SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  This appeal against conviction should be dismissed for the reasons given by Muir JA.

[2] MUIR JA:  Introduction

After a trial in the District Court in Cairns, the appellant was convicted by majority verdict of one count of burglary by breaking in the night with violence (count 1) and of two counts of rape (count 2, digital penetration of the vagina and count 3, digital penetration of the anus).  He appeals against his convictions on grounds that the verdicts were unreasonable and unsafe as:

(1)In respect of count 1, there was cogent evidence supporting the appellant's version that his entry to the complainant's dwelling was by consent;

(2)The verdict on count 1 was returned in circumstances where it was reasonably possible that a jury member either compromised his or her verdict or was overborne;

(3)The primary judge erred in not giving a direction along the lines of that described in R v Markuleski.[1]

[3]  Before addressing the grounds of appeal, it is instructive to outline the relevant evidence before the jury.

The complainant's evidence

[4]  The complainant's evidence was to the following effect.  She was a 23 year old unmarried woman who lived alone in a house in Cairns.  The 17 year old appellant resided in a house across the road from her residence.  She first met the appellant in the week before Christmas 2007.  Shortly after first meeting him, he asked her to help him buy some alcohol and she acceded to his request.  The appellant and two companions took delivery of the alcohol in the complainant's house.  On another occasion she spoke to him from her front yard.  The discussion led to an exchange of telephone numbers.  On one occasion she had gone to the house in which the appellant resided whilst waiting for her boyfriend.  She was there for five to 10 minutes.

[5]  On 24 December, the complainant, who had smoked five or six cones of cannabis, retired to bed at about 1 am.  She was dressed in underpants and a skirt, which she pulled up and used as a top.  As she was falling asleep her "dog was going crazy", "barking".  She heard a knock at the door but didn't answer it.  She later noticed what she thought was a silhouette pass the door of her room.  She then observed a person "wearing a black something wrapped around his face" bending over, patting her dog.  The person jumped on her and held her down by her arms.  She screamed out for her neighbour, Henry.  The intruder, whose torso was bare, and who she subsequently identified as the appellant, covered her mouth with his hand.  The appellant raised his finger to his lips without saying anything.  He was blocking her breathing.  She "was pulling off his hands telling him to stop" and she told him she would do whatever he wanted, to "just stop".  Just before that, the appellant pulled her dog, which was on the bed, "over by its paw, and it's like he wanted my dog to fucking lick his dick or something".

[6]  By this time, the appellant had removed her underpants.  The appellant "calmed down" and she "started rubbing his penis up and down with [her] hand".  He inserted his fingers in her vagina while she struggled "making it hard".  He prodded his fingers into her anus.  The complainant managed to remove the appellant's black T-shirt, which the appellant had around his head, and on recognising him, screamed out, "Nathan … You’re trying to rape me".  She then "grabbed [her] pants off from the bed, put them on and ran into the kitchen with [her] phone".  The appellant "cowered [and] he backed off" and asked her not to call the police.  He then dived through a window, breaking a louvre.  She noticed that there were other louvres missing before the appellant went through the window.

[7]  In cross-examination, the complainant gave evidence to the following effect.  Her normal daily consumption of cones of cannabis was approximately 20.  She had been a drug user for some years but had been living a drug-free lifestyle for nearly 10 and a half months.  She had been convicted on 12 November 2008 in Cairns of possessing dangerous drugs; possession of utensils or pipes used in connection with a drug offence; and possession of property suspected of having been used in the commission of a drug offence on 3 October 2007.

[8]  On 3 October 2007, police had found in her premises 50.1 grams of crystal methylamphetamine, a clip sealed bag containing 21 grams of cannabis, another small plastic container containing 3.5 grams of cannabis/tobacco mix, a clear glass pipe which she had used to smoke crystal methylamphetamine and a set of scales.  She denied supplying drugs.

[9]  She had put the bong used by her on the evening of 23 December, which was fashioned out of a Gatorade bottle, in a plastic bag in the kitchen before she went to bed.  Following being assaulted in the bedroom, she went into the kitchen, where she got a knife.  She denied screaming at him, "Fuck.  You know what I mean.  I said you know you tried to get into my pants.  You don't even shout me a cone".  It was put to her that she had admitted using those words at the Committal hearing.  She then admitted that she had used those words as "a drastic way of trying to get" the appellant to "calm down and be able to communicate" and to extricate herself from "a horrible situation".  This exchange took place:

"[Defence Counsel]:  'Question:  So you'd be resisting?  Answer: I was absolutely resisting', and then you go on, 'but I was struggling for oxygen, you know.  I was struggling for air.  I was very stressed out.  Chunks of my hair were being removed.  You know what I mean?  I squeezed Nathan's nuts really tight.  I did everything I could for him to stop what he was doing to me.'  'Question:  You didn't put that in your statement, did you?  Answer:  No.'  'And you also didn't put in your statement that he'd put his finger into your vagina, then into your anus, and then back into your vagina.  You just' – 'Answer:  Well, he was certainly mucking around down there.  He was mucking around down there.'  I hope that's fair enough.  I - the question of mine was getting interrupted."

[10]  In re-examination, the complainant said that she had given a statement to police about an hour after the incident.  She also said that she was on an intensive drug rehabilitation order after her drug convictions and had undergone urine testing every second day.

The evidence of the complainant's mother

[11]  The complainant's mother gave evidence that her daughter called her in the early hours at about 2.15 am on 24 December 2007 screaming hysterically.  She made out the words, "There's a man in the house.  There's someone in the house".  After dialling triple 0 the complainant's mother went to the complainant's residence, where she found her out on the street, crying and hysterical, with a skirt on and a towel wrapped around her shoulders.  The complainant said:

"There was a man in the house.  He was in the house and he was on top of me … I couldn't breathe, I couldn't breathe.  He was suffocating me, he had his hand over my mouth and my nose and I couldn't breathe.  I thought I was going to die … he had his pants off and his penis was out and that he was going to do it to her, and that she was pleading for him not to hurt her.  'Please don't hurt me' she kept saying to him …"

[12]  The complainant said that:  the intruder had handled her dog and "had done some weird things to the dog as well"; he had put his fingers inside "her anus and in her vagina"; the intruder had "something wrapped around his head" and that she had identified him as the appellant.  After the complainant's mother arrived at the house she noticed that there was broken glass on the laundry floor and that louvres had been removed.

[13]  In cross-examination, the complainant's mother admitted that in her statement to the police, although she had reported her daughter as saying, "He has put his fingers inside me", she did not state that the appellant had inserted fingers into the complainant's vagina and anus.  She conceded that she may have been told this by the complainant after she had made her statement on the morning of 24 December.  The complainant's mother, asked if the complainant told her what she meant when she said that the appellant tried to hurt her dog, responded, "Yes, apparently he picked him up and threw him against the wall".  She admitted that she had not put this in her statement and that this information was given to her later when she and her daughter "were both calmer and more collected".  She accepted that before she made the statement, the complainant had informed her, "He had his pants down and he had his cock out, he was really going to do it to me … I told them that I would do anything as long as he didn't hurt me [and that the complainant said] she was screaming and screaming for Henry but no-one came".

Mr R's evidence

[14]  Mr R, with whom the complainant was keeping company at the time in question, gave evidence of receiving a telephone call in the early hours of 24 December 2007.  He said:

"… when the phone connected all I could hear was yelling, the dog barking, [the complainant] yelling, 'Get out of my fucking house, I'm going to call the police.  Nathan, what are you doing to me.  Get out of my fucking house.'  Then the phone hung up."

[15]  He arrived at the complainant's residence only about two and a half minutes after receiving that phone call.  Just before he arrived, he received another phone call from the complainant who yelled into the phone, "R, can you help me get this bastard out of my house".

[16]  When he saw the complainant:

"She was - she was ecstatic, mate.  She was hanging on to her throat and I just - yelling - you know, like she was very upset … [she was] Just yelling out, 'He tried to rape me.  He had his fingers inside me' … 'My neighbour.  I can't believe it was my neighbour'."

[17]  The complainant reported to him that the appellant had tried to choke her and that he had had his hand over her nose and mouth.

Other prosecution witnesses

[18]  An experienced nurse who had been in forensic nursing for three years examined the complainant at about 5.15 am on the morning of 24 December 2007.  She noticed:  a round bruise on the side of the complainant's neck, a mark that looked like a scratch mark on the side of her throat, and a purplish red bruised area on her right arm midway between her shoulder and her elbow.

[19]  Constable Samuelson gave evidence that sometime after 2 am on 24 December, in response to a radioed request received in his police car describing the appellant as carrying a black shirt, he and his partner drove to a location where they found the appellant sitting on a BMX bike wearing a black shirt.  He had a scrape wound on his nose, a small cut on his left thumb and appeared to be affected by alcohol or some other intoxicating substance.  The appellant was searched and a tinted shard of glass was found in his coin pocket.

[20]  Constable Clarke gave evidence that he attended at the complainant's residence on the morning of 24 December 2007.  In cross-examination, he said that the complainant had said that the appellant had attempted to strangle her and had placed his fingers inside her.  He did not detect any smell of cannabis inside the house.

[21]  Senior Constable Webster gave evidence to the effect that he had attended the complainant's residence on the morning of 24 December 2007.  He said that he had seen a Gatorade bottle with a section of garden hose inserted into it in the kitchen.  He noticed louvres missing from the laundry window and saw what appeared to be half a louvre on the ground outside the window.

[22]  Constable Clarke's partner, Constable Cristaldi, testified to noticing "louvres broken and missing from the [laundry] window".  She stepped on a piece of shattered glass in the laundry.

[23]  Detective Senior Constable Wilson went to the complainant's residence on the morning of 24 December.  She arrived there after some other police officers and found the complainant in a state of obvious distress.  She too noted shards of glass on the laundry floor which appeared to have come from the louvre window.  A search revealed an intact louvre on a table inside a shed at the rear of the dwelling and a broken louvre underneath the laundry window.  A search was made for other missing louvres but none were found.

[24]  Sergeant Cowie went to the complainant's residence in the early hours of 24 December after taking the appellant to the watch house.  He observed that the complainant was distressed and that she had hand marks around her throat and injuries to an upper arm.

The appellant's oral evidence

[25]  The appellant gave the following account.  At an unspecified time before the subject incident he had gone to the complainant's residence with a friend and requested her to purchase alcohol for him.  When he and his companion called at the complainant's residence to pick up the alcohol purchased for him, he had a drink with the complainant's brother in the back shed.  The complainant didn't join them.  About a week before the incident he gave the complainant $750 to purchase an ounce and a quarter of pot.  On the night of 23 December he went to the complainant's house, probably after midnight, to see if she had bought the pot.  He knocked on the door; the complainant opened it and invited him in.  The complainant "pulled out a bong … A Gatorade bottle with a hose in it and a cone piece" and the two of them used the bong to smoke marijuana for 20 minutes or so.

[26]  The complainant "started to react … real weird … she walked into the room and then walked back into the kitchen.  She was searching for something … she … pulled out a knife out, and started yelling and screaming at me".

[27]  Presumably earlier than this, the appellant had asked, "Where's my ... pot?" and the complainant had replied, "… you're a little fucking dickhead.  Get out of my house".  That happened "pretty sudden".  The appellant was "afraid for [his] life" so he "took off down the hallway, tried to open the back door.  The back door wouldn't open.  So [he] jumped out the window".  He did not remove any louvres from the window.  He had no romantic or sexual interest in the complainant.  He agreed that in his interview with police he had said that the complainant had obtained his phone number because she wanted to "score drugs" from him and that his evidence in court was to the effect that he wanted to "score with her acquiring drugs".  He explained that when being interviewed by police he was under the influence of alcohol. 

[28]  He had consumed cannabis twice at the shed at the complainant's house using a bong and had seen bongs in the complainant's house.  He agreed, in cross-examination, that the general practice was that where a bong was used by a group of people to smoke cannabis at a person's place they would use the host's bong.  He admitted also that a Gatorade bottle with a piece of garden hose shoved in the side had been used for smoking in the shed.

[29]  When the "commotion blew up" he was standing near the hallway close to the door which was closed.  It was put to him that he could easily have opened it and he explained that he was intoxicated and didn't know what he was doing.  He accepted that the front door was closer to him than the laundry window.

[30]  He noticed two louvres missing from the laundry window.  He received his injuries to his nose and leg when he went through the laundry window.  He agreed that his first explanation to police officers of the injury to his nose was that the appellant had cut him and that he had subsequently told police officers that the injuries were sustained when he jumped out the window.  He was unable to explain why he gave the different versions.  He had consumed "a lot of cannabis and a lot of … drink" and accepted that he only had a vague memory of what had happened that night.

[31]  The following exchange occurred in cross-examination:

"And if I - well, see what I suggest is that she was struggling, trying to grab and push your hands away from her mouth. You say nothing like that happened?--  I don't know, no.

Well, hang on, be fair to yourself. Do you say you don't know or it didn't happen? It's quite - it's important, isn't it?--  No.

And I want to be absolutely clear, Mr Royal, you're not saying - you said you had a vague memory of this particular night.  You'd - presumably, this kind of thing would be something that would stick in your mind, wouldn't it?--  No.

No.  No?--  No."

[32]  After legal argument he was asked again whether there was any reason why he wouldn't remember "something like that", he replied, "Because it did not happen".  This exchange then took place:

"And do you remember that it did not happen, is that what you're telling us?--  No, I remember knocking on the door.

Okay.  Well-----?--  [The complainant], opening it.

-----we're not going back there again?--  That's all I remember, pretty much.

You remember knocking on the door and that's all you remember that night?--  Knocking on the door, [the complainant] opening it, I'm sitting down on the couch.  What I actually said before in my story.

Your story, yes?--  My statement report."

The appellant's record of interview

[33]  The following was said by the appellant in his interview by two police officers on 24 December commencing shortly after 7 am.  He had consumed more than half a carton of rum and cola between about 5 pm in the afternoon and midnight on 23 December.  When he went home he couldn't get in.  Noticing a light in the complainant's lounge room he knocked on the door, was invited in by the complainant and asked if he wanted a cone.  They both smoked, "… It was kind of [a] blur after that.  I was sitting on the couch and the next minute she just went off her fucking head".  She abused him, went to the kitchen and pulled a knife out and he took off.  The pot was smoked from a Gatorade bottle with a green hose in it.

[34]  Later in the interview when asked where the complainant was when she started going off her head he replied, "In the kitchen and just running around".  When she abused him he ran for it.  He said that he was about 185 centimetres in height and that he was "pretty strong" and lifted furniture for a living.  He accepted that the complainant was shorter than him and "skinny".  He saw her grab a knife, became frightened and went out the back where he jumped out the window.  He had noticed that there were two louvres missing about a week previously when he was sitting in the back shed having a smoke.

[35]  Before going out the back, he tried the front door first but it was locked.  When he entered the complainant's residence she was wearing a skirt and a top.

Ground 1 – there was cogent evidence that the appellant's entry to the complainant's dwelling was by consent

[36]  The appellant's case in this regard is built around the failure by police searching the complainant's house and surrounds to find three louvres.  One was found intact in the back shed.  Another broken one was found partly in the laundry and partly outside but a third louvre could not be found, although the prosecution case was that the appellant removed three louvres to enter the complainant's dwelling.  It is submitted that it is inconceivable that the appellant could have removed the louvres then taken them away or hidden them so that they remained undetected by a thorough police search.  The evidence is consistent with the appellant's version that two louvres had already been removed and that the appellant did not remove any but broke one as he left.  The fact that one was broken as he left supports the proposition that the space from the missing louvres was too small to have allowed entry in the first place.

[37]  The prosecution case is that the complainant and the appellant had never smoked cannabis together.  However, at about 2 am on the morning of 24 December the appellant described to police officers a bong made from a Gatorade bottle that could be found in a plastic bag in the complainant's kitchen.  The complainant agreed, in cross-examination, that on the evening of 23 December, or early in the morning of 24 December, she had secreted a Gatorade bottle bong in a plastic bag in the kitchen before going to bed.  Police found such a bong in the kitchen.  The appellant's knowledge of the bong is not explained by the prosecution case and is contrary to the complainant's evidence that they had not smoked together at her house.

[38]  The complainant had been a habitual drug user from 14 years of age.  She had used amphetamines and had tried LSD.  In December 2007 she was a habitual cannabis user.  The drugs and related items found in her possession are suggestive of drug dealing.  That is consistent with the appellant's version that the complainant had agreed to source cannabis for him.

[39]  The complainant's evidence on the trial was inconsistent with evidence given by her on committal.  Particular reliance was placed on her evidence at committal quoted in paragraph [9] above.  That evidence is inconsistent and irreconcilable with the version given by the complainant in evidence-in-chief on the trial.  That version appears in paragraph [6] above.

[40]  The complainant's evidence is inconsistent with her preliminary complaints.  In this regard, reliance was placed on the complainant's mother's evidence concerning the throwing of her dog against the wall and the difference between that evidence and the complainant's evidence in paragraph [5] above.  The complaint by the complainant to her mother of digging her fingers into the appellant's testicles was not repeated on trial.  The evidence on trial was that the complainant masturbated the appellant while he held her down.

[41]  In the unintentional phone call to Mr R, the complainant did not complain of sexual assault.  Nor did she in the second telephone call.  Those telephone calls are not inconsistent with the appellant's version of events.  Mr R's evidence about what was said to him by the complainant about the dog is also inconsistent with the complainant's evidence on the trial.

Consideration of ground 1

[42]  The complainant gave no clear evidence about the number of louvres that were missing, apart from saying that she saw the appellant "break the fourth louvre".  She was not cross-examined in relation to the louvres.

[43]  Detective Senior Constable Wilson's evidence was that "it seemed that there was (sic) some louvres missing" and so a search was conducted, but the missing louvres could not be found.  That evidence overlooks the intact louvre found inside the shed and the broken louvre on the ground under the window outside of the laundry and the broken glass inside the laundry.  No evidence, apart from that of the appellant that he had noticed two louvres missing from the window when smoking cannabis in the shed about a week prior to the subject incident established that all louvres had been in place before the incident.  Consequently, it may be that as the appellant asserted, there were two louvres missing from the window before he entered the premises.  It is possible that he took one with him and threw it away.

[44]  The appellant's exit through a louvre window also offers support for the complainant's version of events.  Although the appellant said that he had noticed two louvres missing from the laundry window when smoking cannabis in the shed a week earlier and that he was closer to the front door than the laundry window, he would not have been in a position, one would think, to know whether he could fit through the gap in the window, or even have access to it through an unlocked door.  It is obvious that he left the house in a great hurry, but it is unlikely that his haste was brought about by his fear of the relatively slight complainant.  If he had entered through the front door, it would have been unlikely that the complainant had locked it after him in such a way that it couldn't be opened from inside without a key.  It was not suggested to her in cross-examination that she did lock it.  In his interview with police officers, the appellant did not say that the complainant had locked the door after him or that he tried to get out the door until one of his questioners commenced asking a question which suggested scepticism about the appellant's choice of exit.  The appellant then said that he tried the door and it wouldn't open because it was locked.

[45]  Consequently, the case built on the missing louvres is on a particularly insecure foundation.  Further,  it does not  appear to me that the fact that the appellant who, on his own version of events, left the premises in great haste through a window, breaking a louvre, leads to the conclusion that prior to the louvre being broken, the space between the louvres was too small to have allowed his entry into the premises.

[46]  The fact that the appellant was able to describe a bong which met the description of one found in the appellant's kitchen, offers little support for his case.  He accepted that he had used such a bong in the shed behind the house twice before and that consistently with the practice adopted in his circles, those smoking used the bong which was already on the premises.  He also admitted having seen a bong in the house.

[47]  Sergeant Cowie was shown a statement by Senior Constable Webster which Sergeant Cowie said he had not previously read.  Having read paragraph 5 of the statement, he was asked to confirm that he had a telephone conversation with Senior Constable Webster "that morning and conveyed to him that [he had] been told about the existence of a bong made of a Gatorade and that it had been put in a plastic bag in the kitchen of the complainant's premises?".  He answered, "Yes, that appears [to] be the case, yes."  Sergeant Cowie had earlier said that he couldn't recall his attention ever being drawn to a drug utensil.

[48]  In cross-examination, Constable Cristaldi gave evidence of being informed by "another crew" of a drug utensil which she said she located in the wheelie bin in front of the dwelling.

[49]  Defence counsel read paragraph 14 of a statement given by Constable Cristaldi in which she had said:

"I recall that both the CPIU officers have taken up with the complainant on the veranda.  Constable Clarke and I remained at the gate.  I can recall soon after Sergeant Cowie and Constable Samuelson had arrived.  Sergeant Cowie has taken up with the CPIU officers and soon after provided us with information of a drug utensil that the suspect had mentioned earlier when he was arrested."

[50]  The witness was asked, "Was this information about a drug utensil direct from Cowie, or was it conveyed through some other person after having been received from Cowie?"  She replied, "The information, as I recall, was given to us at that time about the drug utensil".  She said she thought it was given to them by Sergeant Cowie.  Asked if "it was to the effect that the person that they had picked up had said that a drug utensil, being probably a bong, had been used?", she said, "Yes".

[51]  The evidence about what was said by the appellant about a bong in the house was thus far from clear.  But if, as counsel for the appellant contends, it is to the effect that the appellant told police officers of a bong in a plastic bag in the kitchen, it is quite inconsistent with the appellant's case.  He does not state that the complainant took the bong with her to the kitchen.  It would also be unlikely that the complainant, behaving in the frantic way described by the appellant, would have taken the bong to the kitchen and placed it in a plastic bag as she foraged for a knife.  More obvious explanations for the appellant’s knowledge of the bong in the kitchen are that he saw it there before he attacked the complainant, or that he had seen it there on a prior visit, or that the complainant had told him about it.

[52]  The evidence of the drugs found in the complainant's possession on 3 October 2007 does not provide much, if any, support for the appellant's description of her seemingly drug-affected behaviour in the course of the incident.  His account of her conduct is inconsistent with that of a number of people who were in contact with her shortly after the incident.  None of the police officers reported any aberrant behaviour on the part of the complainant and no such behaviour was suggested in the course of cross-examination.  The drugs and drug-related materials found in the complainant's possession in the past do provide some support for the view that the complainant may have been dealing in drugs.  It is, however, a considerable step from that conclusion to conclude that the appellant not only had requested her to acquire drugs for him but that he called at her residence after midnight on 23 December in order to inquire about a prospective supply.  The point is a somewhat marginal one, even without having regard to the inconsistencies between his evidence on trial and his record of interview.

[53]  Inconsistencies in the complainant's evidence at the Committal and on trial as to what she said to the appellant when she discovered his identity are explicable, in part, by a lapse of memory over the eight months between committal and trial.  The jury may well have concluded that the evidence given earlier in time was more reliable.  That evidence was said by counsel for the appellant to be inconsistent with the complainant's allegations of non-consensual sexual assault.  However, her explanation of the words spoken by her was neither illogical nor improbable.  A person in the complainant's position, acting out of fear, would be sensible to assume a conciliatory, even friendly, stance towards her assailant.  This inconsistency and the words reportedly used must also be considered in light of the objective evidence of the complainant's state within minutes of the attack and the accounts of it which she gave to others.

[54]  Counsel for the appellant identified inconsistencies between the complainant's evidence on trial and the accounts given by her mother and Mr R of her preliminary complaints.  Some of those inconsistencies may reasonably have been considered by the jury to be the product, in part at least, of misunderstandings or inaccuracies in reporting by the recipients of the complaints.  The failure by the complainant to repeat her account of digging her fingers into the appellant's testicles is explicable by a lapse of memory and the stress of giving evidence on a trial.  However, it does not appear to me that there is any obvious inconsistency between such a complaint and the evidence of the complainant's masturbating the appellant whilst she was being held down.  The two things were not said to have occurred simultaneously.

[55]  I do not accept that Mr R's evidence assists the appellant.  The first call, which may have been made accidentally, made Mr R privy to what was being said by the appellant in the house.  The complainant told the appellant that she was going to call the police and asked, "… what are you doing to me?".  That language is more consistent with the complainant's account than the appellant's.  The fact that the complainant made no complaint of a sexual assault in the course of the second telephone call is not remarkable.  The complainant was plainly distressed.  It would not be surprising if her first priority was the removal of her assailant from her house.  When Mr R saw the complainant inside the house very shortly after the phone call, the complainant was very upset, holding onto her throat, "Just yelling out, 'He tried to rape me.  He had his fingers inside me', and yeah, all sorts of stuff".  There is no reason to separate out this conversation from the two phone calls when considering the consistency of the appellant's account.  The reliance on Mr R's account of what was said about the dog offers little assistance to the appellant either.  The account was rather vague and did involve a threat to hurt the dog.

[56]  None of the matters relied on by the appellant, separately or in combination, establish that the verdicts were unreasonable or unsafe.  The appellant's version of events was improbable and was largely unsupported by objective fact.

[57]  The complainant's account on the other hand was credible, generally consistent and strongly supported by matters such as:  the marks on her body; the observations about her appearance and distressed state by her mother and Mr R; her complaints and the accidental telephone call.  It has not been shown that the verdicts were unsafe or unsatisfactory.

Ground 2 – the taking of majority verdicts

[58]  Counsel for the appellant's contention is that the trial miscarried because it was "reasonably possible that a jury member either compromised his/her verdict or was overborne".  The foundation for the claim is said to arise from these facts.  At about 12.37 pm on Day 5 of the trial, the jury informed the Court that they were divided 10/2 on count 1 and 11/1 on counts 2 and 3.  The trial judge, over defence counsel's objection, directed the jury on the possibility of majority verdicts.  The jury at that time had been deliberating for nine hours and 45 minutes.

[59]  The jury retired at 1.48 pm and four minutes later conveyed to the Court that they had reached majority verdicts on all three counts.  At 1.52 pm the primary judge said, presumably in open court, that, "The spokesperson of the jury has now communicated to the bailiff that the jury's managed to reach a verdict of 11/1 on all three counts".  The jury returned at 1.55 pm and the primary judge ascertained that the jury had reached an 11/1 majority verdict on all three counts.  Her Honour continued:

"… As I said before, I can accept a majority verdict, but I will only do so if I'm satisfied that you're unlikely to reach a unanimous decision if you're given further time to deliberate.  Are you able to say at this stage whether you think you may progress any further with further deliberation?"

[60]  The speaker replied:

"Your Honour, we have addressed this at great length and in depth, and unfortunately we are in a situation where we are unable to reach a unanimous decision - mostly unlikely to."

[61]  The verdict was then taken.  The appellant's point appears to be that if the change of 10/2 to 11/1 on count 1 took place after the direction on majority verdicts, an inference arises that a jury member compromised his or her verdict, or was overborne, and that it is impossible to tell when the change took place.

[62]  There is no substance in the point.  Even if one juror changed his or her position in relation to count 1 after the direction there are no grounds for concluding that the juror failed to act responsibly or that his or her will was overborne.  The primary judge took careful and appropriate steps to ascertain that a majority verdict had been reached appropriately.  No juror expressed any disquiet.  It is also the case that there was a period of slightly over an hour between the Court being informed that the jury had not reached unanimity and the majority verdict direction.  The final position may well have been arrived at in that time.

Ground 3 – the failure to give a Markuleski direction

[63]  Counsel for the appellant submitted that a direction along the following lines should have been given:[2]

"Where an acquittal on one count would appear to require an acquittal on another (as, eg, where the acquittal necessarily reflects adversely on the reliability of a complainant whose evidence is central to the other count), the jury should be told so.  Particularly in sexual cases, it will often be crucial to tell the jury that any doubt with respect to the complainant's evidence in connection with one count should be considered when assessing her overall credibility and, therefore, when deciding whether her evidence is reliable in relation to other counts.  An appropriate warning may well be along these lines."  (footnote deleted)

[64]  Counsel for the appellant submitted that it was important that a Markuleski direction be given.  The omission to give the direction is significant because it appears that at least two jurors were having difficulty convicting the appellant on count 1, and at least one juror was having difficulty convicting the appellant on counts 2 and 3.  The omission has further significance because of the speed with which a majority verdict was returned on count 1 once that possibility was explained to the jury.  Although it is clear that acquittals were unlikely, there was sufficient disquiet in the jury such that, had they been appropriately directed, they may have failed to reach even majority agreement as to the appellant's guilt.  In those circumstances, it is contended that the verdicts are unsafe.

[65]  In R v Markuleski,[3] Spigelman CJ said:[4]

"It is not necessary to specify any precise words for such a direction.  That will depend on the circumstances of the case.  It will often be appropriate to direct a jury that where they entertain a reasonable doubt concerning the truthfulness or reliability of a complainant's evidence in relation to one or more counts, that must be taken into account in assessing the truthfulness or reliability of the complainant’s evidence generally.

On other occasions it may be appropriate for a judge to indicate to the jury, whilst making it clear that it remains a matter for the jury, that it might think that there was nothing to distinguish the evidence of the complainant on one count from his or her evidence on another count.

Or it may be appropriate to indicate that, if the jury has a reasonable doubt about the complainant's credibility in relation to one count, it might believe it difficult to see how the evidence of the complainant could be accepted in relation to other counts.

The precise terminology must remain a matter for the trial judge in all the particular circumstances of the specific case.  The crucial matter is to indicate to the jury that any doubt they may form with respect to one aspect of the complainant’s evidence, ought be considered by them when assessing the overall credibility of the complainant and, therefore, when deciding whether or not there was a reasonable doubt about the complainant's evidence with respect to other counts."

[66]  Holmes JA noted in R v WAC[5],  that although the desirability of giving a Markuleski direction had been questioned in some jurisdictions, "[i]n Queensland, it has generally been regarded as desirable … in 'word against word' cases; but not where there is independent support for the complainant's account".

[67]  In Markuleski it was considered by Spigelman CJ that the failure to give such a direction gave rise to unfairness, as there was nothing in the complainant's evidence or the surrounding circumstances which gave any ground for supposing that the complainant's evidence was more reliable in relation to the counts on which the accused was convicted than it was in relation to the counts on which the accused was acquitted.[6]In R v Ford,[7] Keane JA described the circumstances in which the giving of such a direction might be appropriate in these terms:[8]

"In summary, the risk of unfairness which creates the occasion for the giving of the direction is the risk that the accused will be denied the chance of acquittal on all counts if, given the state of the evidence, such a result ought reasonably to follow if the jury were to reject as unreliable any part of the complainant's account of what occurred.

It is the risk of this particular kind of unfairness to the accused which requires a trial judge to refer 'to the effect upon the assessment of the credibility of the complainant if the jury finds itself unable to accept the complainant's evidence with respect to any count.'[9]   The purpose of such a reference is to ensure fairness to the accused 'in a word against word case'[10] by supplementing the traditional direction that the jury should consider the evidence, as well as the question of guilt, separately in relation to each count."

There is no "binding rule of law or procedure" requiring the giving of such a direction.[11]

[68]  The appellant's argument fails at the threshold as 11 jurors accepted at least the substance of the complainant's evidence on all three counts.  There was thus no need for these jurors to consider whether the rejection of the complainant's evidence on one count affected her credibility such that her evidence on one or other of these counts should also be rejected.  Also, intent was an element of the count 1 offence but not of the other two offences.  There was evidence that the appellant may have been intoxicated when entering the house and the primary judge directed on intoxication and intent in relation to this count.

[69]  It is not the case either that the prosecution case could be described accurately as "word against word".  The complainant's credibility received strong support from her complaints to her mother and Mr R and from their observation of her distress, physical condition and state of undress within minutes of the conclusion of the incident.  The complainant was seen to be naked above the waist, apart from the towel draped over her shoulders.  It would have been highly improbable, given the absence of any sexual attraction or relationship between the appellant and the complainant that, as he would have it, she smoked marijuana with him clad only in a skirt and underpants.  On his version of events, it is equally improbable that she shed her top garment after he decamped.  The reference to the complainant's physical condition is to the lack of observation by these witnesses and by the police officers of any sign of drug or alcohol affectation and to the marks on her body noticed by them.

Conclusion

[70]  For the above reasons there is no substance in any of the grounds of appeal and consequently I would order that the appeal be dismissed.

[71]  CULLINANE J: I have read the draft reasons of Muir JA in this matter and agree with those reasons and the Order proposed.