding that the admissions by Zevenbergen to sexual intercourse with the complainant were obtained in breach of the requirements of the PPRA, there is no real reason to doubt that he was willing and able to give a reliable account of events.[360]
[360]R v LR at [55].
As to the question concerning Zevenbergen’s language and the observation that he presented as arrogant, sexist, and obnoxious, that does not, in my view, impact upon the issue of reliability. In any event, the jury were given the standard directions to decide only on the evidence, approach their duty dispassionately, and to put aside any prejudices they had.[361] There is no basis to think they did not do so. Further, the Prosecutor’s address also told the jury that, if they considered that Zevenbergen “did not present as a particularly pleasant person”, then they could not “jump straight to the idea that he must be guilty of these offences. Because it doesn’t work like that, obviously”.[362]
[361]AB 134, lines 24–26, AB 136, lines 8–11.
[362]AB 59, line 45 to AB 60, line 3.
I do not accept the submission that the failure to comply with the PPRA or the Responsibilities Code is made more serious, and the exercise of the discretion against exclusion is made unsustainable, because by the time of the second interview Zevenbergen was then under arrest. Whilst that fact highlights the need for the cautions under the PPRA and Responsibilities Code, breach of those requirements enlivens the same discretion which is governed by the same considerations of fairness and (in this case) the reliability of what was said. Where what was said was conceded to be entirely in conformity with the case to be put to the complainant,[363] and no question of voluntariness arises, the discretion fell to be exercised by the same considerations as would be the case prior to arrest.
[363]As was accepted during the appeal, the only difference between the accounts of Zevenbergen and the complainant was the issue of consent: appeal transcript 1–15, line 27 to 1–16, line 4.
In my respectful view, the pre-trial hearing judge was right not to exclude the interviews from evidence.
As to whether the inclusion of the record of interview caused a miscarriage of justice, it is, in my view, right to conclude that Zevenbergen’s prospects of an acquittal were not adversely affected in a material way by the decision to allow the records of interview into evidence. The records of interview were, it was accepted, entirely consistent with the case put on Zevenbergen’s behalf to the complainant. The admission of the interviews into evidence was not likely to have deprived him of a fair chance of an acquittal.
The second aspect of unfairness raised before this Court was that the interviews contained material that the Prosecutor used to cast doubt upon Zevenbergen, and which could have been used adversely against him by the jury. This was a reference to what was said in the closing address, that there were reasons why the jury might think he was dishonest in his interview:[364]
(a)he was “working hard to present [the complainant] as someone who was overly flirtatious and keen to hook up with all those men”;
(b)he did not “present particularly as forthcoming about his involvement”, particularly as to the names of the others;
(c)in the first interview, he did not mention the interaction between himself and the complainant in the spa, whereas he did in the second; and
(d)in the second interview, he was giving an evolving version of events; “the way that his story evolved was consistent with him making things up as he went along to the police”.
[364]AB 60, line 5 to AB, 63 line 4. In each case, examples were given to the jury.
The first matter to observe is that this point was not raised as part of the application before the pre-trial hearing judge to exclude the interviews. Nor was it raised in the written outline on the appeal. Nor is it comprehended in the formulation of the ground of appeal concerning the admission of the interviews.
Therefore, if any relevant point arises, it must be that the use of the interviews was unfair so as to cause a miscarriage of justice, not that they were improperly admitted. For the reasons which follow, I reject that submission.
In that part of the address, the prosecutor was urging that the jury might think that Zevenbergen was not an honest witness in his account. There is nothing unfair or objectionable in that approach. Given that the only real difference between his account and that of the complainant was the issue of consent, it was always likely that his account on that score would be attacked as not honest. He was asserting the same thing to the police in respect of the complainant’s account that it was non-consensual, namely that it was untrue and “bullshit”.
There was only one statement in that part of the address where the Prosecutor used the term “lies”. That concerned the fact that, during the interview, Zevenbergen first said Butler drew the penis/swastika image on the complainant’s stomach, then conceded that he drew one part of it. The prosecutor said of that, “You might think that’s an example of a man who has been caught out in his lies and then continues to evolve his version to the police”.[365] I do not consider that one reference alone renders the admission of the second interview unfair. It was said in the context of an overall submission that there were reasons to doubt that he gave an honest account of the events. Further, that part of the address was preceded by the Prosecutor’s explanation of what she was about to say:[366]
“I want to move on now from that cross-examination that we heard to two of the interviews that we heard in this case. So we heard from Mr Sealey and Mr Zevenbergen. And if, having listened to those interviews, you’re left with the impression that both of them were honest people and that they were honest about what they told the police happened in the room, well, then you might think you can just acquit those defendants immediately. If you believe what they told you, then you could acquit them. But if you don’t, I suggest to you that you put those interviews to the side and you come back to all the evidence in this case. The other evidence. And examine that.”
[365]AB 62, lines 26–27.
[366]AB 56, line 46 to AB 57, line 7.
In the circumstances, there was no relevant unfairness such as would warrant the conclusion that a miscarriage of justice had occurred.
This ground fails.
Conclusion
For the reasons set out above, all grounds of appeal have failed. I propose the following orders:
1.In CA No 4 of 2022, appeal dismissed.
2.In CA No 12 of 2022, appeal dismissed.
3.In CA No 13 of 2022, appeal dismissed.
4.In CA No 14 of 2022, appeal dismissed.
DALTON JA: I agree with the orders proposed by Morrison JA and with his reasons.
WILSON J: I agree with the reasons and orders as set out by Morrison JA.

CITATION:	R v Doran; R v Zevenbergen; R v Butler; R v Sealey [2023] QCA 177
PARTIES:	In CA No 4 of 2022: R v DORAN, James Gareth (appellant) In CA No 12 of 2022: R v ZEVENBERGEN, Steven (appellant) In CA No 13 of 2022: R v BUTLER, Joshua Bruce (appellant) In CA No 14 of 2022: R v SEALEY, Leon James (appellant)
FILE NO/S:	CA No 4 of 2022 CA No 12 of 2022 CA No 13 of 2022 CA No 14 of 2022 DC No 138 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Appeals against Convictions
ORIGINATING COURT:	Date of Conviction: 13 December 2021 (Loury KC DCJ)
DELIVERED ON:	1 September 2023
DELIVERED AT:	Brisbane
HEARING DATE:	6 March 2023
JUDGES:	Morrison and Dalton JJA and Wilson J
ORDERS:	1. In CA No 4 of 2022, appeal dismissed. 2. In CA No 12 of 2022, appeal dismissed. 3. In CA No 13 of 2022, appeal dismissed. 4. In CA No 14 of 2022, appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellants were convicted on multiple counts where each had raped the complainant, and aided or encouraged during the acts of rape engaged in by the others – where three of the four appellants contended that the verdicts were unreasonable – where the principal evidence was that of the complainant, and there was also evidence of photographs, diagrams, recorded interviews, admissions, and a Snapchat video – where, save for one of the appellants, the only issue was that of consent – where the complainant had engaged in paid sex work, but her evidence was that this had occurred after the incident constituting the offending – where the complainant had a history of drug use – where the events took place in a motel where the appellants and the complainant were consuming drugs and alcohol – whether the verdict was unreasonable or could not be supported having regard to the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant Zevenbergen contended that there was a misdirection as to the use to which exculpatory statements in his police interview could be used – where the appellant Butler submitted that there was a misdirection to the jury in respect of the complainant’s criminal history – where the appellant Sealey contended that there was a misdirection by reason of the failure to direct the jury not to use questions asked by police officers during his police interview, particularly questions which put the complainant’s version of events to him, and due to the failure to direct, with sufficient detail, how the records of interview with the appellant Zevenbergen could be used – whether there was a misdirection or misdirections CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant Zevenbergen submitted that evidence of his two police interviews conducted the day after the incident should have been excluded – whether the trial judge erred in admitting the evidence Police Powers and Responsibilities Act 2000 (Qld), s 418, s 423 Police Powers and Responsibilities Regulation 2012 (Qld), Sch 9, s 23 Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25, applied De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48, cited Duke v The Queen (1989) 180 CLR 508; [1989] HCA 1, cited Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66, considered M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, applied R v Beck [1990] 1 Qd R 30, cited R v Buckett (1995) 126 FLR 435, cited R v Butler & Lawson & Marshall [2011] QCA 265, cited R v Coyne [2021] QCA 110, cited R v Dalton (2020) 3 QR 273; [2020] QCA 13, cited R v Ferguson; Ex parte Attorney-General (Qld) (2008) 186 A Crim R 483; [2008] QCA 227, cited R v Glennon (1992) 173 CLR 592; [1992] HCA 16, cited R v Kirkby [2000] 2 Qd R 57; [1998] QCA 445, cited R v LR [2006] 1 Qd R 435; [2005] QCA 368, distinguished R v Miller (2021) 8 QR 221; [2021] QCA 126, applied R v Peter; R v Banu; R v Ingui[2023] QCA 1, cited R v Zevenbergen [2021] QDCPR 79, related Smith v Kelsey; Dalley v Kelsey (2020) 4 QR 1; [2020] QCA 55, cited
COUNSEL:	S R Lewis for the appellant, Doran N V Weston for the appellant, Zevenbergen Y Chekirova for the appellant, Butler C J Tessman for the appellant, Sealey E L Kelso for the respondent
SOLICITORS:	Legal Aid Queensland for the appellants, Doran and Zevenbergen O’Sullivans Law Firm for the appellant, Butler Dib & Associates for the appellant, Sealey Director of Public Prosecutions (Queensland) for the respondent