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  • Unreported Judgment

R v Brown

 

[2020] QCA 159

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v Brown [2020] QCA 159

PARTIES:

R
v
BROWN, Leigh Murray
(appellant)

FILE NO/S:

CA No 223 of 2019

DC No 86 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Southport – Date of Conviction: 29 August 2019 (Kent QC DCJ)

DELIVERED ON:

7 August 2020

DELIVERED AT:

Brisbane

HEARING DATE:

8 April 2020

JUDGES:

Morrison JA and Boddice and Williams JJ

ORDERS:

  1. The appeal be allowed.
  2. The conviction on Count 1 be set aside.
  3. A verdict of acquittal be entered on that count.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was found guilty of one count of rape (Count 1) – where the appellant was acquitted of a second count of rape (Count 2) – where both counts related to the same female complainant – where the appellant appeals his conviction on the ground that the jury’s verdict of guilty on Count 1 was unreasonable and unable to be supported on the evidence – where the appellant and the complainant matched on Tinder – where the appellant and the complainant communicated regularly, including explicit messages with sexual innuendos – where a safe word was identified and the appellant asked the complainant if she remembered the safe word before undertaking different sexual acts – where the complainant’s evidence at trial that she told the appellant she could not remember the safe word was not consistent with her detailed statement to police given days after the events – whether the jury ought to have entertained a reasonable doubt as to the appellant’s guilt – whether the verdict of the jury on Count 1 was unreasonable

Criminal Code (Qld), s 668E

Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited

Hocking v Bell (1945) 71 CLR 430; [1945] HCA 16, cited

Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56, cited

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited

Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75, cited

Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12, cited

R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited

R v CX [2006] QCA 409, cited

R v Dalton [2020] QCA 13, cited

R v GAW [2015] QCA 166, cited

R v Holland [2017] QCA 69, cited

R v Lennox; Ex parte Attorney-General (Qld) [2018] QCA 311, cited

R v Motlop [2013] QCA 301, cited

R v Newlove [2019] QCA 291, cited

R v Reynolds [2015] QCA 111, cited

R v Sun [2018] QCA 24, cited

R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151, cited

R v WBH [2019] QCA 249, cited

Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, cited

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited

COUNSEL:

B J Power for the appellant

D Balic for the respondent

SOLICITORS:

Guest Lawyers for the appellant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    MORRISON JA:  I have had the benefit of reading the draft reasons prepared by Boddice J, which set out much of the evidence given at the trial.
  2. [2]
    His Honour has reached the conclusion that the verdict on count 1 was unreasonable and should be set aside, with a verdict of acquittal being entered.  I have reached the contrary conclusion on that count for reasons which are set out below.  Because much of the evidence has been reviewed in the reasons of Boddice J, my own review of the evidence and reasons for my conclusions can be expressed more economically than would otherwise be the case.

Legal Principles

  1. [3]
    The principles governing how this ground of appeal must be approached are not in doubt.  In a case where the ground is that the conviction is unreasonable or cannot be supported having regard to the evidence, SKA v The Queen[1] requires that this Court perform an independent examination of the whole of the evidence to determine whether it was open to the jury to be satisfied of the guilt of the convicted person on all or any counts, beyond reasonable doubt.  It is also clear that in performing that exercise the Court must have proper regard for the pre-eminent position of the jury as the arbiter of fact.
  2. [4]
    The role of the appellate court was recently restated in Pell v The Queen:[2]

“The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.”

  1. [5]
    The High Court restated the pre-eminence of the jury in R v Baden-Clay.[3]  As summarised by this Court recently in R v Sun,[4] in Baden-Clay the High Court stressed that the setting aside of a jury’s verdict on the ground that it is unreasonable is a serious step, because of the role of the jury as “the constitutional tribunal for deciding issues of fact”,[5] in which the court must have “particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.”[6]

The Evidence

  1. [6]
    The complainant was a mature woman of 46 when she met the appellant via the Tinder application.  As events transpired, she and the appellant had made contact previously on Tinder but the complainant had terminated any contact before they met because the appellant “wanted to send suggestive texts, like a dick picture, and was wanting to talk sleazy”.  To the contrary of that, the complainant was seeking a relationship.
  2. [7]
    When the complainant and the appellant reconnected on Tinder the appellant asked if they could start again, saying “I’m a good guy … let’s try again”.  That led to the course of communication by text as well as phone calls.  I will shortly refer to the text messages in more detail.  As for the phone calls, the complainant described their content as being that they were both “just talking to get to know each other basically”.  Her evidence was that those phone conversations did not include discussion about sexual acts which they might engage in if and when they met.[7]
  3. [8]
    The text messages were tendered at the trial.[8]  At the start, the appellant told the complainant that he did not want to meet her just for sex, but “If the connection is there then it can happen the first night”, a sentiment with which the complainant agreed.[9]  The appellant also described his view of close sexual connection as involving “looking into their eyes (window to the soul) at the same time”.  The complainant agreed saying, “it’s all in the eyes”.[10]  Then followed a series of texts over time in which each of the complainant and appellant posed questions to the other, seeking a response as to what they liked generally and in terms of sexual preferences.  The following is a synopsis of those texts, matching specific answers to specific questions, and making some observations:
    1. (a)
      the complainant said she did not want full frontal naked photographs before they met, and the appellant agreed;[11]
    2. (b)
      the appellant described himself as “dominant and rough”, to which the complainant asked “Rough?”, and added “Don’t like rough”;[12]
    3. (c)
      the complainant asked the appellant to “Explain rough”, asking “As in hard fucking all the time?”; the appellant responded that “Maybe my kinda rough you might like”, and rough was “Not hard fucking all the time”, to which the complainant responded that “I love that”;[13]
    4. (d)
      the appellant said that rough included “more than hair pulling and spanking”, and the complainant asked for examples; the appellant replied “Choking. Slapping, general man handling”; the complainant said “Don’t want to be choked” and that she had tried it but did not like because it made her “Feel violated”;[14]
    5. (e)
      having asked what the appellant meant by “manhandling” the appellant responded “pushing you up against a wall or throwing you around a bit”; the complainant responded “Hmmm as long as I’m not physically hurt”;[15]
    6. (f)
      responding to the appellant’s description that “The only time I’ll own you is sexually”, she asked “Kind of like 50 shades?”, drawing the response from the appellant that “Well a little pain is pleasurable but I don’t wanna give you a black eye or anything”;[16]
    7. (g)
      the appellant then described that he had a serious girlfriend two years previously and “I’d slap her face during sex”, but that “one day I slapped her face and then back handed her … I left a bruise.  Black eye.”; the complainant responded “Ow wow”, and “I think slapping on the arse & hair pulling is good for now”;[17]
    8. (h)
      it was then that the appellant first mentioned “role play rape”; he explained his conduct towards his former girlfriend as “Got a bit excited in the moment.  We were doing role play rape.  So much fun but she was ok about the black eye”;[18] that comment was not posed as suggesting that the complainant might be interested in role play rape; in fact, the complainant went on to say “Well we might never have sex So let’s just meet and see if we connect in person”; the complainant responded “Agreed.  Let’s meet first & see if the chemistry is there …”;[19]
    9. (i)
      it was the appellant who then proposed that they play “the question game”, where each would “take turns asking this or that, 2 response questions” and the other “must choose an answer”, but not repeat the question back; the appellant initiated that sequence by asking the complainant “Cats or dogs?”; the appellant assured the complainant that it was not a test, but “Just a way to learn about each other”;[20]
    10. (j)
      the complainant and appellant resumed the question game after a break with the topics including whether each preferred sunrise or sunset, cats or dogs, kissing or spooning, walking on the beach or in the rainforest, colours, movies, food, movie stars, and TV channels; the complainant asked whether the appellant preferred a “Relationship or friends with benefits”, and he responded “Relationship”;[21]
    11. (k)
      some of the questions then turned to sexual preferences, the complainant asking whether the appellant preferred “Dinner on the first date followed by sex”, or “just sex”, and “Sex on table” as opposed to the kitchen floor; it was at this point that the appellant asked whether the complainant liked “Anal or no?”, and she responded “Nope”; she then qualified that answer, when the appellant said “Bummer”, by saying “Depends”, “But don’t like to be [in] pain”, and “Perhaps if I’m in a relationship then yes … Not general sex”;[22]
    12. (l)
      the questions resumed then with more general topics, including apples or oranges, electrician or builder, but the appellant then resumed asking sexually related questions, “Spit or swallow?”, to which the complainant responded “Hmmm politely spit”;[23]
    13. (m)
      after a break they resumed the question game, interspersed with discussion concerning a medical condition from which both the appellant’s daughter and father suffered; the appellant asked the complainant’s preferences for “Lingerie or cosplay”, and also said that body stockings were his favourite, then sending about nine images of women in body stockings;
    14. (n)
      the appellant then proposed that they meet; it was at this point that the complainant said “I need to use protection.  If we do sleep together … As there are still a hell of a lot of things we could potentially give each other”;[24] the appellant responded that “Yeah that’s ok I guess.  If we sleep together.  But let’s see first and also if we click the[n] we can go get tested together and then feel free after that”, to which the complainant responded “[A]t the moment I’m really mentally drained & have been thinking that I actually am seeking something more”;[25]
    15. (o)
      the next day the texts resumed with the question game (including coffee or tea, lights or darkness, Scotland or Ireland, various foods and books) interspersed with questions concerning the appellant’s father and his medical issues and other general matters;
    16. (p)
      the appellant then returned the questions to sexual matters asking “Deepthroat or gag?”, to which the complainant replied “Not a fan of deep throat”,[26] and she was not interested in biting on the nipples as “It really hurts me”;[27]
    17. (q)
      the appellant asked the complainant’s preference for “Face or tits for climax?”, the complainant responding “Tits”, and rejecting the appellant’s comment that he wanted to “cum all over your pretty face”;[28] her answer was “Not face … I’ll have to bite you”, drawing the response from the appellant “That’ll get you in trouble missy”, and her response “But then I guess you would hold my arms over my head & do it anyway right?”;[29]
    18. (r)
      the appellant responded to the last text from the complainant, saying “Maybe but if you use a safe word then I’d stop”;[30] this was the first time that the appellant had used the phrase “safe word”, but there was no explanation of what he meant; the appellant then texted “You want me too [sic] don’t you?”; the complainant evidently understood the appellant’s comment as being a reference to holding her arms over her head and ejaculating on her face, to which she said “No”;[31] the appellant then corrected her by saying “I mean wank”,[32]
    19. (s)
      what followed then was a series of texts in the category of sexting, concerning oral sex, the appellant masturbating, and each exchanging photographs; the texts then immediately returned to the question game and general questions about the health of the appellant’s father;
    20. (t)
      the topics in the question game included hotel or camping, how to cook eggs, what cheese, which country to visit, types of music, movies and movie characters; the only sexual overtone concerned preferences for hugging and whether that would include “arse grabbing”;[33]
    21. (u)
      they discussed meeting and the complainant reminded the appellant to get condoms “Just in case things get electric between you & I”,[34] and told him that condoms had to be used “to protect both of us”, and “I can’t do anything without protection … Have to use it”;[35] she told the appellant that they had each slept with a lot of people and she wanted to stay healthy, so “It’s important to me”;[36]
    22. (v)
      the texts concerning the arrangements to meet continued, with the complainant reminding the appellant that “we need protection … Or no sleeping with anyone”, and the appellant responding “Yeah I get it for the 10th time.  Protection”.[37]
  4. [9]
    On any reasonable view, the texts made the complainant’s views about several things quite plain:
    1. (a)
      she did not like rough sex and in particular choking;
    2. (b)
      manhandling might be acceptable as long as she was not physically hurt;
    3. (c)
      she rejected the attraction of being slapped in the face during sex in response to the appellant’s revelation that he had been physically violent to his previous girlfriend;
    4. (d)
      she rejected anal sex because she did not like to be in pain, but it might be possible but only if she was in a relationship;
    5. (e)
      condoms were essential if they were to have sexual intercourse; and
    6. (f)
      she rejected the suggestion that she might want to have her arms held over her head and be ejaculated upon.
  5. [10]
    Further, there was no suggestion whatever in the text messages that the complainant might engage in rape role play on any occasion with the appellant, let alone the first occasion when they met.  The appellant’s only reference to rape role play came in his description of his having been violent towards his previous girlfriend, “having backhanded her” and given her a black eye and a bruise.  The complainant’s response to that revelation could not have reasonably conveyed any interest at all in participating in rape role play, but rather the contrary.
  6. [11]
    In the complainant’s evidence in chief she said that when they met at the hotel there was no conversation at that time about the sort of sexual activity in which they might engage.[38]  Nor was there any such discussion when they arrived at the complainant’s unit after leaving the hotel.[39]  The sequence of sexual interaction related in the evidence in chief was as follows:
    1. (a)
      she insisted that he put a condom on, which he did; and they then engaged in consensual vaginal intercourse;
    2. (b)
      the appellant then said he wanted to take the condom off and did so; the complainant said nothing to the appellant about that;
    3. (c)
      the appellant then said that he wanted to put his penis in her mouth and the complainant refused to agree to that; she tried to push him away;
    4. (d)
      when the complainant was pushing the appellant away as he attempted to put his penis in her mouth, and saying she did not want to do that, the appellant said that he was going to slap her and was not going to tell her when he was going to do that;[40] when he said that the complainant was “like in shock” and “really frightened”;[41]
    5. (e)
      the appellant then said that if she was not going to allow that, he would turn her over and engage in anal sex; the complainant resisted that as well saying “I don’t want to do that”;
    6. (f)
      as the appellant attempted to put his penis in her mouth, she resisted by trying to push him away;
    7. (g)
      the appellant desisted from attempting to put his penis in her mouth;
    8. (h)
      the appellant said that he was going to come up with a safe word which was to be used in this way: “He basically said if things are getting a little bit too heated or a bit too much, to say a certain word and then he would stop”; the complainant’s response was “I don’t want to talk about a safe word”;[42]
    9. (i)
      the appellant proposed the word “Buddha”, but the complainant said she did not want to do it;[43]
    10. (j)
      having penetrated her anally, the appellant slapped her on the left hand side of the face “really, really hard” and “really forceful”; the complainant felt like she had blacked out, saw stars and was “in total shock and basically I was crying”;[44]
    11. (k)
      the appellant then put his hands against her throat saying that it gave a heightened sense of orgasm, and “was pressing down really hard on my throat”;[45] in response the complainant said no, adding that it was really hard for her to talk and she was in shock;
    12. (l)
      at that point the complainant could not remember the safe word; the appellant was saying “what’s the safe word? What’s the safe word?” and she said to him “I don’t know, I can’t remember.  I can’t remember … the safe word”;[46]
    13. (m)
      the complainant was still crying at this point, from when she had been slapped in the face;[47]
    14. (n)
      she could not remember the safe word because she was scared, and told him that she could not remember the safe word;[48] and
    15. (o)
      the appellant ejaculated in her anus, after which they went to sleep.
  7. [12]
    In cross-examination the complainant accepted that in her police interview she did not then say, that on the night in question she had told the appellant that she could not remember the safe word.[49]  The complainant explained that in the three days between the events at her unit and speaking to the police “my memory was a bit all over the place from what happened”.[50]  She was now certain, however, that on the evening she had told the appellant that she could not remember the safe word.[51]
  8. [13]
    The complainant confirmed in cross-examination that at various stages during the events of the evening the appellant had asked “what’s the safe word, what’s the safe word?” but was adamant that, whilst she did not say in the police interview that she had told the appellant she did not remember the safe word, she did tell him that on the night.[52]  When asked to explain why she did not tell the police, she said “with the night that happened with how I was and how I was coping …”, she then accepted that she forgot to tell them.[53]
  9. [14]
    The complainant accepted that the appellant raised the question of a safe word and asked her what she wanted it to be, but her memory was that she did not choose the word.[54]
  10. [15]
    The complainant explained her acceptance of the fact that she did not use the safe word during the sexual activities that night by reference to the fact that she could not remember it at that time.[55]  She accepted that every time the appellant did something different to her or changed what he was doing he said “what’s the safe word?”.[56]  She said that the appellant was slapping her on the face when she told him that she could not remember the safe word.[57]  When questioned as to precisely when she said that she could not remember the safe word, she said “It was slapping, it was the choking part, and then from what I can recall when he flipped me over and …”.[58]
  11. [16]
    Cross-examined further about the sequence of events once the appellant had taken the condom off and attempted to put his penis in her mouth, the complainant’s evidence was that she told him on every occasion that he asked, that she could not remember the safe word.[59]
  12. [17]
    It was put to the complainant in cross-examination that when the appellant slapped her face she had, in fact, used the safe word at that point.  The complainant denied that.[60]
  13. [18]
    The complainant said in cross-examination that she had not consented to the anal penetration:[61]

“Basically, after the vaginal and with what happened with the events, there was a period where I didn’t want to continue on and I didn’t want it to continue.  So, basically, I didn’t consent to the anal penetration.”

  1. [19]
    The complainant added that whilst the initial vaginal penetration was consensual, later episodes of vaginal penetration were not consensual because “things got … out of hand”.[62]  As for the slapping to the face, the complainant explained in cross-examination that she was not expecting it and the slapping was “very hard”.[63]  She said there were two blows on that night, the first to the left hand side of the face and the second to the right hand side.  That was preceded by him telling her that “When I hit you, … I’m not going to tell you when I’m going to hit you.  It’s just going to come out of nowhere”.[64]
  2. [20]
    In cross-examination the complainant was also confronted with the fact that in her police statement she had not accurately represented the part she played in the phone calls with the appellant.  She accepted that but explained it was because she was “upset about actually going to the police … It was important to give them the statement, but I was terrified”.[65]  She accepted that she played a part in participating in the sexual texts and at times was encouraging the appellant.[66]  She also accepted that they were equal parties in the sexting that occurred in the phone conversations and the texts.[67]
  3. [21]
    The complainant was cross-examined about the text message exchange during which the appellant revealed that he had been violent with his previous girlfriend and that he and his previous girlfriend were “doing role play rape”.[68]  It was put to her that she had not said to the appellant that she would not be into role play rape.  The exchange was as follows:[69]

“So you certainly didn’t say, no; you wouldn’t be into role play rape, did you?---After that I didn’t - - -

Didn’t give it another thought?---No.”

  1. [22]
    The complainant’s response to that proposition was consistent with that given in the texts themselves.  She was evidently surprised at his description of what he had done to his previous girlfriend, saying “Oh wow”, and her response was that something far less than what he had referred to would be “good for now”.  There was never a time when, in the texts, the appellant asked the complainant if she would engage in rape role play, let alone when she signified any interest in, let alone agreement to, such participation.[70]
  2. [23]
    Furthermore, there was no suggestion at the trial that the complainant had ever participated in rape role play before that night, was interested in it, or even knew what was involved in it.
  3. [24]
    In cross-examination the complainant explained why she made the complaints she did in the aftermath of the events.  When she went to her mother’s house she said nothing to her.  When she spoke to her sister she told her that she had been on a date and had been “slapped around a bit”, but did not tell her the rest of what happened.[71]  She had not made a complaint to her ex-partner the following day, explaining “No … he’s an ex”.[72]  She had spoken to a friend, Ms HM, who asked her if she had been raped, to which she said “Yes”.  That response matched what she had said in evidence in chief.[73]  She accepted that in her later conversation with Ms HM the complainant told her that the appellant had instructed her to come up with a safe word because he was going to do things to her like hitting her, and she would not know when.[74]  She also confirmed that she told Ms HM that the appellant was choking her so hard she could not even speak to say the safe word.[75]  The complainant said she could not recall bringing up the issue of the safe word in the conversation with Ms HM.[76]
  4. [25]
    The complainant was also asked what she had told the DV counsellor.  This was a reference to a counsellor who participated in a domestic violence call line.  In her evidence in chief the complainant said she told the DV counsellor “basically, what had happened, and I said he hurt me … and I was – that he knew where I lived and I was scared …”.[77]  In her evidence in chief the complainant said that she had not revealed “the whole thing” to the DV counsellor but simply that the appellant “made me do things I didn’t want to do”.[78]  When asked about that exchange in cross-examination the complainant said she could not recall the entire conversation but that she did reveal somebody had hurt her and she did not want him to do the things he did.[79]
  5. [26]
    In cross-examination it was put to the complainant that in both the text messages and the phone calls the appellant had spoken about his sexual preferences, including his interest in rough sex and rape role play.  The complainant answered affirmatively to those propositions.[80]  That response has to be seen in light of the fact that the text message said merely that on one occasion the appellant and his previous girlfriend had been engaged in rape role play, not that it was sexual preference.  It was put to the complainant that when they were back at the unit, and before any sexual intercourse occurred, the appellant had asked the complainant if she was interested in trying rape role play, to which the complainant had responded that she was interested.  To all of those propositions the complainant responded that she did not recall that at all and did not recall saying that and “don’t recall having that conversation at all”.[81]  In context those responses were denials.
  6. [27]
    As part of the propositions put to the complainant, it was put to her that she had been reminded by the appellant that she could use the safe word and that on each occasion when he did something he asked “what’s the safe word?” but she did not use it.  Her response was that she did not know what it was as she could not remember because she was so scared.[82]
  7. [28]
    In cross-examination the complainant explained why she had posted something on her Instagram account the evening after the events of count 1.  The post was a picture of a person’s hand around a woman’s mouth, and the words “Just know when to say “no”.  Had an awful experience the other night.”[83]  It was put to her that she had written those words because she had not, in fact, said no to the appellant on the evening.  The complainant disagreed saying “I did not want to put it under the picture because I have family members following”.[84]  She went on to explain that at the time, she felt violated and traumatised, and was upset and angry at having been raped.[85]
  8. [29]
    In re-examination the complainant said that at no time when she was back at the unit on the night with the appellant did he ask her to engage in rape role play or suggest that he would choke her.[86]
  9. [30]
    It is evident that in respect of count 1 the jury rejected the evidence given by the appellant in his own defence.  His evidence was to this effect:
    1. (a)
      in the telephone conversations prior to them meeting for the first time he had mentioned his preference for “rough sex, role-play rape”;[87] when he raised rape role play in the phone calls he did not have to explain to the complainant what it was, and “she was interested, but she was a little cautious”;[88]
    2. (b)
      when they arrived at her unit and were talking on the couch, he raised the question of rape role play asking if she was willing to give it a go, and she said yes;[89]
    3. (c)
      he explained to her about a safe word and she chose the word “Buddha”;[90]
    4. (d)
      when he wished to take the condom off he asked to do so but said he would keep it on if she insisted; she said he could take it off; he asked her twice “Are you sure?” and she said “Yeah”;[91] the appellant was shocked at her response when she agreed that he could take the condom off;[92]
    5. (e)
      after taking off the condom he asked her if she wanted to try some of the things such as “choking, slapping”, saying that he wanted the complainant “to feel comfortable with me before we tried these things”; she replied “Yes, fine”;[93]
    6. (f)
      at a point when they were having vaginal sex, and before any anal sex, he told her he was going to slap her in the face and asked her if she was okay with it, because it was something she was new to and he wanted to make her feel comfortable; he then slapped her in the face but “could see that she was visibly upset”; he stopped and spoke to her, asking if she was okay and could he “help try to calm down”;[94]
    7. (g)
      straight after he slapped her in the face, the complainant used the safe word;[95]
    8. (h)
      he did not slap her again, but engaged in rape role play, choking her and turning her over to engage in anal sex when she refused to let him put his penis in her mouth;[96]
    9. (i)
      the complainant did not use the safe word at any time during the rape role play, though the appellant “constantly reminded her of what it was”;[97]
    10. (j)
      he and the complainant spoke about rape role play and the use of a safe word several times by telephone and in her apartment, including talking about choking;[98]
    11. (k)
      according to him, “she was obviously interested in some rough sex” and “expressed that to me”;[99] she expressed that interest in the text messages;[100]
    12. (l)
      when in her apartment, he explained to her how rape role play worked because “This is something she’s doing for the first time … I need to make sure that she’s okay and that I’m going to be okay”;[101]
    13. (m)
      notwithstanding the telephone conversations, the complainant had not agreed to participate in rape role play before they got to her apartment;[102]
    14. (n)
      when talking about the rape role play at the unit, he told her that he “would slap her arse”, as well as “slap her face”, and she voiced her agreement with that;[103]
    15. (o)
      they did not discuss the subject of anal sex before sexual activity commenced that night;[104]
    16. (p)
      when he slapped her she was shocked and upset and crying;[105] he stopped what he was doing and “laid down with her … and cuddled her … and said, “Look, let’s not do that again because, obviously, that’s upset you.  You need a little while””; she then said “just give me a little while”, and two or three minutes later she was okay and said she was okay to continue;[106]
    17. (q)
      in the course of the rape role play he was “constantly asking her if she’s okay” and she responded “I’m fine”;[107]
    18. (r)
      while they were engaged in anal sex he asked her multiple times if she was okay, and she said she was fine;[108]
    19. (s)
      during the course of the activity he reminded her of the safe word between six and 10 times, because he “was being very cautious because this is something that’s new to her”;[109] and
    20. (t)
      throughout the night he told her “What’s the safe word?  Do you remember it’s Buddha?” and on each occasion she said “Yes, I know”.[110]

Consideration

  1. [31]
    In my view, the context in which the events occurred must be taken to have been understood by the jury, and needs to be acknowledged when assessing the quality of the evidence.  It is set out below:
  1. There was no suggestion that the complainant had ever participated in rape role play before that night, was interested in it, or even knew what was involved in it.  As noted above, her responses in the text conversations suggested the contrary.
  2. At no time in the text conversations did the appellant ask the complainant if she would engage in rape role play, or suggest that they do that.  No response of hers suggested that she had any interest in such a thing.[111]
  3. The complainant said rape role play was not raised in the phone calls and the jury were entitled to reject, as they evidently did, the appellant’s evidence that it was.  Given her expressed rejection of rough sex in the text messages, and only conditional acceptance of its possibility, namely being with someone with whom she was already in a relationship, the jury were entitled to reject the appellant’s evidence to the contrary.
  4. The events of count 1 occurred on the first occasion that the complainant had actually met the appellant.  They were not in a relationship.
  5. The appellant knew this was the first time the complainant had ever engaged in rape role play.  The circumstance was such that, in evidence by the appellant, which the jury could have accepted because it was against his interests, the appellant was conscious of the need to be cautious in how he proceeded.
  6. The complainant had previously expressed her rejection of slapping to the face as part of acceptable conduct.  The same was the case with choking.[112]  Nothing had changed, and the jury could therefore rightly reject the evidence of the appellant that she agreed on the night to engage in those activities.
  7. The complainant had rejected anal sex as something she would indulge in with someone with whom she was not in a relationship.  The text exchange was: “Anal or no?”, and she responded “Nope”; she then qualified that answer, when the appellant said “Bummer”, by saying “Depends”, “But don’t like to be [in] pain”, and “Perhaps if I’m in a relationship then yes … Not general sex”.[113]
  8. The complainant evidently agreed, on the night and not before, to try rape role play.  On the complainant’s evidence, choking and anal sex had not been mentioned that night and commenced without warning.  The appellant mentioned hitting her but not slapping to the face.  She had previously rejected the possibility of each of them, and it can be safely inferred that she did not agree to those activities being part of the rape role play.
  9. After the consensual vaginal sex, the appellant tried to put his penis in her mouth.  This was an activity which the complainant had indicated, in the text messages, she might participate in.[114]  Therefore it was not likely to have been part of the rape role play.  However, she resisted, both vocally and by physical actions.  Her resistance was successful as the appellant desisted.
  10. Only then did the appellant commence the rape role play conduct.  The first thing was to slap her face on both sides, with sufficient force to shock her and make her cry.  The appellant had told her he might slap her without notice as to when, but he said nothing as to the ferocity of the slapping, nor that it would be to her face.  The defence case acknowledged the force of the slapping, the shock, and the crying.
  11. The next act was to engage in forced anal sex.  The complainant was still crying at this point.  That the appellant might engage in anal sex as part of the rape role play had not been discussed between them at all.[115]
  12. The next was to choke her.
  13. Thus, the commencement of the rape role play involved three actions all of which, as the appellant already knew, the complainant had previously said were off limits.  The only qualification placed on that was in the case of anal sex, that it was a possibility only with someone with whom she was in a relationship, and they were not.
  14. The complainant’s crying continued after the slapping and choking, and during the anal sex.
  1. [32]
    That context points irresistibly to the conclusion that the complainant was telling the truth when she said she objected and tried to resist.  More importantly, when the complainant objected to those acts, and especially the anal sex, she was truly objecting and not playing along in the rape role play.
  2. [33]
    Further, in my view, that negates any suggested consent, either actual or on the basis of honest and reasonable but mistaken belief.  The complainant was not consenting.  When she agreed to try rape role play there was no mention that she would be slapped to the face, choked or forced into anal sex.  The jury could readily reason why, as each had been rejected as something in which she was prepared to engage.  Her agreement to rape role play plainly was not agreement to the inclusion of the anal sex.
  3. [34]
    The appellant’s repeated question, “What’s the safe word?” reveals that she was objecting and resisting.  Otherwise, why say it?  After all, the whole idea of rape role play is that the conduct would be rape but for use of the word.
  4. [35]
    The jury were entitled to conclude that the appellant’s suggested belief that she was consenting, by agreeing to try rape role play for the first time, was not honest, or reasonable.  He knew she had not expressed any interest in doing this before that night and had never done it before.  He had no basis to think she was such an accomplished actor that she could fake tears as part of the role play – it would have been obvious to him that she was genuinely shocked and upset, and the crying was a true signature of her lack of consent.  In fact, when the appellant explained in cross-examination how rape role play worked, he said that saying “no” and “stop” are something that is expected to be said and warrants the safe word.  He did not say that crying fell into the same category.  Further, the three acts (slapping on the face, choking and anal sex) were ones she had expressly negatived, and the anal sex was something which he knew she would not countenance with a person not in a relationship with her.  He well knew he was not in such a relationship – this was the first time they had met face to face.  The appellant did not forewarn the complainant that anal sex might be part of the rape role play.
  5. [36]
    In those circumstances the jury could be satisfied of two things.  Even if the complainant knew the safe word at an early point, she plainly forgot it.  Moreover, if she forgot it, she would not have remained silent about that.  Why would she stay silent when the acts perpetrated upon her were ones she objected to, before that night and on the night.
  6. [37]
    However, in my view, the jury were entitled to conclude that the appellant’s belief in consent was neither honest nor reasonable even if the complainant did not say to him that she had forgotten the safe word.  This was supposed to be rape role play, where the victim agrees to participate subject to using the safe word.  The acts were not supposed to cause actual physical injury or harm.[116]  Yet the appellant slapped the complainant so hard that even he realised he had overstepped the mark; the complainant was shocked, on his owns words “visibly upset”[117] and crying.  He then choked her, which he knew she had rejected as an option, and then penetrated her anus, which he also knew she had rejected.  And she was crying from the point at which she was slapped on the face.  From the moment she reacted to the slapping and started crying, the jury were entitled to conclude that the appellant could not have honestly or reasonably believed that she was consenting.  In my view, that conclusion is compelling and the contrary is risible.
  7. [38]
    The significant feature about the appellant’s evidence, again against his interests and therefore able to weighed by the jury in favour of the complainant, is that concerning the slapping to her face.  On the complainant’s and the appellant’s evidence that occurred before any anal sex, and was of such force that it evidently shocked her and upset her, so much so that she was crying.  According to the appellant it was so evident and upsetting that he actually stopped what he was doing and acknowledged that she needed time to overcome her reaction.  It was only after, that the appellant turned her over to engage in anal sex, which he acknowledged he did over her protests, saying that she needed to say the safe word as the agreed mechanism for him to stop.  The jury could rightly reject the appellant’s evidence that she expressly agreed to the slapping on the night both for its inherent incredibility, but more so for the fact that no such thing was put in cross-examination.[118]  Moreover, even though the jury could accept that the appellant told her he would slap her but not when he would, he said nothing about the ferocity of that act, which was central to her shock, upset and crying.
  8. [39]
    In my view, the jury could well reason that the shocking and upsetting event of having been very forcefully hit on both sides of the face, was something which is entirely consistent with the complainant’s account of having not remembered the safe word, and having said so.
  9. [40]
    The contrary inferences are extreme ones which can be rejected.  One is that the complainant, in fact, remembered the safe word but did not utter it even though she genuinely objected to what was being done to her.  Her objections were signified with great clarity in respect of the appellant’s attempt to force his penis into her mouth, and with her reaction to having been slapped in the face.  The second is that the complainant forgot what the safe word was in her shock and upset state, but lacked the ability or will to actually voice that fact.
  10. [41]
    The defence case was not that the complainant had forgotten what the safe word was.  To the contrary, the defence case was that she did remember the safe word, and chose not to use it.  The appellant’s own evidence was that he constantly asked her to say the safe word, and reminded her of what the word was, time and again.  The jury was thus presented with a stark contrast.  The complainant said she had forgotten the word and that is why she did not say it, and why she said so.  The defence case was that she had remembered the word, or was reminded of it enough times that she could not have mistaken it, and therefore the fact that she did not say the word signified actual consent, or a basis for mistaken but honest belief in consent.
  11. [42]
    Therefore, if the jury reached the conclusion, as they evidently did, that the complainant had forgotten the safe word, they were then confronted with the question of whether to accept her evidence that she told the appellant that she had forgotten it, or remained silent notwithstanding that she had.  There was no issue at the trial that she manifested her objection to events after the consensual vaginal intercourse, both physically and verbally.  If the jury accepted that the complainant had forgotten the safe word, they then had to consider whether in those circumstances (that being of vocal and physical objection while at the same time being asked by the appellant “What’s the safe word?”) what the likelihood was that the complainant would remain silent about the fact that she had forgotten the word.  In my view, the jury were entitled to reject that inference as so unlikely as to be untenable.  In my view, resolution of that question is quintessentially a matter for a jury.
  12. [43]
    Further, the complainant explained her state when she gave her police statement, only a few days after the event.  In the period after count 1 she was scared because she had been hurt and the appellant knew where she lived.  She described the experience as “an awful experience”, rape, she was upset about actually going to the police, and terrified at the time.  Whilst it is true to say that she did not say to the police that she had told the appellant on the night that she could not remember the safe word, the jury could accept those explanations as accounting for that omission.
  13. [44]
    It was contended that the slow development of the allegations made during the instances of preliminary complaint, and the text message sent by the complainant to the appellant after the event were impossible to reconcile with the contention that anal rape took place.
  14. [45]
    I am unable to accept that contention.  Explanations were given by the complainant as to why she did not reveal more to the people she spoke to after the event.  It was evident from her first reference in the Instagram post that she was concerned that family members would see what she was saying.  That accounts for the fact that she did not tell her mother or sister more than she did.  Further, she described her state of mind in the aftermath as being one where she was scared and upset and herself questioning whether the amount she had had to drink was a relevant factor.  The jury could accept those explanations for why she did not give a fuller account to her friend or the domestic violence counsellor.  Her description of her state of mind when she went to the police only three days later also adds to the circumstances which the jury might accept as placing a natural brake upon her willingness to reveal full details before that time.
  15. [46]
    As for the text which she sent to the appellant, the explanation is more simple and, at the same time, quite believable.  It was that she felt violated, scared and upset at what had happened but was fearful because the appellant knew where she lived.  There is no reason why the jury could not accept that explanation as to why she sent a text which did not remonstrate with him more than it did.
  16. [47]
    Of interest is the fact that the complainant’s text to the appellant after the event, and his response, lends support for her account as to what occurred.  In her text she said that she did not wish “to be or get physically hurt”, that being a characterisation by her of what had happened the previous night.  That description accords with her evidence of the degree of force used when he slapped her face, the choking and the manhandling.  It does not accord with the evidence given by the appellant, which was that no particular force was used, and the slapping was not even hard enough to leave a bruise.  Further, the jury may well have considered the appellant’s later response to be a telling one as to whether he either had consent or believed he did.  He said that he was sorry and: “It was a misunderstanding.  I hope you can forgive me?  I really didn’t know”.[119]  According to the evidence given by the appellant there was no misunderstanding whatever, and no basis upon which he would truly say he did not know what the complainant’s attitude was.  According to him, the rape role play was fully explained, she fully agreed, she selected the safe word, and he constantly reminded her of what it was during their interaction.
  17. [48]
    In this case there was no issue that the relevant sexual acts had occurred, nor that they had occurred over the protests, both physical and vocal, made by the complainant at the time.  The case revolved around the proposition that those protests could not signify lack of consent because of the fact that they occurred within the scope of the rape role play.  In that respect there was no issue that at times after the complainant had been slapped in the face, and when the appellant engaged in anal sex, she had not used the safe word.  The issue to be grappled with was, therefore, whether her evidence that she told the appellant she could not remember the word, was to be accepted or not.  That is not a matter where there is a body of objective evidence that might suggest her evidence was wrong.  It is merely confronted by the failure to mention it to the police.  The complainant gave explanations for that and explained her state, not only on the night in question but in the days thereafter.  The acceptance of that evidence was quintessentially a matter for the jury.  It was open to the jury to accept her evidence, and I do not consider there is such doubt about it that they could not reach a state of satisfaction as to guilt on count 1.
  18. [49]
    On my own analysis of the evidence, it is my view that the significance of the circumstances that the appellant (i) slapped the complainant twice, causing her to be visibly upset and shocked, and crying, to the point where activity stopped for a time, and (ii) commenced the rape role play with anal sex, something she had ruled out unless there was a relationship, make it more likely than not that the complainant did forget the safe word in the course of the events which followed, and particularly the anal penetration.  The appellant had a novice victim and commenced his attack, as it truly should be called given that it was rape role play, in such a sexually explosive manner, that one can safely conclude that she forgot the safe word.  If she had truly forgotten what the safe word was, given that the acts taking place were ones to which she objected, the compelling inference is that she said so, rather than staying mute in that respect.  There was good reason to accept her evidence that she said so.
  19. [50]
    This ground of appeal fails.

Ground 2 – inconsistent verdicts

  1. [51]
    It was contended that the acquittal on count 2 was irreconcilable with the conviction on count 1.  The submission was that both counts relied upon an acceptance of the complainant as a credible and reliable witness and the fact that they had a doubt about the contended rape on the morning (count 2) should have created a doubt about the alleged rape constituted by count 1.
  2. [52]
    In R v CX,[120] this Court referred to the decision of the High Court in Osland v The Queen,[121] stating:

“Verdicts of guilty and of acquittal will show the required inconsistency where a verdict of acquittal necessarily demonstrates that the jury did not accept evidence which they had to accept before they could bring in the verdict or verdicts of guilty which they did; or when it follows that when acquitting on a particular count, the jury must have accepted evidence that required them to acquit on a count or counts on which they convicted the defendant.”

  1. [53]
    It has long been accepted that if there is a way in which the differing verdicts can be rationally justified, then there is no inconsistency.[122]
  2. [54]
    There are, in my view, a number of reasons why the differing verdicts can be rationally explained.
  3. [55]
    Firstly, count 1 was the offence which occurred on the evening, and count 2 on the following morning after the complainant and appellant had woken up.  The complainant had explained that on the previous night she had forgotten the safe word, which was why she did not say it at any relevant time, and told the appellant so.  There were reasons why the jury could have accepted the complainant’s evidence, as I have outlined above, that she told the appellant she did not remember the word.  However, the jury may well have doubted that those same reasons applied the following morning after a passage of time and the benefit of sleep.
  4. [56]
    Secondly, the narrative in the complainant’s evidence about the events in the morning was relatively sparse when compared to that which she gave for the previous evening.  Moreover, the sequence given in her evidence matched that of the night before, particularly as to the appellant commencing by trying to put his penis in her mouth, something which he had attempted but not persisted with the night before when the complainant objected to it.  Once again, the jury may have had a doubt concerning her participation in the events the next morning, more so than in respect of count 1.
  5. [57]
    Thirdly, unlike her evidence in respect of count 1, the complainant’s evidence in respect of count 2 included that the appellant said things such as “I’m your daddy” and “How old are you?”, “how old are you, little girl?”.[123]  The complainant said she was shocked by these statements but responded “how old do you want me to be?”.[124]  The jury might have thought that answer indicated a degree of participation, thus leading to a doubt as to the issue of consent, greater than in respect of count 1.
  6. [58]
    Fourthly, the complainant’s evidence was that at some point the appellant ceased intercourse, but masturbated and then ejaculated on her chest.[125]  The complainant’s evidence did not include any objection to that particular act.  In fact, the complainant accepted in cross-examination that after she refused to perform oral sex on the appellant in the morning, he asked if he could masturbate and ejaculate onto her breasts.[126]  The fact that he requested permission, and the lack of objection, may well have been a factor causing the jury to have a doubt in respect of count 2, greater than they had in respect of count 1.
  7. [59]
    Fifthly, the text which she sent after the event referred only to an interaction which she referred to as “a great night”, without apparent reference to any events that occurred in the morning.  The same applies to the Instagram post which refers to an awful experience “the other night”.
  8. [60]
    Sixthly, unlike count 1, the appellant denied in evidence that there was any sexual activity on the morning beyond masturbation.  The complainant’s account on count 2 was therefore confronted by a denial.  That may have caused doubt enough to have prevented the jury reaching a verdict of guilt, but without necessarily rejecting her evidence on count 1.
  9. [61]
    In light of those matters, the verdicts are reconcilable.  This ground fails.

Ground 3 – the need for a Robinson direction

  1. [62]
    This ground was added at the hearing before this Court.  It complained that a Robinson direction[127] should have been given, directing the jury to scrutinise the complainant’s evidence with special care, bringing their attention to certain matters which should be considered by them in determining whether the complainant’s account could be accepted beyond reasonable doubt.
  2. [63]
    The matters referred to as giving rise to the need for a Robinson direction included:
    1. (a)
      the complainant’s bi-polar disorder and consumption of alcohol on the evening in question;
    2. (b)
      the complainant’s inconsistency with regard to whether she remembered the safe word and had said that to the appellant;
    3. (c)
      the complainant’s inconsistency in her complaints to others;
    4. (d)
      the lack of any observable injuries;
    5. (e)
      the complainant’s actions on the morning after, which included text conversations setting up a date that evening with a man she had never met in person; and
    6. (f)
      the communications with the appellant after the event, which were inconsistent with her account.
  3. [64]
    As to whether a Robinson direction should be given, it was accepted that the decision of this Court in R v Reynolds[128] provided guidance:

“The functional purpose of the Robinson direction is to convey to the jury the importance of cautiously scrutinising the evidence of the complainant.  As the Robinson direction is of a special and exceptional nature, it will generally only be required in circumstances where the factual matrix giving rise to the “perceptible risk” is outside the ordinary experiences of the jury.  Accordingly, although not a substitute for the “perceptible risk” test, a cogent indicator of the need for a Robinson direction is the existence of a forensic disadvantage to the accused emanating from the factual matrix which is perspicuous to the trial judge, but not necessarily to lay members of the community.”

  1. [65]
    The initial difficulty confronting the contentions on this ground is the fact that very experienced defence counsel at the trial did not seek such a direction.  In my view, one can see why such a direction was not sought.  The trial was short, and the only live issue was that of consent, or mistaken belief as to consent.  There was no issue that, in respect of count 1, the parties had engaged in sexual intercourse in a way where, but for the agreement to use a safe word, it would constitute rape.  That was the whole point of the appellant’s approach, namely to engage in rape role play where the only thing which stood between consensual and non-consensual sexual activity was the use of the safe word.
  2. [66]
    From the defence point of view, all of the matters raised as the grounds for giving a Robinson direction are matters upon which reliance was placed in address, and the jury were reminded of them in the summing-up.  They were the centrepieces of why the defence contended that the Crown could not establish lack of consent.  In those circumstances there was nothing in that factual matrix outside the ordinary experience of the jury.  They had heard about the bi-polar disorder and the fact that the complainant had consumed alcohol on the evening, the inconsistencies in her evidence and preliminary complaints, the lack of observable injuries and what occurred on the morning afterwards.  None of those matters, in my view, raise the case to the point where a Robinson direction was warranted.
  3. [67]
    Whether a Robinson direction is required depends not only on the nature of the case itself, but upon the danger of a miscarriage of justice if the required warning is not given.[129]  The matters raised in the contentions for the appellant were prominent in this short case, easy to understand, and at the heart of the question which the jury had to decide, that is whether there was an absence of consent or exclusion of an honest and reasonable but mistaken belief as to consent.
  4. [68]
    This ground cannot succeed unless it is established that the failure to give the direction caused a miscarriage of justice.  In my view, there is no appreciable basis to conclude that a miscarriage of justice would follow the failure to give that direction.  Here, notwithstanding the absence of the direction, the jury acquitted the appellant on count 2.  That suggests that the absence of a direction could not have caused a miscarriage on count 1.
  5. [69]
    This ground lacks merit.

Conclusion

  1. [70]
    For these reasons I would dismiss the appeal.
  1. [71]
    BODDICE J:  On 29 August 2019, a jury found the appellant guilty of one count of rape.  The jury acquitted the appellant of a second count of rape.  Both counts related to the same female complainant.
  2. [72]
    The first count, involving penile – anal intercourse occurred on the evening of 19 July 2017.  The second count was alleged to involve similar sexual conduct on the following morning, 20 July 2017.
  3. [73]
    The appellant appeals his conviction.  He relies on three grounds of appeal:
  1. (1)
    The jury’s verdict of guilty of rape on Count 1 was unreasonable and unable to be supported on the evidence.
  1. (2)
    The jury’s verdict of guilty of rape on Count 1 is inconsistent with the verdict of not guilty of rape on Count 2.
  1. (3)
    A miscarriage of justice was occasioned by the absence of direction in accordance with Robinson v The Queen.[130]

Background

  1. [74]
    The appellant was born on 31 October 1974.  He was aged 42 at the date of the offence and 44 at the date of sentence.
  2. [75]
    The complainant was born on 27 November 1970.  She was aged 46 at the time of the commission of the offence.
  3. [76]
    The appellant and the complainant did not know each other prior to commencing communications through a fast track dating site, “Tinder”, in July 2017.

Evidence

  1. [77]
    The complainant commenced using the Tinder dating site a couple of years before July 2017.  Her profile contained pictures, her age and a spiel.
  2. [78]
    In July 2017, the complainant matched with the appellant, another user of the dating site.  They conversed for some hours on the Tinder site.  When they later tried to communicate using their mobile telephone numbers, it became apparent they had previously spoken through the Tinder application.
  3. [79]
    The complainant said on that earlier occasion the appellant had wanted to send suggestive texts and was wanting to talk sleazy.  The complainant had blocked his number.  The complainant realised the connection when the appellant was unable to contact her on her mobile in July 2017.
  4. [80]
    In her statement to police on 23 July 2017, the complainant said the appellant said “well let’s start off on a different foot now.  I think you sound really nice”.  The appellant said he wanted a relationship.  The complainant unblocked his number.
  5. [81]
    On 18 and 19 July 2017, the complainant and the appellant communicated regularly through text messages.  They also spoke over the telephone.  These communications included explicit messages, sexual innuendo and an occasion of phone sex.
  6. [82]
    In those conversations, the appellant told the complainant he liked rough sex and rape role play and he liked to talk dirty during sex.  The complainant replied “Well what do you say.  Let’s fuck”.[131]  The appellant said he might say “I want to throw you on the table and fuck you” and he wanted to dominate her and own her.  The complainant said she did not like rough as in “hard fucking all the time”.  The appellant replied “well, who knows.  Maybe my kind of rough you might like”.
  7. [83]
    The appellant also said he was into choking, slapping and general manhandling.  The complainant told the appellant she did not want to be choked and she had tried choking in the context of sexual matters.  The appellant told the complainant he might be interested in pushing her up against a wall or throwing her around a bit.  She replied “as long as I’m not physically hurt”, to which he replied “yeah, but it’s only sexually and trust me you won’t feel violated with me in general life.  I want to share life with someone.  The only time I will own you is sexually”.
  8. [84]
    In response, the complainant said “kind of like Fifty Shades”, to which the appellant replied “nah, not Fifty Shades.  That guy is a creep all the time.  I had a serious girlfriend of two years and I would slap her face during sex.  It stings momentarily but it [indistinct] leaves marks or anything.  It pumps you up and excites you.  However, one day I slapped her face and then back handed her.  I left a bruise.  Black eye.  I felt terrible”.
  9. [85]
    The complainant replied “wow.  It is a kind of a creepy movie.  I think slapping on the arse and hair pulling is good for now”.  The appellant said “I got a bit excited in the moment.  We were doing role play rape.  So much fun but she was ok about the black eye.  She knew I didn’t mean it and that I’d never hurt someone outside of the bedroom games.  Ha ha.  Well we might never have sex so let’s just meet and see if we connect in person”.  The complainant replied “agreed.  Let’s meet first and see if the chemistry is there.”
  10. [86]
    After that exchange, the appellant sent the complainant his picture.  She sent a flirty picture of herself.  There was then a series of communications described as getting to know you questions.  The complainant asked “dinner on first date followed by sex or just sex”.  In response to the appellant’s text “I’ll be hungry if the sex is good”, the complainant said “sex on table or kitchen floor”.
  11. [87]
    In these conversations, the appellant asked if the complainant liked anal sex.  She said no.  When he said “bummer”, she replied “it depends but don’t like to be in pain especially if guy was big”.  She added “perhaps if I’m in a relationship, then yes.  Not in general sex”.  The complainant accepted, in her evidence, she did not say that anal sex would not happen; it would depend upon how she felt about him.[132]
  12. [88]
    Later that evening, there was a discussion about the need to use protection.  The complainant thought the appellant was “pretty hot”.  The complainant asked the appellant whether he preferred Buddhism or Shamanism.  The topic then moved to oral sex and whether the appellant preferred breasts or eyes, to which the complainant asked whether he preferred eyes or arse.  The complainant suggested she could lay on him and lick him all over.
  13. [89]
    During this exchange, the appellant raised the issue of a safe word saying “maybe, but if you use a safe word then I’d stop.  I do want to”.  The complainant told the appellant she wanted him to masturbate.  The complainant was teasing the appellant to get him more excited.  The appellant had asked her “do you want to watch or hear me coming?”.  The complainant said “yes please”.  She asked for it to be voice call.  The complainant sent the appellant a picture of her breasts.  He made a telephone call so she could listen to him masturbating.  He then sent her a photo of his penis and a video of him masturbating.
  14. [90]
    On the evening of 19 July 2017, the complainant and the appellant met at an Irish pub.  The complainant consumed approximately three glasses of wine prior to meeting the appellant and another four glasses of wine whilst with the appellant.  The appellant had three beers.  The complainant said their conversation was general, finding out more about each other.  There was no conversation of any sort of sexual activity.
  15. [91]
    At about 9.45 in the evening, the bartender called last drinks.  The complainant wanted another glass of wine, but the appellant suggested they go back to her apartment.  It was a relatively short walk.  They stopped at a service station to purchase cigarettes.  They kissed along the way.
  16. [92]
    When they arrived at the apartment, the complainant obtained another glass of wine.  They went to the balcony before moving into the bedroom.  They were kissing and taking each other’s clothes off.  The appellant put on a condom and penetrated the complainant’s vagina with his penis.  That act was with her consent.
  17. [93]
    The complainant said the appellant said he would like to take the condom off.  The complainant did not say anything to the appellant about the condom.  The appellant had a glass of water.  The appellant then said to the complainant “I’d like to put my dick in your mouth” and “I’d like to come in your mouth”.  The complainant said no, she did not want to do that act.  The complainant was trying to push his stomach away.  She was five foot six inches tall and weighed about 54 kilograms.  She estimated the appellant was six foot two inches tall and of big muscular build.
  18. [94]
    Whilst the complainant was attempting to push him away, the appellant said he was going to “come up with a safe word…. if things are getting a little bit too heated or a bit too much, to say a certain word and he would stop”.[133]  The appellant said “okay well I’m going to say it now.  Let’s just say it’s Buddha”.  The complainant said she did not agree to using that safe word.  She told the appellant she did not want to do that.
  19. [95]
    The complainant said, when she did not agree to oral sex, the appellant said if she was not going to do that “I’ll turn you over and fuck your arse”.  The complainant said no, she did not want to do that.  The appellant then turned her over on her stomach and penetrated her anus with his penis.  He was not wearing a condom.  After a short time, the appellant turned the complainant back over.  He again tried to put his penis in her mouth.  At one point, the appellant put his hands against her throat, telling her it gives a heightened sense of orgasm.  The complainant said she was saying no but was finding it hard to talk because the appellant was pressing down really hard.
  20. [96]
    The complainant said the appellant was saying words like “I’m going to slap you and I’m not going to tell you when I’m going to do it”.  The appellant then slapped her on the left cheek of her face with his open hand.  It was really hard and it stung for a couple of seconds.  The complainant felt like she blacked out and saw stars.
  21. [97]
    The complainant said she did not at any stage use the safe word.  She could not remember the safe word.  The appellant was saying “what’s the safe word?  What’s the safe word?”.  The complainant said she was responding “I don’t know.  I can’t remember.  I can’t remember the safe word”.[134]  Throughout, the complainant was saying she did not want to do this anymore.  The appellant kept repeating what he was going to do, putting his penis in her mouth and wanting her to swallow.  He would turn her over again.  The complainant described crying throughout the episode.
  22. [98]
    These events came to an end when the appellant ejaculated in the complainant’s anus.  To the best of her recollection, there were not any other instances where the appellant climaxed.  The complainant said it was now 12.30 or 1 in the morning.  She was exhausted and scared.  They both went to sleep in the bed.  The next morning, whilst they were both lying naked in the bedroom, the appellant said he wanted to put his penis into the complainant’s mouth.  She said no.  She said stop.  The complainant clenched her teeth so that his penis could not go into her mouth.
  23. [99]
    The complainant said the appellant was saying “what’s the safe word?”.  She said “I don’t remember the safe word”.  The appellant said “I want to put my cock in your mouth, otherwise I will turn you over and fuck you in the arse”.  The complainant said “no.  I don’t want you to do that to me”.  The appellant then turned the complainant over and penetrated her anally.  He was not wearing a condom.  On this occasion, the appellant put her hands over her head.  He was pushing her back down.  The complainant was saying “no.  You’re hurting me, it’s hurting me.  I don’t want you to do this”.  The appellant replied “I am not going to stop.  I’m going to keep fucking you anally.  You’re not going to stop me and I want to keep doing it”.
  24. [100]
    The complainant said at one point the appellant turned her over, saying “how old are you little girl?”.  He kept saying “I’m your daddy.  I’m your daddy.  How old are you?”.  The appellant had said similar words the night before.  The complainant said the appellant was holding her down, trying to slap her.  He had his hands around her throat.  He held her onto the bedhead and forced himself over her and tried to put his penis in her mouth.  The complainant clenched her teeth and jaw.
  25. [101]
    The complainant said at some stage the appellant masturbated.  The appellant said he wanted to bite her chest to leave a mark before he ejaculated onto her chest.  The complainant said, after the appellant ejaculated, the appellant had a glass of water and played music through Youtube on his telephone.  He later played a Spanish movie.  It contained a woman screaming in pain.  The appellant said “it’s a snuff movie”.  The appellant turned the movie off when the complainant said she wanted him to stop the movie.  She did not like this woman in pain.
  26. [102]
    The complainant said the appellant dressed.  He had a cigarette on the balcony.  After further general conversation, the appellant left the complainant’s unit. It was about 10.30 in the morning.  Later that day, the appellant sent the complainant a message to check out a playlist on Youtube.  The complainant did not respond to that message.
  27. [103]
    The complainant had a further message from the appellant, at 5.10 pm.  He said “Well, I guess maybe you’re ghosting me now.  Thanks for a great night”.  At 5.17 pm, the complainant responded “Thanks for a great night, but I’m just not into what you’re wanting.  I’m just seeking more of a loving connection and not wanting to be or getting physically hurt.  It’s just not my thing.  I’m more into happy vibes, and definitely not into snuff [flix].  But you have your journey and I wish you well in it [indistinct]”.[135]  The appellant replied “No problem.  I’m not into snuff [flix].  Geez.  Anyway, all good, keep smiling”.
  28. [104]
    The complainant said she did not speak to anyone that day.  In the evening, the complainant had a text conversation with a friend, HM.  The complainant booked a taxi ride to her mother’s residence.  The complainant did not tell her mother anything about what had taken place with the appellant.  The complainant returned to her own unit on the morning of 21 July 2017.
  29. [105]
    On the evening of 21 July 2017, the complainant posted a picture of a person’s hand around a woman’s mouth on her Instagram account.  She added text, “just know when to say “no”.  Had an awful experience the other night”.  The complainant took the post down about 30 minutes later.  The complainant posted the picture and text message because she felt violated and traumatised; she was upset and angry.
  30. [106]
    Later, the complainant telephoned a domestic violence line.  She told the operator that the appellant had hurt her.  The complainant said the appellant knew where she lived and she was scared.  The complainant did not tell the operator all that had happened, but did say the appellant had made her do things she did not want to do.
  31. [107]
    The complainant spoke to her sister that evening.  She told her she had been on a date and had been “slapped around a bit”.  She did not tell her sister she had been choked.  She did not tell her sister she had been raped.  She did not tell her sister he had made her do things she did not want to do.
  32. [108]
    On the following day, 22 July 2017, HM spoke to the complainant about the Instagram post.  HM asked the complainant “Did something happen?”.  The complainant said “Yes”.  HM asked “Did he rape you?”.  The complainant replied “Yes”.[136]  The complainant did not give HM any further detail at that time.
  33. [109]
    The complainant stayed at HM’s residence that evening.  The complainant told HM what had happened that night.  Plans were made to go to the police the next morning.  The complainant gave a statement to police on 23 July 2017.  The complainant also attended a government medical officer for examination.  The complainant did not see the appellant again.  She did not have any conversations with him on Tinder.
  34. [110]
    In cross-examination, the complainant accepted that the police officer initially tape recorded their interview before sitting down and taking a very detailed statement.  She accepted she had remembered what the safe word was by the time she gave her statement to police.  She also accepted she had a number of images of Buddha on her balcony and around her unit.  Her Instagram account name was [Redacted].  [Redacted] was connected to Buddhism.
  35. [111]
    The complainant accepted that, in her police statement, she said the appellant repeatedly said “what’s the safe word?  What’s the safe word?”.  At no stage in that statement did she ever say she told the appellant she could not remember the safe word.  She denied that was because it did not happen on that night.  The complainant said she did not remember choosing the word Buddha.
  36. [112]
    The complainant accepted that every time the appellant did something different to her or changed what he was doing, he said “what’s the safe word?”.[137]  The complainant said she did not ever use the safe word.  She recalled saying “I can’t remember the safe word” about three times.  The first time the appellant asked her “what’s the safe word?” was when he tried to put his penis in her mouth.  She said “I can’t remember” on every occasion the appellant asked what was the safe word.
  37. [113]
    The complainant accepted that, whilst she had said in evidence that the appellant only ejaculated once on that evening, that was incorrect.  In her statement she had indicated he had ejaculated inside her anally at least twice, being the first and last time.  He had also ejaculated inside her vagina that evening.
  38. [114]
    The complainant also accepted that, whilst she had said in evidence that the following morning it started with the appellant trying to put his penis in her mouth, in her police statement she had said “It happened this way: he came back to the room and put himself on me again.  There was no real conversation.  It all started back up again with two more vaginal penetrations.  Then he started up with the talk ‘I’m your daddy.  Who’s your daddy?’.  Then the slaps would come again, and he tried to put his penis in my mouth again.  I said ‘no’.  When I said this, he slapped me in the face again.  I said ‘no’.  ‘Are you sure no?’ – he said.  ‘Are you sure no?  Are you sure now?  Because I’m just going to hold you down and I’m not going to stop’.  Then he penetrated me anally again.”[138]  The complainant said what she had put in her statement was true and correct.
  39. [115]
    The complainant accepted she had a longstanding psychiatric history.  She had been hospitalised in the past.  The complainant accepted she was on medication at the time for bipolar effective disorder.  She had been told to avoid drinking alcohol with that medication.  The complainant said she had had a similar amount of alcohol on other occasions and not been affected by it.  The complainant accepted she was drinking alcohol to excess in July 2017.  Her history with problem drinking went back many years.  She had sought help for her alcohol problem.  She agreed she had told a doctor in April 2017 that she was waking up with unexplained bruises.  The doctor counselled her on the dangers of drinking to excess while on the medication.
  40. [116]
    The complainant said she recalled three occasions of vaginal intercourse with the appellant during that evening.  The first occasion was consensual, the other times were not consensual.  The complainant estimated the appellant struck her two times that evening and two further times the following morning.  The first blow was to the left hand side of the face.  The second blow was to the right hand side.  It was not as hard as the first blow.  The next morning, the appellant struck her out of nowhere.  She could not remember which side of the face.  She did not scream or yell out.  The complainant estimated the appellant attempted to choke her two or three times that night.  He tried to choke her about two times in the morning also, but not as hard.
  41. [117]
    The complainant accepted that when she had attended a doctor for examination on Sunday, 23 July 2017 she did not have any marks on her throat.  There were no marks on her neck area the day after the events.  She had some red spots and her cheek was red.  The doctor’s examination revealed some small yellow bruises to the back of her legs.  She recalled the appellant turning her around with quite some force.
  42. [118]
    The complainant accepted she deleted her Tinder conversations with the appellant on the morning of 21 July 2017.  The complainant said she deleted the appellant that morning, after the event.  When she deleted the appellant, she deleted all messages between them.
  43. [119]
    The complainant accepted she told police that, when they started communicating via the telephone, things moved quickly and she had reiterated to the appellant over the telephone that she was not into dirty stuff or sexting.  The complainant said “I basically said that I don’t like talking like that.  And he was like, ‘Okay.  That’s fine’”.[139]  The complainant accepted that the Tinder messages exchanged between them included sexting.  She was a willing and consenting party to those text messages.
  44. [120]
    The complainant accepted that, in her police statement, she had said “leading up to the date there was definitely some flirting on the phone between us and he was saying things like “we may get some electricity when we meet”.  He was a gentleman but he was still suggesting things like the fact that some people connect and sleep with each other on the first date.  I was saying “hang on.  I don’t know yet.  I haven’t even met you”.  “I wasn’t completely against it but I was just trying to reiterate that I wasn’t sure yet””.  The complainant accepted they had long telephone calls on the evening of 18 July 2017.  On 19 July 2017, at 10.35 in the morning, they had a four minute 19 second telephone conversation.
  45. [121]
    The complainant accepted she did not accurately represent the part she had played in the telephone calls with the appellant in her statement to police.  The complainant had initiated sexual conversation.  She had said if there was a connection there was nothing wrong with sleeping with each other.  She had also said “I can pick up you’re a very sexual person.  How do you get rid of that tension?”.  Adding “you don’t have to tell me, I already know”.
  46. [122]
    The complainant accepted that, at one point in their telephone conversations before meeting on 19 July 2017, the appellant said he was going to “save his load for you”, just in case the complainant decided to have sex, to which she had replied “how thoughtful” with what appeared to be a smiley face emoji.[140]  The conversation continued with the appellant saying “face or tits for climaxing” to which the claimant responded “guessing makes for a more pleasurable and intense orgasm”, before saying that she would prefer him to climax on her tits.  The complainant accepted that that was the very last thing the appellant did to her on the morning of 20 July 2017.
  47. [123]
    The complainant agreed that in their conversations the appellant indicated he wanted to come all over her face, to which she said “are you tempted to touch yourself?” and that when the appellant replied he was hard and horny she had replied “not in the face or I’ll have to bite you”.  When the appellant said that will get you into trouble, she responded “but then I guess you would hold my arms over my head and do it anyway right?”.  The complainant agreed that one of the allegations she made about the appellant was that he held her arms and did it anyway.
  48. [124]
    The complainant accepted she engaged in a Tinder conversation with another male she had met on Tinder at 7.38 on the morning of 20 July 2017.  When this male raised a possibility of visiting her, she had responded “sure.  Possibly this evening”.[141]  The male offered to buy her dinner after she said she was in student funds at the moment.  The complainant had responded “It sounds wonderful but I have a massive load of assignments to do”[142] and that she would let him know in the next couple of hours.
  49. [125]
    The complainant accepted that she told the DV counsellor that the man had slapped her five times on the face and demanded that she have sex with him.  The complainant said when she spoke to the DV counsellor, it was late at night and she had had a couple of drinks.  She could not recall whether she told the counsellor she “did not consider this as rape as both of them had had too much to drink”.  She accepted that, at committal, she had said that she told the counsellor he had repeatedly vaginally raped her.[143]
  50. [126]
    The complainant accepted that the next person she told was HM.  She told HM the appellant slapped her face eight times and had instructed her to come up with a safe word because he was going to do some things to her and she is not going to know when and she would have to use the safe word to stop.  She told HM the appellant was choking her so hard she could not even speak to say the safe word.
  51. [127]
    The complainant agreed that, during their text messages and telephone calls, the appellant spoke to her about his interest in rough sex and rape role play.  The complainant did not, at any stage during these telephone calls or text messages, say to the appellant that she was not going to have sex with him; or that she was not going to have anal sex with him; or that she was not going to put up with rough sex; or that she was not going to participate in rape role play.
  52. [128]
    The complainant accepted that the appellant reminded her that she could use the safe word at any point and he would stop and that each time the appellant did something, he asked her what was the safe word.  At no stage did the complainant ever say the safe word.  The complainant accepted that, during that evening, the appellant nibbled at her nipples or breast but did not, at any stage, bite it or her chest.  The complainant accepted the appellant choked her but denied that on each occasion he said he was going to choke her before doing so.  He did ask what was the safe word.
  53. [129]
    The complainant accepted that, after they had finished having sex, she did not try to leave the bedroom or to use the telephone or to call for help.  She accepted she did not have any injuries.  The complainant accepted that the appellant, the next morning, asked if he could masturbate and ejaculate onto her breasts.  At no stage during that morning, did the complainant ask the appellant to leave or tell him that he had hurt her last night.
  54. [130]
    In re-examination the complainant said that, at no point that evening, prior to returning to the apartment, had there been any conversation with the appellant in which the appellant asked her to engage in rape role play with him, nor was there any such conversation when they returned to the unit.  It was brought up in the earlier phone conversations.  At no stage in the bedroom did the appellant say anything to her about engaging in rape role play with him.
  55. [131]
    RV was working at a domestic violence helpline in Sydney when she received a telephone call on the evening of Friday, 21 July 2017.  The caller was a female from Queensland.  The caller said she went out on a date with a male; that they ended up going to her place; that they were having a lot of drinks, or too many drinks, that night; that at one stage the male slapped her a few times and said he wanted to have sex with her; and that she was feeling intimidated and the male said “if you don’t cooperate this is what will happen to you”, wanting to have sex with her.  RV asked if the caller had been raped by that male.  The caller said yes but she was not sure if that was a rape.  RV explained that if the male had sex with her without her consent that was rape.  RV gave some information advice to the caller and terminated the call.
  56. [132]
    In cross-examination, RV agreed that in her statement to police she recorded that the female told her that the male slapped her five times on the face and demanded she have sex with him and that “at this stage I asked her if he raped her.  She said she didn’t consider this a rape as both of them had too much to drink but she said that he told her that “if she doesn’t cooperate then this is what will happen to her””.
  57. [133]
    HM, took a screenshot of the complainant’s Instagram post on the evening of 21 July 2017.  The next morning, HM asked the complainant whether she was okay.  The complainant said she had met a guy on Tinder and that he had slapped her on the face.  She then did movements around her neck with both hands on top of each other like a butterfly.  The conversation came to an abrupt end because the complainant’s child walked into the room.
  58. [134]
    HM said the complainant and her daughter later ended up staying at HM’s house.  Whilst there, the complainant did a number of hand movements, pointing to her backside and to her vagina.  The complainant did not say anything at that stage.  The next morning, HM made arrangements to take the complainant to the police station.  In the motor vehicle, the complainant mentioned that the male had said something to the effect of using a safe word.  The complainant was not aware of what that meant.  The complainant said the male said he was going to impregnate her and wanted her to have a baby girl.  The male asked how old she was.  When the complainant asked how old he wanted her to be, the male said 16.
  59. [135]
    In cross-examination, HM accepted that, in her statement to police on 23 July 2017, she said the complainant had told her on the morning of 22 July 2017 that the male “had physically assaulted her by slapping her across her face and as she was saying that she demonstrated his actions with an open hand slap action across her face”.  She did not mention the complainant had demonstrated choking in that conversation.  The demonstration of choking occurred later.  In her statement, she recorded, about this conversation “She began to demonstrate what had occurred by pointing to her throat, her backside and her vaginal area”.[144]
  60. [136]
    HM accepted that she had recorded in her statement that in the conversation whilst driving to the police station, the complainant said the male had “slapped her on the left side of her face so hard that she nearly passed out” and that there were “eight slaps in total and with the first one that was so hard that she commenced crying.  And that he had responded in a sarcastic tone saying, ‘Ah, honey’”.[145]  The complainant also told her the male instructed her to come up with the safe word and “that he was choking her so hard she couldn’t speak to even say the safe word”.[146]
  61. [137]
    Dr Nelle van Buuren examined the complainant on 23 July 2017.  She documented injuries to the back of the complainant’s left thigh.  There were two bruises, both were yellow.  The claimant also had a linear abrasion on the back of her left forearm.  The bruises were at least 18 hours old.  An examination of the genitals and anus revealed no injuries.  Genital injuries are fairly uncommon following sexual assault allegations.  Another possible explanation might be that they had healed in the three day interim between the incident and examination.  An examination of the complainant’s face and neck area did not reveal any injuries.  Half the people reporting non-fatal strangulation also will have no injuries.  Pressure on the neck can impair someone’s ability to speak.
  62. [138]
    In cross-examination, Dr van Buuren accepted that the complainant told her she had been bitten on the nipples and under the left breast.  An examination revealed no injuries to her face, breasts, chest, neck, back or the front of her body.  There is no relationship between force applied and the presence or absence of bruising or its extent.  There is individual variation in the ease or difficulty of bruising.  It is not common to see petechiae in a person who has been strangled.  There was no petechiae present on the complainant.  There is no scientific information which will link the robustness of sexual intercourse with the presence of injuries.
  63. [139]
    The appellant gave evidence that he was 176 centimetres tall, weighed approximately 70 kilos on 19 July 2017, was single and was employed as an electrician in the mining industry.  He had been using Tinder for some months prior to meeting the complainant.  He accepted he may have met the complainant some years earlier through that app.
  64. [140]
    Prior to meeting on the evening of 19 July 2017, they had been chatting together for several days.  Initially, they communicated through the Tinder app.  After his encounter with the complainant, he became aware she had unmatched him when he next logged on Tinder.  He could no longer see the communications he had had with her on that site.  They had discussed a variety of topics, including likes, dislikes and family members.  To his recollection, there was not any sexualised discussion on the Tinder messages.
  65. [141]
    The appellant said, at some point, they moved to communicating via text messages and telephone calls.  There was an occasion of phone sex.  The appellant sent the complainant a video of himself masturbating, at her request.
  66. [142]
    During these telephone conversations, they discussed his sexual preferences, which were rough sex and role play rape.  Rape role play is between two consenting adults, who choose to play out a scenario.  A safe word is used to protect both of them whilst having sex, because “no” and “stop” are part of a role play rape.  If someone is not liking what you are doing or for whatever reason they want you to stop, you use a safe word.  Usually, the woman chooses the safe word because she is the submissive party.
  67. [143]
    The appellant said he did not have anything to drink before meeting the complainant on 19 July 2017.  He consumed alcohol whilst there, being three pints of Guinness.  The complainant consumed four glasses of wine.  They stayed at that venue for three and a half hours.  They were touching each other and kissing on the lips.  Sex was mentioned at some point and there was a discussion about coming back to her house.
  68. [144]
    The appellant estimated they left at around 10.30 to 11 in the evening, when the bar was closing.  They walked home.  They went to a service station and he purchased some cigarettes for the complainant who did not have enough money.  When they arrived at the complainant’s apartment, the complainant had a glass of wine.  He did not consume any more alcohol.  They sat on the couch and talked and kissed a little more.
  69. [145]
    The appellant said he raised the subject of role play rape.  He asked if the complainant was willing to give it a go.  The appellant told her it was a dominance / submissive thing; there would be rough play, things like slapping, biting, choking and general manhandling.  The complainant asked about the choking.  The appellant explained that “if you squeeze on the sides of the throat, that reduces the blood flow to the brain as opposed to pushing on the windpipe.  You still have airways.  You do not have to press the side very hard to achieve that result”.  At no point during that evening, did he press on the complainant’s windpipe.  He did not ever use both hands.  He did not squeeze particularly hard.
  70. [146]
    The appellant said, after he had explained the process, the complainant said she was willing to give it a try.  The appellant explained to her about a safe word.  It was a word she needed to use if she wanted him to stop; “no” or “stop” is something you would expect someone to say.  The complainant chose the safe word.  It was Buddha.  The appellant said there were several Buddha images or posters or sculptures in the complainant’s apartment.
  71. [147]
    The appellant said, after that discussion, they kissed for a while longer before going out to the balcony for a cigarette.  Eventually, they returned to the bedroom.  The appellant put on a condom before having penetrative vaginal sex for approximately 20 minutes.  He kept the condom on throughout that period.
  72. [148]
    The appellant said, after that time, he said to the complainant “I want to feel you.  I don’t want rubber between us”.  The complainant said it was fine, he could take it off.  The appellant asked her twice whether she was sure.  She said yes, so he took off the condom.  They then continued to have sex.
  73. [149]
    The appellant said, after a while, he said to the complainant “do you want to try some of these – these new things?  You know, the choking, slapping becoming more rough?”.  The complainant said “yes fine”.  The appellant said “do you know what the safe word is?”.  The complainant said yes.  The appellant asked what it was and the complainant said “Buddha”.  The appellant said “okay that’s the word you need to use”.
  74. [150]
    The appellant said, from that point on, the complainant used the safe word once; after he slapped her face.  He did not slap the complainant not very hard.  He did not leave any mark on her face.  However, he could see the complainant was visibly upset.  The complainant said the safe word and he stopped.  He did not slap her again.
  75. [151]
    The appellant said there was further sexual activity as part of the rape role play.  He choked the complainant by pressing down on her throat not very hard.  The complainant did not use the safe word.  He nibbled on her nipples.  The complainant did not use the safe word.  He did not bite the nipples or breast and did not see any injuries to her nipples.  He did not say he wanted to leave a mark on her.  He did not ever see any bite mark or injury to that area during the evening or the next day.
  76. [152]
    The appellant said that, as part of the rape role play, he demanded the complainant put his penis into her mouth.  The appellant gave her an ultimatum saying “if you don’t put my penis in your mouth then I’m going to fuck you in the arse”.  The complainant did not put his penis in her mouth.  The appellant then had anal sex with the complainant.  The complainant did not use the safe word whilst he was doing so.  The complainant did not, at any stage, say to him that she could not remember the safe word.  During the role play, the complainant did say “no.  I don’t like it”.  It was loud enough for the appellant to hear but not loud enough for anyone else to hear.
  77. [153]
    Whilst he was having anal sex with the complainant, the appellant had his hand sometimes on her face and sometimes on her breasts.  At no stage did he cover her mouth.  The appellant said he ejaculated inside her anus.  He ejaculated only once on that night.  The sexual activity finished that night after he ejaculated in the complainant’s anus.  The appellant said they stayed in bed and spoke about enjoying the sex and talked generally.  The complainant did not make any complaint to him at that time.  They both slept in the bed that night.  At no time did the complainant try to leave the room.  At no time did she call out for help.
  78. [154]
    The appellant said the next morning they woke at about 7.30.  There was no awkwardness or standoffishness towards him that morning.  The complainant made no complaint to him about what had happened the previous night.  At one point, they watched a Spanish film about university students who find a snuff film.  The complainant became upset when she heard the sound of a woman screaming on the trailer.
  79. [155]
    The appellant said to the complainant “I’m horny and you know, do you want to have more sex?”.  The complainant said no.  The appellant said “okay.  Do you mind if I masturbate?”.  The complainant said that was fine.  The appellant asked if she minded if he masturbated on her chest.  The complainant said that was fine.  The appellant masturbated whilst they were lying in bed.  The complainant did not facilitate that process.  The appellant said they had a further discussion about the night before.  The complainant said it was new for her.  It was a different experience.
  80. [156]
    The appellant said he remained in the unit until about 10 am.  The complainant said she had some study to do.  He took that as the time he should leave.  The appellant sent text messages to the complainant that day.  One included a playlist of songs.  He did not think anything was wrong but did not receive any response to his text messages.  He then sent the message “well I guess maybe you are ghosting me now.  Thanks for a great night”.  The appellant said ghosting is when somebody you are in contact with does not respond, they just disappear.  It was a common thing on Tinder.
  81. [157]
    The appellant later received a text message in response, saying “Leigh x Thanks for a great night but I am just not into what you’re wanting.  I’m just seeking more of a loving connection and I am not wanting to be or get physically hurt.  Just not my thing.  I am more into happy vibes and definitely not into snuff flix, but you have your journey and I wish you well on it”.  The appellant said that text came out of the blue.  He responded “no problem.  I’m not into snuff flix.  Geez.  Anyway all good.  Keep smiling”.  By that stage he realised something was amiss and that she did not want to see him.
  82. [158]
    The appellant denied ever raping the complainant on the evening of 19 July 2017 or on the morning of 20 July 2017.  The appellant said he believed he had her consent for sexual intercourse.
  83. [159]
    In cross-examination, the appellant accepted that, from his conversations with the complainant, he was under the impression she was looking for something more than just a casual hook up.  However, during the first telephone conversation at 2.50 on the afternoon of 18 July 2017, they were expressing interest in each other sexually.  He possibly raised the idea of a rape role play in that first telephone conversation.  The appellant described the earlier text exchanges as “pretty sexually flavoured from the beginning”.[147]
  84. [160]
    The appellant accepted that in their conversations before meeting on the evening of 19 July 2017, there had been no discussion about having unprotected sex.  The complainant had told him multiple times she would only engage in sexual activities if there was protection.  She “harped on about it” so much that, at one point, he responded “For the tenth time, I get it.  Protection”.[148]
  85. [161]
    The appellant described the complainant as jovial and happy at the hotel.  At no point did he have any concerns that she was drunk.  He did not feel intoxicated and felt capable of making decisions.  The same could be said of his observations of the complainant.  The walk to the complainant’s apartment did not take very long.
  86. [162]
    The appellant said, whilst at the hotel, he did discuss sex with the complainant.  The complainant had shown an interest in rough sex in their text messages.  The appellant brought up the topic of rape role play at the apartment because the complainant was a little cautious and she had not agreed to participate in rape role play before they got to the apartment.  The concept of a safe word was introduced at the end of the conversation about participating in role play rape.
  87. [163]
    The appellant said they discussed slapping.  He said he would slap her arse and possibly slap her face.  The complainant said “I’d like the slapping on the arse.  The face would be something new”.  The complainant was happy to go along with slapping.[149]  The appellant said he told the complainant he was not going to hit her hard, that it was role play rape and that he was not actually physically wanting to hurt her.
  88. [164]
    The appellant said there was no discussion about anal sex whilst they were sitting on the lounge in the apartment.  There was a discussion about biting.  The complainant did not want to be bitten hard and did not want it to leave marks.  The appellant replied “well that’s fine”.  The appellant did not have to persuade the complainant to agree to these things.  The appellant denied he came up with the word Buddha.
  89. [165]
    The appellant said he raised taking off the condom because it was more sensual.  He was shocked when the complainant said “it’s fine” because it was such an issue.  They continued to have vaginal sex after he removed the condom.  They were talking dirty to each other and then the appellant raised the rape role play.  He told the complainant he was going to slap her and was not going to tell her when and the complainant was okay with that situation.  He understood she was consenting to it.  However, when he did slap the complainant, she became visibly upset.  She said “Buddha”, the safe word, and he stopped.
  90. [166]
    The appellant said he lay down and cuddled the complainant and said “look, let’s not do that again because obviously that’s upset you.  You need a little while”.  After two or three minutes, the appellant asked the complainant if she was okay to continue and she said yes.  The appellant said “you know now that you have the safe word and you can use that and I will stop”.  Sometime after that, he choked the complainant.  The appellant accepted the complainant was saying “I don’t want to do this anymore” and asking him to stop but said that was part of the role play.[150]  The appellant was constantly asking her if she was okay.  The complainant had used the safe word once.  The complainant only cried when he slapped her.
  91. [167]
    The appellant said he engaged in anal sex with the complainant with her consent.  He said to her “you put my penis in your mouth” and when she said no, he said “well I’ll flip you over and penetrate you anally”.  Whilst the complainant said “no” it was part of the role play.  He asked her multiple times if she was okay, including while he was having anal sex with her.  The complainant said she was fine.
  92. [168]
    The appellant accepted the complainant did not ever let him put his penis in her mouth.  In an earlier text message, the complainant suggested the appellant would forcibly lift her arms above her head and force his penis into her mouth.  The appellant said “I don’t have to have oral sex every time”.  He accepted that his role was to dominate, to own someone; that was the purpose of rape role play.  The appellant said that is why you have a safe word.
  93. [169]
    The appellant said he reminded the complainant of the safe word some six, eight or ten times over the two hour period.  He was being very cautious because it was something new to her.  He understood the risk.  He was saying to the complainant throughout the night “what’s the safe word?  Do you remember it’s Buddha?”.  The complainant said “yes I know”.
  94. [170]
    The appellant said the next morning they kissed and were flirtatious.  They did not have sex that morning.  The appellant said he became aroused and said “let’s have sex”.  The complainant said “no.  I don’t want to have any more sex this morning”.  He said “Okay.  Fine”.[151]  There was no further discussion about rape role play.  He did not try and persuade her into any other sex acts that morning.  He asked if it was okay for him to masturbate and that was the only sex act that took place in the morning.
  95. [171]
    The appellant said when he left he said he would like to see her again but they did not make any plans.  The complainant said “Yeah, we can - we can talk.  I’ll get back to you”.[152]  Her subsequent text messages were a surprise to him.  He expected to see her again.  At no stage did the complainant give him any reason to think anything was wrong. If the complainant had used the safe word, he would not have had anal sex with her.  The complainant did not at any time say words to the effect “what’s the safe word?”.

Appellant’s submissions

  1. [172]
    The appellant submits the conviction on Count 1 was unreasonable as the evidence of the complainant and her conduct after the offences compels a reasonable doubt.  The allegations in the preliminary complaints, as well as the text message sent by the complainant to the appellant after the alleged rapes, are impossible to reconcile with the complainant’s evidence.  Those discrepancies and inadequacies meant the jury ought to have held a reasonable doubt.  That doubt is not capable of being dispelled by a jury’s advantage of seeing the complainant give evidence.
  2. [173]
    The appellant further submits there is no rational way to reconcile the acquittal on Count 2 with the conviction on Count 1.  Both counts relied upon the acceptance of the complainant as credible and reliable.  Both involved similar allegations of anal rape, after communicating a lack of consent.  The differing verdicts cannot be rationally justified by a conclusion that the quality of the evidence was different.  Each was entirely dependent upon an acceptance of the complainant’s account.  Against that background, it was not rational for the jury to be satisfied beyond reasonable doubt of the appellant’s guilt in respect of Count 1.
  3. [174]
    The appellant further submits that, having regard to the inconsistencies in the complainant’s evidence; the lack of observable injuries; her text conversation subsequent to the alleged offences; her existing mental health issues; and the consumption of alcohol whilst on medication meant that there was an obligation on the trial Judge to direct the jury to scrutinise the complainant’s evidence with special care, bringing to the attention of the jury the matters relevant to a determination of whether they could accept the complainant’s account beyond reasonable doubt.  No such direction was given by the trial Judge.  There was not even a proper warning given about the need to consider the inconsistencies in respect of the preliminary complaint evidence and as to the use as to which that evidence may be used by the jury.  Although a direction to that effect was not sought by the appellant’s trial counsel, there was no forensic reason for not doing so.  The absence of such a direction gives rise to a miscarriage of justice in all the circumstances.

Respondent’s submissions

  1. [175]
    The respondent submits the verdict of the jury was not unreasonable.  The complainant’s evidence as to the offending was consistent with the evolution of the circumstances in which the offences were committed by the appellant.  Those circumstances explain the inexact nature of her initial complaints and her caution in communications subsequently with the appellant.  Against that background, it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt as it was open to the jury to accept the complainant as reliable and credible.
  2. [176]
    The respondent submits there is no inconsistency between the verdicts in respect of Count 1 and Count 2.  There was a material difference in the quality of the evidence in respect of Count 2.  The preliminary complaint evidence spoke almost exclusively in respect of Count 1.  The message afterwards to the appellant made no reference to events on the morning.  In those circumstances the jury may have entertained a reasonable doubt without disbelieving the complainant’s reliability and credibility.
  3. [177]
    The respondent submits that a direction as to the dangers of acting on the complainant’s evidence was neither sought by defence counsel nor required to be given by the trial Judge.  There was no expert evidence that the mental health condition had any impact on the complainant’s reliability and credibility.  The lack of physical injuries did not support a conclusion that the complainant’s evidence was unreliable.  It was a matter for the jury as to how they assessed the complainant’s actions subsequent to the events.  The trial Judge comprehensively summarised the arguments in relation to those matters, and as to the preliminary complaint and gave a standard direction.  There was no miscarriage of justice.

Consideration

  1. [178]
    The determination, on appeal, of a ground that a conviction was unreasonable, requires the Court to undertake an independent assessment of the record to determine whether it was open to the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt of the appellant’s guilt of the offence.[153]
  2. [179]
    In undertaking that assessment, the Court assumes that the jury has found a witness whose evidence is central to the satisfaction of guilt beyond reasonable doubt, both reliable and credible.  However, the Court “examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt”.[154]
  3. [180]
    In the present case, the jury could only have been satisfied beyond reasonable doubt of the appellant’s guilt of Count 1 if it accepted the complainant’s evidence as reliable and credible.  Accordingly, it is appropriate to assume that the jury did so, although the jury’s acquittal on Count 2 is consistent with a conclusion that aspects of the complainant’s evidence gave rise to a reasonable doubt as to the appellant’s guilt on Count 2 on the indictment.  It is also appropriate to assume that the jury did not accept the appellant’s evidence as reliable and credible.  If it did, it would, in accordance with the directions, have acquitted the appellant.
  4. [181]
    Accepting that the jury found the complainant’s evidence reliable and credible in respect of the events on the evening of 19 July 2017, it is necessary to consider whether there were other aspects of the evidence which ought to have left the jury with a reasonable doubt as to the appellant’s guilt of the offence or rape.
  5. [182]
    Two aspects of the evidence are particularly relevant in this regard.
  6. [183]
    First, whilst the complainant gave consistent evidence as to the appellant having engaged in penile – anal intercourse that evening, the complainant did accept that there was a discussion about rape role play, that she did not at any time indicate she was not willing to undertake that role play, that the appellant raised with her the use of a safe word in that process, that the safe word identified was Buddha and that the appellant on each occasion that he sought to undertake a different sexual act in that scenario asked her whether she recalled the safe word.  That evidence was consistent with the account given by the appellant in evidence, although the appellant also gave evidence that the complainant had used the safe word once, after he slapped her face.
  7. [184]
    Second, the complainant’s evidence at trial that she told the appellant on more than one occasion that evening, that she could not remember the safe word, was not consistent with her detailed statement to police, given within days of the events.  At best, she asserted that she could not remember the safe word.  That latter proposition is very different to an assertion that the complainant told the appellant, prior to committing the act of penile – anal rape, that she could not remember the safe word.
  8. [185]
    That crucial difference in evidence, in the context of the complainant’s acceptance that the appellant consistently asked if she recalled the safe word, is of such significance as to give rise to a discrepancy which raises the real risk that an innocent person has been convicted of this offence.
  9. [186]
    That risk is also raised by a consideration of the complainant’s account of the events on the morning of 20 July 2017.  The complainant accepted that her account of the appellant having held her arms above her head, whilst seeking to force her in oral sex, and of the appellant having ejaculated on her chest after masturbation, were both matters specifically the subject of discussion in their text messages prior to meeting on the evening of 19 July 2017.  Those matters are supportive of the appellant having engaged in acts which he knew or believed the complainant would consent to as part of their sexual interaction.
  10. [187]
    Those matters not only explain the jury’s doubt as to the appellant’s guilt of the offence of rape the subject of Count 2.  Those matters give rise to the conclusion that the jury, acting rationally, ought to have entertained a reasonable doubt as to the appellant’s guilt of having committed penile – anal rape on the evening of 19 July 2017.
  11. [188]
    This is particularly so when the jury had before it sworn evidence by the appellant as to his honest belief that the complainant was consenting.  Once it is accepted the appellant kept asking if the complainant recalled the safe word, and there is a reasonable doubt whether the complainant told him she could not remember the safe word, there was no rational basis for the jury to be satisfied beyond reasonable doubt that that belief was not honest.
  12. [189]
    The verdict of the jury on Count 1 is unreasonable.
  13. [190]
    This conclusion makes it unnecessary to consider the remaining grounds of appeal.

Orders

  1. [191]
    I would order:
  1. (1)
    The appeal be allowed.
  1. (2)
    The conviction on Count 1 be set aside.
  1. (3)
    A verdict of acquittal be entered on that count.
  1. [192]
    WILLIAMS J:  This is an appeal against conviction to be determined pursuant to s 668E of the Criminal Code 1899 (Qld) (the Criminal Code).

Ground 1 – Count 1 verdict unreasonable and unable to be supported on the evidence

  1. [193]
    The first ground of appeal is that “[h]aving regard to all of the evidence the verdict of guilty on count 1 is unsafe and not supported by the evidence”.  Under s 668E of the Criminal Code this ground is that the jury’s verdict of guilty of rape on Count 1 was unreasonable and unable to be supported on the evidence.
  2. [194]
    The approach to an appeal on this ground has been considered in a number of decisions which have recently been conveniently summarised by Buss AJA in R v Dalton [2020] QCA 13 (with whom Sofronoff P and Morrison JA agreed):

[173] It is a question of fact whether, having regard to the evidence, a verdict of guilty on which a conviction is based is unreasonable or cannot be supported. See M v The Queen;[155] Zaburoni v The Queen;[156] GAX v The Queen.[157]

[174] An intermediate court of appeal (the appellate court) must decide that question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand. See M (492-493); SKA v The Queen.[158]

[175] The appellate court, in making an independent assessment of the whole of the evidence to determine whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, must weigh the whole of the evidence (in particular, the competing evidence). See SKA [22], [24].

[176] The appellate court’s task is not to consider, as a question of law, merely whether there was sufficient evidence to sustain a conviction. See Morris v The Queen.[159]

[177] The appellate court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, ‘must not disregard or discount either the consideration that the [tribunal of fact] is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the [tribunal of fact] has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations’: M (493); R v Nguyen;[160] SKA [13].

[178] The ultimate question for the appellate court must always be whether the appellate court thinks that upon the whole of the evidence it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty: M (494-495). See also R v Hillier;[161] Fitzgerald v The Queen;[162] R v Baden-Clay.[163]

[179] The setting aside of a tribunal of fact’s verdict of guilty because, having regard to the evidence, it is unreasonable or cannot be supported is a serious step. Trial by the appellate court is not to be substituted for trial by the tribunal of fact. See Baden-Clay [65]-[66].

[180] The appellate court’s reasons must disclose its assessment of the capacity of the evidence to support the verdict. See SKA [22]-[24]; BCM v The Queen;[164] GAX [25].

[181] The nature and extent of the appellate court’s task, in a particular case, will be informed by:

  1. (a)
    the elements of the offence;
  1. (b)
    the accused’s defence;
  1. (c)
    the issues in contest at the trial;
  1. (d)
    the manner in which the trial was conducted;
  1. (e)
    the way in which the case was ultimately left to the tribunal of fact;
  1. (f)
    whether the tribunal of fact was a judge (who must state the principles of law that he or she has applied and the findings of fact on which he or she has relied) or a jury (which does not give reasons); and
  1. (g)
    the particulars of and the submissions made in support of the ground of appeal.”
  1. [195]
    In the recent decision of Pell v The Queen[165] the High Court described the exercise to be undertaken by the appeal court as follows:

“The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.” (Citations omitted)

  1. [196]
    I have read the separate reasons of Morrison JA and Boddice J which set out the relevant facts in considerable detail.  I do not repeat those facts here.  For the purposes of my reasons, I adopt the factual background and summary of evidence in the reasons of Boddice J.  I identify below what I see to be the crucial features of that evidence.
  2. [197]
    In respect of Count 1, it is accepted that on the evening of 19 July 2017, the appellant and the complainant were together at the complainant’s apartment and an act of penile ‒ anal penetration occurred.  The complainant says this act occurred without her consent.
  3. [198]
    The appellant says he engaged in the act of penile ‒ anal penetration with the complainant with her consent.  The appellant accepts that the complainant said “no”, but says that was consistent with the rape role play that the complainant had agreed to participate in.
  4. [199]
    The appellant gave sworn evidence that he believed that the complainant had consented to the act of penile ‒ anal penetration and had indicated her continuing consent by not saying the agreed safe word she had selected.
  5. [200]
    This raises mistake of fact under s 24 of the Criminal Code.  Section 24 of the Criminal Code states:

“(1) A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.”

  1. [201]
    Consequently, the prosecution was required to establish beyond reasonable doubt the non-existence of the operative mistake.  That is, the onus was on the prosecution to prove that the appellant was not mistaken as to consent or the mistake was not reasonable.
  2. [202]
    The complainant and the appellant’s evidence at trial was largely consistent in some respects, including relevantly that:
    1. (a)
      there had been an earlier discussion about rape role play;
    2. (b)
      the complainant did not indicate at any time that she was not willing to participate in rape role play;
    3. (c)
      the appellant raised with the complainant the use of a safe word in relation to the rape role play;[166]
    4. (d)
      “Buddha” was identified as the safe word for the rape role play;[167] and
    5. (e)
      the appellant asked the complainant whether she recalled the safe word each time that he sought to undertake a different sexual act.[168]
  3. [203]
    At trial, the complainant gave evidence that she told the appellant a number of times that she could not remember the safe word.  This was a change from her detailed police statement given a few days after the alleged events occurred.  Her earlier evidence was that she could not remember the safe word.[169]  The complainant did not say in her police statement that she said to the appellant that she could not remember the safe word.  There is a significant discrepancy between these two positions.
  4. [204]
    It is necessary to consider whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the charge of rape:  that is, the appellant committed the act of penile ‒ anal penetration without the consent of the complainant and further that the appellant was not mistaken as to consent or the mistake was not reasonable.
  5. [205]
    Accepting that the jury could only have been satisfied beyond reasonable doubt of the appellant’s guilt on Count 1 if it accepted the complainant’s evidence as reliable and credible, the ground of appeal requires an assessment of whether the evidence is capable of supporting the verdict.
  6. [206]
    On one hand, there is the evidence of the complainant at trial that she told the appellant on more than one occasion that she could not remember the safe word.
  7. [207]
    However, there is evidence which is inconsistent with this, namely:
    1. (a)
      The complainant’s detailed police statement given within days of the events was that she could not remember the safe word.[170]
    2. (b)
      The complainant accepted that the appellant asked her a number of times if she recalled the safe word.[171]
    3. (c)
      On the afternoon of the following day, 20 July 2017, the complainant responded to a text from the appellant saying “… thanks for the great night, but I’m just not into what you are wanting…”.[172]
    4. (d)
      On the evening of 21 July 2017 the complainant posted on her Instagram account “Just know when to say “no”.  Had an awful experience the other night.”[173]
    5. (e)
      The evidence of independent witnesses in relation to the complaints made by the complainant after the events:
      1. Ms RV, a domestic violence helpline worker in Sydney, in cross-examination agreed that her police statement recorded that she spoke to the complainant[174] on 27 July 2017 who said she did not consider it a rape as both of them had had too much to drink, but that the complainant had said that the male had told her “if she doesn’t cooperate then this is what will happen to her.”[175]
      2. Ms HM, a friend of the complainant, accepted that the complainant had told her that the male instructed her to come up with a safe word[176] and “that he was choking her so hard she couldn’t speak to even say the safe word.”[177]
  8. [208]
    It is unnecessary for me to determine whether it was open to the jury to conclude beyond reasonable doubt that the complainant did not consent to the act because on the basis of the evidence identified above, it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was not mistaken as to consent.
  9. [209]
    In all of these circumstances, I consider that there is no rational basis for the jury to be satisfied beyond reasonable doubt that the appellant was not mistaken as to consent or the mistake was not reasonable.
  10. [210]
    Accordingly, the jury, acting rationally, ought to have entertained a reasonable doubt as to the appellant’s guilt of having committed rape on the evening of 19 July 2017.
  11. [211]
    I agree with the conclusion reached by Boddice J that the verdict of the jury on Count 1 is unreasonable.
  12. [212]
    Given the conclusion I have reached in respect of the first ground of appeal it is not strictly necessary for me to consider the second and third grounds of appeal.  For completeness, I consider it appropriate to make some brief comments in relation to each further ground.

Ground 2 – inconsistent verdicts

  1. [213]
    The second ground of appeal is that “[t]he verdict of guilty (Rape – count 1) is inconsistent with the verdict of not guilty (Rape – count 2).”  Under s 668E of the Criminal Code this ground of appeal is that the jury’s verdict is “unreasonable”.
  2. [214]
    The accepted approach is that if there is any way in which the differing verdicts can be rationally justified, then the verdicts should stand,[178] unless the acquittal required such a rejection of the complainant’s credit that the acceptance of her evidence to support the conviction was not open.[179]
  3. [215]
    As is evident from the discussion in respect of the first ground of appeal, the main issue in respect of Count 1 is the appellant’s mistaken belief as to consent.
  4. [216]
    Count 2 was a second count of penile – anal rape that was alleged to have occurred on the morning of Thursday 20 July 2017.
  5. [217]
    The appellant submitted that “[t]here is no rational way to reconcile the acquittal on count 2 with the conviction on count 1”.[180]  This submission is primarily based on the prosecution’s case for both counts relying on the acceptance of the complainant as a credible and reliable witness.
  6. [218]
    Count 2 differs from Count 1 in that the appellant denied the act of penile – anal penetration.  The appellant argues on appeal that if the jury was not satisfied on the complainant’s evidence that the act of penile – anal penetration had occurred on the morning of 20 July 2017 then this was a significant rejection of the complainant’s evidence.[181]
  7. [219]
    The Crown in its submissions identifies a number of differences in the “quality” of the evidence in respect of Count 2, including:
    1. (a)
      In respect of Count 1 the complainant’s descriptions were “rich in description” when compared to Count 2.[182]
    2. (b)
      The primary complaint evidence did not refer to the events constituting Count 2.
    3. (c)
      The text message the complainant sent to the appellant in the afternoon on 30 July 2017 referred to “the great night”, with no reference to anything that morning.[183]
  8. [220]
    The Crown ultimately submits as follows:

“… the jury may have reasoned that by the time count 2 occurred, her interaction with him after the event and despite her protestations may have meant that they had a reasonable doubt about her consent in relation to count 2.

That conclusion did not mean that they disbelieved her as to the nature of the penetrative act but rather the actual nature of her consent.”[184]

  1. [221]
    Relevantly, Count 2 is alleged to have occurred in the following factual circumstances:
    1. (a)
      The appellant slept the night in the complainant’s bed following the events constituting Count 1, with Count 2 alleged to have occurred the following morning.
    2. (b)
      The complainant gave evidence that following the act of penile – anal penetration on the morning of 20 July, the appellant and the complainant sat on the balcony of her unit and had a discussion about the appellant visiting his father in hospital and flying out in a couple of days to the mines.[185]
  2. [222]
    R v TK[186] considered the approach to determining whether there was a logical basis for different verdicts and identified the first question to be considered as:

“…whether there exists any rational explanation for the acquittals (not the convictions).”[187]

  1. [223]
    Here, the evidence in respect of consent in relation to each count was quite different.  It was open for the jury to reach a different conclusion in respect of consent, while still finding that the complainant’s evidence was reliable and credible.  It is not necessarily the case that the jury had to disbelieve her in respect of the act of penile – anal penetration having occurred.  As outlined above, I have found that there were other grounds why it was not open for the jury to convict the appellant on Count 1.
  2. [224]
    There is a rational explanation for the acquittal on Count 2 based on the factual differences in the evidence relating to the issue of consent in respect of Count 2.
  3. [225]
    In these circumstances, I consider that there is no merit in the second ground of appeal.

Ground 3 – the failure to give a Robinson direction resulted in a miscarriage of justice

  1. [226]
    At the hearing of the appeal the appellant sought, and was granted,[188] leave to rely on an additional ground of appeal, namely:

“A miscarriage of justice was occasioned by the absence of a direction in accordance with Robinson v The Queen [1999] HCA 42; (1999) 197 CLR 162.”

  1. [227]
    No Robinson direction was sought and none was given at trial.  In these circumstances, no error of law arises.
  2. [228]
    Under s 668E of the Criminal Code the ground of appeal is that “there was a miscarriage of justice”.
  3. [229]
    In Dhanhoa v The Queen,[189] McHugh and Gummow JJ summarised the approach to this ground as follows:

“When no re-direction concerning evidence is sought at a criminal trial, the appellant can only reply on a failure to direct the jury on the evidence if he or she establishes that that failure constituted a miscarriage of justice.  No miscarriage of justice will have occurred in such a case unless the appellant demonstrates that the direction should have been given and it is ‘reasonably possible’ that the failure to direct the jury ‘may have affected the verdict’.” (Citations omitted)

  1. [230]
    The appellant identifies six circumstances relied on as giving rise to the need for a Robinson direction, namely:

“1) The complainant’s Bi-polar Disorder and consumption of alcohol (which she accepted she had been advised to avoid whilst on her medications for bi-polar disorder) on the night;

2) The complainant’s inconsistency with regard to whether she remembered the ‘safe word’ at the relevant time and had said this to the appellant;

3) The complainant’s inconsistency in her complaints to others;

4) The complainant’s lack of any observable injuries which was arguably inconsistent with the extent of physical violence she asserted;

5) The complainant’s actions on the morning of 20 July 2017 which included text conversations setting up a date that evening with a man she had never met in person; and

6) The complainant’s communications with the appellant after the alleged rapes which were inconsistent with her account.”[190]

  1. [231]
    In response the Crown relies firstly on no direction being sought by “very senior defence counsel” at the trial and also that the appellant has not provided details as to how the failure to give a direction caused a miscarriage of justice.[191]  The Crown then addresses each of the identified circumstances and submits that no miscarriage of justice is made out.
  2. [232]
    A Robinson direction is intended to bring the “unmistakeable authority of the court” to the actual circumstances identified in the “warning”.[192]  The nature of each of the circumstances identified by the appellant could justify a warning of the need for the jury to scrutinise with great care the evidence of the complainant before arriving at a conclusion of guilt.
  3. [233]
    This is particularly so in this case where the complainant’s evidence was critical on both the issue of consent and also the mistaken belief which were the relevant elements to be considered.  This critical importance to the key issues, plus the various inconsistencies and the nature of the particular circumstances, highlights the need for the appropriate warning to be given to the jury.[193]
  4. [234]
    While the trial judge did refer to the inconsistencies in the evidence the direction did not address the “significance of those inconsistencies” for the jury other than in a general way.
  5. [235]
    The relevant miscarriage of justice is that “a reasonable prospect of acquittal was lost”.[194]  The absence of a direction for the jury to carefully scrutinise the evidence of the complainant with great care before arriving at a conclusion of guilt in respect of one or more of the six specific circumstances gives rise to a perceptible risk of a miscarriage of justice having occurred in respect of Count 1.
  6. [236]
    Accordingly, I consider that the third ground of appeal has been established and the appeal should also be allowed on this further basis.

Orders

  1. [237]
    I agree with the orders of Boddice J, namely:
  1. The appeal be allowed.
  1. The conviction on Court 1 be set aside.
  2. A verdict of acquittal be entered on that count.

Footnotes

[1]  (2011) 243 CLR 400 at [20]-[22]; [2011] HCA 13; see also M v The Queen (1994) 181 CLR 487 at 493-494; [1994] HCA 63.

[2]  (2020) 94 ALJR 394 at [39]; [2020] HCA 12; internal footnote omitted.

[3]  (2016) 258 CLR 308 at [65]-[66]; [2016] HCA 35; internal citations omitted.

[4]  [2018] QCA 24 at [31].

[5]  Citing Hocking v Bell (1945) 71 CLR 430 at 440; [1945] HCA 16.

[6] Baden-Clay at 329, citing M v The Queen at 494, and MFA v The Queen (2002) 213 CLR 606 at 621-622 [49]-[51], 623 [56]; [2002] HCA 53.

[7]  Appeal Book (AB) 114 lines 23-33.

[8]  Exhibit 1, AB 319.

[9]  AB 319.

[10]  AB 320.

[11]  AB 321.

[12]  AB 321-322.

[13]  AB 322.

[14]  AB 322-323.

[15]  AB 323.

[16]  AB 323.

[17]  AB 324.

[18]  AB 324.

[19]  AB 324.

[20]  AB 325.

[21]  AB 331.

[22]  AB 333.

[23]  AB 333-334.

[24]  AB 340.

[25]  AB 341.

[26]  AB 347.

[27]  AB 348.

[28]  AB 349.

[29]  AB 349-350.

[30]  AB 350.

[31]  AB 350.

[32]  A referent to the texts immediately preceding it which concerned whether the appellant would masturbate.

[33]  AB 359.

[34]  AB 363.

[35]  AB 365.

[36]  AB 366.

[37]  AB 367.

[38]  AB 116.

[39]  AB 117 line 8.

[40]  AB 119 line 40 to AB 120 line 6.

[41]  AB 120 lines 8-10.

[42]  AB 119 lines 6-23.

[43]  AB 119 line 31.

[44]  AB 120 lines 14-35.

[45]  AB 121 lines 15-26.

[46]  AB 121 lines 35-40.

[47]  AB 122 lines 10-14.

[48]  AB 122 lines 20-23.

[49]  AB 141 lines 19-40.

[50]  AB 141 line 44.

[51]  AB 142 lines 28-30.

[52]  AB 143 lines 1-15.

[53]  AB 143 lines 17-23.

[54]  AB 143 lines 25-45.

[55]  AB 144 lines 20-27.

[56]  AB 144 line 34.

[57]  AB 144 lines 37-41.

[58]  AB 145 lines 8-9.

[59]  AB 147 line 7 to AB 148 line 1.

[60]  AB 150 lines 33-37.

[61]  AB 150 lines 9-11.

[62]  AB 150 line 24.

[63]  AB 152 lines 23-46.

[64]  AB 152 line 23 to AB 153 line 15.

[65]  AB 187 line 35 to AB 188 line 2.

[66]  AB 189.

[67]  AB 189 lines 35-40.

[68]  AB 324.

[69]  AB 194 lines 14-17.

[70]  AB 324.

[71]  AB 213.

[72]  AB 214 line 10.

[73]  AB 138 line 34, AB 217 line 42.

[74]  AB 218 line 20.

[75]  AB 218 line 28.

[76]  AB 218 lines 31-36.

[77]  AB 136 line 26-35.

[78]  AB 136 lines 37-39.

[79]  AB 215 line 18 to AB 216 line 19.

[80]  AB 219 lines 10-15.

[81]  AB 221-222.

[82]  AB 223 line 26 to AB 224 line 5.

[83]  AB 137 lines 4 and 36.

[84]  AB 228 lines 35-44.

[85]  AB 228-229.

[86]  AB 230-231.

[87]  AB 259 lines 9-14.

[88]  AB 280 line 40 to AB 281 line 4.

[89]  AB 262 lines 4-11.

[90]  AB 263 lines 1-18.

[91]  AB 264 lines 11-22.  This was not put to the complainant in cross-examination.

[92]  AB 295 lines 1-7.

[93]  AB 264 line 38 to AB 265 line 6.

[94]  AB 265 line 21 to AB 266 line 5.

[95]  AB 266 lines 12-19.

[96]  AB 266-267.

[97]  AB 268 line 10.

[98]  AB 281.

[99]  AB 283 lines 15-17.

[100]  AB 288 line 33.

[101]  AB 288 lines 10-19.

[102]  AB 292 line 17.

[103]  AB 293 lines 9-17.

[104]  AB 293 lines 23-29.

[105]  AB 296 lines 1 and 14; AB 297 lines 21-23.

[106]  AB 296 lines 17-23.

[107]  AB 297 lines 7-9.

[108]  AB 297 lines 38-45.

[109]  AB 299 lines 4-17.

[110]  AB 299 lines 19-25.

[111]  AB 324.

[112]  She had expressly rejected the prospect of choking, saying, “Don’t want to be choked … don’t like it … Feel violated”: AB 323.

[113]  AB 333.

[114]  The text exchange was: “Spit or swallow?”, to which the complainant responded, “Hmmm politely spit”.

[115]  AB 293 lines 23-29.

[116]  As the appellant explained about his version of rape role play, “It’s role play rape.  I’m not actually physically wanting to hurt her”: AB 293 line 20.

[117]  AB 266 line 1.

[118]  Just as the jury could reject the appellant’s evidence that she expressly agreed that he could take the condom off, when that was not put in cross-examination either.

[119]  AB 370.

[120]  [2006] QCA 409 at [33].

[121]  (1998) 197 CLR 316 at 356-357.

[122] MacKenzie v The Queen (1996) 190 CLR 348 at 366-368; [1996] HCA 35; R v GAW [2015] QCA 166 at [18]-[23]; R v CX at [33]; R v Lennox; Ex parte Attorney-General (Qld) [2018] QCA 311.

[123]  AB 130.

[124]  AB 130 line 45.

[125]  AB 132.

[126]  AB 227 line 22.

[127]  Referring to what was said by the High Court in Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42.

[128]  [2015] QCA 111 at [39]; internal citation omitted.

[129] R v WBH [2019] QCA 249 at [105].

[130]  [1999] HCA 42; (1999) 197 CLR 162.

[131]  AB190/5.

[132]  AB186/45.

[133]  AB191/5; AB191/20.

[134]  AB121/40.

[135]  AB211/20.

[136]  AB138/35.

[137]  AB144/35.

[138]  AB184/10.

[139]  AB157/20.

[140]  AB199/15.

[141]  AB205/5.

[142]  AB206/40.

[143]  AB215/45.

[144]  AB250/30.

[145]  AB251/25.

[146]  AB252/1.

[147]  AB278/20.

[148]  AB286/5.

[149]  AB293/15.

[150]  AB296/40.

[151]  AB301/15.

[152]  AB302/30.

[153] R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66].

[154] Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12 at [39].

[155] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492 (Mason CJ, Deane, Dawson & Toohey JJ).

[156] Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482 [56] (Gageler J).

[157] GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698 [25] (Bell, Gageler, Nettle & Gordon JJ).

[158] SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).

[159] Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454, 473 (Deane, Toohey & Gaudron JJ).  See also M (492-493); SKA [20].

[160] R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 [33] (Hayne, Heydon, Crennan, Kiefel & Bell JJ).

[161] R v Hillier [2007] HCA 13; (2007) 228 CLR 618 [20] (Gummow, Hayne & Crennan JJ).

[162] Fitzgerald v The Queen [2014] HCA 28; (2014) 88 ALJR 779 [5] (Hayne, Crennan, Kiefel, Bell & Gageler JJ).

[163] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [66] (French CJ, Kiefel, Bell, Keane & Gordon JJ).

[164] BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101 [31] (Hayne, Crennan, Kiefel, Bell & Keane JJ).

[165]  [2020] HCA 12 at [39].

[166]  However, the complainant gave evidence at trial that she said she did not want to talk about a safe word.  Appeal Book (AB) 119.

[167]  There is however conflicting evidence as to whether the appellant or the complainant came up with the safe word.

[168]  The appellant also gave evidence that the complainant had used the safe word once, after he had slapped her face and that he had then stopped slapping her.  AB 265 - 266.

[169]  At the time of the police interview the complainant could recall the safe word but says that on the relevant night she could not remember it.

[170]  AB 142 lines 1 – 2.

[171]  This is also in context of the appellant’s evidence that he kept asking if the complainant recalled the safe word.

[172]  Exhibit 1, AB 369.

[173]  Exhibit 4, AB 137.  The post was taken down after about 30 minutes.

[174]  Although Ms RV did not identify the complainant in her evidence, the parties appeared to be in agreement that Ms RV was speaking with the complainant during the call based on phone records.  See AB 237 lines 1 – 40.

[175]  AB 236 lines 25 – 35.

[176]  In cross-examination, the complainant accepted that she told Ms HM that it was hard to say the safe word as opposed to having forgotten it.  Further, she was uncertain as to having brought up the topic of the safe word in the discussion with Ms HM.  AB 218 lines 28 – 36.

[177]  AB 252 lines 1 – 4.

[178] MacKenzie v The Queen (1996) 190 CLR 348 at 366-368.  See also R v GAW [2015] QCA 166 at [18] – [23]; R v CX [2006] QCA 409 at [33]; R v Holland [2017] QCA 69; R v Motlop [2013] QCA 301; and R v Lennox; Ex Parte Attorney-General (Qld) [2018] QCA 311.

[179] Jones v The Queen (1997) 191 CLR 439.

[180]  Appellant’s written submissions [29].

[181]  Appellant’s written submissions [33].

[182]  This is as to “expressions of dissent, her description of the scenario, the sequence of events”: see [44] of the Respondent’s written submissions.

[183]  Exhibit 1, AB 369.

[184]  Respondent’s written submissions at [47] and [48].

[185]  AB 133 – 134.

[186]  (2009) 74 NSWLR 299.

[187]  Per Simpson J (as her Honour then was) at 321, [130].

[188]  T 1-2 lines 17 – 25.

[189]  (2003) 217 CLR 1 at 13, [38].

[190]  Appellant’s written submissions at [35].

[191]  Respondent’s written submissions [51] and [53].

[192] Robinson v The Queen (1999) 197 CLR 162; R v Nguyen [2013] QCA 133 at [58] to [60].

[193]  See discussion of the evidence in respect of ground 1.

[194] R v Newlove [2019] QCA 291 per Davis J at [82].  See also Dhanhoa v The Queen (2003) 217 CLR 1.

Close

Editorial Notes

  • Published Case Name:

    R v Brown

  • Shortened Case Name:

    R v Brown

  • MNC:

    [2020] QCA 159

  • Court:

    QCA

  • Judge(s):

    Morrison JA, Boddice J, Williams J

  • Date:

    07 Aug 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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