SUPREME COURT OF QUEENSLAND

1. CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of Muir JA.  I agree that the appeal should be dismissed, for those reasons.

2. MUIR JA: Introduction

The appellant was convicted on 4 June 2010 after a jury trial, of having raped the complainant on or about 18 May 2008.  He appeals against his conviction on the grounds which are discussed later.  Before turning to them, it is desirable to say something of the facts before the jury.

The evidence

3. The complainant, who was 24 years of age at the time of the offence, had been friendly with the appellant for about a year. They met socially from time to time and on occasions, the complainant would visit the appellant at his home and have dinner or watch DVDs. On the evening of 17 May 2008, the complainant went to a friend's birthday party, where she became intoxicated.  She then went to the Alexandra Hills Tavern, where she met with the appellant and others.  Early in the morning she decided it was time to leave.  Unable to persuade her then boyfriend, who she contacted by text message, to pick her up, she requested the appellant to assist her.  By this time, she was "stumbling a lot" and "very drunk".  The appellant assisted the complainant to a taxi.

4. In his first police interview, the appellant said that when he and the complainant were waiting for a taxi in the cab line, the complainant "had her arms over the railing [and] … passed out". He said also that after he and the complainant entered the taxi "she just basically just fell asleep in the back seat". According to the appellant, the taxi driver drove him and the complainant to the home of a friend of his, where he had left his Toyota Land Cruiser. He picked up the complainant, put her in his vehicle and drove home to his place where he put her on his bed. She was "shaking and shit" and he threw a blanket over her. She threw it back off and about 10 minutes later, woke up and asked to be taken home. He said that "she actually walked" to his car but passed out as soon as he got her into it. He drove her home, waking her about five minutes before they got to her place in order to make sure she was awake on arrival. They arrived at the complainant's parents' house at Ormiston at about quarter past to half past three.

5. The complainant gave evidence as follows. After passing out in the taxi she and the appellant took from the hotel, she woke up lying on the front seat of the appellant's vehicle with her legs protruding out the front passenger door. Her head was on the front seat. She noticed the roof of the car, the glove box, and the appellant standing outside the passenger door. The appellant's penis was inside her. She couldn't be sure if the appellant was standing between or against her legs, or whether her legs were down or "lifted a bit". She observed that the appellant "was moving forwards and backwards". She believed herself to be outside the house of a friend of the appellant's at Capalaba.

6. The complainant didn't say anything to the appellant, as she didn't want him to know that she knew what was happening, because she was "scared". Asked if she was moving at all, she said, "I can't be certain but I think I was moving a little bit, yes … [l]ike I was being pushed a little bit". She said that she didn't "move myself". She then passed out and woke up, fully dressed but with the zipper on her jeans down, in bed at the appellant's home. She was awakened by a telephone call and the appellant came into the room to find her crying loudly and uncontrollably. He asked her what was wrong and she said she wanted to go home. The appellant initially resisted for fear of driving over the blood alcohol limit, but eventually gave in to the complainant's requests and drove her home.

7. After they arrived at her place she asked the appellant where her shoes were and was told that she must have dropped them at his friend's house. The complainant asked the appellant to leave her shoes at the bottom of the stairs so that she could collect them. She started crying hysterically after the appellant left, causing her mother to enter her room and ask if she was "okay". She responded, "I'm fine, I'm just drunk". Early that morning, the complainant sent a text message to a female friend which included, "I woke up and he was doing the deed on me". She sent a similar text to her boyfriend.

8. In cross-examination, the complainant admitted that it was her boyfriend who first mentioned the word "rape" and when asked by him if it was rape, she wouldn't "respond to him verbally". She accepted that it was at the instigation of her boyfriend that she went to the police, having initially told him that she didn't want to go to the police and that she didn't want people to know what had happened. When she was taken to the police station by her boyfriend she didn't want to go inside initially. Asked if she was concerned that she may lose her boyfriend because of what had happened the evening before with the appellant, she responded, "To an extent, yes". She admitted that at about 4.24 am she sent her boyfriend a text message which included:^[1]

"And I suggest it said this, 'Really wish you had picked me up tonight.  I really hate [the defendant] now.  I know you don't need to know this, but I woke up and he was doing the deed on me.  I couldn't say anything besides passing out.  I woke up at his and told him I wanted to go home.  He don't know I know.  I really just want to kill him, but I guess he'll get what he deserve from my friends.  I really do care for you, that's why I'm telling you this, but if you want nothing to do with me, fair enough, I already know I don't deserve you'.  Remember - would you agree with me that's a text message you sent him-----?-- Yeah."

9. It was put to the complainant that when she woke up in the appellant's vehicle she felt him moving against her legs. She agreed. It was then put to her that he was trying to get her legs into the cab of the vehicle. She disagreed with that proposition.

10. In his first police interview, the appellant denied any sexual contact with the complainant. He said that he had to carry the complainant from the taxi to his vehicle where he placed her in the passenger seat. She then fell over and lay so that her head rested on the handbrake. He then put her seatbelt on and drove to his house. There, he picked her up and took her to his room and put her on the bed. The complainant was shivering. He put a blanket over her. After a while she asked to be taken home and he complied. She "passed out again" as soon as she got in the car and he woke her up just as they were driving down the driveway. As she left the car she said, "I'll talk to you tomorrow". Later in the same interview, asked how the complainant got to his vehicle from his bedroom, he said she walked but that he had to help her. The appellant consented to providing a sample for DNA testing.

11. He was interviewed again on 6 March 2009 by police. At the beginning of that interview the appellant gave a further account of what had passed between himself and the complainant on the evening of 17 May and morning of 18 May which was consistent with his earlier account. He denied having had any sexual contact with the complainant. He then said that he remembered "going outside for a pull". He said that he had been reluctant to reveal this because it was embarrassing. It emerged that he had said something to this effect in an unrecorded part of his earlier police interview. One of the interviewing officers, reading from notes in his police notebook, put it to the appellant that the following had occurred during a break in the earlier recorded interview, "… then after about ten seconds ya said, 'Well you know how I said I went to the toilet when I got home, well I had a pull. And there may have been some cum on my hand.' And then you sort of paused for a bit and then you said, 'At least she was in my bed, I was just trying to wake her up, I was trying everything to wake her up.'" The appellant admitted to having some recollection of having said this. He asked, "What else did I say?" The police officer said, "Okay and you said, um 'and I might have put my hands down her pants … and touched her.'" The appellant said, "No, I didn't do anything like that". He admitted that he may have said it at the time but that he had been doing a lot of thinking since then.

12. This exchange occurred:

"Police officer:So did you touch her after you pulled yourself?

Appellant:Yeah to wake her up yeah.

Police officer:  Whereabouts did you touch her?

Appellant:  Oh on her belly and I shook her head and …

…

Police officer:  Anywhere else so belly, head any other parts of her body?

Appellant:  Nup."

13. Asked if he put his hands in her jeans, in her pants or near her genitals, he said, "I don't recall".

14. Asked if he recalled touching the complainant "inappropriately on her any of her genitals" he responded, "I may have in the cab I don't really remember".

15. Told by a police officer that he wanted to give the appellant the opportunity to respond he said, "I don't remember putting my penis in, inside [the complainant], whatsoever". Asked if he could account for how his sperm could be found on her, he said, "… probably from me having a pull and trying to wake her up maybe. You said it was on her". Again, asked if he touched her anywhere other than the stomach or head, he said, "I might have went down near her jean line but that's about it". Asked if at any stage he put his hand down inside her jeans, he said, "I may of without realising, may of". A little later in the interview this exchange occurred:^[2]

"[APPELLANT]:  When I was trying to wake her up there was about that much gap between her stomach and her jeans cause she was wearing this real fucken tight belt.

[POLICE OFFICER]:  Yep.

[APPELLANT]:  And yeah I might have slipped underneath there trying to wake her, I, I mean I don't, fucken nine or tenth (sic) months ago.

[POLICE OFFICER]:  Mmhmm.

[APPELLANT]:  I don't remember.

[POLICE OFFICER]:  Did at any stage you put your hand down her pants to um, to the point where her vagina is?  I don't think you could slip that far.

[APPELLANT]:  I may of, I might even been a little bit more pissed and shouldn't have drove but, but I never had sex with her."

16. The interviewing officers then revealed the results of DNA testing and this conversation occurred:^[3]

"CON JONES:  Not the jeans, um the underwear the results have come back on the underwear is where your DNA has been located, which has been revealed to be sperm.

SGT SUFFOLK:  In the crutch (sic) of the underwear was it?

CON JONES:  It's directly in the crouch (sic) of the underwear so as you can imagine that's not exactly the top of the belt line, would you like to make any comment on that?

[APPELLANT]:  I might have a little, might have went a little bit further I don't recall doing it.

[POLICE OFFICER]:  Mate um you seem to say a little bit more every time I tell you a little bit more of the results, that's what I'm noticing, mate is there anything you want to say to us right now to get of (sic) your chest.

[APPELLANT]:  Okay I'll--

[POLICE OFFICER]:  Is there anything you want to say to us to clarify?

[APPELLANT]:  Okay I did have a pull and it might have been on my finger and then I might have stuck my, had a play with [the complainant].

[POLICE OFFICER]: What do you mean by that mate?

[APPELLANT]: I think she kind of woke up probably half an hour before she actually woke up and um I was laying next to her and ah yeah we kind of fooled around, I don't know if she remembers I don't we kind of fooled around for a little while and then yeah she passed back out so I left.

[POLICE OFFICER]:  Okay.

[APPELLANT]:  But I never had sex with her.

[POLICE OFFICER]:  You said um, you said you might have played around with [the complainant] and you made a, a motion with your fingers. Can you explain what you mean by that?

[APPELLANT]:  Well she was playing I remember laying there, she cuddling up to me, I think I might have been a little bit over the limit but like if it was fine to drive I got home.  Um yeah half an hour before she actually woke up we kind of played around, had a kiss and then it didn't go any further."

17. There was scientific evidence that sperm had been detected on a microscope slide prepared from inside the complainant's underpants. It contained a mixed partial profile of the DNA of the appellant and an unknown person. The evidence was that this did not necessarily mean that the semen belonged to the appellant, merely that both his DNA and some semen was present, as was some other person's DNA. A possible explanation for the presence of the appellant's DNA was contact between the inner underpants and part of the appellant.  The appellant's DNA was not found on any high or low vaginal swabs or slides and a tape lift from the front of the appellant's vehicle revealed no DNA.  Vinyl on the front seat of the vehicle would be expected to provide a good surface for the retention of DNA had there been ejaculate on it.

18. I now turn to the grounds of appeal.

The primary judge erred in failing to direct on mistake of fact

19. Counsel for the appellant advanced the following contentions. Although defence counsel did not request a direction on mistake of fact, it was incumbent on the trial judge to direct on any defences which may have been raised on the evidence.^[4]  Although the appellant denied any sexual contact in the vehicle, the jury may have formed "a mid-range position halfway between the version given by the complainant and the version given by the accused".^[5]  Consequently, it was open for the jury to conclude that the complainant did not consent to the sexual intercourse but that the accused was honestly and reasonably mistaken that she did.  She did not say anything to dissuade the appellant and may have moved during intercourse.  The jury could take into account the relationship between the parties and their interactions before the evening and on the night.

20. Reliance was placed by counsel for the appellant on a passage from the reasons of McHugh J in Stevens v The Queen^[6] where his honour said that a jury was entitled to refuse to accept the cases of the parties and to "work out for themselves a view of the case which did not exactly represent what either party said".

21. Counsel for the respondent accepted that, provided there was evidence which enlivened an issue of mistake, an accused is entitled to have that mistake left to the jury, even if the accused's case was that no penetration had occurred.^[7]  It is necessary for this Court to determine whether "mistaken" was enlivened by the evidence.

22. Mistake did not arise on the evidence. The appellant was adamant that no sexual intercourse or any other form of sexual contact took place in his vehicle. The complainant's evidence was that non-consensual sexual intercourse occurred in the vehicle. On her account, she was unconscious at the time intercourse commenced and gave no sign of being conscious or consenting at any time. If her body moved, it was only because of the appellant's movement "forwards and backwards" as his body moved against hers during the act of intercourse. As counsel for the respondent pointed out, the fact that the complainant may have moved during intercourse had no relevant significance: the offence of rape had been committed once penetration had occurred. There was no suggestion by the defence that the complainant consented to any sexual activity in the car or may have been understood by the appellant to have been consenting. It was the evidence of both the complainant and the appellant that the complainant was not conscious when placed in the appellant's vehicle for the first time by the appellant.

23. Experienced defence counsel did not contend that s 24 was raised on the evidence, possibly concluding that a s 24 direction would have invited the jury to speculate and provided a distraction from the defence case. Such an approach would have been sound. The appellant's credibility, already gravely damaged by his changing accounts to the police, would have been further impaired by an eleventh hour suggestion that the appellant may have penetrated the virtually comatose complainant in his vehicle in the mistaken belief that she was consenting.

The primary judge erred in permitting the complainant to be screened from the appellant when giving evidence purportedly pursuant to s 21A of the Evidence Act 1977 (Qld)

24. Under s 21A of the Evidence Act 1977 (Qld), the Court may direct that an accused in a case such as the present be obscured from the view of a "special witness while the special witness is giving evidence".

25. A "special witness" includes a witness who in the Court's opinion would, as a result of a "relevant matter, be likely to be disadvantaged as a witness … if required to give evidence in accordance with the usual rules and practice of the court".

26. At the commencement of the trial the prosecutor informed the primary judge that the complainant would have difficulty giving evidence with the appellant in her line of vision "because of the nature of the offences (sir) and the effect it's had on her. She claimed, according to the prosecutor, that she may cry uncontrollably". Defence counsel initially opposed the use of a screen. Defence counsel remarked that there had been a screen at the committal hearing and that this had not been opposed. The primary judge speculated that uncontrollable crying by the complainant "wouldn't be all that attractive" to the defence. Defence counsel sought instructions and said that he was "not instructed to press the opposition to the application". The primary judge granted the application.

27. The appellant's outline of argument contended that notwithstanding defence counsel's conduct, the primary judge had erred in permitting the complainant to be screened from the appellant when giving her evidence and that the defendant had been deprived of the right, discussed in R v Davies^[8] of confronting his accuser.

28. Assuming for present purposes that the right of confrontation encompasses the right to look at one's accuser when and if he or she gives evidence in the courtroom, the appellant abandoned that right when his counsel informed the primary judge, in effect, that the application by the prosecutor was unopposed. It is not suggested that the use of the screen favoured the prosecution in any way or resulted in any prejudice to the appellant. There is no merit in this ground and counsel for the appellant was right to abandon it.

The primary judge erred in not directing the jury that evidence of the complainant's emotional distress 12 hours or so after the events in question could not be regarded as supporting the complainant's credibility

29. The substance of the argument advanced on this ground was as follows. There were two potential sources of the alleged distressed condition of the complainant. She alleged she was distressed with her mother in the early hours of the morning of 18 May and with her boyfriend at about 3.30 pm the following afternoon.  The evidence of a distressed condition 12 or so hours after the incident did not support the complainant's account.  In R v Roissetter,^[9] McPherson J held that where the causal link between the distressed condition and the alleged assault is tenuous or remote the trial judge is to withdraw it as capable of being corroborative.  The prosecutor relied heavily on the complainant's distress in his address, referring to the complainant's conduct when speaking to her boyfriend.  Reference was made also to the complainant's crying in bed and telling her mother to go back to bed.

Consideration

30. The above submissions misrepresent the factual position. The complainant's evidence was that she was "crying hysterically" when her mother came in and asked her if she was okay. She thought she may have said to her mother, "Well, go back to bed". She said she then cried some more. The evidence was not that the distress she was experiencing had anything to do with her mother. Nor is there any evidence to support the proposition that the complainant said that she was distressed with her boyfriend at about 3.30 pm the following afternoon or at any other time. Her evidence was that the distress which she reported arose from the appellant's conduct. The primary judge, in his summing-up, referred to the evidence of the complainant's boyfriend to the effect that when asked by him if she had been raped, the complainant "basically just broke down and sobbed uncontrollably". He said also that when they arrived at the police station the complainant "was still visibly very upset, still shaking, trembling, crying and it took some 10 or 15 minutes to get her to agree to come into the police station and make a statement".

31. In R v Williams,^[10] Fraser JA, with whose reasons the other members of the Court agreed, said:

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

32. There was nothing tenuous or remote in the connection between the distressed condition reported by the complainant and her boyfriend and the subject offence. It was reasonably open for the jury to draw the inference that her distress was causally related to the offence: remarkably, it appeared to have continued from the time when the complainant comprehended that she had been violated. There is no substance in this ground.

The primary judge erred in failing to correct the prosecution submission that a strength of the prosecution case was the lies told by the appellant to the police and in informing the jury that the appellant's lies affected his credibility dramatically

33. Counsel for the appellant accepted that an "Edwards"^[11] direction was not appropriate.  The primary judge had ruled that it was not and the correctness of the ruling was not challenged.  However, he submitted that notwithstanding this, the prosecutor had submitted in address that the other strength of the Crown case was the lies the appellant told the police, thereby suggesting that the appellant's lies "went beyond mere credibility" and "actually strengthened the complainant's evidence of the offence charged".  The passage from the prosecutor's address on which reliance is placed commences as follows:^[12]

"Now, the other strength of the Crown case, of course, is what the Crown says are his lies to police.  He says that he never touched her on this night in question, but we have DNA evidence. Now, once upon a time there were two things you could be sure of: death and taxes they say.

…

there was a sexual interest for [the appellant] him at least with [the complainant].

That may not even be something that's contested, but what I'm suggesting to you is that he starts lying as soon as he realises that DNA may put him there. The police officer starts with some comments in relation to how pretty she is and then suggests at the end.  'Are you sure we're not going to find something, or DNA is not going to be there?' and what does he say?  He offers an excuse that's recorded by the police officer in his notebook."

34. After discussing how the appellant's "story changed" in his second interview in order to explain how the appellant's DNA had been found in the crotch of the complainant's underpants, the prosecutor said:

"That is what that interview is all about, and I would suggest to you that he was lying.

He was lying, I suggest to you because he did have sex with [the complainant], and that he wasn't sure whether his DNA would be found in those underpants, and that's why he acted in the way that he did.  I suggest to you that you (sic) can't – he can't be believed because of the way that he acted and because of the lies he told police in relation to the situation, so when he tells police, 'No, I didn't touch her' and then says, 'Oh yeah, I may have touched her later when I was trying to wake her up', how believable is that?  Who when they’re trying to wake someone up sticks their hand down the front of their pants and touches their - a person's vagina?  She's wearing jeans.  You can use your own commonsense."

35. Counsel for the appellant submitted that the primary judge erred in not directing the jury that they could not reason as the prosecution suggested in the first sentence of the following passage from the summing-up:^[13]

"That is, the Crown argues that these lies are such that it affects his credibility dramatically, and that you would reject his denials that he did not commit the offence.  Now, in relation to the answers which the prosecution rely upon and those which the defence rely upon, it is entirely up to you what use you make of them and what weight you give to them.  Now, in relation to this aspect of the accused's lies, you will make up your own mind about whether the accused was telling lies and, if so, whether he was doing that deliberately. 

It is for you to decide what significance those suggested lies have in relation to the issues in this case.  You may decide that, if you find the accused has lied, that that does affect his credibility.  However, you must bear in mind this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something that that is necessarily evidence of guilt.

Do not follow the reasoning that because a person is shown to have told a lie about something that that is evidence of guilt.  If you find that the accused has deliberately told lies to the police you may use that in the sense that it affects his credibility when he otherwise tells police that he did not commit the offence and nothing happened at the car."

36. The prosecutor freely extolled the "strength of the crown case in his address". He said, relevantly:^[14]

"In relation to the evidence itself, the strength of the Crown is this, I would suggest to you:  firstly, it's [the complainant] … she was credible, she was honest and on the important features she was reliable.

…

The other aspects of the Crown case, the strength of it, the way the matter was disclosed, I would suggest to you it is consistent with your own experiences through life … So I suggest to you the way this matter developed is completely consistent with what [the complainant] says occurred …"

37. There is then the language complained of quoted in paragraph [34] above. The prosecutor proceeded thereafter to concentrate on alleged lies by the appellant. He contrasted the appellant's evidence with that of the complainant, who he submitted was a credible witness. In concluding his address, he emphasised the honesty, reliability and believability of the complainant.

38. When the prosecutor's address is viewed as a whole, it does not appear to me that the prosecutor submitted, or that the jury may have misunderstood, that the prosecution case was that the appellant lied out of a consciousness of guilt. Where the prosecution does not rely on answers of an accused to found a submission that he had lied out of a consciousness of guilt, it is unnecessary and undesirable that a direction of the kind described in Edwards v The Queen^[15] be given.^[16]

39. The summing-up, of course, must be considered in its entirety. The part of it now under consideration appears in a context of discussion about credibility. The primary judge gave the conventional warning against concluding that the telling of a lie is evidence of guilt.  He directed, unexceptionably, that a finding by the jury that the appellant told "deliberate lies" would affect his credibility.  No misdirection has been shown.  Moreover, no redirection was requested.

The primary judge erred in failing to direct that it was not for the appellant to explain to police officers why the complainant would make up the allegations she had made against him

40. The questions and answers complained of were not admissible against the appellant by application, at least by analogy, of a principle sometimes described as the rule in Palmer v The Queen.^[17]  However, as counsel for the respondent submitted, the relevant questions did not result in admissions and experienced defence counsel did not object to the admissibility of the parts of the records of interview in question.  I accept the submission that no miscarriage of justice resulted from the admissibility of the evidence.  It would have had very little impact in the jury's minds compared with the appellant's fluctuating and improbable accounts of what had relevantly taken place between him and the complainant.  This view of the relative lack of importance of the passages complained of is supported by the failure of defence counsel to object.  The admission into evidence of the questions and answers now under consideration did not deny the appellant a fair trial or otherwise cause a miscarriage of justice.^[18]

The verdict was unsafe and unsatisfactory

41. Counsel for the appellant submitted that the possibility that the appellant's sexual conduct occurred in the house rather than in the vehicle and that there was no penile penetration could not be excluded as:

1. The complainant was heavily affected by alcohol which affected the reliability of her evidence;

2. There was no forensic evidence linking the vehicle to the offence.  If the appellant had ejaculated, as the prosecution suggested, there should have been some evidence of this in the vehicle;

3. The appellant's DNA was not found in any internal vaginal swabs, nor was any sperm found on such swabs;

4. The sperm found in the crotch of the underpants was not necessarily that of the appellant.  Any DNA there could have been from the appellant's hand;

5. The complainant conceded that the appellant lay next to her in the bed at the house;

6. The complainant made no complaint in the call she received at 1.09 am from the fiancée of a friend when she was at the appellant's house;

7. The complainant ultimately expressed doubt as to whether there was necessarily penetration by penis in the vehicle;

8. In light of the complainant's state, the Crown could not exclude beyond reasonable doubt that sexual conduct occurred at the house;

1. The complainant was pressured by her boyfriend to make a complaint of rape; and

10. The text messages did not distinctly indicate where the incident took place.

Consideration

42. The question this Court is required to determine is whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt.^[19]

43. The prosecution case was strong. There was nothing inherently improbable about the complainant's version of events. Her credibility was supported by very early complaints in her text messages and by her evident distress. The fact that she was reluctant to pursue her complaints by making a formal complaint to police tends to strengthen rather than weaken her credibility.

44. The complainant was a witness who was ready, perhaps overly ready, to make concessions, but her essential account of events was not weakened by cross-examination. That account derived strong support from the presence inside the crotch of the complainant's underpants of DNA material which was very highly likely to have come from the appellant's body. The absence of DNA material from the front seat of the vehicle was not of particular significance. The vehicle was not examined for a few weeks after the incident and any DNA materials could have been removed by washing. The absence of the appellant's DNA on swabs from inside the complainant's vagina was not critical either. There was no assertion by the complainant that the appellant had ejaculated in her vagina.

45. There was no reason why the jury would give any credence to any one or more of the different versions put forward by the appellant in his two interviews. He was plainly untruthful and endeavouring to concoct a story which might explain the presence of any of his DNA which might be found on the complainant or her clothing.

46. It was submitted that "the complainant ultimately expressed doubt as to whether there was necessarily penetration by penis" in the vehicle and that the prosecution could not exclude beyond reasonable doubt that "the sexual conduct occurred at the house in the light of the complainant's state". The complainant's evidence-in-chief of what she felt and observed when she awoke in the vehicle with her legs out the door was quite clear. She said that she could feel the appellant's penis inside her vagina. She reported the motion she observed and felt. In cross-examination, it was put to the complainant that what she felt moving against her legs was the result of the appellant trying to get her legs into the cab of the vehicle. She rejected that proposition.

47. A little later the cross-examiner returned to the question of what happened in the vehicle. The complainant reaffirmed that she recalled having a sensation of the appellant being inside her. The complainant was taken through some of her evidence in the committal in the course of which she had said that she felt the appellant having sex with her and that that was occurring in her vagina but that she couldn't recall whether he was moving fast or slow and couldn't feel how far he was inside her. She was asked, "Are you able to say whether you felt him penetrate you at all?" She responded, "Yes". Then asked, "You did feel that?" She said, "Yes". This exchange occurred:^[20]

"Are you able to … say whether he was penetrating your vagina at all?--  Okay.  Yes.

All right.  Your consciousness, I suggest, even according to your own evidence of - at that point in time was very limited.  You had been passed out and you passed out again shortly afterwards.  You accept that?--  Yes.

Did this have that sort of dream-like quality about it-----?--  No.

-----of being a bit surreal?--  No.

It was vivid and real as far as you're concerned?--  Yes.

Yes.  All right.  Now, I - I suggest, well the best you can do in terms of evidence of him having sexual intercourse with you is the sensation that you felt; is that correct?--  Yes.

And at that brief period in time perhaps a minute, when you roused from consciousness?--  Mmm-hmm."

48. The complainant's account of what happened was consistent and credible. The appellant did not give evidence. Reliance was placed on this concluding passage in the complainant's cross-examination:^[21]

"MR WILSON:  Thank you.  Just in case this is going to be suggested - I want you to clear the point up for me – you don't suggest, do you, that [the defendant] had his finger or something inside you, you say it was definitely his penis when you woke up on his car seat?-- Yes.

And you're absolute about that, there's no way it could be a finger or some other object penetrating you?--  It wasn't his finger but I can't be sure if it was anything else.

All right.  So it's possible it was something else, not his penis?--  It is possible but - okay."

49. In re-examination, the complainant was asked what it was she believed she felt and replied, "His penis". It does not seem to me that the complainant's concession in cross-examination reveals much more than that the complainant was a candid witness who was prepared to make concessions even if they were barely warranted. There was nothing in the other detailed evidence of the complainant or elsewhere which justified the conclusion that penetration was other than penile. That was entirely consistent with the positioning of the appellant, his movement and the understanding of the complainant as to what was happening derived from her senses about what was happening. It may be inferred that the complainant was sexually experienced. The detection of the DNA in the crotch of the complainant's underwear further supports her account.

50. To answer the rhetorical question posed by the appellant's counsel, the prosecution could exclude beyond reasonable doubt that the sexual conduct occurred at the house rather than in the vehicle because of the complainant's clear and cogent evidence, the DNA evidence, the evidence of fresh complaint and of the complainant's distress and the lack of any competing evidence. No credence could be given to the opportunistic and varying accounts given to police by the appellant.

51. It was open to the jury on the whole of the evidence to be satisfied of the guilt of the appellant beyond reasonable doubt.

Conclusion

52. None of the grounds of appeal have been made out and I would order that the appeal be dismissed.

53. WHITE JA:  I have read the reasons for judgment of Muir JA and agree with his Honour that there is no merit in any of the grounds of appeal and that accordingly the appeal should be dismissed for the reasons given by his Honour.