R v KBG - [2024] QCA 45

SUPREME COURT OF QUEENSLAND

CITATION:

R v KBG [2024] QCA 45

PARTIES:

R
v
KBG
(appellant)

FILE NO/S:

CA No 164 of 2022
DC No 1568 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction & Sentence: 18 July 2022 (Chowdhury DCJ)

DELIVERED ON:

3 April 2024

DELIVERED AT:

Brisbane

HEARING DATE:

15 November 2023

JUDGES:

Mullins P and Dalton JA and Davis J

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of three counts of rape after a jury trial – where the appellant attacked the complainant’s credit in various ways – where these matters concerning the complainant’s credit were for the jury – whether the jury must have had a reasonable doubt about guilt such that the verdict was unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – CONSIDERATION OF SUMMING UP AS A WHOLE – where the prosecutor told the jury the discreditable uncharged acts of the appellant about an hour prior to the rapes showed the appellant was going to act against the complainant regardless of what she wanted – where appellant’s counsel submitted that the evidence did not support the prosecutor’s address to the jury and the trial judge did not correct this error of fact – whether the prosecutor’s address went beyond what was reasonably and fairly available on the evidence – whether any fault identified in the summing-up was prejudicial to the appellant

AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8, cited
HCF v The Queen (2023) 97 ALJR 978; [2023] HCA 35, cited
HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, considered
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, cited
Pfennig v The Queen (1994-1995) 182 CLR 461; [1995] HCA 7, considered
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56, cited

COUNSEL:

The appellant appeared on his own behalf on the unreasonable verdict ground
A I O’Brien and G F Perry for the appellant on the specific error ground (pro bono)
J D Finch for the respondent

SOLICITORS:

The appellant appeared on his own behalf on the unreasonable verdict ground
Fisher Dore for the appellant on the specific error ground (pro bono)
Director of Public Prosecutions (Queensland) for the respondent

MULLINS P: The appellant was found guilty after trial before a jury of three counts of rape. Counts 1 and 3 were particularised as penile penetration and count 2 as anal penetration. The appellant’s case at the trial was that he had penile-vaginal intercourse with the complainant on the morning of 23 December 2018 when the complainant gave him a lift in her car and that it was consensual. The appellant disputed that one of the acts of intercourse was penile-anal intercourse. Apart from the issue of the nature of the intercourse that was the subject of count 2, the primary issue for the jury at the trial was whether the prosecution could prove beyond reasonable doubt that the complainant did not consent to the three acts of sexual intercourse. There was no issue raised on the evidence that invoked s 24 of the Criminal Code (Qld).
The issues in the trial depended on the jury accepting the complainant’s evidence as credible and reliable. I agree with Dalton JA’s analysis of the evidence and reasons for the conclusion that the appellant has failed to show that the verdicts of guilty on the three counts of rape were unreasonable.
I also agree with Dalton JA’s conclusion that the appellant does not succeed on the other ground of appeal. As my reasons for reaching that conclusion vary from the reasons of Dalton JA, I will endeavour to explain the difference.
The other ground of appeal is expressed in terms that the learned trial judge’s directions did not cure the risk of prejudice arising from the prosecution’s mischaracterisation of the earlier oral sex encounter between the complainant and the appellant as an uncharged act of rape. I have concluded that there was no mischaracterisation by the prosecutor of the uncharged act of rape (if the jury inferred from the complainant’s evidence that the oral sex encounter was not consensual). I do consider there was an error in the prosecutor’s submission to the jury as to the use the jury could make of the oral sex encounter, if the jury inferred it was non-consensual, but I consider that any prejudice to the appellant from the prosecutor’s submission was addressed by the trial judge’s directions.
I rely on Dalton JA’s summary of the relevant evidence of the complainant about the oral sex encounter with the appellant, when the appellant was having sexual intercourse in the garage with the appellant’s brother. It is apparent, as Dalton JA explains at [65], that the evidence the oral sex encounter may not have been consensual was elicited by the appellant’s counsel as part of a strategy to show that the oral sex encounter was consensual but the complainant did not agree with that proposition, even though she had not made a complaint to the police about the oral sex encounter with the appellant. As a result of the evidence elicited from the complainant in cross-examination, it was open to the prosecutor to make submissions to the jury that the oral sex encounter was non-consensual as part of the narrative in which the sexual intercourse in the car took place a short time later. The evidence of the oral sex encounter in conjunction with the complainant’s sexual intercourse with the appellant’s brother at the same time put the subsequent interaction between the complainant and the appellant in her car into context. The impugned direction of the trial judge which is set out at [58] of Dalton JA’s reasons that the oral sex encounter should be treated by the jury as part of the narrative was not wrong.
The prosecutor’s submission to the jury that is relied on by the appellant as mischaracterisation was in the following terms, where the encounter “on the 22^nd” is areference to the oral sex encounter:
“You might also think that his actions that the complainant described in that encounter on the 22^nd, before the car, clearly showed his state of mind, what he wanted from the complainant. As she described, he put his penis in her mouth when she was unaware that he was going to be there.
And ultimately you think about what he did afterwards. As she described not long after that, she got into the car, and as she’d already told the [appellant] she would give him a lift. That was when they left for home. And you might think that that evidence from her where he put his penis in her mouth clearly shows what he wanted. He was going to act against her, regardless of what she wanted. And you might think that that’s particularly evident also from his actions on the 23^rd when in the car and he started to then touch her thigh. As she described, he was sliding his hand, moving it on and off repeatedly in that drive while she was upset.”
The problem with this submission of the prosecutor is that it focuses on the intent of the appellant which was not the issue in the trial and was not of assistance to the jury in considering the critical issue of whether the prosecution proved beyond reasonable doubt that the complainant had not consented to each of the acts of sexual intercourse. The above passage from the prosecutor’s address was then followed in the address by lengthy submissions based on the complainant’s evidence that she told the appellant that she did not want to have sexual intercourse with him, that he held her in position and she told him to stop a number of times. It was unnecessary for the prosecutor in the address to the jury to suggest that the oral sex encounter was in any way probative of the lack of consent of the complainant to the three acts of sexual intercourse in the car when there was the complainant’s unequivocal evidence that she did not consent to the acts of sexual intercourse in the car.
I agree with Dalton JA’s analysis of the impugned direction of the trial judge at [61] that there were aspects of it that were favourable to the appellant.
The trial judge had earlier in the summing up explained to the jury in appropriate terms the concept of consent to sexual intercourse and summarised the prosecution case on lack of consent as follows:
“What the prosecution here says is that the complainant did not give her consent. She actively told the [appellant] that she didn’t want intercourse. She told him to stop. She was crying. It must have been obvious to him that she did not want to have sexual intercourse of any form in the back seat of that Mazda.”
Even though the trial judge repeated the impugned submission of the prosecutor about the oral sex encounter, the third paragraph of the extract from the trial judge’s impugned direction that was responsive to that submission (set out at [58] of Dalton JA’s reasons) was sufficient to rectify any impermissible reasoning by the jury based on the impugned submission. By this third paragraph of the trial judge’s impugned direction on the oral sex encounter, it was made clear to the jury they were not entitled to use the evidence of the oral sex encounter to reason that it made it more likely that the three acts of sexual intercourse in the car occurred without the consent of the complainant.
There was a subsequent passage in the trial judge’s summing up in which he repeated the prosecutor’s impugned submission:
“In respect of the incident in the garage, when the [appellant] came over while [the appellant’s brother] and the complainant were having sex, he just put his penis in [her] mouth. He was obviously keen to have sexual contact with her, and he was keen to do it afterwards. That’s why he was in the car, that’s why he told her to pull over, and clearly he was going to have sexual intercourse with her regardless of whether she wanted it or not. You would find the complainant a compelling and reliable witness and if you accept her as truthful and reliable on the essential elements of each offence: that there was the penetration on each three counts, and it was done without consent, and that the Crown had proved all that beyond reasonable doubt, and you would find the [appellant] guilty of each charge.”
To the extent that the appellant can rely on the trial judge’s repetition of the prosecutor’s impugned submission in the above passage as prejudicial, the trial judge’s earlier warning to the jury about the limited relevance of the oral sex encounter as part of the narrative and that the oral sex encounter did not make it more probable that the appellant had sexual intercourse with the complainant in the back of the car without her consent remained operative and addressed any prejudice.
Although I agree with Dalton JA at [67] that the prosecutor was not wrong in inviting the jury to draw an inference from the evidence given by the complainant in cross-examination that the oral sex between the complainant and the appellant in the garage was non-consensual, I consider that evidence was admissible on the basis that it was part of the narrative that was required to give context to the incident in the car. The trial judge’s directions overall were adequate to ensure that there was no impermissible reasoning on the part of the jury from the prosecutor’s suggestion that non-consensual oral sex between the appellant and the complainant in the garage could be relied on as probative in any way of the complainant’s lack of consent to sexual intercourse in the car. There was no miscarriage of justice.
I therefore agree with Dalton JA that the appeal must be dismissed.
DALTON JA: This is an appeal against conviction; an appeal against sentence was abandoned. The appellant was convicted of three counts of rape after a jury trial. He appeals on the grounds that (a) the verdicts were unreasonable, and (b) the trial judge failed to correct the effect of a statement made by the prosecutor during her address. The appellant presented the arguments in support of the verdicts being unreasonable himself. Lawyers acting pro bono presented the argument as to specific error. In my view, the verdicts were not unreasonable. As to the specific error asserted, I do not think that the prosecutor’s statement required correction, nor do I think that any fault identified in the summing-up was prejudicial to the appellant.[1] Thus, I do not think there was a miscarriage of justice. I would dismiss the appeal. In accordance with dicta in AK v Western Australia,[2] I deal with the arguments as to unreasonable verdicts first.
[1]HCF v The Queen [2023] HCA 35, [2].
[2](2008) 232 CLR 438, 360, [65].
Unreasonable Verdicts
The Crown case was that at about eight or nine o’clock in the morning of 23 December 2018, the complainant was giving the appellant a lift after they had both attended a party. The appellant caused her to pull off the road near a soccer field and then forced her into the back seat of the car, raping her three times, twice vaginally and once anally.
The complainant was 19 at the time of the relevant events. She was friends with a work mate, T. T was in a relationship with Ch whom she lived with. The appellant was Ch’s brother. In December 2018 T’s brother, C, was visiting on holidays and staying with T. The complainant had met the appellant a couple of times during the preceding year when she had visited T. She thought he was around 30 years old.
The complainant’s evidence-in-chief was as follows. On 22 December 2018 the complainant was at home with her mother when T messaged her and invited her over for drinks. The complainant drove to T’s house. She arrived at T’s house at about 9.30 or 10.00 pm. T, C, Ch and the appellant were all there. When she arrived it was apparent to her that the occupants of the house had been “having a few drinks”, they were “a little bit rowdy”. The complainant had nothing to drink before she arrived at the house. While at the house, the complainant drank some alcohol and smoked some marijuana. After this she was feeling “pretty buzzed”. She thought that all the occupants of the house drank and smoked marijuana for about five hours. She thought T went to bed about midnight. At about 2.00 or 3.00 am when “the buzz was kind of wearing off” she and C went to a bedroom and were “fooling around” in a sexual manner. C went to sleep.
The complainant could not sleep. Ch messaged her to come outside and she did. He kissed her. She protested “what about [T]?”. Ch said they were not together any more. The appellant “showed up” and asked her for a lift. She agreed. All three went to the garage, then the appellant and Ch walked out of the garage leaving her alone for about five minutes. After that Ch came back in and began kissing her again. He then had penetrative sex with her for about five minutes. The Crown prosecutor asked the complainant whether or not what happened between her and Ch was consensual. She replied, “I felt pressured, so I don’t know” and “… so I don’t know if it was consensual. I just felt like this is what I had to do”.
The appellant then came back into the garage, pulled his pants down and “stuck his penis in my mouth”. The complainant’s evidence was that no one said anything through this time and that sexual activity continued for about 20 minutes. The encounter ended in circumstances which the complainant could not describe or recall. The appellant went to the kitchen to get a drink. The complainant got into her car. The appellant came out of the kitchen and got into the car, asking “are you still all right for that lift?”. She said she was. At the time the appellant got in the car with her and she agreed to give him a lift, she felt “confused and stressed and freaking out”.
She drove off. The appellant was sitting in the front passenger seat. She drove to a 7‑Eleven. The appellant went in to get a coffee. She waited for him in the car for five or ten minutes. She took a 0.25 mg tablet of Xanax, an anti-anxiety drug which was prescribed for her, because she felt like she needed to.
When the appellant came back to the car she started driving. He said he was going to tell T about what happened in the garage and said that if she gave him a blow job he would not say anything. He repeated this statement three or four times. He repeatedly touched her thigh. She was upset and it affected her driving. She asked the appellant not to tell T. She was crying, upset and “still processing everything that had happened in the garage”. The appellant asked the complainant to pull off the road and she did, stopping the car near a soccer field which she reached by the appellant giving her directions. The appellant took off her seatbelt. She was crying, upset and looking down. He grabbed both her arms and “guided” her toward the back seat. She “went over into the back seat”. The appellant climbed over into the back seat and knelt above her. She was still crying. She said “please don’t do this. I don’t want to do this”. The appellant pulled down her pants and told her he would be gentle. The appellant put his penis in her vagina for about five minutes or so and then put his penis in her anus. He was thrusting. She felt “roughness”. She was asking him to stop and saying she did not wish to do this any more. She could not say for how long. He repeatedly put his penis into her vagina or into her anus and he was thrusting. She was “just sort of whispering, ‘please make it stop. Please make it stop.’” He ejaculated in her vagina. He was not wearing a condom. The appellant got back into the front seat of the car. She “cleaned herself up”, put her pants back on and started the car. She was “pretty blank”. She drove him to where he wanted to go. “It was a pretty silent car ride”. She then drove herself home. She felt scared and confused about what had happened. She did not give consent to either the vaginal or anal intercourse.
Starting at 11.37 am that morning (23 December 2018) there was an exchange of messages between C and the complainant. C messaged, “Oi, seriously, wtf happens. Happens. Can’t even answer me.” She replied, “Was sitting outside. [Ch] comes out and was talking to me and I was saying, ‘Nah, I don’t want to because it’s wrong’, but he kept going and then when I took [the appellant] this morning he kept touching my leg and I kept moving his hand away and saying, ‘Stop’, because I was crying. He put me in the back seat and then forced himself on me.” C replied “I am really sorry. I ain’t reading that bullshit.” The complainant replied “[C], seriously, this was not fucking consensual. [The appellant] is a piece of fucking shit. He was annoying me all fucking night”. C replied “Hope you enjoyed it”.
On 24 December 2018 the complainant told her mother that she thought she might have been raped. Her mother took her to a hospital where she received a medical examination and police attended.
During the complainant’s evidence-in-chief the jury sent a note asking for information on the effects of Xanax. In response, the complainant gave evidence that it “calms you down from panic” and that it takes around 20 to 25 minutes to have effect. She gave evidence that it was about five minutes after she took the tablet that she pulled over at the soccer ground.
While the complainant gave evidence-in-chief she was very upset. The Court had to stand down while she took a break on three occasions and on another occasion the trial judge offered her a break but she declined it.
In cross-examination, the complainant said that prior to 22 December 2018 she was “hooking up” with C but was not in a relationship with him. She said that as well as bringing a bottle of wine to the drinks party, as she had said in her evidence-in-chief, she also bought some marijuana (1.75 grams). She said she had five to six cones of marijuana through the time she spent at T’s house on the night prior to the offending. She also drank a bottle of wine, one can of pre-mixed spirit and two shots of vodka. She did not accept she was drunk and stoned. The complainant admitted that after receiving a text message from Ch while she was in bed with C, she came out of that room and said to the appellant, “I can’t believe he fell asleep on me when I was giving him a blow job”.

She agreed that, contrary to the evidence she had given in examination-in-chief, she told the police that she had consensual sex with Ch at the house. She reiterated that in fact she did feel pressured, but said she had not told the police that because she was embarrassed and confused. She admitted that, contrary to her evidence-in-chief, and her statements to police subsequently, she initially told police at the hospital that she and Ch had only kissed and it did not feel right because T was her friend. She accepted that she had told police that after sex in the garage with both Ch and the appellant, she and Ch went into the kitchen and waited for the appellant.
She accepted that after she had left T’s house with the appellant she was really concerned and scared that T might find out that she had had sex with Ch. She accepted that she was not sure the appellant had ejaculated inside her. She accepted that it was possible that she and the appellant had gone to McDonalds after leaving the soccer ground, but before she dropped him at his destination.
It was put to her that she did not complain immediately, but only after T found out that she had had sex with Ch, and that was the motivation to complain. She rejected these propositions.
The complainant’s mother gave evidence that on 24 December 2018 her daughter told her that she had been raped by the brother-in-law of her friend T; that he had asked for a lift; that she did not really want to give him a lift, but she did. He had disorientated her and took her the wrong way. She pulled over to turn around and he grabbed her and pushed her between the seats. He hurt her by penetrating her vagina and her anus. She said no and said that she did not want to do it, but he went ahead. She cried. He told her that he would give her money to keep quiet about what happened. That disclosure was made in the afternoon. The complainant had been very quiet until then. They had gone to the beach, but the complainant did not want to go swimming, she just curled up in her towel; this was odd behaviour for her. The complainant’s mother took her first to a pharmacist to obtain a morning‑after‑pill and then to a hospital, during which drive she received a speeding ticket from the police.
Prior to her daughter’s disclosure to her, they had driven to the beach in her daughter’s car and she noticed that the booster seat which was normally on the back seat of that car was in an unusual position: wedged down and jammed so that she was unable to pull it out. She had asked her son for assistance to pull it out of the position in which it was stuck.
In cross-examination the complainant’s mother could not explain why her police statement did not mention that the complainant had told her of anal and vaginal rape. She wondered if that was because her daughter had told her that at a later time, when she felt more able to talk about what had gone on. She said that the complainant had told her that Ch had been making sexual advances to her and that she had rejected them, saying that he had a daughter and T was her friend. She was not aware of any falling out between the complainant and T after the events the Court was concerned with.
After her daughter had disclosed these things to her, she gave her 5 mgs of Diazepam which she thought was the only prescribed medication her daughter had at the time. Her daughter had bruises and she took photographs of them which she gave to the police.
A doctor with 20 years’ experience in forensic medicine gave evidence that he examined the complainant on 25 December 2018. There was a 5 millimetre long laceration in her labia minora, near the anus. There were bruises on her left lower leg, but she said they were due to fitness training. He took swabs from the complainant’s vulva and vagina which were sent to pathology. The complainant did not tell him of anal penetration. He thought the laceration was indicative of recent vulval penetration. He described it as a minor injury which did not bear upon whether or not the penetration was consensual or not. He also could not say whether the injury had occurred on 22 December 2018, or 23 December 2018.
T gave evidence that she was seven years older than the complainant and that she was her manager at a hairdressing salon. They were friends until they fell out over these events. In 2018 at the time of the events with which the Court is concerned, Ch was her de-facto husband. The appellant was living with them in their house.
She remembered the drinking party on 22 December 2018. While they were all drinking together the appellant kept saying things to the complainant like “I’ll give you 120 bucks to suck [Ch’s] dick”. She remembered that C went to bed first and then she went to bed. Ch, the appellant and the complainant stayed up all night. She thought she went to bed about midnight. The next morning her daughter woke her up. The appellant, the complainant and Ch were still up. The complainant made her a coffee and then went home. The appellant went with her. She thought that was about 9.00 am.
Some time later that day she found out that Ch and the complainant had had sexual contact and she was upset about that. The complainant tried to call her but she did not take the calls. Eventually the complainant sent her a message on Facebook:
“He kissed me first on the couch then I said no and he kept trying then [the appellant] come out and then we went in the garage and then [the appellant] and [Ch] just started doin stuff and then [the appellant] made me have sex with him for blackmail and I was crying telling him no look at me I’m a mess I wanna go home Please. He kept touching my thigh while driving and we were fighting over which direction to get back to the highway and all he kept asking was to get a head job even though I was balling [sic] he still pressured me. He made me pull into some random street and pull over so I can stop ‘stressing out’ about [Ch] but I refused and he made me. He started pulling off his pants and I’m crying saying no I kept saying stop and when I said no please [appellant] I don’t want to do this I want to go home, he forced my pants off and put me in the backseat of mums car and basically just started going knowing full fucking well I’m balling [sic] my eyes out the whole time but he was so forceful and I tried my best to push him off but he wouldn’t stop and I haven’t stopped crying and vomiting they both did at the same time like [the appellant] was trying put his thing in my mouth.” – RB2 272.
T asked the appellant and Ch to leave about two weeks after the events with which this Court is concerned.
Senior Constable Stuart gave evidence that he attended the hospital when the complainant was there in relation to her rape complaint. The complainant told him that she had been at a friend’s place overnight on 22 December 2018, into the morning of 23 December 2018. She said that as she was driving the appellant home, they pulled over and the appellant forced her into the back of the car where he raped her. This was only a brief conversation as another detective who had conduct of the matter was on his way; he did not press the complainant for more information.
Detective Senior Constable Serchin was the detective charged with investigating the complaint. He arranged for the complainant to travel from the original hospital to the Royal Brisbane Hospital for a medical examination on Christmas Day. He then asked for swabs to be taken from the rear seat of the complainant’s car. In cross‑examination he said that the complainant made disclosure of vaginal and anal penetration when he spoke to her at the original hospital.
The appellant did not give evidence at trial. His case was conducted on the basis that he had consensual vaginal intercourse with the complainant on the back seat of her car on the way home after the party.
Arguments as to Unreasonable Verdict
The appellant made his argument orally. He attacked the complainant’s credit in various ways. He said that she did not mention the “three‑way activity in the garage” until her examination-in-chief. That is, she did not make the complaint to staff at the hospital and did not make the complaint to police. She clearly makes the complaint in her Facebook message to T on 23 December 2018. Insofar as the appellant’s point is recent invention, that would seem an answer to it. If his point is more generally as to her credit, it was a matter for the jury to weigh, along with such factors as the complainant’s age and embarrassment. They would also bear in mind that cross‑examination on behalf of the appellant was to the effect that the activity did occur, but was consensual.
Probably the real gravamen of the appellant’s point is that the complainant changed her position on consent regarding the “three‑way” in the garage. That is, she did not complain to police that the activity was non-consensual when she had the opportunity to, and she told them that sexual activity with Ch was consensual. There was a credit point to be made about this. And it was made by the appellant’s counsel to the jury. The Crown addressed it too. The Crown prosecutor accepted that there was a discrepancy, but urged the jury to take note of what the complainant said about that discrepancy – that she felt confused and embarrassed and was “processing” what had happened. She was 19 years of age. There was also the fact that sexual activity with Ch was a betrayal of the complainant’s friendship with T. That provided a reason why she may not have been forthcoming. All these matters were for the jury.
The appellant asserted that the complainant said nothing to the doctors at the hospital about anal rape. That seems to be true so far as the forensic specialist was concerned. There was no evidence from any other doctor. However, the cross-examiner led evidence that the complainant told Detective Serchin about anal rape at the original hospital. Why he did not pass that information on to the forensic specialist was not explored. It was open to the jury to find that the complainant made a preliminary complaint to her mother about anal rape, although there was a difficulty with her mother’s evidence in this regard (above). The appellant asserted to us that there was no evidence at all of anal rape. Yet there was; the complainant gave oral evidence of it. The jury obviously accepted it.
The appellant pointed to the fact that the complainant did not mention her use of Xanax in her police statement. He also said from the bar table that he had been prescribed Xanax and was not aware that it was available in a 0.25 milligram tablet so that the complainant’s evidence about this must have been false. These matters are not of any moment.
Lastly, the appellant relied upon what he asserted were inconsistencies in the complainant’s evidence about conversations she said occurred as she drove him. He asserted that she said different things at different times in her evidence about whether or not T would be told of her having sex with Ch, and who would tell T. It was difficult to understand exactly what submission was being made, when the evidence was reviewed. However, if there were inconsistencies, they were relatively minor and, again, for the jury.
Individually, and in their totality, the points the appellant makes in support of his argument that the verdicts were unreasonable must fail. It is certainly true that the prosecution case depended in large part upon the complainant’s evidence and that if the jury disbelieved her they ought to have entered verdicts of acquittal. It is true that there were some inconsistencies in her evidence. These points were well ventilated at trial. There was nothing identified by the appellant which meant that the jury must have had a reasonable doubt about guilt.[3] This ground of appeal must fail.
[3]Pell v The Queen (2020) 268 CLR 123, 147, [44].
Specific Error
This ground of appeal centres on something the prosecutor said to the jury in her address about the appellant’s participation in the “three‑way” in the garage. It is necessary to look in detail at the evidence the complainant gave about what happened in the garage. In evidence‑in‑chief she said:
“… before we just broke you gave evidence that when you were in the garage [Ch] had come and put his arm around your shoulder and started kissing you. Where was [the appellant] at that point?---He was still in the kitchen.
Had [Ch] mentioned anything to you about [the appellant]?---No.
Now, what happened after [Ch] started kissing you?---He – he lay – he laid me down, because we were sitting on a black couch. Laid me down. Took off my pants and put his penis inside of me.
And how long did that go for?---About five minutes.
What happened after that five minutes?---Then [the appellant] came back into the garage.
And what did he do?---He seen what was happening, and he came over. He pulled his pants down and stuck his penis in my mouth.
And was anything said at that point by him?---No. I can’t remember if he did.
And yourself? Did you say anything?---I couldn’t really say much.
And [Ch], did he say anything?---No.
How long did that go for?---Twenty minutes.
And how did it end?---I don’t know. It just ended.
And did [the appellant] say anything to you afterwards?---I can’t remember.
And when you said that it just ended, where did [the appellant] go?---I think he went back into the kitchen to get a drink”. – AB2, 114-115.
A further exchange which bore on the consensuality of what occurred in the garage was this:
“Now, I just want to ask – and just go back to what was happening in the garage at [T’s] place when [the appellant] came in – where you and [Ch] were. Did you know that [the appellant] was coming in?---No. I didn’t think he would.” – t 1 – 50.
Neither Ch nor the appellant was charged in relation to any act which occurred in the garage. In leading the complainant’s evidence-in-chief, the prosecutor did not ask the complainant whether or not she consented to the appellant putting his penis in her mouth in the garage. The prosecutor did ask whether what happened in the garage between the complainant and Ch was consensual. That produced the evidence referred to above, ie., the complainant said, “I felt pressured, so I don’t know.” And “So I don’t know if it was consensual. I just felt like this is what I had to do.” – AB2, 115.
There matters stood at the end of the complainant’s evidence-in-chief. In her cross‑examination of the complainant, defence counsel explored the question of whether sex with Ch was consensual or not, no doubt for a forensic or tactical reason, which to some extent succeeded, producing the credit point referred to at [44] above. Cross-examination included the following:
“And you also gave evidence that you ended up having sex with [Ch]; right?---Yes.
And you also gave evidence that you felt pressured?---Yes.
In other words, you didn’t want to have sex with him; is that what you’re saying?---Yes.
Okay. Do you remember speaking to Police Officer Serchin? I’m, again, referring to your statement?---Yes.
Do you recall what you said to him about having sex with [Ch]?---Yes. At the time, I told him that was consensual.
What do you mean at the time?---At the time of making the statement.
So are you saying that when you were providing your statement to police, you told police officer that you had consensual sex with [Ch]; right?---That’s what’s in my statement. Yes.
And now you’re saying that you felt pressured and - - -?---Yes.
- - - in fact, didn’t want it?---Yes.” – t 2 – 29.
The cross-examination moved on to explore issues of consent between the appellant and the complainant as to sexual activity in the garage:
“Okay. So when you and [Ch] started having sex, that was in the garage; right?---Yes.
And you were doing it on the lounge chair?---Yes.
And would you accept that at some stage my client walked [in] on you two?---Yes.
Whilst you were engaging in sexual intercourse?---Yes.
And do you accept that at some – after – sorry – he walked in, [Ch] told him to get out?---I can’t remember.
Well, I suggest to you that’s what he said. I would also suggest to you that my client then told both of you that it’s up to you to make a decision whether he stays or not. You accept that?---No.
Okay. I would suggest to you that you, in fact, asked my client to stay there?---No.
And I would suggest to you that you unzipped his pants and started giving him a blowjob?
HIS HONOUR: Sorry, can you - - -
WITNESS: No.” – t 2 – 32.
Some later argument reveals the prosecutor saying that the complainant’s last answer was emphatic and emotional, “she nearly started to shout it and started to cry.” – t 3 – 20.
More cross-examination on this subject was as follows:
“MS CHEKIROVA: So you remember you gave evidence yesterday about that particular segment of the night when you started having sex with [Ch]; right?---Sorry. Can you repeat that?
Yes. Can you remember giving evidence yesterday about this particular stage of the night when you were having sex with [Ch]?---Yes.
And you also gave evidence that my client then, basically, joined in; is that right?---Yes.
And you also gave evidence that this activity between the three of you continued for – or went on for approximately 20 minutes. Do you recall that?---Yes.
Okay. And if I suggest to you that at some stage [Ch] left to get a drink, would you accept that?---Ye – like, at the end?
Well, the three of you were having sex; right?---Yeah.
And at some stage there was pause and [Ch] leaves to get a drink. Would you accept that?---I can’t really remember.
Well, I would suggest to you that’s exactly what happened, and I would also suggest to you that my client then asked whether he could have a vaginal sex with you. You recall that?---No, I don’t recall that.
Well, I would suggest to you that when he asked to give him a turn, your response was, ‘Don’t worry, I will sort you out later’. Recall that?---No.” – tt 2 – 34 – 35.
In discussions between counsel and the primary judge before addresses, the prosecutor asked that the judge direct the jury that what went on in the garage showed that the appellant had a sexual interest in the complainant. The trial judge refused to do this, and that decision forms no part of this appeal. Where the only issue as to the rape was consent, and where cross-examination proceeded on the basis that defence counsel accepted sexual activity occurred in the garage, there was no need for a direction about sexual interest. However, at the conclusion of that discussion, the trial judge said:
“HIS HONOUR: It’s really just part of the narrative. And, obviously, it’s relevant [in a factual] way because I’m sure you’ll be submitting to the jury that, clearly, he wanted to have sex with the complainant and he was going to have sex with her regardless of whether she consented or not. I presume it’ll be something along those lines.”
In her address to the jury the prosecutor did just that:
“Now, in terms of what she said, you’ve heard evidence from her about what happened in that party when she went on the 22nd of December. You’ve heard how the defendant had made some comments to her through the night, questions of for $120 would she give [Ch] a blow job, or words to that effect.
You might also think she very clearly rejected the proposition that was put to her that she’d said to [T] that she was a prostitute, or had been boasting about that at the party. You might recall her immediate reaction to that was one of disbelief, you might think. She very clearly rejected that proposition. And also think of her clear evidence about what she said to the defendant, to [the appellant], when he was making those comments about the $120. ‘No, fuck off, [appellant]’, or words to that effect.
You might think that that shows she clearly was not interested in him on that night. ‘No, fuck off, [appellant]’, or ‘Fuck off, [appellant]. Leave me alone.’ And what happened with [Ch] is relevant later that evening, in the Crown’s submission to you. Is when you consider that the defendant knew what had happened between the complainant and [Ch]. And then used it in a form of pressure to her. She was already upset in the car. Telling her that he was going to tell [T] about what happened unless she gave him a blow job, or words to that effect, he wouldn’t say anything. Going to pressure her, as he knew that she and [T] were friends.
You might also think that his actions that the complainant described in that encounter on the 22nd, before the car, clearly showed his state of mind, what he wanted from the complainant. As she described, he put his penis in her mouth when she was unaware that he was going to be there.
And ultimately you think about what he did afterwards. As she described not long after that, she got into the car, and as she’d already told the defendant she would give him a lift. That was when they left for home. And you might think that that evidence from her where he put his penis in her mouth clearly shows what he wanted. He was going to act against her, regardless of what she wanted. And you might think that that’s particularly evident also from his actions on the 23rd when in the car and he started to then touch her thigh. As she described, he was sliding his hand, moving it on and off repeatedly in that drive while she was upset.
You might think it was clear, though, that she rebuffed him when he was putting this pressure on her about telling [T]. She rejected what he was asking. Saying, ‘No, let me talk to [T].’ And you’d think from that that that clearly showed she was not giving him consent to sexual acts that day in the car. She was clearly telling him no. ‘Let me talk to [T]’, when he was putting this pressure on her. ‘If you give me a blow job [T] won’t have to find out’, or words to that effect.” – tt 1 – 4 – 5 (my underlining).

Although there does not seem to have been any relevant argument before the summing‑up, the trial judge did go to this part of the prosecutor’s address in his summing‑up. He said:
“… So you heard evidence in this case of other conduct which took place between the defendant and [the complainant], which the prosecution says is necessary to explain what occurred in the incidents which are the subject of the alleged offences. So this relates to the incident in the garage when she’s having, it appears, consensual sexual intercourse with [Ch], and either the defendant’s there all the time, or he walks in, and he pulls his penis out of his pants and the complainant performs oral sex on him.
You’ll recall the complainant said that she felt pressured to take part in the activity with [Ch]. Now she – the defendant’s not charged with that as a criminal offence, okay? That evidence has been led as part of the narrative of the events that led up to it, and the prosecution in effect say that puts it all in context that clearly the defendant took the opportunity to engage in sexual activity with the complainant on that occasion, and was determined to have full sexual intercourse with her in the car against her will.
You must understand the relevance of this evidence is limited. If you accept this evidence that it occurred, it doesn’t make it more probable that he committed the alleged offences in the back seat of the Mazda. The evidence is relevant only to answer questions which you might naturally have about the background to the incidents, which the prosecution allege are the charged offences.” – t 2 – 16.
On this appeal, the appellant’s counsel submitted that there was no evidence led from the complainant that the oral sex she performed on the appellant was non-consensual.[4] That is, it was argued that the evidence did not support the prosecutor putting the underlined part of her address to the jury. The argument continued that the trial judge did not correct this error of fact, and made matters worse by re-stating it.
[4]Para 8 of the written submissions.
While the complainant was not expressly asked whether or not she consented to the behaviour of the appellant in the garage, there was evidence from which the jury might well have inferred that she did not, or alternatively, that the appellant would have acted in the way he acted, whether or not she consented. The part of the prosecutor’s address which I have quoted above invited the jury to make one of those findings. That did not go beyond what was reasonably and fairly available on the evidence.
Insofar as the trial judge referred to the facts, I think he did so in a way which was favourable to the appellant. He refers to the complainant “having, it appears, consensual sexual intercourse with [Ch]”, when that was contrary to the complainant’s evidence at the trial. He then describes the appellant joining in and says that “the complainant performs oral sex on him”. That description, like the description just quoted from the appellant’s submissions on appeal, in fact goes beyond the evidence. There was no evidence that the complainant “performed oral sex” on the appellant. Her evidence was of a less consensual activity than that. It follows that I reject these parts of the appellant’s argument on appeal.
Even so, I think it is necessary to consider the next part of the appellant’s argument. This was that the direction in the final paragraph of the extract from the summing‑up above was “not directly responsive” to what the prosecutor had said and did not warn the jury that it should not reason in the manner which the prosecutor invited them to reason.[5]
[5]Para 9 of the written submissions.
The starting point for analysis must be that it was well open to the jury to come to the factual conclusion that the appellant acted without the complainant’s consent, or acted recklessly not caring whether she gave consent, in the garage, about an hour or so before the alleged rapes. Evidence of acts such as these are “a particular example of evidence that reveals criminal or discreditable conduct of an accused other than the conduct with which he or she is charged”.[6] The evidence is probative and relevant because it makes it “more probable that the charged acts occurred”.[7]
[6]HML v The Queen (2008) 235 CLR 334, [1].
[7]Above, [2].
As discussed in some depth by Gleeson CJ in HML v The Queen, there are times when, even though this type of evidence is relevant and probative, it will not be admitted or, if it is admitted, will call for warnings from a trial judge as to the way in which it can, and cannot, be used. These questions usually revolve around whether or not the prejudicial effect of the evidence outweighs its probative value so that its admission makes the trial unfair to the accused. Usually it is the prosecutor who wishes to lead such evidence because it establishes propensity, motive, or is an indispensable part of the narrative. As Gleeson CJ discusses in HML (above), [9], “Questions of admissibility of a complainant’s evidence of uncharged acts usually arise for decision either before the trial or during the evidence-in-chief of the complainant”.
One of the things that makes the present legal issue unusual is that the evidence of non‑consensual behaviour by the appellant in the garage was an inference to be drawn largely from evidence which was elicited by defence counsel. Much of what was put to the complainant by way of cross‑examination seems to have been the appellant’s instructions that the complainant deliberately chose to invite him to participate in oral sex in the garage and, at the conclusion of that, promised that he would be able to engage in full sexual intercourse with her in the near future. If established, this narrative would have assisted the appellant on the only issue in dispute in the case – consent: it would have shown a course of conduct over a period of around an hour which was engaged in willingly by the complainant. Putting these instructions to the complainant in cross-examination was risky. Perhaps not surprisingly, the complainant did not agree with the propositions put. The appellant did not give evidence. Therefore, on the evidence, the inference was open to the jury that there was a course of conduct over a period of about an hour in which the appellant engaged in sexual activity with the complainant either without her consent, or careless as to whether or not he obtained it. Having taken the risk and attempted to prove a narrative which would assist him, the appellant can hardly be heard to say that it was unfair for the prosecutor to invite the jury to draw a relevant and probative factual inference from the evidence led.
The complainant’s evidence about lack of consent in the garage was not relevant because it was evidence of propensity in the Pfennig[8] sense. It was part of a relevant narrative, in fact, perhaps so closely connected with the offending as to be because it was part of the res gestae of the offending.[9] The Crown did not attempt to lead it, but once the appellant had, his position was analogous to that of an accused who has called evidence of good character. If that is how he has chosen to conduct his case, the Crown may call evidence of disreputable and uncharged acts when they would not otherwise have been permitted.[10] Here, the appellant’s counsel led evidence which was against him. Once it was in, the Crown could use it.[11]
[8](1994-1995) 182 CLR 461. Pfennig was an identification case. Difficulties arise when attempts are made to apply the reasoning to cases where different factual questions arise; Gleeson CJ discusses this in HML, above.
[9]O’Leary v The King (1946) 73 CLR 566, 577, per Dixon J, cited by Gleeson CJ in HML (above), [24]. It is apparent from Dixon J’s judgment that he regarded the res gestae as lasting many hours in that case where essentially the accused went on a continuing drunken, violent rampage.
[10]HML (above), [23], per Gleeson CJ, and Gaudron J in Gipp v The Queen (1998) 194 CLR 106, 111, [10] citing BRS v The Queen (1997) 191 CLR 275.
[11]I do not mean to indicate a view one way or the other on the question of whether the evidence as to lack of consent in the garage could have been led by the Crown at the trial.
It follows in my conclusion that the prosecutor inviting the jury to draw an inference that what occurred between the complainant and appellant in the garage was non‑consensual, and inviting the jury to use it in relation to the issue of consent to the sexual intercourse which took place at the soccer field, was permissible and legitimate.[12]
[12]Cf the discussion in HML beginning at [12].
I turn to the judge’s direction to the jury in the third paragraph of the extract from the summing‑up, above. In some respects the judge’s direction was inapt to the situation before him. The direction seems to be based on that part of the Benchbook which deals with “Evidence of Other Sexual or Discreditable Conduct of the Defendant”, a relevant chapter of the Benchbook. However, the direction seems to be based on a model suggested as appropriate “where relationship evidence is admitted for context and not to prove sexual interest”. The evidence here was not relationship evidence. It was more narrative or res gestae evidence. It was so closely connected in substance and time to the offending that it was relevant and probative as to the issue of consent. Having said that, the limitations which the trial judge put on the evidence were more favourable to the appellant than necessary and, as discussed above, his reference to the facts also favoured the appellant. Ultimately, I cannot think that the direction was to the prejudice of the appellant.
The appellant complained that the trial judge ought to have expressly told the jury that “the appellant was not charged with any prior non-consensual activity with the complainant … , consistent with there being no evidence of any such conduct”.[13] As explained, I think there was evidence of such conduct if the jury cared to draw the inference, and the trial judge did tell the jury that the appellant had not been charged with any criminal offence resulting from what took place in the garage – see the second paragraph of the extract from the summing‑up above.
[13]Para 39 of the written submissions, italics in the original.
Although not squarely within the appellant’s argument on appeal, I have considered whether the trial judge ought to have given any other particular direction about the evidence. While the evidence was capable of supporting the Crown case on lack of consent, a finding that the complainant did not consent to sexual activity with the appellant in the garage was not an indispensable intermediate fact.[14] It does, in a sense, demonstrate sexual interest in the complainant, but a sexual interest between adults, not a sexual interest within the operation of the majority view in HML.[15] Lastly, because I do not see the possible inference to be drawn, or the reasoning urged by the prosecutor as being in relation to Pfennig propensity, I do not think it was necessary for the judge to have given a warning about propensity reasoning.
[14]Shepherd v The Queen (1990) 170 CLR 573, and see Gleeson CJ in HML at [32]. In fact the Crown case was planned to be run without using that evidence at all.
[15]HML (above), [247], per Hayne J.
DAVIS J: On 15 July 2022 in the District Court, the appellant was convicted of three counts of rape.[16] He was sentenced to a term of imprisonment of eight years. The appellant appealed his convictions and sought leave to appeal against the sentence. The application for leave to appeal against the sentence was abandoned and the application was dismissed.
[16]Criminal Code, s 349.
On the evening of 22 December 2018, a group of people, including both the appellant and the complainant, gathered at a house in Caboolture.
The usual residents of the house were the appellant, T, and Ch. C is T’s brother. He did not usually reside in the house but was temporarily staying there and was present at the gathering. Ch and the appellant are brothers.
In 2018, T and Ch were in a sexual relationship, as were the complainant and C.
During the gathering both alcohol and cannabis were consumed.
The complainant and C went to a bedroom in the house. There was some sexual activity between the complainant and C but that is irrelevant. At some stage, C fell asleep while the complainant remained awake. She received a text message from Ch who invited her to meet him at the back of the house. What then occurred is the subject of a ground of appeal.
The evidence of this incident (the incident at the house) was opened by the Crown prosecutor as follows:
“You’ll hear that [the complainant] went to bed briefly, but then ultimately she was contacted by Ch asking if she was still up and if she wanted to hang out. She was on her phone when she got that message, and so she agreed. She said ‘Yes’, and she went out to where he was. When outside with Ch, he told her how he wasn’t with T, her friend. He kissed her. She kissed him back, but not long later the defendant came outside. It was at this point that he asked for the lift to North Lakes. She agreed, and they went to the garage area of the house, and that was when Ch came back to where she was on her own, telling her that [the appellant], the defendant, knew that they’d kissed earlier. He told her he’d make sure that the defendant wouldn’t tell T, Ch’s partner, and then Ch leant in and started kissing her again.’
He’d asked the complainant if they could have sex, and she agreed, but meanwhile, the defendant came to where they were. He went to where she was with Ch, and then went and put his penis in her mouth.”
Evidence of the incident at the house was given in evidence in chief by the complainant:
“Okay. Now, when you went to bed, was that just a separate room that you went to?---Who?
Sorry. When you went to bed, you and C?---Yeah, it was the same, like, it was - yeah, we just had a room. Like, the daughter’s playroom.
Okay. And where was the defendant, [the appellant], and Ch at that time?---I’m not sure where they were.
Okay. So C fell asleep; that’s right?---Yeah, eventually. We were like - - -
Okay?--- - - - fooling around, yeah.
Okay. And so you went to sleep. Now, what happened - sorry, C went to sleep. What happened next. What were you doing?---So I was laying there on my phone because I couldn’t really sleep, and then that’s when Ch sent me a message to come outside and hang out.
What did you do?---I got [up] and went out - I got up and went outside.
And whereabouts did you go outside?---Out to the back.
All right. Now, who was there?---Just me and Ch.
Did he tell you anything then?---Like what?
Did you have a conversation with him?---Yeah. We were talking and sharing a cigarette. And then, yeah, he leaned in and kissed me.
And what did you do?---I kissed back at first, and then pulled away and sort of said, ‘What about T?’.
Did he tell you anything in reply?---He said that they weren’t together at the time.
And where was [the appellant], do you know?---No.
And how long were you with Ch for?---Like 15 or 20 minutes, and then [the appellant] showed up at the back door.
Did he say anything to you?---Yeah, he asked me for a lift to North Lakes.
Did he tell you when he wanted to go there?---Sorry, what was the question.
Sorry, did he tell you when he wanted to go to North Lakes?--- Like, within the next, like, hour and a bit.
So where did you go to next after - sorry, I should just ask, what did you say to him asking you for a lift to North Lakes?--- I said yes.
And where did you go to next?--- Then we, all three of us, went into the garage, and [the appellant] and Ch walked out and left me alone in the garage.
Were you alone for long?--- Maybe five minutes.
What happened after that five minutes?---Ch came back in, put his hand around my shoulders, put his arm around my shoulder.
And did he tell you anything?---No, he just started kissing me again. …”
And later:
“[Complainant], before we just broke you gave evidence that when you were in the garage Ch had come and put his arm around your shoulder and started kissing you. Where was [the appellant] at that point?---He was still in the kitchen.
Had Ch mentioned anything to you about [the appellant]?---No.
Now, what happened after Ch started kissing you?---He - he lay - he laid me down, because we were sitting on a black couch. Laid me down. Took off my pants and put his penis inside of me.
And how long did that go for?---About five minutes.
What happened after that five minutes?---Then [the appellant] came back in to the garage.
And what did he do?---He seen what was happening, and he came over. He pulled his pants down and stuck his penis in my mouth.
And was anything said at that point by him?---No. I can’t remember if he did.
And yourself? Did you say anything?---I couldn’t really say much.
And Ch, did he say anything?---No.
How long did that go for?---Twenty minutes.
And how did it end?---I don’t know. It just ended.
And did [the appellant] say anything to you afterwards?---I can’t remember.
And when you said that it just ended, where did [the appellant] go?---I think he went back into the kitchen to get a drink.
And what did Ch do?---I’m not sure.
And do you know where he went?---No, I can’t - I walked out of the garage to go to the car when [the appellant] was getting the drink, so I don’t - I don't really know.
And I just want to just ask, what was happening with you and Ch, was that consensual?---I felt pressured, so I don’t know.
HIS HONOUR: Sorry, I missed that word. You said, ‘I felt pressured’?---Yes.
What else did you say?---So I don’t know if it was consensual. I just felt like this is what I had to do.” (emphasis added)
In cross examination, the fact that the incident at the house occurred was not challenged but an alternate version was put. Trial counsel for the appellant made the point that the complainant did not mention having intercourse with Ch in her initial police statements. The cross examination then included:
“Okay. So when you and Ch started having sex, that was in the garage; right?---Yes.
And you were doing it on the lounge chair?---Yes.
And would you accept that at some stage my client walked in on you two?---Yes.
Whilst you were engaging in sexual-intercourse?---Yes.
And do you accept that at some - after - sorry - he walked in, Ch told him to get out?---I can’t remember.
Well, I suggest to you that’s what he said. I would also suggest to you that my client then told both of you that it’s up to you to make a decision whether he stays or not. You accept that?---No.
Okay. I would suggest to you that you, in fact, asked my client to stay there?---No.
And I would suggest to you that you unzipped his pants and started giving him a blowjob? …”[17]
[17]No answer was given to this question as the trial judge intervened.
And later:
“So you remember you gave evidence yesterday about that particular segment of the night when you started having sex with Ch; right?---Sorry. Can you repeat that?
Yes. Can you remember giving evidence yesterday about this particular stage of the night when you were having [sex] with Ch?---Yes.
And you also gave evidence that my client then, basically, joined in; is that right?---Yes.
And you also gave evidence that this activity between the three of you continued for - or went on for approximately 20 minutes. Do you recall that?---Yes.
Okay. And if I suggest to you that at some stage Ch left to get a drink, would you accept that?---Ye - like, at the end?
Well, the three of you were having sex; right?---Yeah.
And at some stage there was a pause and Ch leaves to get a drink. Would you accept that?---I can’t really remember.
Well, I would suggest to you that’s exactly what happened, and I would also suggest to you that my client then asked whether he could have vaginal sex with you. You recall that?---No, I don’t recall that.
Well, I would suggest to you that when he asked to give him a turn, your response was, ‘Don't worry, I will sort you out later’. Recall that?---No. …
All right. I would suggest to you that that’s what you said, and you also said to him, ‘Can I pinch a cone?’,[18] after that?‑‑‑No.
I would suggest to you that you did ask for a cone, and he gave you a cone, and you were smoking after he provided you with - - -?---No, I wasn’t - - -
- - - a cone?--- - - - because when it ended them two left, and I left the garage and I got into my car.
All right. Well, I would suggest to you that after you smoked the cone, my client left the garage while Ch returned, and you continued on having an intercourse. That’s with Ch. You accept that?---No, can you repeat that?
I’m suggesting to you that when Ch came back from the kitchen, having had a drink, my client then leaves, but you start having sex with Ch again. Do you accept that?---No, I don’t. That doesn’t even make sense.
Well, I accept - or I suggest to you that’s exactly what happened, and my client when walks back into the garage just because you were very loud, and he told you stop because T and her daughter were about to wake up?---No.
Okay. And I would suggest to you that was around 7 o’clock in the morning. Would you accept that?---The time. I accept the time.
Okay. And I would suggest to you that after my client actually told you to stop, you did, and the three of you ended up walking back to the kitchen?---No.
And I would suggest to you that’s the time when my client actually asked for a lift. Would you accept that?---No.” (emphasis added)
[18]In context a reference to cannabis.

It was common ground that at some time after the incident at the house the complainant and the appellant left together in a Mazda car being driven by the complainant. By this stage, it was the early hours of 23 December 2018. The pair stopped at a convenience store. The appellant left the car to buy coffee and the complainant remained in the car. What occurred thereafter was contentious.
The complainant gave evidence of the following conversation which she said occurred once the appellant returned to the car:
“And when [the appellant] came back after going into the shop, what happened next?---We started driving, and he was saying he was going to tell T about what happened in the garage and said that if I gave him a blowjob, he won’t say anything. And he kept putting his hand on my thigh.
And at the time, he was - he said that and was doing those things, what were you doing?---I was trying to concentrate on driving, but I was upset, and I was swerving.
And how many times did he say those things about T finding out?---Around three times, four times.
What did you say when he said that to you?---I said, ‘Don’t. I could talk to her.’
And when - you said he put his hand on your thigh - oh, sorry - on your leg, whereabouts was that?---On my - my thigh.
And what was he touching: was it skin or your clothes?---Skin - skin. …
And can you just describe how he was touching you? What he was doing?---He - he - he was sliding his hand around on my thigh.
Can you say how long that went for?---I don't know. I don’t know.
And which leg was he touching?---My left.
How many times did he do that action when you were driving?---I’m not too sure. He - it was on and off.
And, now, you mentioned that you were upset. Can you just describe what you meant by that?---I was still processing everything that happened in the garage.
And what were you doing, when you say you’re upset?---What do you mean?
Were you saying anything?---I think I was crying and just telling him, ‘Let me talk to T’.
And what did he say to you when you said to him, ‘Let me talk to T?---I don’t remember what he said.” (emphasis added)
The complainant gave evidence that at the appellant’s direction, she pulled over near a soccer field and some houses. The complainant said that over her protestations the appellant guided her into the back seat, undressed her and put his penis inside her vagina (count 1). While she continued to protest, he had intercourse with her. He then withdrew his penis from her vagina and penetrated her anally (count 2) and later withdrew and penetrated her vagina a second time (count 3).
In cross examination of the complainant, the fact of vaginal intercourse was not denied. It was put to the complainant that the appellant did not penetrate her anus and that amounted to a complete denial of count 2. It was put to her that consensual vaginal intercourse ensued after an initial conversation put to her as:
“Yep. And then I will take you back, again, to the car drive. So you stopped at some petrol station around Caboolture; right?---Yes.
And I was suggesting to you that you probably spent about 10 minutes in the car when [the appellant] went out to grab some drinks?---Yes.
Okay. And after what happened at T’s house, would you accept a general proposition that you were very concerned and scare that T might find out that you had sex with Ch?---Can you please repeat that?
After you left T’s house I would suggest to you that you were really concerned and [scared] that T might find out that you had sex with Ch, her partner?---Yes.
And you talked to [the appellant] about it whilst you were in the car?---No, not really. We didn’t really talk, I don’t think.
I would suggest to you that during the drive, you asked my client, ‘Are you going to tell T?’ You recall that?---Well, I recall saying, ‘Let me talk to T.’
Sorry?---I - I said to him, ‘Let me talk to T.’
But you are not accepting my proposition that you, in fact, asked him whether he would tell T about what happened?---Yes. I did ask.
And would you accept that my client said to you, ‘No’? That - meaning that he wouldn’t tell her?---I can’t really remember what he said.
Okay. And I would suggest to you that you were so concerned about him potentially telling T that, in fact, you said or [suggested] to him that you would have sex?---No.
Okay. I would suggest to you that you then climbed into the backseat and told him - - -?---No.
Just let me finish; okay?---Sorry.
That you climbed into the backseat, and you took your own clothes off and told him, ‘Let’s get it over and done with’?---No.”
Issues arose at the trial as to the appropriate use the jury could make of the evidence of the incident at the house. The submissions and the judge’s directions are analysed later.[19]
[19]Paragraphs [92] to [120] of these reasons.
The Crown led evidence of preliminary complaint and some other evidence but conceded at trial that, in order to convict the appellant, the jury would need to be satisfied beyond reasonable doubt of the truth of the complainant’s evidence on the elements of the counts.
The appellant did not give or call evidence. He was convicted of all three counts.
The grounds of appeal
As filed, the notice of appeal identified three grounds of appeal but one was abandoned. The two that remained are:
“1.The convictions for counts 1, 2 and 3 were unsafe and unsatisfactory.
2.The verdicts for counts 1, 2 and 3 were unreasonable and could not be supported by the evidence.”
The description of a verdict being “unsafe and unsatisfactory” is another way of describing the statutory ground of appeal of a verdict being unreasonable. Ground 1 adds nothing.[20]
[20]Criminal Code, s 668E; M v The Queen (1994) 181 CLR 487 at 492.
Leave was given to add another ground, namely:
“The learned trial judge failed, in giving directions to the jury, to cure the risk of prejudice arising from the Crown’s mischaracterisation of an earlier sexual encounter between the complainant and defendant (as, effectively, an uncharged act of rape).”
Mr O’Brien and Mr Perry of Counsel appeared pro bono for the appellant and advanced both written and oral argument on the ground which was added by leave. The appellant made oral submissions in support of the assertion that the verdicts were unreasonable.
Grounds 1 and 2; Unreasonable verdicts
I have had the benefit of reading a draft of the judgment of Dalton JA. For the reasons given by her Honour, the verdicts are not unreasonable and grounds 1 and 2 ought to be dismissed.
The added ground; Failure to properly direct the jury on the evidence of the earlier sexual encounter
Complaint was made as to the prosecutor’s address to the jury on the evidence of the incident at the house. The relevant passage appears at paragraph [57] of the reasons of Dalton JA. In my view, the complaint is valid.
By the time the Crown prosecutor addressed the jury, there were two central issues in contention:
1.whether the complainant consented to the acts of vaginal penetration which constituted counts 1 and 3; and
2.whether the appellant committed the act of anal penetration which constituted count 2.
The incident at the house could demonstrate sexual interest by the appellant in the complainant.[21] However, it was not in issue that the appellant had a sexual interest in the complainant. It was common ground that he engaged in intercourse with her in the car later.
[21]R v Bauer (2018) 266 CLR 56 at 82 [49] following HML v The Queen (2008) 235 CLR 334.
The appellant’s case was that his sexual activity with the complainant in the garage was consensual. However, no concession was achieved in cross examination of the complainant to that effect and there was no other evidence to support the version put by counsel to the complainant.
The Crown prosecutor put to the jury that the incident at the house “showed his state of mind” that “He was going to acting against her, regardless of what she wanted”. The full passage appears at paragraph [57] of the judgment of Dalton JA.
Those comments do not concern the state of mind of the complainant but the state of mind of the appellant. The statements could only be understood as that the appellant intended to overcome resistance, and ignore any protestations of the appellant, if he later made some sexual advance.
In evidence in chief, the complainant was asked whether she consented to intercourse with Ch. There was some evidence to suggest that the complainant did not consent to the intercourse with Ch; she said “I felt pressured, so I don’t know” and “so I don’t know if it was consensual. I just felt like this is what I had to do”.[22] Whether or not the complainant actually consented to intercourse with Ch is marginally relevant (at best) to whether she consented to sexual activity with the appellant in the garage and even less relevant to whether she consented to the charged acts in the car.
[22]Paragraph [78] of these reasons.
The complainant was not specifically asked whether she consented to the appellant putting his penis in her mouth. She was asked whether she said anything when this occurred and she said, perhaps understandably, “I couldn’t really say much”.
There was no suggestion in either the evidence in chief or cross examination of the complainant that she:
(a)physically resisted Ch;
(b)physically resisted the appellant’s sexual advances in the garage;
(c)uttered one word or sound consistent with resistance of either Ch or the appellant; or
(d)demonstrated a lack of consent in any way which would have suggested to the appellant that she was not consenting.
It seems from the complainant’s evidence in chief that the complainant was with Ch and the appellant for about 20 minutes after the appellant walked into the garage. Whether the appellant’s penis was in her mouth over that whole time is unclear. Her evidence as to whether or not she was consenting to either the acts of Ch or of the appellant is at best equivocal and, as I have already observed, there was no suggestion of overt dissent or resistance.
As pointed out by Dalton JA in considering the unreasonableness ground, there were features of the evidence which clearly had to be taken into account when considering the complainant’s actions over the whole episode and later; she was very young, she was understandably embarrassed and confused.
However, in proper context, the Crown prosecutor’s submission was that the appellant’s action in placing his penis in the complainant’s mouth (when there was no manifestation of a lack of consent and no physical resistance) showed that the appellant had at that point in time manifested an intention to sexually “act against [the complainant]”, ignore her lack of consent to any future sexual act by him and overcome any resistance by her.
The submission by the Crown prosecutor was in my view illogical and a serious overreach. It required judicial correction to avoid misuse of the evidence of the incident of the house.
Before counsel addressed the jury, the judge invited submissions on the content of the summing up. As to the appropriate directions concerning the incident at the house, this exchange occurred between the trial judge and the Crown prosecutor:
“PROSECUTOR: But ultimately, what I was getting at in terms of that particular uncharged act, it’s ultimately the Crown’s submission is there might need to be a direction in terms of sexual interest and the like that it made it more likely he was going to commit the three counts on the indictment shortly afterwards when alone with her. And just so that effectively there’s a use of it to the jury.
HIS HONOUR: Well, I mean, you talk about ‘unnatural sexual interest’ in respect of adults committing sexual offences on children because that’s unusual and unnatural. But when I’m talking about adults, I think, it’s a natural thing for a human male to be attracted or sexually interested in a human female. The whole propagation of the species depends on it, by and large. So what’s the relevance of it then?
PROSECUTOR: Well, the relevance of it, in the Crown’s submission is that it shows that the particular relevant point in time, that - - -
HIS HONOUR: Yes.
PROSECUTOR: - - - he had a sexual interest in her, in particular, and it went more than, say, beyond friends that we’ve heard evidence other than knowing each other.
HIS HONOUR: Yes.
PROSECUTOR: And then makes [indistinct] later, shortly afterwards when having, left the house, no longer with Ch and alone with her.
HIS HONOUR: Okay. All right. I’ll just get the bench book direction up. So was the complainant asked - I don’t think she was ever asked whether she consented to that or not, was she?
PROSECUTOR: Your Honour, I did - I didn’t ask specifically. She - what she did say was that she wasn’t aware that the defendant was going to come in. It was just her and Ch at the time.
HIS HONOUR: Yes.
PROSECUTOR: And so her description was that he came in and immediately put his penis into her mouth.
HIS HONOUR: Yes.
PROSECUTOR: And she otherwise was not aware that was going to happen. So whilst it specifically hasn’t been put to her in the Crown case, it was also then in cross-examination to the extent that it was her actions that showed she was consenting to it.
HIS HONOUR: Yes, well, it’s not - well, rejected that proposition. There’s no evidence of it. I’m sure [defence counsel] will be making submissions about whether the jury should accept her evidence on that. So I just want to get the bench books up. Because sexual interest - the direction usually [indistinct] in cases of adults having - allegedly having sexual activity with children and that’s an unnatural thing and uncharged acts are relied on to demonstrate that an offender had a sexual interest in a particular child. I don’t know the same logic applies to adults. I’ll just get the directions up. See, the direction that’s usually given is that evidence of uncharged sexual acts is led to prove that the defendant had a sexual interest in the complainant and was prepared to act upon it. This evidence makes it more likely that the defendant committed the offence with which he is charged. Here, as I understand it, the issue is not that there was sexual intercourse on the back seat of the Mazda. The question is whether the complainant consented to - with - or whether the prosecution can prove that, beyond reasonable doubt, that she did not consent to that.
PROSECUTOR: Yes, that is ultimately what - - -
HIS HONOUR: Yes.
PROSECUTOR: - - - the issue will be for their consideration for those counts.
HIS HONOUR: Yes.
PROSECUTOR: It’s relevant - - -
HIS HONOUR: See, because - so this is the direction for children, that he had a sexual interest in a child, was prepared to act upon it and that makes it more likely that he committed charged sexual acts on children. And the relevance of that is because it is unusual and unnatural for an adult to have sexual interest in children. I don’t think the logic applies here. And the fact that the defendant had a sexual interest in the young adult complainant doesn’t mean that he’s likely to rape her.
PROSECUTOR: I appreciate your Honour’s point. I won’t take it much - well, I won’t take the submission any further - - -
HIS HONOUR: Yes.
PROSECUTOR: - - - in the circumstances.
HIS HONOUR: It’s really just part of the narrative. And, obviously, it’s relevant in a factual way because I’m sure you’ll be submitting to the jury that, clearly, he wanted to have sex with the complainant and he was going to have sex with her regardless of whether she consented or not. I presume it'll be something along those lines.
PROSECUTOR: Yes, your Honour.
HIS HONOUR: Yes.
PROSECUTOR: And, similarly, in relation to the relevance of the encounter with Ch, it’s relevant in the sense of the blackmail or emotional type blackmail that he then used later on.
HIS HONOUR: Yes.” (emphasis added)
The reference to “blackmail or emotional type blackmail” is a reference to the complainant’s evidence of the alleged threat by the appellant to tell T about the complainant’s activities with Ch. The evidence appears at paragraph [81] to these reasons.
In opening her submission about the appropriate direction to the jury, the Crown prosecutor referred to the incident at the house and “sexual interest” and “that made it more likely he was going to commit the three counts on the indictment shortly afterwards when alone with her”. However, the fact of intercourse was admitted[23] and the real issue was consent. Evidence of sexual interest is not usually relevant so much to a lack of consent.
[23]Although the conduct constituting count 2 was denied.
No submissions were made by defence counsel on the proposed direction.
In summing up, his Honour told the jury:
“We then come to the elements of the offence. I just want to remind you briefly of what the complainant said. So there’s the Christmas party at T’s house. I’m using Christmas party as a brief description of really what seemed to be a drinking party. There was obviously a lot of activity. There was the incident in the garage when she was involved in some intimacy with Ch on the black couch. There was kissing and then there was sexual intercourse. To the police she said that was consensual, here in court she said she was pressured.
You don’t really probably have to decide that, although it is a relevant factor to consider on her credibility and reliability, because of course [defence counsel], in her submissions, said well there’s a stark difference in her evidence there, and then at some point whether the defendant was there all the time, or whether he came in afterwards, there was the incident of oral sex. That is she performed oral sex on the defendant, and then there was some discussion about the complainant, [name redacted], giving the defendant a lift in the morning.”
His Honour gave specific directions as to the use of the evidence of the incident at the house:
“You’ll recall the complainant said that she felt pressured to take part in the activity with Ch. Now she - the defendant’s not charged with that as a criminal offence, okay? That evidence has been led as part of the narrative of the events that led up to it, and the prosecution in effect say that puts it all in context that clearly the defendant took the opportunity to engage in sexual activity with the complainant on that occasion, and was determined to have full sexual intercourse with her in the car against her will.
You must understand the relevance of this evidence is limited. If you accept this evidence that it occurred, it doesn’t make it more probable that he committed the alleged offences in the back seat of the Mazda. The evidence is relevant only to answer questions which you might naturally have about the background to the incidents, which the prosecution allege are the charged offences.” (emphasis added)
The jury were told both by the Crown prosecutor and the trial judge that evidence of the incident at the house “showed” that the appellant would have intercourse with the complainant in the absence of her consent. Accepting that submission would be an error. Further, it invited impermissible propensity and bad character reasoning; the appellant engaged in the incident at the house and was therefore likely to have later raped. The type of person who would engage in such discreditable activity (albeit arguably consensual) at the house is the type of person to rape. Evidence may only be admitted to show propensity in very limited circumstances.[24] They do not exist here.
[24]Pfennig v The Queen (1995) 182 CLR 461.
Mr Finch, on behalf of the Crown, submitted that the judge’s directions overcame the overreach by the Crown prosecutor. He submitted that the jury would have understood that the only use of the evidence was as narrative to understand how the appellant threatened the complainant that he would inform T about the complainant’s actions with Ch.
That submission should be rejected. The first paragraph of the direction set out at para [110] of these reasons identifies the evidence of the incident at the house as “part of the narrative of the events that led up to [the commission of the offences]”. In the very next passage, the judge refers to the erroneous submission by the Crown prosecutor that the evidence “showed” he would have intercourse with the complainant without her consent.

His Honour did not correct the Crown prosecutor’s submissions. On any fair reading, his Honour links the “narrative” with the Crown prosecutor’s statements, such that the jury must have understood that the evidence of the incident at the house was part of the “narrative”, which in turn is relevant to the intention of the appellant to rape the complainant.
The second paragraph of the direction further confuses the situation. Evidence is only admissible if it is relevant in that it affects “the assessment of the probability of the existence of a fact in issue in the proceedings”.[25] If the evidence of the incident at the house did not “make it more probable that the appellant committed the alleged offences in the back seat of the Mazda”, as the judge directed, then the evidence should not have been led at all. Of course the jury must have understood the judge to be directing them to use the evidence in their deliberations on guilt of the charge. They had just been directed to use the evidence in consideration of the major issue in the trial; consent. They had just been told to consider whether the incident in the garage showed that the appellant would force himself upon the complainant even if she resisted.
[25]HML v The Queen (2008) 235 CLR 334 per Gleeson CJ at 351 [5] following Washer v Western Australia (2007) 234 CLR 492, at 497-498 [5] and Goldsmith v Sandilands (2002) 76 ALJR 1024, at 1025 [2].
The jury were directed that “the evidence is relevant only to answer questions which you might naturally have about the background to [the offences]”. That begs the inquiry “what questions?”. According to the direction, the “questions” are about “the background”. Assuming the “background” is, in context, synonymous with the “narrative” then, according to any fair reading of the first paragraph, the appellant’s willingness to have intercourse with the complainant without her consent is part of the “background” referred to in the second paragraph of the directions.
The direction was confusing, ambiguous, internally inconsistent and imprecise and did not, in my view, negate the potential impact of the prosecutor’s overreach. The jury were left to speculate how evidence of a sexual act at the house which may have been consensual and, at best for the Crown, was one to which the complainant gave no resistance or made any protest, became “background” or “narrative” which “showed” that in relation to unconnected acts in the car at a later time, the appellant acted without consent.
After giving the direction concerning the incident at the house, his Honour turned to other issues. These included summarising the arguments of the respective barristers. In summarising the submissions of the Crown prosecutor, his Honour observed:
“In respect of the incident in the garage, when the defendant came over while Ch and the complainant were having sex, he just put his penis in [her] mouth. He was obviously keen to have sexual contact with her, and he was keen to do it afterwards. That’s why he was in the car, that’s why he told her to pull over, and clearly he was going to have sexual intercourse with her regardless of whether she wanted it or not. …”
Where a trial judge, when summarising the submissions of the respective barristers, refers to a particular submission, the judge is tacitly inviting the jury to consider the submission unless the judge says otherwise. Whatever the effect of the earlier direction might be, it was nullified or further confused by the judge’s tacit endorsement of the Crown prosecutor’s submission that the jury consider the evidence of the incident at the house as broadly probative of a lack of consent by the complainant to the sexual acts which she said occurred in the car.
In summary:
1.the evidence of the incident at the house was not, without more, probative of an intention by the appellant to perform sexual acts against the complainant over her dissent or resistance;
2.the Crown prosecutor’s submission to the contrary was wrong, was apt to confuse the jury and invite inappropriate propensity or bad character reasoning;
3.the judge ought to have directed the jury to disregard the submission;
4.the directions which were given did not remedy the damage done by the Crown prosecutor’s submission; and
5.the directions endorsed the erroneous submission.
Mr Finch rightly submitted that since there was no application for redirection, the added ground can only succeed if the appellant demonstrates a miscarriage of justice.[26] That will have occurred, relevantly here, if a reasonable prospect of acquittal was lost.
[26]Dhanhoa v The Queen (2003) 217 CLR 1, at 13 [38].
I am of the view that it was open on the evidence for the jury to convict the appellant. However, the complainant’s evidence was not corroborated in any material respect. There were inconsistencies in her evidence and it is at least arguable by the appellant that the complainant consented to the sexual acts between her and him at the house. In a case alleging sexual misconduct, evidence of earlier sexual misconduct is, by its very nature, likely to be very damaging, as are comments and directions inviting misuse of the evidence.
In my view, the appellant has demonstrated a miscarriage of justice in relation the added ground and the convictions must fall.
Conclusions
In my view, the appeal ought to be allowed as the trial judge failed to adequately direct the jury in the face of an inappropriate submission made by the Crown prosecutor. That failure led to a miscarriage of justice.
For the reasons given by Dalton JA the verdicts were open on the evidence. Therefore acquittal of the appellant on appeal is not appropriate. He should be retried.
I would make the following orders:
1.The appeal is allowed.
2.The convictions on all three counts are set aside.
3.The appellant be retried.

CITATION:	R v KBG [2024] QCA 45
PARTIES:	R v KBG (appellant)
FILE NO/S:	CA No 164 of 2022 DC No 1568 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction & Sentence: 18 July 2022 (Chowdhury DCJ)
DELIVERED ON:	3 April 2024
DELIVERED AT:	Brisbane
HEARING DATE:	15 November 2023
JUDGES:	Mullins P and Dalton JA and Davis J
ORDER:	The appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of three counts of rape after a jury trial – where the appellant attacked the complainant’s credit in various ways – where these matters concerning the complainant’s credit were for the jury – whether the jury must have had a reasonable doubt about guilt such that the verdict was unreasonable CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – CONSIDERATION OF SUMMING UP AS A WHOLE – where the prosecutor told the jury the discreditable uncharged acts of the appellant about an hour prior to the rapes showed the appellant was going to act against the complainant regardless of what she wanted – where appellant’s counsel submitted that the evidence did not support the prosecutor’s address to the jury and the trial judge did not correct this error of fact – whether the prosecutor’s address went beyond what was reasonably and fairly available on the evidence – whether any fault identified in the summing-up was prejudicial to the appellant AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8, cited HCF v The Queen (2023) 97 ALJR 978; [2023] HCA 35, cited HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, considered Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, cited Pfennig v The Queen (1994-1995) 182 CLR 461; [1995] HCA 7, considered Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56, cited
COUNSEL:	The appellant appeared on his own behalf on the unreasonable verdict ground A I O’Brien and G F Perry for the appellant on the specific error ground (pro bono) J D Finch for the respondent
SOLICITORS:	The appellant appeared on his own behalf on the unreasonable verdict ground Fisher Dore for the appellant on the specific error ground (pro bono) Director of Public Prosecutions (Queensland) for the respondent