SUPREME COURT OF QUEENSLAND

[1]  MARGARET McMURDO P:  The appellant, pleaded not guilty to four counts of rape (counts 3, 6, 7 and 8); three counts of assault occasioning bodily harm (counts 1, 2 and 9); one count of deprivation of liberty (count 4) and one count of threatening violence (count 5).  After a four day trial in the District Court at Townsville he was convicted of three counts of rape (counts 3, 7 and 8); and two counts of assault occasioning bodily harm (counts 1 and 9).  He was found not guilty on all remaining counts (counts 2, 4, 5 and 6).  He appeals only against his conviction on two grounds.  The first is that the verdicts of guilty on counts 1, 3, 7, 8 and 9 were unreasonable as they were inconsistent with the verdicts of acquittal on counts 2, 4, 5 and 6.  The second is that there was a miscarriage of justice because the learned trial judge failed to identify the relevance of evidence disclosing the discreditable conduct by the appellant and failed to direct the jury as to the use that could be made of that evidence.

[2] Before returning to discuss these grounds of appeal, it is necessary to have an understanding of the way the trial was conducted and the evidence given.

The prosecutor's opening address

[3] The prosecutor commenced her opening address by explaining that the applicant and the complainant had been in a de facto relationship.  On a weekend in May 2009 "in a jealous and drug-induced psychosis" he assaulted the complainant.

[4] At this point, defence counsel asked to raise a matter with the judge and the jury left the court room.  Counsel objected to the prosecutor's description of the appellant.  He conceded that the prosecution case would inevitably involve evidence about the appellant's drug use but contended that the prosecutor's words were inflammatory.  The judge said that he would make a statement to the jury to restore the appropriate balance.  Both counsel indicated that they were satisfied with that course.  The jury returned and the judge stated:

"Ladies and gentlemen, if I can just speak to you briefly about the – some words used in the opening.  I'm informed that this is a case where there will be evidence of drug use and it will be a question for you, as I understand it, as to the effect of drug use upon the user of the drugs, and so if you just bear that in mind rather than you being informed of a – perhaps a concluded view that one person may have.  It's really a matter for you to determine on the evidence, so with that, [Madam Prosecutor], I'll just ask you to continue your – continue your opening."

[5] The prosecutor continued her opening address in which she particularised the counts as follows.  The appellant acted out of jealousy.  His conduct may have been induced by his use of drugs.  At about 9.00 pm on Saturday, 16 May 2009 the appellant told the complainant to open her Facebook because he wanted to look at its contents.  She refused and he slapped her face with an open hand, causing her cheek and ear to swell (count 1). 

[6] The complainant eventually acceded and opened her Facebook.  He became angry and lunged at her, grabbing her with both hands around her neck, choking her and causing a scratch to her neck (count 2).

[7] He became angrier and told the complainant she must do everything he said.  He told her to take off her clothes and continually threatened her.  He climbed on top of her, held her arms down and had sexual intercourse by inserting his penis into her vagina.  He had sex with her until he ejaculated (count 3). 

[8] The complainant went to the bathroom, cleaned herself, dressed and went outside to an enclosed patio area where she had a cigarette.  She noticed that the keys to the door from the patio to outside were not hanging on the nearby hook where she kept them and that all the doors to her house had been locked, preventing her from leaving the house (count 4).

[9] The appellant continued to threaten her.  He produced a small bag of what the complainant believed was methylamphetamine or speed.  He put water in the bag, filled a syringe with the mixture, threatened the complainant with the syringe and lunged towards her with it (count 5).

[10]  Before too long he injected himself with the contents of the syringe.  He sat on a lounge and demanded that she suck his penis.  She told him she did not want to.  He threatened to beat her even harder if she resisted.  He forced his penis into her mouth and made her suck on it until he ejaculated.  He then forced her to swallow his semen (count 6). 

[11]  She again went on to the patio to get away from the appellant.  She was there for a long time smoking, but was very tired and eventually returned into the house.  The appellant said that he wanted her naked and to suck his penis.  She protested and began to cry.  He forced her to again suck his penis.  She became so angry with his conduct that she used her teeth on his penis, hoping that he would desist.  He did not ejaculate (count 7). 

[12]  She again returned onto the patio and smoked more cigarettes.  The appellant abused her and told her he was going to "fuck her up the arse".  She returned to the lounge room and lay on her back in an effort to avoid this.  Instead, the appellant got on top of her, inserted his penis into her vagina and ejaculated (count 8).

[13]  She was so exhausted she fell asleep.  She recalled that at some point during the course of the evening (she did not know exactly when) the appellant punched her to the face with a closed fist around the area of the eyebrow (count 9).

The evidence

The complainant's evidence

[14]  The prosecution case turned on the complainant's evidence which was as follows.  The appellant and complainant began to live together in late 2005.  They had two children, a son born in 2006 (now deceased) and a daughter, S, born in 2007.  He had a son, R, from a previous relationship.  The appellant and complainant separated a few months before the offences were alleged to have occurred. 

[15]  On Friday 15 May 2009 the complainant, S, and the appellant's mother went from the complainant's home in a North Queensland provincial town to Townsville.  When she and S returned at about 6.00 pm, the appellant was at her house with R.  The complainant invited the appellant to bring R to her home for the weekend.  R had lived in the complainant's home previously and slept in his usual room.  The appellant and complainant slept on separate mattresses in the lounge room.  The appellant tried to cuddle her but she told him not to touch her and he returned to his mattress and went to sleep.

[16]  On Saturday 16 May the complainant spent the day with the children.  The appellant's conduct made her suspect he may have been under the influence of methylamphetamines.  She was frustrated and annoyed with him because she did not want him to use drugs, especially not in her house and around the children.  At about 4 pm the complainant and the appellant took S and R to the circus and dinner before dropping R back to his mother just after 7.30 pm. 

[17]  When they arrived home, they each had a cigarette on the patio.  She put S to sleep in the lounge room on the brown mattress.  She asked him what drugs he was on.  He said he had taken ecstasy, not speed, but because of his behaviour she suspected that he had taken speed.  He was a drug addict and she knew the signs of his drug use.  He went into the bathroom.  She asked if he was "shooting up".  She pushed the bathroom door open and saw a cup of water behind the door and a syringe on the floor.  When he took drugs, "he could either be violent or just chatty.  It – it could go either way when he’s on speed". 

[18]  He repeatedly asked her to open her Facebook so he could see her discussions with an ex-boyfriend who lived overseas.  She refused.  He became aggressive and abusive, saying "Open up, bitch."  She lay down on the brown mattress beside the sleeping S.  She told him he should not play the pokies and reminded him that he had not had a paying job since the preceding December and spent all his pay on pokies.  He became aggressive and violent.  He raised his voice and paced from side to side.  He could not stand still.  She was sitting on the brown mattress with the sleeping S when he slapped the complainant across her face because she would not open her Facebook.  She felt some swelling to her cheek and ear.  Her face was sore to touch, stinging and tingling (count 1). 

[19]  He continued to demand she open her Facebook.  He lunged towards her whilst she was still sitting on the brown mattress at the top of which S was sleeping.  He put his hands around her neck and choked her.  She was thrown back by the force he used.  He held her tightly around her neck until she felt faint.  Just as she thought she was about to pass out, he released her (count 2).

[20]  The appellant's demands that she open her Facebook were becoming "psychotic" so she complied.  He called her a "cheating bitch" and "cheating slut" and said he was "going to fuck [her] up" and "smash [her] face in so no-ones going to want [her]".  He also threatened to kill S in front of her.  He was "very aggressive, very scary".  He said, "You're mine tonight, Bitch" and "I'm going to do whatever I want to you".  He pulled her clothes off.  She told him to stop and that she did not want to do this.  She was terrified and crying.  When he told her to take off her top and bra she acceded.  She was lying on the blue mattress in the lounge room.  The appellant climbed on top of her, removed his shorts, pressed himself down on her and inserted his penis into her vagina.  He had sexual intercourse with her, thrusting himself in and out for about a minute or a little longer until he ejaculated.  She did not consent to this act of intercourse (count 3). 

[21]  He told her if she cried or screamed he would hurt S or he would punch or smack the complainant again.  He was slapping her around a little bit and spitting on her and treating her like she was worthless. 

[22]  She went to the bathroom to clean herself, dressed and went back to the patio to have a few cigarettes.  She noticed that the keys were not where she always kept them.  She realised she was locked in the house (the commencement of count 4). 

[23]  The appellant was inside the house abusing her.  He would not go onto the patio at this time as he could be seen from outside and he believed that people were looking for him.  After about 20 minutes or so, she went inside and sat on the blue mattress.  He again told her to take her clothes off. 

[24]  He came from the kitchen to the lounge room with a small bag containing a white substance.  He pulled out a syringe and returned to the kitchen where he put some water in it and squirted into the bag.  He mixed up the contents and then used the syringe to draw up the mixture.  He told her he was going to inject her because he wanted to fuck her up; he wanted to turn her into "just another worthless junkie" so that she would stop thinking she was better than everybody else.  She was terrified and resisted him but she was concerned not to make too much noise in case she woke up S (count 5).

[25]  He was standing in the lounge room and she was sitting on the blue mattress.  He sat down on a lounge chair and said, "Suck my dick, bitch.  I want you to suck it.  I want – I want you to swallow."  She told him she did not want to.  He continued to threaten her throughout the night.  He said he would hurt S and motioned towards S.  This made the complainant "freak…out" and she agreed to do what he asked.  She was naked, crawled over to where he was seated and performed oral sex on him.  He moved her head up and down on his penis, grabbing and pushing her head down.  When she went to spit out the ejaculate he said, "Swallow it, bitch" and she complied (count 6).

[26]  S remained asleep on the brown mattress.  Although S stirred a few times during the night, the complainant was able to stroke her cheek and get her back to sleep.  Throughout the night she tried not to wake S.  The complainant put on a blue robe, drank some water and sat out on the patio for "ages".  She felt safer there because she knew the appellant would not move onto the patio.  She also knew he was not near S because he was at the nearby window abusing her.  She became sleepy and exhausted and went inside.  The appellant was still aggressive.  She sat on the blue mattress and said something sarcastic to him.  He took a swing at her and punched her on the left eyebrow.  Her eyebrow became swollen.  After a couple of days, it became black and bruised and it stayed that way for about a week (count 9).

[27]  The appellant lay down on the blue mattress again and said he wanted her to give him "another head job".  She was crying and begged him to stop.  He said, "Just suck it, bitch."  He pulled his pants down.  She objected but he threatened to snap S's neck.  He was lying on the blue mattress with his penis outside his pants.  She had to put his penis in her mouth again.  She was crying so much that she could not comply with his demands.  He said, "Keep going, bitch, keep going."  She tried scratching his penis with her teeth because she wanted him to stop.  Eventually, she sat down, put her hands over her face and cried as she could not do it anymore.  The appellant did not ejaculate (count 7).

[28]  He said, "he was going to fuck [her] up the arse".  She said she was going out on the patio for another smoke.  He responded, "Oh no you’re not."  She was not on the patio long and probably smoked just one cigarette.  He stood in the front room abusing her through the window and door near the patio.  He continued to threaten to kill S.  He said, "You better hope the cops don't come because I’ll take us all out."  His abuse continued throughout the night.  When she went inside, he told her take off her robe.  She complied and lay on her back on the blue mattress.  He climbed on top of her and placed his penis inside her vagina, moving in and out until he ejaculated a few minutes later.  She did not consent (count 8).

[29]  He put on his shorts.  She lay there exhausted.  The sun was coming up.  She tried to persuade him to go to sleep so that she could leave.  She fell asleep and did not wake up again until about 10.00 am when S climbed over her.  The appellant was awake.  He said that they were going to be a family again and live together and do things his way in future.  He told her she would have to sign the lease, bond and parenting allowance over to him and he was in charge now.  She agreed to everything he suggested so that he would not become physically or verbally aggressive again.  She was "really scared" and was trying to work out how to leave the house with S.  The doors were still locked.  She thought the keys must have been in the appellant's pocket.  She had a sleep during the day and did not wake up until quite late.  That night she slept on the mattress in the lounge room with the appellant.  S slept in between them.  Their relationship during the day was civil but not warm. 

[30]  She woke up at about 9.00 am on Monday 18 May.  She dressed S and put her in the pram.  She saw that the appellant had emptied the contents of his pockets including the keys which she took and used to unlock the back door (the conclusion of count 4). 

[31]  She walked one block to the main street where she knew she would be safe.  She went to a chemist to get a "morning after pill" as she did not want to have a "rape baby".  She swallowed the pills as she left the chemist shop.  She had no cash but she had a cheque which she deposited in the bank opposite the police station.  As she wanted to make a complaint to police, leave town and hide S from the appellant, it was important to bank the cheque to ensure she had funds.  She went to the police station and made a complaint to police officer McDowell who brought in detective Neal.  The complainant recounted to detective Neal her version of the events of the weekend. 

[32]  An hour or two later she went to hospital where a doctor examined her and took vaginal samples.  She told the doctor she had been slapped across the face on the left side, punched on her right eyebrow and had some minor bruising to her body.  The doctor made a note of her injuries. 

[33]  The patio front security door, once locked, could only be opened with a key.  The prosecutor showed her a photograph of what appeared to be the back door.  She had recently had the back door replaced because it was broken and was unsure how the lock worked.  There was a security door behind the back wooden door.  This security door was similar to the front security door off the patio and was also locked.  It was this back security door (not the wooden back door) which she could not open.  She remembered checking on the Saturday evening and Sunday morning to see if the back security door was unlocked.  When shown a photograph of the front wooden door to the house, she explained that this front wooden door was left unlocked: it led to the patio which she used as a smoking area. 

[34]  In cross-examination, the complainant gave the following evidence.  She left many things out of her statement to police because she and S were exhausted and S was running around the police station, pulling things out of the fridge and writing on the police station walls with black markers.  She did not mention to police that at some time during the Saturday evening she had opened the back wooden door to see if the security door was locked. 

[35]  She agreed that on the Sunday morning, she sent a text message to the appellant's mother but she could not recall its contents.  She did not call 000 because she was scared of what the appellant would do if the police arrived.  He had threatened to take them "all out" if the police came.  That was why she decided to go along with his demands on the Sunday until she worked out how to leave the house with S. 

[36]  Defence counsel suggested that the only altercation between the appellant and the complainant was on the Sunday night when they argued over a number of issues: money, drugs, child support and fidelity.  The complainant denied that they had any such arguments on the Sunday evening.  She denied that she and the appellant were still living as a couple at the time of the alleged offences: he had been living at his parents' house for a couple of months beforehand.  She did not recall taking a pregnancy test on 15 May or sending a text message to the appellant's mother about this.  She was shown a copy of a text message but this did not help her remember.  She did not think she had had a pregnancy test on 15 May but was uncertain.  She did not recall telling the appellant's mother on their trip to Townsville on 15 May that she might be pregnant.  Nor did she recall purchasing a pregnancy test kit at a department store. 

[37]  The appellant would have injected himself with methylamphetamine at about 8.30 pm on the Saturday evening.  She did not remember sending a text message to the appellant's mother at about 9.30 pm that evening.  She was very close to the appellant's mother and regularly sent her text messages.  She agreed she sent a text at 9.30 pm on the Saturday night telling the appellant's mother about the happy time S and R had at the circus. 

[38]  She agreed that the appellant left the house on Sunday with a friend called "Kiwi", taking S with them.  The doors were unlocked and the complainant was alone in the house.  She did not make the 10 minute walk to the police station because the appellant had S with him and the complainant was too scared to do anything in case it put S at risk.  She denied the suggestion that the appellant had made no threats against S. 

[39]  After the appellant was charged with these alleged offences, she sent him letters including one containing her phone number.  She communicated with the appellant whilst he was in prison to see if he knew who was responsible for doing "burnouts" in her backyard and threatening to kill her.  She also had contact with the appellant's mother.  Her problem was with the appellant and not with his mother. 

[40]  Defence counsel asked her how many times she was slapped during the weekend.  She responded, "[T]here was only the one that really hurt and then there was just like little – just little smacks. … [O]r he’d spit in my face or he’d … push me against a wall … could have been any number of times."

[41]  She agreed she had studied her statement to police before giving evidence but that she may have got things out of sequence because being in court was very stressful.  She had known the appellant since about 2000.  Their relationship had good times and bad.  The appellant's drug use was a major problem.  She did not engage in drug use.  Although she had smoked cannabis early in the relationship, this mostly stopped after she became pregnant.  She denied taking valium but she was once caught with half a valium pill because she chose not to take it.  She denied doing anything illegal in terms of her sole parenting benefit.  She denied that the appellant threatened to tell Centrelink about her unlawful benefit claims. 

[42]  She did not recall any physical fight with the appellant on the Sunday evening.  Defence counsel suggested that on the Sunday evening the appellant accepted that he had been unfaithful and then she slapped or hit him.  The complainant responded that she had long suspected him of being unfaithful, adding:

"He was also a drug addict.  He was taking all the money.  He was leaving my daughter and I hungry.  I was chewing on dried pasta one day I was so hungry and I needed him out of my house.  It took me a long time to get him out of my house because he's violent, and the police records will show that.  He went into lock-up a number of times."

[43]  She always locked the security doors herself and she probably locked them on the Saturday night.  They would have returned from the circus through the back door.  The back security door was locked but the appellant had taken the key from where she always kept it. 

[44]  On the Monday morning when she and S went to the police, she left the following note for the appellant:  "Just gone to buy a pill and put cheque in the bank.  Text me when you wake up."  Whilst she was asleep on the Sunday, the appellant bathed and fed S.  She was disgusted with herself for sleeping so long and leaving S with the appellant.  She denied that the appellant went out with Kiwi leaving S with her.  Kiwi was "another drug associate" of the appellant and she did not think Kiwi would help her if she complained to him.  She did not mention Kiwi in her statement to police; that was another thing she missed.  She supported the appellant in his family law proceeding concerning R in which the appellant’s parenting abilities were in issue. 

[45]  Defence counsel put the following matters to her.  She had consensual sexual relations with the appellant on the Friday, Saturday and Sunday; they had a physical altercation on the Sunday afternoon or night and then kissed and made up and had another episode of consensual sexual intercourse.  The next morning she decided to end their relationship.  He did not threaten her with a syringe.  He did not threaten his daughter.  There was no choking episode and no slapping episode.  The complainant maintained that her account of events was true.  The appellant choked her and slapped her and she denied that she slapped him.  She agreed she did not complain to the doctor of a sore throat as by then it did not feel sore.  Defence counsel suggested that any sexual acts, including oral sex, were consensual.  She responded that they were not consensual.  She denied that the appellant performed oral sex on her. 

Other prosecution evidence

[46]  Police officer McDowell gave evidence that on Monday, 18 May 2009 at about 11.00 am the complainant came to the police station and told him that she had a current domestic violence order with her boyfriend of the time and that he breached it the night before when he raped her. 

[47]  Detective Neal gave evidence that he arranged for photographs to be taken of the complainant's home and spoke to neighbours who could not assist with the investigation.  No syringe was found at the house.

[48]  Dr Carmel Walker examined the complainant.  She noted injuries to the complainant’s face, neck, upper arm, back and skull; a bruise on the outside edge of the right eyebrow and below her left eye which seemed recent; the left ear was red and slightly swollen; and she had a small abrasion on the right side of the neck, about a centimetre around which also appeared to be recent.  There were no injuries externally to her genitalia and no injuries on an internal examination.  She did not complain of a sore neck.  The only visible injury to the neck was the abrasion.  Her injuries were superficial.  Redness from an assault may disappear within two days leaving only swelling. 

[49]  Defence counsel formally admitted on behalf of the appellant that in "the high vaginal swab, the low vaginal swab and the vulva swab taken from [the complainant] on the 18th May 2009, there was sperm present which belonged to [the appellant]."

The defence case

[50]  The appellant did not give evidence but his mother gave the following testimony.  The appellant was the youngest of her four children.  She knew the complainant who had been in a relationship with the appellant.  The complainant was like a daughter to her.  She assisted her after the death of her son aged 10 days.  The appellant had a drug problem commencing with marijuana and then progressing to heavier drugs.  She only found out about the present alleged offences after the appellant was in jail. 

[51]  On Friday 15 May, she, the complainant and S went to Townsville to shop.  The complainant thought she was pregnant and wanted to buy a pregnancy test kit.  The complainant sent her a text message after 6.00 pm that evening to the effect that she was not pregnant.  A photograph of the original text message was tendered.  She and the complainant were very close and often talked.  She had regular contact with her grand-daughter S.  On 16 May, the complainant sent another text message at about 9.30 pm telling her what fun she, the appellant and the children had at the circus.  A photograph of that text was also tendered.  On the afternoon of Sunday, 17 May the complainant sent a further text message to the effect that they were going to visit her later that day.  She was unable to locate that text. 

[52]  In cross-examination, she agreed that she loved her son and that she did not want to see him in trouble.  She denied that the appellant was living with her in the months leading up to the alleged offences.  She denied that the relationship between the appellant and the complainant was poor at this time.  Whenever the appellant was staying with her, so was the complainant and S.

Defence counsel's closing address

[53]  Defence counsel's submissions in his final address to the jury included the following.  The complainant's honesty was the critical question in this case.  It was not in dispute that sexual intercourse occurred that weekend and that there was a physical altercation between the complainant and the appellant.  The complainant took every opportunity to paint the appellant in a bad light, constantly referring to his drug use and the fact that he had been in jail.  She added these details, not in directly answering a question, but so as to "put the boot into" the appellant.  Counsel referred to his cross-examination of the complainant about her drug use and wrongful claiming of Centrelink benefits, explaining that it was to restore some balance to the case: the complainant tried to paint herself as pure and the appellant as "some hopeless druggie".  He continued:

"It allows you to get a fuller picture of [the complainant] and the nature of the relationship between her and [the appellant].  That's all it gives you because as I said this trial is not about drugs.  Drugs unfortunately are a scourge in society, have to live with that and you heard from [the appellant's mother], it's her son, he's a drug addict or he was.  It doesn't affect the trial.  His Honour will direct you as to that.  Essentially, it bears little in this trial because as a matter of common sense the issue is here, was the sexual intercourse unlawful, that is, did he force her to have sex and was she assaulted as she told you?"

[54]  Defence counsel emphasised the discrepancies between the complainant's evidence and the evidence of the appellant's mother and the opportunities the complainant, even on her evidence, had to leave the residence on the Sunday.  He highlighted inconsistencies in the complainant's evidence.  Her account did not tally with the text messages she sent to the appellant's mother at the time she claimed the appellant was assaulting her.  She referred to the appellant in her complaint to police officer McDowell as her "boyfriend", not her "ex boyfriend".  If the events occurred as she said, why did she not take S and ring 000 on the Monday morning instead of taking her time before going to the police station and leaving a friendly note for the appellant?  The complainant's contact with the appellant since the incident was inconsistent with her account of his treatment of her.  He suggested that the complainant had given false evidence.  In fact, she had re-commenced her relationship with the appellant.  There was no dispute that she was unhappy with his drug use on the weekend of 16 and 17 May.  She decided she wanted to remove the appellant from her life and the easiest way was to make a false allegation of rape.

[55]  During a break, the jury sent a note to the judge asking "Is it possible to find out what the DVO was before the alleged incident and why they were living together, as the mother said?"  After discussion with counsel, the judge gave the following direction to the jury on their return to the courtroom:

"Ladies and gentlemen, during the adjournment that was taken in the course of [defence counsel's] address, you handed to the bailiff a note which he’s handed to me.  To the extent that counsel wish to address the issue in the note they may but I will say something about it in my summing-up to you."

[56]  Defence counsel continued his closing jury address, pointing out that the complainant alleged that she was violently choked but there was no supporting medical evidence.  He also emphasised that police officers found no syringe at the house.  Nor did she make any mention to police of the presence of Kiwi at the house on Sunday so that police were not able to interview him.  He questioned why the complainant would have slept until late on the Sunday morning if the appellant had committed the offences as she claimed.  The case was not about drugs, Centrelink or domestic violence.  It was about whether the prosecution had proved beyond reasonable doubt that the appellant "in a drug induced rage lost himself for hours and hours and went mad, crazy, insulting her, slapping her, spitting on her, raping her" and that he committed each and every charge.

The prosecutor's closing address

[57]  The prosecutor's address included the following.  People react to stressful situations differently and the complainant's way of dealing with the dangerous situation she was in should not be judged with hindsight or too critically.  The essential question was whether the prosecution had proved beyond reasonable doubt each of the charges.

[58]  At this point the judge handed the jury a copy of the nine charges against the appellant.  The prosecutor then set out the evidence on which she relied to prove each count and the critical issue or elements in dispute on each count. 

[59]  As to the inconsistencies in the complainant's evidence relied on by defence counsel, this could be expected when offences of this nature extended over a significant period of time, causing the complainant great distress.  But the complainant made appropriate concessions and in cross-examination she did not waiver from her evidence that the appellant committed each of these offences.  There was evidence that the complainant and the appellant had sex during this period as his semen was found in her vaginal swabs.  The medical evidence supported the complainant's claim that the appellant assaulted her.  The defence account put to the complainant in cross-examination was an attempt by the appellant to fabricate a lame excuse to explain the presence of his sperm in the vaginal swabs and the complainant's injuries.

[60]  The evidence of the appellant's mother supported the fact that the relationship between the complainant and the appellant was volatile.  No doubt the appellant's mother did not know the entirety of that relationship and what was happening in her son's life.  One text message the appellant's mother claimed to have received from the complainant was mysteriously unable to be retrieved.

[61]  The prosecutor concluded by inviting the jury to consider the complainant's evidence calmly, dispassionately and without sympathy or prejudice, to accept it as truthful and reliable, and to convict the appellant on each charge.

The judge's directions to the jury

[62]  After some uncontroversial introductory comments, the judge explained to the jury the particulars of each count relied on by the prosecution.  His Honour next directed that his role was to explain the law and the jury's role was to apply the law as explained by him to the facts they found and to then arrive at their verdicts.  They were bound by his directions on the law.  After further general and uncontentious directions, the judge dealt with the jury's question during defence counsel's closing address in this way:

"… Well, there was some evidence about a DVO in the course of the cross-examination of [the complainant] by [defence counsel], and I'll just read from the transcript …

'Question: And since my client got out of gaol, have you allowed him to have any contact with his child?", and she had said, "No" - this is [the complainant] - "I have the variation on the DVO so that he can't come anywhere near us 'cause we're terrified of him." But so far as any DVO is concerned or the evidence about whether they were living together as [the appellant's mother] said they were, those are matters for you to determine on the basis of credibility of witnesses. I mean, you have to assess their evidence in the context of all of the evidence put together.' "

[63]  The judge then dealt with the prosecution evidence in respect of each count.  When summarising the complainant's evidence about her actions on the Monday morning, the judge noted:

"She said - it was said that there's talk about being in gaol and about drugs so far as the [appellant] is concerned. That part of the matrix of the factual situation we're not here dealing with anyone about drugs or being arrested and put in gaol. We're here dealing about these incidents. And I think it's true, as [defence counsel] said to you, we're not talking about drugs; we're not talking about any other unlawful conduct."

[64]  After giving further uncontroversial directions, the judge reminded the jury that the nine counts were separate charges and that they must consider each charge separately, evaluating the evidence relating to each particular charge to decide whether they were satisfied beyond doubt that the prosecution had proved its essential elements.  The jury would be asked for separate verdicts for each charge.  The elements of the offences were different and the verdicts on each charge need not be the same.  But the judge also instructed the jury that, if they had a reasonable doubt concerning the truthfulness or reliability of the complainant's evidence in relation to one or more counts, whether because of her demeanour or for some other reason, they must take that doubt into account in assessing the truthfulness or reliability of her evidence generally.  His Honour again emphasised to the jury that they should consider the evidence separately in relation to each count.  If they found the prosecution had not established one count against the appellant beyond reasonable doubt, that did not necessarily mean they could not convict on another count.  Each count was separate and required separate consideration.  If they were left in reasonable doubt on one count they should think about whether that influenced their reasoning in respect of another count.

[65]  The judge stated that the prosecution case really turned on the complainant's evidence.  After uncontroversial directions about her evidence of preliminary complaint, the judge dealt with the elements of each offence, again uncontroversially.

[66]  The judge concluded by summarising the defence and prosecution cases.  He reminded the jury that defence counsel said the trial was not about drugs or any other unlawful conduct other than the charged offences.

[67]  After the jury initially retired to consider their verdict, they returned and were given redirections as to aspects of the evidence as requested by counsel.  Neither counsel sought redirections on matters pertinent to the grounds of appeal.

Were the jury verdicts inconsistent?

[68]  The appellant’s counsel contended that the verdicts of guilty were inconsistent with the verdicts of acquittal and represented an affront to logic and common sense as discussed in MacKenzie v The Queen.[1]  Counsel especially emphasised that, as the defence case was that the sexual acts occurred but were consensual, there was no basis upon which the jury could rationally determine that count 6 was not established but then conclude that the remaining charged unlawful sexual conduct did occur. 

[69]  Gaudron, Gummow and Kirby JJ in MacKenzie made clear that appellate courts, in determining a question of this kind, must consider whether the verdicts can be reconciled as logical and reasonable.[2]  Appellate courts may conclude that the jury simply followed the judge's instructions, considering the prosecution case separately on each count; or that the jury verdict was a "merciful view of the facts" on the count or counts on which the jury acquitted.[3]  Their Honours cited with approval the observations of King CJ (with whom Olsson and O'Loughlin JJ agreed) in R v Kirkman:[4]

"Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty."

Their Honours recognised, however, that:

"… a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules."[5]

[70]  The question, then, is whether these verdicts are an affront to logic and common sense. 

[71]  Count 1 on which the jury convicted was particularised as the appellant slapping the complainant's face with an open hand, causing her cheek and ear to swell.  The complainant's evidence on count 1 was supported in a general way by the evidence of Dr Walker who examined her on the following Monday and noted a recent bruise below her left eye and a left ear which was red and slightly swollen.  The jury may well have been persuaded beyond reasonable doubt that the complainant's evidence was true because of this supporting medical evidence.

[72]  Count 2 on which the jury acquitted was particularised as the appellant becoming angry with the complainant about her Facebook, lunging at her, grabbing her with both hands around the neck, choking her and causing a scratch to her neck.  The complainant’s evidence was that the force he used threw her back and that he held her so tightly around her neck she felt faint.  Dr Walker noted a 1 cm abrasion on the right side of the neck which appeared to be recent.  In cross-examination, defence counsel suggested to the complainant that, had this offence occurred as she claimed, she would have had much more significant injuries.  The jury may have thought that contention had some weight and so did not accept the complainant's evidence on count 2 beyond reasonable doubt.

[73]  Count 3 on which the jury convicted was particularised as the first episode of forced sexual intercourse following the appellant’s violent threats to the complainant and S.  The only issue at trial was whether the appellant consented.  Defence counsel pointed to no positive evidence or absence of evidence to weaken the complainant’s account so that the jury clearly felt comfortable in accepting beyond reasonable doubt the complainant’s evidence that she did not consent to this act of sexual intercourse.

[74]  Count 4 on which the jury acquitted was the offence of deprivation of liberty which was charged as occurring between 15 and 19 May.  The complainant's evidence was that she was locked in the house from the Saturday evening when she first went outside to the patio to smoke until Monday morning when she found the keys, unlocked the back door and left to make her complaint to police.  In cross-examination, it emerged that the complainant was home alone and the doors were unlocked on the Sunday when the appellant left the house with his friend, Kiwi, and, on the complainant's evidence, her daughter, S.  The jury may have reasoned that the prosecution had not proved beyond reasonable doubt that the complainant was deprived of her liberty during the charged period as described in evidence by the complainant.

[75]  Count 5 on which the jury acquitted was particularised as the appellant threatening the complainant with a syringe of white powder and water solution.  Police officers who searched the complainant's house on the Monday morning did not find any syringe.  The jury may have reasoned that in the absence of any independent evidence of a syringe in the house they were not prepared to accept the complainant's account of it beyond reasonable doubt and acquitted.

[76]  Count 6 on which the jury acquitted seemed, as particularised and in the complainant's evidence, to immediately follow the appellant's injecting himself with the solution.  The complainant claimed he then threatened to beat her, forced his penis into her mouth, made her suck it until ejaculation, and then made her swallow the ejaculate.  As count 6 on the complainant's evidence seemed to immediately follow the appellant using a syringe which was never located by police, the jury may have reasoned that they should give the appellant the benefit of the doubt on this count.  This was also the view taken by the trial judge.[6]

[77]  On the complainant's evidence, count 9 on which the jury convicted, was chronologically the next offence to occur.  It was particularised as the appellant punching the complainant to the face with a closed fist around the area of the eyebrow.  The complainant gave evidence that her eyebrow became swollen, and after a couple of days, black and bruised.  This account was supported by Dr Walker's evidence: the complainant had a bruise on the outside edge of her right eyebrow which seemed recent.  In light of Dr Walker's evidence, the jury may have reasoned they could comfortably accept the complainant's evidence about this assault beyond reasonable doubt.

[78]  Count 7 on which the jury also convicted (like count 6, a fellatio-type rape) on the complainant's evidence occurred immediately after count 9.  The jury may have been more comfortable in accepting beyond reasonable doubt the absence of consent because this act of fellatio occurred immediately after the punch to the eyebrow (count 9).  The jury may also have reasoned that her account of count 7 was generally more plausible than her account of count 6 which was weakened by the police inability to locate the syringe closely chronologically linked to Count 6. 

[79]  Count 8 on which the jury convicted was the final act of penile sexual intercourse.  The appellant suggested that sexual intercourse occurred but that it was consensual.  The jury may have reasoned that the complainant's evidence on this count, that she complied only because of the appellant’s threats of violence to her and to S, was not weakened by other shortcomings in the evidence, like the failure to locate the syringe which was closely chronologically associated with her account of count 6.  Dr Walker's evidence of injuries to the complainant amply supported an absence of consent. 

[80]  This discussion suggests the jury approached its role in convicting on some offences and acquitting on others conscientiously and with discernment.  The judge correctly instructed the jury that they could return different verdicts on different counts if they were satisfied on one count that the prosecution had proved the case beyond reasonable, but not so satisfied on another.  The judge also directed them, consistent with R v Markuleski,[7] that if they did not accept the complainant's account on one count they should consider the reasons for not accepting her evidence on that count and then consider whether those reasons should make them doubt her evidence on other counts.[8]  The jury verdicts suggest that they followed those directions.  It is clear from my analysis of the evidence on each count that the verdicts can be logically rationalised; they are not an affront to common sense.  It follows that this ground of appeal fails.

The judge's directions as to the evidence of the appellant's discreditable conduct

[81]  The appellant contends that the evidence of domestic violence and the appellant's drug use was not admissible at trial.  Alternatively, if the evidence was admissible, it was only admissible for a limited purpose and the jury should have been directed carefully as to the use to be made of it: see Roach v The Queen[9] and HML v The Queen.[10]

[82]  I have set out in detail and in full context the many references in counsel's addresses, the evidence and the judge's summing up to the previous episodes of domestic violence between the complainant and the appellant, the complainant's prior illegal drug use and other discreditable conduct.  This evidence was relevant and admissible in this case in which the relationship between the complainant and the appellant was a critical matter for the jury's consideration.  His alleged drug use was capable of explaining aspects of the complainant's evidence which the jury may otherwise have considered unlikely.  Similarly, the evidence of domestic violence was admissible so that the jury understood the nature of their relationship, both as to the sexual offences and the offences of violence.  It was especially relevant on the rape charges (counts 3, 6, 7 and 8) where the complainant's lack of consent was the critical issue.  No doubt that was why defence counsel did not object to its admission.  The evidence was properly admitted.

[83]  In our criminal justice system, the admissibility of such evidence is, however, extraordinary and exceptional.  It warranted careful directions from the trial judge.  In the absence of such directions, there was a danger that the jury may have treated the evidence as showing that the appellant was of such generally bad character that he had a propensity to assault the complainant and to force her to have sexual relations against her will.  As French CJ, Hayne, Crennan and Kiefel JJ explained in Roach:

"The importance of directions in cases where evidence may show propensity should not be underestimated.  It is necessary in such a case that a trial judge give a clear and comprehensible warning about the misuse of the evidence for that purpose and explain the purpose for which it is tendered.  A trial judge should identify the inferences which may be open from it or the questions which may have occurred to the jury without the evidence.  Those inferences and those questions should be identified by the prosecution at an early point in the trial.  And it should be explained to the jury that the evidence is to allow the complainant to tell her, or his, story but that they will need to consider whether it is true."[11]

[84]  In his closing jury address, defence counsel referred to the difficulties associated with such evidence[12] and foreshadowed that the judge would give directions on it.  This aspect of the judge's directions are set out in [62] and [63] of these reasons.  Later in the summing-up, the judge referred to defence counsel's submissions on this point: see [66] of these reasons.  Those directions were not wrong but they did not warn the jury against propensity reasoning.  While no particular form of words was required, an appropriate direction in this case should have included reference to the following matters:

"The [appellant] is charged only with the nine counts in this indictment.  You must consider each count separately.  If you find you have a reasonable doubt about an essential element of any count, you must find the [appellant] not guilty of that count. 

The complainant has also given evidence about other conduct of the [appellant], namely, that he was subject to a domestic violence order; that he had been in jail; that he was addicted to illegal drugs and associated with others who used illegal drugs.  That evidence was led for the limited purpose of allowing the complainant to give a full and complete picture of what she claimed was her relationship with the [appellant] and for her evidence to be understood in that context.

You should have regard to the evidence of these matters unrelated to the charged offences only if you find that evidence reliable.  If you accept it, you must not use it to conclude that the [appellant] is someone who has a tendency to commit the types of offences with which he is now charged, namely, assaults occasioning bodily harm, rapes, deprivation of liberty, or threatening violence.  It would be quite wrong for you to reason that because you are satisfied that he was subject to a domestic violence order or because he was an illegal drug user or because he had been to jail that he was therefore likely to have committed any of the charges with which he is presently charged.

If you do not accept the complainant's evidence about these matters which are not the subject of charges, take that into account when considering her evidence about the alleged events the subject of the charged counts before you.

Remember that the evidence of incidents not the subject of charges comes before you only for the limited purpose of providing context and background to the complainant's evidence and as evidence of her alleged relationship with the [appellant].  Before you could find the [appellant] guilty of any charge, you must be satisfied beyond reasonable doubt that that charge has been proved by evidence relating to that charge."[13]

[85]  Admission of evidence of discreditable conduct is exceptional, even where as here it is properly led to enable the complainant to give her evidence in context and to explore her relationship with the appellant.  When admitted, great care must be taken by counsel and by the trial judge to ensure the jury understands the limits of its use.  The comments by defence counsel in his closing address and the judge's directions went part way to meet this obligation.  Perhaps that is why counsel did not ask for a redirection.  But the judge’s directions encouraged the jury to focus on the charges before the court but did not specifically warn the jury of the danger of propensity reasoning.  The failure to give a satisfactory direction on this aspect of the case is an error of law.  It will often, but not invariably, result in the allowing of the appeal and the setting aside of the convictions under s 668E(1) Criminal Code Act 1899 (Qld) unless this Court considers that no substantial miscarriage of justice has actually occurred: s 668E(1A); R v Self.[14]  That requires a consideration of whether, after reviewing the whole of the evidence in this case, the Court is satisfied the appellant was proved beyond reasonable doubt to be guilty of the offences on which the jury convicted him: Weiss v The Queen.[15]

[86]  I have summarised the complainant's evidence on the counts on which the jury convicted earlier in these reasons and explained why the jury were entitled to be satisfied of the appellant's guilt on those counts whilst acquitting him on the remaining counts.  After reviewing that evidence, I am satisfied beyond reasonable doubt that the complainant's evidence on the counts on which the jury convicted was truthful.  Her unchallenged evidence on these counts was supported by the injuries noted by Dr Walker on the Monday following the alleged offences.  In doing so, I am further comforted by the jury's discerning verdicts which do not suggest they engaged in propensity reasoning.  I am also comforted by defence counsel's omission to ask for any redirection about the dangers of propensity reasoning, a factor which does not suggest the judge's directions overall were unbalanced or unfair.

[87]  It follows that I am satisfied that no miscarriage of justice has resulted from the inadequate judicial direction as to discreditable conduct and the dangers of propensity reasoning.  The appeal against conviction must be dismissed.

[88]  CULLINANE J:  I agree with the reasons of the President in this matter and the order she proposes.

[89]  JONES J:  I have read the reasons of the President.  I respectfully agree with those reasons and the order proposed.