SUPREME COURT OF QUEENSLAND

[1] FRASER JA: On 6 December 2007 a jury found the appellant guilty of one count of attempted rape and three counts of rape.  He was sentenced on the following day to six years imprisonment for the attempted rape and 13 years imprisonment for each of the three counts of rape, the sentences to be served concurrently.  The appellant appeals against his convictions and he applies for leave to appeal against sentence.

[2] In addition to the complaint about sentence (ground 4), the notice of appeal identifies four grounds of appeal against convictions.  Two grounds of appeal were argued at the hearing.  The first (ground 1) is that the trial judge erred by directing the jury that evidence of the complainant's distressed state was capable of corroborating her testimony.  The second ground argued (ground 5, which was added by leave at the hearing) is that a miscarriage of justice resulted from the trial judge's failure to leave s 24 of the Criminal Code for the jury's consideration in relation to the attempted rape charge in count 1, and from erroneous or inadequate directions about s 24 in relation to the other counts.

[3] I will consider those grounds, and the remaining two grounds which were not separately argued, after first outlining the evidence and the issues at trial.

The Crown case

[4] The indictment charged offences at different times between 23 July 2004 and 1 June 2005.  During that period the complainant, who was born on 5 August 1988, was 15 to 16 years of age and the appellant was the complainant's mother's boyfriend. 

[5] The prosecutor called the complainant, the complainant’s mother, the owner of a motel (who proved tax invoices relating to the date of the alleged attempted rape), Ms Simpson (who gave evidence of a complaint by the complainant and her distressed state on 6 June 2005, about a month after the last charged offence), and a police officer who conducted a record of interview with the appellant. 

[6] The complainant’s mother met the appellant over the internet in 2003 when the complainant's family lived in Cairns.  The family moved to Townsville in 2004, after which the complainant first met the appellant.

[7] The complainant's mother gave evidence that the appellant told her that he was interested in having sex with her daughter, the complainant.  The mother said that she initially objected, but after the appellant threatened to publish an obscene photograph of her he had taken on an earlier occasion she eventually agreed to ask the complainant to participate in a sexual relationship with the appellant.  Both the complainant and the complainant's mother gave evidence to the effect that before the offences charged against the appellant the mother arranged for the complainant to visit a doctor and obtain a contraceptive pill.  The complainant said that she was required to tell the doctor that she had a boyfriend.

[8] The complainant gave evidence that on a date which she could not recall (other evidence she gave made it clear that it was before her 16th birthday on 5 August 2004) she acceded to her mother's request to stay home from school so that her mother could take photographs of her to send to the appellant; her mother took photographs of her in the nude; and her mother used a computer to send the photographs to the appellant’s email address.  The complainant’s mother gave evidence to similar effect.

[9] Prior to the trial the complainant's mother pleaded guilty to two counts of procuring a person who was not an adult to engage in carnal knowledge, one count of indecent treatment of a child under 16 years of age, one count of attempted rape and three counts of rape.

Count 1

[10] In relation to count 1 (attempted rape on or about 23 July 2004) the complainant gave evidence that a couple of weeks or a month before she turned 16 her mother took her to a motel in Townsville and rented two rooms there.  (The motel owner gave evidence with reference to her records that two rooms were booked in the motel in the complainant's mother's name on 23/24 July 2004.)  The complainant said that after she and her mother had consumed some liquor in one of the rooms the appellant arrived.  The three of them went to a restaurant, after which they returned to the motel.  The complainant's mother left the complainant and the appellant alone in one of the rooms.  The complainant complied with the appellant's request to sit with him on a bed in the motel room.  The appellant undressed her and felt her body.  The complainant objected and, after the appellant sought to persuade her to relax and attempted to put her hand on his penis, she got dressed and left the room.

[11] Her evidence was that her mother, who was outside the motel room, then took her back into the room and again left her there alone with the appellant.  She again undressed and the appellant, who was also naked, positioned himself over the top of her, tried to persuade her to relax, told her that he loved her, and tried to open her legs.  The complainant succeeded in resisting his attempt, got up, put her clothes back on, and ran out.  She returned to the other motel room and her mother went into the room with the appellant.  The next morning the complainant’s mother was affectionate towards her and told her that "it'll never happen again". 

[12] The mother’s evidence was that the appellant told her he wanted to have sex with the complainant.  She took the complainant to a motel where the appellant joined them and they went out for a meal.  After they returned to the motel a friend picked her up, leaving the appellant and the complainant at the motel.  The mother stayed away until she received a text message from the appellant telling her that she could return.  The mother gave evidence that when she returned to the hotel the complainant came to the door of the unit and opened it.  The mother said that her daughter was not upset but seemed happy and comfortable.

Count 2

[13] As to count 2 (rape between 23 July 2004 and 1 October 2004), the complainant and her mother both gave evidence that shortly before the complainant's 16th birthday her mother took her to the appellant's house at Ingham.  The complainant's evidence was that her mother told her that the appellant wanted to have sex with her.  The complainant said that she pretended to sleep until her mother shook her awake, telling her that the appellant was asking to have sex with her.  When the complainant refused her mother left the room and the complainant then heard the sound of crying and a thump.  The complainant's mother came back into the room, shook and slapped the complainant, pulled her out of bed and told her to go the appellant.  The mother's evidence was that the appellant had woken her, told her that he wanted to have sex with the complainant, and in the course of discussion the appellant had slapped her.  When the mother relayed to the appellant that the complainant claimed to be sick, the appellant became very aggressive.  The mother returned to the complainant's bedroom and told her that the appellant would not take no for an answer.

[14] The complainant and her mother both gave evidence that the complainant went to the appellant's room.  The mother said that she went downstairs at that point.  The complainant's evidence was that after opening the appellant's bedroom door she obeyed his request to go over to the bed, to sit down, and to get undressed, but she said that she did not want to do it because she could not let herself; she said that it was going to hurt and she said "No".  She unsuccessfully resisted the appellant's efforts to open her legs.  Whilst he was on top of her having sexual intercourse she screamed, scratched at his back and would not let him kiss her.  After he ejaculated she got dressed and went to the bathroom.

[15] The complainant and her mother both gave evidence that they met whilst the complainant was walking to the bathroom.  Each said they observed blood on the complainant's leg.  The complainant said that she also saw a white substance.  The complainant's mother said that when she asked the complainant if she was alright the complainant said that she was.

Count 3

[16] Count 3 charged the appellant with raping the complainant between 1 March 2005 and 1 May 2005.

[17] In October 2004, the complainant and her mother moved into the appellant's house at Ingham.  The complainant gave evidence that she remembered that the second last time there was sexual intercourse between the appellant and her was after her 16th birthday and it occurred in a downstairs bedroom of the Ingham house.  She said she heard her mother arguing with the appellant and understood that her mother was agreeing that the complainant would have sex with the appellant so that the mother "could have her name on half of everything" that the appellant owned. 

[18] The complainant said that her mother took her into the complainant's bedroom where the appellant was on her bed; the complainant screamed that she was not going to go through with it, that she had had enough, and that she did not want to do it anymore.  She ran away but her mother caught her and pulled her by her hair back into the room.  The complainant screamed at the appellant that she did not want to do it.  The appellant told her that she could either be in the room with him or go out where the complainant's mother would hurt her.  The appellant told the complainant that this would be the last time.  Because the complainant knew that her mother would hurt her, the complainant took her clothes off and lay on the bed, where the appellant had sexual intercourse with her.  The complainant said that whilst the appellant was holding her down she kept hitting him, scratching him and screaming; she told the appellant that she hated him, that she had knives in her bedroom which she would use on him and that she did not want to do it.  Immediately afterwards the complainant put her clothes on and ran out of the bedroom past her mother.  She heard the appellant say to her mother, "are you happy now you have half of everything."

[19] The mother gave evidence of an occasion in April 2005 when the appellant told her that he wanted to have sex with the complainant again.  The mother said that she again asked the complainant who "as always, agreed after saying no at first and then agreeing . . .".  There was an argument between the three of them because even though the complainant had agreed, later on "when it actually came to the crunch" the complainant did not want to go through with it; there was an argument and "a massive fight" between the complainant and her mother.  Eventually "one thing led to another and she went into the room and [the appellant] went in there with her."  The mother said that she left at this point and came back after half an hour, when she saw the appellant coming out of the complainant's bedroom downstairs.

Count 4

[20] The complainant gave evidence that the last sexual episode (count 4: rape between 1 May 2005 and 1 June 2005) was on an "Italian Festival" night in Ingham.  She recalled her mother walking with her through the area of the festival rides on the way to a hotel, where her mother sat her outside behind a wall.  The complainant's mother brought her five rum drinks.  Subsequently the appellant arrived and drove the two back to his house.  The complainant said that her mother took her upstairs with the appellant following.  The mother told the complainant that this would be the last time anything would ever happen to her.  The complainant went into the appellant's bedroom and complied with his request to sit on his bed, take off her clothes and lie closer to him whilst he got on top of her.  She refused to touch his penis or to permit him to kiss her.  The appellant kept on telling her that he loved her.  The complainant told him that she did not want it to happen, that it hurts, that she felt sick and that it did not feel right.  The appellant tried to persuade her to relax, he opened her legs and he had sex with her.  The complainant was screaming and shouting, looking at the ceiling and trying to hurt him to get him off her: she scratched him, punched him and tried to move but the appellant was holding her down.

[21] The complainant's mother gave evidence that at the time of the Italian Festival in Ingham she took the complainant to the festival.  She said that when speaking to the appellant he told her that her younger daughter (who the mother said had been expelled by her ex-husband from his house in Cairns) could live in the appellant's Ingham house if the appellant got what he wanted:  "You know what I'm talking about".  After the mother advised her relatives to put her younger daughter on an early morning bus, the mother asked the complainant to have sex with the appellant again.  The complainant agreed after first saying no.  The complainant's mother said that she bought the complainant some rum and cokes, probably three, to relieve stress and tension both were feeling.  The complainant's mother said that the appellant had sex with the complainant in the appellant's bedroom, but although she said that she said that she was then "at home" she also said that she was not "in the house" when it occurred.

Preliminary complaint

[22] The complainant gave evidence that one day after school (after the sexual encounters the subject of the charges) and whilst she was still wearing her school uniform, her mother told her that she needed to go to a motel to do whatever the appellant wanted to do: this would be the last time.  The mother gave the complainant a letter written by the appellant and addressed to the complainant.  The complainant immediately ran away: her evidence was that she went outside and hid behind a bush nearby for a couple of hours whilst it was raining, and she then ran down the street, hiding in houses when she heard cars.

[23] Some hours after the complainant left home she went to a friend's house.  Someone there called a counsellor, Ms Simpson.  The complainant said that she told Ms Simpson about what had occurred with the appellant and showed her the letter.  They later went to the police together. 

[24] Ms Simpson's evidence was that she arrived at the complainant's friend's house on 6 June 2005 to find the complainant wet, crying and very distressed.  Ms Simpson said that the complainant appeared distraught.  After some time, during which Ms Simpson encouraged the complainant to talk to her, the complainant eventually made disclosures.  The complainant said, "I'm not sleeping with him anymore.  I will not do it anymore".  The complainant showed her a handwritten note, which Ms Simpson read.  It was from the complainant's mother and addressed to the complainant's first name. 

[25] The complainant's mother gave evidence that she gave a letter to the complainant who ran away after she got it.  The mother said that by giving the complainant that letter she told her that the appellant was asking for sex.

[26] No letter that might bear such a construction was produced at the trial and nor was evidence given of the contents of any such letter.  A letter from the appellant to the complainant was tendered but it was evidently written after she had left home.  It did not contain any statement suggesting that the complainant should engage in or had engaged in sexual relations with the appellant.

The issues at trial

[27] The appellant did not call or give evidence. 

[28] A police officer gave evidence in the Crown case of a record of interview conducted with the appellant.  The appellant's version was that he and the complainant had engaged in consensual sexual activity, including intercourse, from when the complainant was about 16 and a half years old (or in March 2005) in his house at Ingham.  The appellant said that there were six or seven such encounters and the complainant's mother was not at home during any of them.  He said that he had never been given any nude pictures of the complainant.  On the appellant's version the complainant's mother did not know about any of the sexual encounters until she found out two or three weeks before the appellant was interviewed by police on 19 June 2005. 

[29] In summing up the trial judge told the jury that the defence case on count 1 was that the appellant was not at the motel so that no incident involving him and the complainant occurred there; also it, like count 2, did not occur because the appellant did not have sexual intercourse with the complainant before her 16th birthday; count 3 did not occur because although the complainant was by then 16 years of age and involved in a sexual relationship with the appellant, all of their sexual activity was consensual and occurred only when the complainant's mother was absent; and for count 4 the appellant’s case was that he and the complainant had consensual sexual intercourse during the weekend of the Ingham Italian Festival.

[30] More detail about the issues at trial emerges from the trial judge’s summary of defence counsel’s address to the jury, which reflected the cross-examination of the Crown witnesses: the complainant’s mother forced her to engage in sexual activity with the appellant but that occurred without the appellant's knowledge - he thought he was having consensual sex with the complainant without her mother's knowledge; and in any case, the complainant and her mother were not reliable witnesses and the jury should not accept their evidence.  The trial judge referred to the submission by defence counsel that the jury could not be satisfied beyond reasonable doubt that the appellant had committed the offences: the complainant had very little recollection of detail or other events which ought to have been of significance to her; her account differed significantly from that of her mother in many respects; some of the things she said in evidence were not consistent with a documentary exhibit recording a conversation between the complainant and her grandmother; the complainant's account was not consistent with things she had said in an earlier statement; the evidence of the complainant's mother was incredible and unreliable; and the mother had a motive to concoct a false story against the appellant (in order to obtain a reduction in her sentence).

[31] I turn now to consider the grounds relied upon by the appellant in his appeal against conviction.

Ground 1: the trial judge erred by directing the jury that the evidence of the complainant’s distressed condition, about one month after count 4 occurred, when she made a complaint was capable of corroborating her testimony

[32] The trial judge directed the jury that Ms Simpson's evidence of the complainant's complaint might support the complainant's credit if the jury thought it was consistent with the complainant's account.  If the jury thought Ms Simpson’s evidence was inconsistent with the complainant’s account, it might cause the jury to have doubts about the complainant's credibility.  Ms Simpson’s evidence of the complaint did not independently prove anything.  The trial judge directed the jury that it could not regard those out of court statements as proof of what actually happened.  No complaint is made about those directions.

[33] The trial judge next referred to Ms Simpson's evidence of the complainant's distress.  The trial judge directed the jury that this evidence was in a different category: it constituted "original evidence".  After referring to Ms Simpson's evidence about the complainant's distressed condition the trial judge summarised it as being that the complainant had on this occasion run away from home "because her mother had asked her again to have sex with the accused and she just was not prepared to put up with that any longer . . .".  The trial judge then directed the jury as follows:

"If you accept that she was distressed and if you accept that that was why she was distressed the fact that she was distressed at the time is consistent with there having been some cause to make her distressed. You should bear in mind that there may have been other reasons why she would be distressed but if you accept or to the extent that you think that it is more likely that she was distressed for the reasons she gave rather than some other reason that is some objective evidence which tends to support the proposition that she was being forced to have sex with the accused.

So that is another matter for you to consider. Ms Simpson's evidence about the complainant's state at that time; whether she had just run away because she was unhappy at home or whether she had run away because she had been having an illicit affair with the accused and her mother had found out about it. That is another possibility that you should consider. But if you accept that, to the extent that you think that the distress is more likely to be indicative of her having run away for the reasons she gave then that is something which would tend to support her account."

[34] After the jury retired defence counsel submitted to the trial judge that the condition of the complainant when speaking to Ms Simpson almost one month after the last count on the indictment could not in the circumstances be supportive or corroborative of any of the counts charged in the indictment.  Counsel submitted that the evidence was so tenuous and remote from the matter that it could not have that character.  The genesis of the complainant's distressed condition was submitted to be her mother's requirement that she engage again in sexual intercourse with the appellant rather than the alleged offences themselves.

[35] The trial judge declined to give any re-direction on the point.  His Honour considered that the distress of the complainant, assessed in the context of her evidence that she ran away because she was being asked again to have sexual intercourse with the appellant, was capable of supporting the proposition that she was forced to have sex with the appellant and it was thus capable of corroborating all of the counts.

[36] In the appeal the appellant's senior counsel advanced similar arguments to those made by defence counsel at trial.  He argued that in light of the delay between the alleged offences and the complainant's distress spoken of by Ms Simpson the trial judge erred in leaving it open to the jury to use that evidence as supporting the Crown case on all or any of the four counts. 

[37] In R v Flannery,[1] Winneke CJ (who delivered the judgment of the court) said:

"In our opinion, evidence of the distressed condition of a prosecutrix may or may not be capable of amounting to corroboration according to the particular facts of each case.  In determining whether it is so capable, regard must be had to such factors as the age of the prosecutrix, the time interval between the alleged assault and when she was observed in distress, her conduct and appearance in the interim, and the circumstances  existing when she is observed in the distressed condition.  Without attempting to enumerate exhaustively the circumstances in which such evidence may amount to corroboration, we are of opinion that if, regard being had to factors of the kind we have mentioned, the reasonable inference from the evidence is that there was a causal connexion between the alleged assault and the distressed condition, evidence of the latter is capable of constituting corroboration.  If such inference is not open, the evidence is not, in our opinion, capable of amounting to corroboration.  We should add that except in special circumstances such as existed in Redpath's Case, supra, evidence of distressed condition will carry little weight and juries should be so warned by the trial judge in the course of his charge."

[38] In R v Sailor,[2] McPherson JA explained why independent evidence of distress might in some cases corroborate a complainant's evidence:

"Although the judgments in reported cases do not directly identify the reason why distress may serve as corroboration in some cases, it can only be that it tends to be circumstantial evidence of the alleged incident.  Like bruising, bleeding, and torn clothing, distress is an aspect of the appearance or visible condition of the complainant that of itself is capable of providing independent confirmation of the complainant's account of what happened to her."

[39] The circumstances in which independent evidence of a complainant’s distress is admissible to prove the commission of a sexual offence have been discussed in numerous Queensland decisions.[3]  The effect of those authorities may, I think, be summarised in this way: evidence of a complainant’s distressed condition may be left to the jury even if there are competing inferences as to its effect, but if the relationship between the distressed condition and the offence alleged is tenuous or remote a trial judge's duty is to withdraw the evidence of distress from the jury as a circumstance capable of being considered corroborative; the critical question is whether the inference is reasonably open that the distress was causally related to the offences charged. [4]

[40] In my respectful opinion, no such inference was reasonably open in this case.

[41] There is first the substantial interval between the offences charged against the appellant and the distress to which Ms Simpson testified.  There was no independent evidence of distress by the complainant at any earlier time.  On the evidence, the last sexual contact between the appellant and the complainant was during the Italian Festival in Ingham.  The trial judge told the jury that it was admitted and could be taken as proved that the festival ran between 5 and 8 May 2005.  Ms Simpson's evidence therefore referred to the distressed state of the complainant nearly a year after the offence alleged in count 1 and no less than some seven months after the offence alleged in count 2.  The delay was about one month after the offence alleged in count 4 and it was a somewhat longer period after the offence alleged in count 3.

[42] Similar evidence has sometimes been held to be admissible in particular circumstances after quite lengthy delays,[5] but it is very difficult in the circumstances of this case to see how Ms Simpson’s evidence of the complainant’s distress provided independent confirmation that the appellant had attempted to engage in and had engaged in sexual intercourse with the complainant a year and some seven months earlier.  As McPherson JA observed in R v Sailor:[6]

"Eventually a stage in time is reached where, without resorting to testimony of the complainant, it ceases to be possible to link the distress with its alleged cause.  Once it ceases to be independent evidence of its cause, the complainant's distress is no longer capable of corroborating her testimony."

[43] In relation to counts 3 and 4, in addition to the delay of a month or so between the offences alleged in those counts and the complainant’s distress it must be borne in mind that the evidence of the complainant, her mother and Ms Simpson supported the conclusion, as was acknowledged in the trial judge’s directions and his Honour’s reasons, that the immediate cause of the complainant's distress was that her mother asked her to have sexual intercourse with the appellant, the mother’s own boyfriend.  Conduct of that kind is so outrageous that one would readily expect it to result in any 16 year old girl becoming distressed, whether or not she had in fact consented to something similar a month or so earlier. 

[44] The mother’s evidence (remarkable as it was) was consistent with her having procured the complainant to consent to the sexual intercourse the subject of count 4 and possibly also count 3.  The complainant’s distress a month or so afterwards could be linked to absence of consent (especially for count 4) only by first accepting the complainant’s evidence that she had in fact not consented.  Accordingly, whilst the jury was plainly entitled to accept and act upon the complainant’s evidence that she had not consented, the evidence of her distress was not capable of providing independent confirmation of her account.

[45] During argument in the appeal the respondent's counsel accepted that the evidence of the complainant’s distress was not admissible on the basis, discussed in the authorities, that it was distress related to an immediately preceding alleged offence.  He argued instead that it was open to the Court to regard the evidence of Ms Simpson as circumstantial evidence from which, when coupled with the evidence of the complainant's mother, a reasonable inference could be open that the relationship between the complainant and appellant was a non-consensual one.  The respondent's counsel acknowledged that that was not the way in which the trial judge left the evidence to the jury, but he submitted that the evidence was admissible on that footing. 

[46] The respondent's counsel relies, by way of analogy, upon the decisions of this Court in R v Sakail and R v Massey[7].  The cases are not analogous.  The passage in the judgment of Macrossan CJ in R v Sakail upon which the respondent relies concerned admissions made by an accused that he might have had sex with a complainant against her will on an occasion which was neither of the two occasions charged.  The Chief Justice held that the evidence was admissible because it was relevant in proof of the matters charged in a circumstantial way and as showing important aspects of the relationship between the appellant and the complainant.  The passage in the judgment of McPherson JA and Demack J in R v Massey upon which the respondent relies concerned the admissibility of evidence of an act of indecency or sexual misconduct as corroboration of the evidence of the complainant about similar acts on an earlier occasion or occasions.  Neither case involved evidence of the kind here in issue, conduct by the complainant which, when linked with other evidence, is said to corroborate her own evidence. 

[47] I am unable to accept the respondent's submission.  It is, in my respectful opinion, irreconcilable with the basis stated in the authorities upon which evidence of distress is admitted as corroboration of a complainant's evidence in a case like this.  For the reasons I have given, those authorities require the conclusion that acceptance of Ms Simpson’s evidence of the complainant’s distress could not rationally affect (directly or indirectly) the assessment by the jury of the probability of the existence of the relevant facts in issue in the proceeding, [8] namely, whether or not the appellant had attempted to sexually penetrate the complainant and had sexually penetrated the complainant about a year and seven months earlier, and whether or not the complainant had consented to sexual intercourse with him about a month or so earlier.

[48] That is not to say that there was any error in the admission of Ms Simpson's evidence of the complainant's demeanour when she made her complaint.  Defence counsel did not object to that evidence, presumably taking the view that it formed part of the evidence of the complaint.  But, as the trial judge directed the jury in this case, evidence of complaint, where it is admissible, goes only to the complainant's credibility.  At common law it does not independently prove the matter the subject of complaint.[9]  The respondent did not contend that the statutory reforms in Queensland affected that rule. [10]

[49] Accordingly, in my respectful opinion the trial judge erred in directing the jury that Ms Simpson’s evidence of the complainant’s distress was “some objective evidence which tends to support the proposition that she was being forced to have sex with the accused” and that “if you accept that, to the extent that you think that the distress is more likely to be indicative of her having run away for the reasons she gave then that is something which would tend to support her account”.

[50] The significance to the jury of those directions was emphasised by the distinction made by the trial judge between the effect of that evidence and the apparently less significant effect of the evidence of the preliminary complaint, which the trial judge had earlier directed went only to the complainant's credit.  Proof of the charges mainly depended upon the evidence of the complainant.  If, as I have concluded, the evidence of distress was not admissible for the purposes described in the trial judge’s directions, the conclusion seems inescapable that the directions produced a miscarriage of justice.  For the same reasons it is difficult to see how the appeal could be dismissed by applying the proviso that "no substantial miscarriage of justice has actually occurred".[11]  That this Court is denied the benefit available to a jury of seeing and hearing the complainant and her mother give evidence, is one of the "natural limitations"[12] that militates against that proposition that this Court could be satisfied that the Crown had proved the guilt of the appellant beyond reasonable doubt. The respondent did not rely upon the proviso.

[51] In my opinion the appeal must be allowed on this ground.

Ground 2: the trial judge erred by directing the jury that the evidence of the mother could be supported/corroborated by her notes tendered into evidence when the notes conflicted with the complainant’s account of events

[52] The second ground of appeal complains that the trial judge erred by directing the jury that the complainant's mother's evidence could be supported or corroborated by her notes, which were admitted into evidence, when those notes conflicted with the complainant's account.  The written outline of submissions for the appellant confined this ground to a challenge to the trial judge's direction to the jury that the notes might assist the Crown case when they were inconsistent with the evidence of the complainant's mother and also contained nothing incriminating.

[53] Exhibit 4 contained some notes that the complainant's mother wrote on copies of some bench charge sheets and which, she said in evidence, were incomplete.  The trial judge told the jury that the notes made by the complainant's mother did not contain anything incriminating of the complainant's mother or the appellant and contained no direct allegations against him. 

[54] The direction referred in the written submission for the appellant was in the following terms:

"So have a look at these.  To some extent you might think they assist the Crown case, and to some extent they do not.  To some extent, they are inconsistent with it.  It says, for example, a statement that the accused was not in Ingham on the Saturday night at the Italian Festival and is admitted by the Crown that that is the case."

[55] The written submissions did not develop the argument that this direction was wrong and the appellant's senior counsel made no oral submissions on the point. 

[56] Defence counsel tendered the notes which became exhibit 4 and sought to rely upon them as proving a prior inconsistent statement by the complainant's mother relating to the appellant's opportunity to commit the offence charged in count 4.  The trial judge's statement that the jury might think that the note to some extent assisted the Crown case - which is the intended subject of the complaint in ground 2 - presumably related to the example given by the trial judge immediately before that remark.  His Honour pointed out, that in relation to count 2, the notes said, "We was not living in Ingham at the above address until after 16 September 2004.  Went up to Ingham rodeo on Friday 27 July 2005."  The trial judge told the jury that 27 July 2005 was a few days after the date on the motel receipt and that the jury might think that was consistent with the complainant's evidence that the first time at Ingham, count 2 on the indictment, occurred about a week after the incident at the motel, which was count 1. 

[57] It is not submitted that his Honour erred in that respect. 

[58] Defence counsel did not make this particular complaint at trial.  In my respectful opinion it has no basis. 

Ground 3: in respect of the jury verdict on count 4, it would be unsafe, unjust or dangerous, to allow it to stand because a jury acting reasonably, should have entertained a sufficient doubt as to guilt of the appellant

[59] Ground 3 of the notice of appeal is that it would be "unsafe, unjust or dangerous" to allow the jury's verdict on count 4 to stand.  This ground was not developed in argument either in the written submissions or in the oral submissions made for the appellant.  The summary of the evidence I gave earlier demonstrates that there is no substance in it as a separate ground of appeal.

Ground 5: a miscarriage of carriage was caused by the trial judge's failure to leave section 24 of the Code for the jury’s consideration in relation to count 1 and the erroneous/inadequate directions on section 24 in relation to the other counts

[60] The first part of this ground asserts error in the failure of the trial judge to leave s 24 of the Criminal Code for the jury's consideration in relation to count 1, the charge of attempted rape.  It appears this was an oversight by the trial judge, because his Honour did leave s 24 to the jury on the possible alternative verdict of sexual assault.  However, in leaving s 24 on that alternative charge the trial judge gave a standard direction and referred to the complainant's account - plainly inconsistent with the application of s 24 - but did not identify the basis upon which s 24 was raised.

[61] For the respondent it is submitted that s 24 was not raised and that the appellant received a potential benefit to which he was not entitled when the trial judge left s24 for consideration by the jury on the alternative charge of sexual assault. 

[62] Section 24 does not operate unless there is some evidence of a mistaken belief by the accused.[13]

[63] For the appellant it is submitted that there was evidence which required the trial judge to leave s 24 to the jury.  The appellant's senior counsel relied upon the evidence given by the complainant's mother that, after having received a text message from the complainant:

"When I got back, [the complainant] came to the door, opened the door.  She was not upset, she was not.  She seemed to be fairly sort of happy and comfortable.  As far as I assumed nothing had actually happened."

[64] There was no evidence of the time that passed between the sexual conduct alleged in count 1 and the time when, so the mother said, she observed that the complainant was not upset but seemed to be happy and comfortable.  In these circumstances there was no basis for an inference that the complainant's demeanour when said to have been observed by her mother reflected her demeanour at the earlier time of the alleged offence.  The evidence of the complainant to which I earlier referred was the only evidence on that topic:  she consistently objected to the appellant having sexual intercourse with her and she manifested her objections both verbally and physically, including by physical resistance, scratching and hitting the appellant. 

[65] Furthermore, the appellant's case (reflected in the version in the police interview and in cross-examination of the complainant and her mother) was inconsistent with him mistakenly believing the complainant consented to intercourse on the occasion charged in count 1.  His version was that there was no such occasion.  Although the appellant did not give evidence in support of that version, it militates against his arguments that the trial judge should have left s 24 to the jury[14] and that his Honour’s failure to do so produced a miscarriage of justice.

[66] It was presumably for reasons of this kind that defence counsel at the trial submitted to the trial judge that s 24 was not engaged: consistently with that submission, defence counsel did not seek any redirection by the trial judge on the point. 

[67] For these reasons I reject the appellant’s contention that a miscarriage of justice resulted from the trial judge’s failure to leave s 24 to the jury on count 1.

[68] The second aspect of this ground of appeal concerns the directions on s 24 the trial judge gave in relation to the other counts.

[69] The direction which the appellant challenges is in the following terms (I have added the emphasis):

"Now in relation to this, again the two aspects to consent. Consent in its first aspect simply means consent freely and voluntarily given by someone with the cognitive capacity to give the consent. It is no doubt the complainant had the cognitive capacity to give consent. The Crown case was that she did not freely and voluntarily give consent. It is concerned with the actual state of mind of the complainant at the time of the sexual intercourse, whether she did in her mind then consent to his doing what he did.

Now that is the first aspect of consent. But then the second aspect is in relation to the question of mistake because rape is not an offence if the accused honestly and reasonably but mistakenly believes that the complainant is consenting. If he honestly and reasonably believes that she is consenting it is not rape. He is not guilty of the charge. But it is not necessary for the accused to prove that he had an honest and reasonable mistake. It is necessary for the Crown to prove that that was not the case. Now the prosecution can do this by satisfying you either that the accused did not honestly believe that she was consenting to what he did or that a reasonable person in the position of the accused would not believe that she was consenting to what he did.

The former is concerned with her actual state of mind at the time that he did the particular act. The latter is an objective test. It is concerned with what would have been apparent to a reasonable person who was standing in there watching what was happening. It depends on what an ordinary reasonable person in his position would have believed. Now if you accept the complainant's evidence as to how she behaved, then you could be satisfied that it would have been obvious to an ordinary reasonable person in his position that she was not consenting and on that basis you could exclude a mistake as to consent in relation to this count. It would also be open to  you to exclude it on the basis that if you accepted the evidence of the complainant's mother as to what had passed between them beforehand, that he did not honestly believe that she was consenting because he knew that she was being forced to do it by her mother. So that is a matter for you."

[70] The appellant argues that the direction misled the jury because of the word "her" which, it is submitted, conveyed that what was in issue was the complainant's state of mind rather than the state of mind of the appellant at the time that he did the particular act. 

[71] The trial judge's reference to "her" state of mind was a slip.  That must have been obvious to the jury.  It occurred immediately after the trial judge had correctly directed the jury that it was necessary for the Crown to satisfy the jury either that "the accused" did not honestly believe that the appellant was consenting or that a reasonable person in the position of "the accused" would not believe that the complainant was consenting.  And immediately after the reference to "her" actual state of mind the trial judge referred to an objective test which depended on what an ordinary reasonable person in "his" position would have believed.  The same point was made by the trial judge in other places before and after the mistaken reference to "her" state of mind. 

[72] The error was so minor and obvious that it could not be regarded as potentially giving rise to any miscarriage of justice.[15]

[73] Finally under this ground, the appellant contends that the trial judge erred by failing to direct the jury that the evidence of the complainant's mother was potentially important to the jury's consideration whether the appellant mistakenly believed the complainant consented.  It is submitted for the appellant that the trial judge's failure to give any such direction is highlighted by the trial judge's comment that "the proposition that [the complainant's mother] is a decidedly unusual woman and does not have the usual maternal instincts is, in a sense, common ground in this case".

[74] I do not accept that any miscarriage of justice was created by the trial judge's failure to give any such direction to the jury.  Such a direction would have been inconsistent with the case for the appellant, put to the Crown witnesses, that the complainant's mother was not present at or aware of any occasion when the complainant and the appellant had sexual intercourse.  A direction by the trial judge to the effect now postulated for the appellant might properly have been regarded by the appellant's counsel as unhelpful to that case.  Presumably for some such forensic reason, the appellant's counsel did not seek any further directions on the point. 

Disposition

[75] I would uphold ground 1 in the notice of appeal.  For that reason I would allow the appeal, set aside the verdicts and convictions, and order a retrial.  In these circumstances I consider it inappropriate to consider the appellant's application for leave to appeal against sentence.

[76] CULLINANE J: I agree with the draft reasons of Fraser JA and with the orders he proposes.

[77] JONES J: I agree with the reasons of Fraser JA and the orders he proposes.