R v Johnson[2015] QCA 270

SUPREME COURT OF QUEENSLAND

1. GOTTERSON JA:  I agree with the order proposed by Morrison JA and with the reasons given by his Honour.
2. MORRISON JA: Mr Johnson was in a relationship with Ms NEAM for just seven weeks.  It ended on 18 September 2012 when Ms NEAM alleged that she was raped by Mr Johnson.
3. Mr Johnson was convicted of rape after a five day trial.  He appeals the conviction on the following grounds:^[1]

1. the verdict is unreasonable and cannot be supported by the evidence;
2. the trial miscarried because of:

1. a flagrantly incompetent cross-examination of the complainant by defence counsel;
2. legal argument, rulings of the learned trial judge and admonishment of the defence counsel by the learned trial judge occurring in the presence of the jury; and
3. the learned trial judge, with the assistance of the Crown prosecutor, engaging in cross-examination of the complainant.

Verdict unreasonable and cannot be supported

4. To say that a verdict is unreasonable and cannot be supported by the evidence is the same as saying that it is unsafe or unsatisfactory.
5. Where the ground of appeal is that the verdict was unsafe and unsatisfactory, the question for this Court is that which has been expressed in M v The Queen:^[2]

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.  On the contrary, the court must pay full regard to those considerations.”^[3]

6. The court has to “undertake an independent assessment of the evidence, both as to its sufficiency and its quality”.^[4]  This consideration has to proceed at all times on the basis that the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  In considering that question the court is performing a function “within a legal system that accords special respect and legitimacy to jury verdicts deciding contested factual questions concerning the guilt of the accused in serious criminal trials”.^[5]

Evidence of NMAM

7. NMAM is Ms NEAM’s daughter.  Because of her age her evidence was pre‑recorded in the form of a statement and pre-recorded oral evidence under s 21AK and s 93A of the Evidence Act 1977 (Qld).  Her evidence about the events on the night was:

1. she did not know what happened;^[6]
2. Mr Johnson spoke to her and said that he hurt Ms NEAM,^[7] last night;^[8]
3. Mr Johnson went downstairs to talk to Ms NEAM and then he left; after that NMAM was upset and started screaming at her mother, angry with the situation the mother had put herself in;^[9]
4. her mother told Mr Johnson to leave.^[10]

Evidence of FJSM

8. FJSM is a daughter of Ms NEAM.  She said she had met Mr Johnson about five times during the time he was in a relationship with her mother.^[11]  On 19 September she went to see her mother as a result of a text exchange with her mother.
9. The first text at 6.29 pm said: “Can you come over, the baby is losing the plot.  I’ve kicked Glenn out.”^[12]  After establishing that the “baby” was her younger sister, NMAM, FJSM asked why NMAM was losing the plot.  Her mother’s response was: “Because of what went down here, she’s very upset and hurt and disappointed.”^[13]
10. Her mother told her that:^[14]

1. she had gone to bed with a blinding headache, just wanted to go to sleep but Mr Johnson initiated sex;
2. her pyjamas came off and that was because Mr Johnson had wanted skin on skin;
3. Mr Johnson started getting rough with her and at that point he had both of her knees pressed up against her rib cage; she later added that her mother told her that at this point she had trouble breathing;^[15] she said that it felt like she was being split in half;
4. she then managed to get her left leg down flat on the bed, and her right knee was still pinned up against her rib cage;
5. she was saying stop, “Enough.  What don’t you understand about enough?” or “Stop.  What don’t you understand about stop?”
6. she managed to use one of her legs to kick him off and that was when it stopped;
7. she had a mark on her rib cage under her right breast, which was the beginning of a bruise or an abrasion;
8. after the event she went to the bathroom and when she wiped herself there was blood and she saw a graze to her labia.

11. FJSM said that she texted Mr Johnson to tell him to stay away, and told that to him on the phone as well.^[16]  She was furious when she sent the text, saying: “You stay the fuck away from my mother, you motherfucking rapist.  I will tell your daughters and I will call the police.  You stay the fuck away.”^[17]  She said she sent that text because: “My mother had just told me she’d been raped by him.  I was furious.  I wanted him to stay away.”^[18]
12. The phone call was shortly later, when she answered her mother’s phone and told Mr Johnson: “It’s FJSM.  You stay away from my mother and my sisters.  If you come near this house, I will tell your daughters and the police what you did.  And you stay the fuck away.  Do you understand?”^[19]  Mr Johnson kept saying, “I’m sorry, I’m sorry”, and FJSM said “I don’t want to hear [you’re] sorry.  Stay the fuck away.  Do you understand?  Do you understand?”^[20]
13. FJSM then stayed that night with her mother because her mother “was very anxious that evening and could’ve been fearful”.^[21]
14. In cross-examination FJSM did not depart from her evidence in chief.

Evidence of Ms NEAM

15. Ms NEAM said that she met Mr Johnson on Facebook, when he prompted contact.  They exchanged Facebook communication then met in person on 1 August 2012.  The relationship became a sexual one that day.  The relationship progressed quickly and within a few days Mr Johnson had met her family and joined in her son’s 21st birthday celebration.^[22]  On the evenings they were together they had sex.
16. They met face to face over three periods: first between 1 and 4 August; then between 27 and 29 August; and then between 14 and 19 September.^[23]
17. From the second time they had sex (on 5 August) Mr Johnson became more assertive and rougher in the sexual encounters, and had Ms NEAM “do things that I wasn’t totally comfortable with”.^[24]  She explained that: “The sex was outside of my comfort zone.  It wasn’t how I would normally engage in sex.”  This involved:

1. tweaking her nipples, i.e. grabbing the nipples between his thumb and forefinger and twisting them “very, very hard”;^[25]
2. biting her face when he kissed her;^[26] and
3. scratching her.^[27]

18. Ms NEAM said she spoke to him about those things, asking him to stop.^[28]  He would always respond by saying he would try not to do it, but that it was so tempting that he found it difficult not to do it.^[29]  It got to the point where she would cover her chest to prevent it happening.^[30]  She said the behaviour was getting rougher and she was becoming more and more afraid of him “because it felt to me as though he had no stop button”.^[31]
19. The next time they met face to face was on 27 August, though they stayed in touch via Facebook, text messages and telephone.^[32]  On the morning of 29 August they had sex and again Mr Johnson engaged in nipple tweaking.  Ms NEAM said that after the encounter on 5 August she had asked him to stop that, saying “pleasure is not pain”, and “what do you not understand about not doing that?  It hurts”.^[33]
20. On 14 September Mr Johnson said he needed a place to stay as his friends were leaving, so Ms NEAM let him stay with her.^[34]  She told him she felt she was being “hot-housed”, by which she meant that the relationship was going too quickly^[35] and she wanted to ease up as she was not sure whether it had a future.  His reaction was disappointment.^[36]
21. On 15 September Ms NEAM had been having headaches.  Mr Johnson initiated sex.  He again tweaked her nipples, and bit her face and lip.^[37]  Around this time she said she was “avoiding having sex with him”.^[38]
22. In her evidence in chief she described the events on 18 September:^[39]

1. they were in bed, she with her pyjamas on; he came over for a cuddle and said it needed to be skin on skin; so she removed her pyjamas; he obviously wanted sex, whereas she did not;^[40]
2. he was penetrating her vagina with his fingers; she gave a groan of dissatisfaction or disapproval;^[41] he rolled her onto her back and pushed her knees up onto her ribcage, making it difficult to breathe; his entire weight was on  her legs;^[42] he tried to penetrate her, but she was not lubricated and it was a rasping feeling; it felt like something was burning;^[43]
3. he asked her to put her arms around his neck;^[44] she put her arms up and was hanging off his neck in an effort to breathe;^[45] she said “stop”, “I can’t be doing this”, “this is hurting” and “I don’t want any part of this”; she said to stop three or four times, but “it was falling on deaf ears”;^[46]
4. she described his response: he did not react at all, “it was like he was in a zone”; “… it was like he was in another place.  He was ignoring me.  He started speaking in this funny sort of way, saying I’m going to crawl all the way up inside of you.  You want me to fuck you, don’t you?  … you want this, don’t you and it was like I was talking to someone who wasn’t listening to me”;^[47]
5. he just “kept speaking in a funny voice and telling me … he wanted it and he was going to give it to me and … you want it, don’t you want it, don’t you”;  he was not speaking in his normal voice; she described it “a different, almost wicked voice, like a wicked marionette”; she said she was extremely afraid; he was penetrating her and it was really hurting her;
6. he became more aggressive and “It was getting nastier”;
7. she then took her arms off; he pushed her leg down and maintained his weight on her right leg; that gave her the ability to breathe and she said “stop, you have to stop.  What do you not understand about this is hurting?  … what do you not understand about not hurting me?”
8. she could not call out because her youngest daughter was down the hallway, and slept with earphones in; her children had experienced a lot of pain in their lives and she did not wish to add to that;
9. she managed to get the strength to roll enough to push him away, and kicked him;^[48] he fell on the floor and almost immediately said “oh my God, oh my God, what have I done?”;^[49]
10. she got straight up and went into the bathroom; she was sore and affronted by what had just happened; she felt inside her vagina and it felt like it was grazed on the right-hand side; she found she was bleeding;
11. she waited some time while she thought what to do; she went back and lay down on the edge of the bed to put a barrier between them; Mr Johnson was pacing up and down saying sorry and “what have I done”.

23. The next evening Ms NEAM confronted Mr Johnson over what had occurred and told him that he had to leave.^[50]  He collected his belongings from upstairs.  As he went out the front door Ms NEAM’s daughter, NMAM, came down crying and yelling.  Ms NEAM then contacted FJSM.  When FJSM came round she told her that: she had been raped and did not know how to manage the situation; but she wanted to call the police.^[51]
24. There was a text exchange between Ms NEAM and Mr Johnson:

1. she said: “justify to me your sickening behaviour, there was NO justification for it!!”;^[52]
2. he replied: “I wasn’t trying to justify anything of the sort, nor am I asking of anything from you.  You were not prepared to” and she believed it went on “listen to me”;^[53]
3. she said “My baby^[54] is crushed she like me thought you were the one.  Now NMAM^[55] wants to talk to me what did you say to her?”^[56]
4. he replied “The truth, how I hurt you physically and mentally.  I really thought you were the one and I beside myself to have really stuffed up”.^[57]

25. In cross-examination Ms NEAM largely adhered to her evidence.  The cross-examination was lengthy and much was put to her from her prior evidence.  Where she modified or qualified her version of events, or where some aspect of the evidence was noteworthy, is set out below:

1. the relationship with Mr Johnson was intense to start with;^[58] in the early days of the relationship it felt good “because I hadn’t been out there for a long time”;^[59] she was excited early on as she “hadn’t had a man in my life for a very long time, I was excited at the thought of having one”;^[60] she was in love with the idea of being in love again;^[61]
2. prior to meeting face to face they had “a very, very mutual attraction”;^[62]
3. she went back to the bed afterwards because there was nowhere else to go; she did not wish to alert her daughters;^[63] “I was too numb and I came back out and got on the edge of the bed and spent the night in silence because I couldn't speak to him, look at him, and I didn't want to even be anywhere near him”;^[64] she was protecting her family;^[65] her way of dealing with it the next day was to get her daughters out of the house, and for her to go to work;^[66]
4. she described the process of giving evidence: “This is actually really humiliating and it’s really embarrassing and I wouldn’t put myself through this unless I absolutely had to”;^[67]
5. by 4 August Mr Johnson asked her to slap him hard; she was affronted by that but “he requested that I do it and was most insistent that I do it and I felt very awkward but did it”;^[68]
6. it was put to her that she was fabricating the account of the biting and scratching, which she denied: “No.  I’m not.  I was bitten around the mouth.  I had bite marks on my mouth.  I had scratch marks on my shoulders”;^[69] it was put that she had “fabricated this evidence of rough sex for the purposes of the trial”, which she denied saying: “Why would I do that and put myself through this?  Think about it.  It’s humiliating”;^[70]
7. around 14 August it was the anniversary of her husband’s death and she did not want to see Mr Johnson, but “then [Glen] arrived on the door step on the 14^th, and … I felt like I was trapped and I had no choice but to engage him”;^[71]
8. the first time Mr Johnson hurt her with nipple tweaking and biting was about 4 August; she told him not to do it: “What do you not understand about not hurting me?  Pleasure and pain are two different things, and they’re not on the same … that sort of thing isn’t on my radar”;^[72] the second time “alarm bells went off” and she said to him: “you must understand that I like pleasure, but I don’t like pain.  And I don’t want you to tweak my nipples”; Mr Johnson replied: “it’s so tempting.  I can’t help myself, but I’ll try hard not to do it”;^[73]
9. some days later, just prior to 18 September, she told him: “you’ve got to stop doing it.  My nipples ache for days afterwards.  It’s not fair.  It hurts.  I don’t like the pain”;^[74]
10. she said she enjoyed the sex she had with Mr Johnson “whilst he was not hurting me” by nipple tweaking, biting and scratching; “As long as it was kind and gentle and none of the rough activity got into it, I was okay”;^[75]
11. for a time she thought she was in love with Mr Johnson, in the “halcyon days of an early relationship”;^[76]
12. the sexual intercourse on the night of 18 September did not start mutually;^[77]
13. during the sexual intercourse on 18 September Mr Johnson started “speaking in a strange voice”, but not loudly;^[78]
14. the next day when she told him to leave, she said to him that he had a problem with aggression; Mr Johnson was “saying to me that he needed to build bridges in order to make things right again.  And I wasn’t going to give him the opportunity, because I said, no, it’s done, we’re done, you have to go”;^[79] and
15. it was put to her that she had not been raped, and that she was not really making a legitimate complaint of rape; she answered: “I vehemently disagree.  It is a legitimate claim and I would not have put myself through the heartache, the humiliation, and the pain of the last few days to do something like that.  I have other things I could be doing that would be much less stressful.”^[80]

Medical evidence

26. Ms Flatley, a registered nurse, gave evidence as to conducting a forensic examination of Ms NEAM on 20 September 2012.  Ms NEAM complained of tenderness under her breast, with some superficial capillaries but no evidence of bruising, redness or swelling.  There was a two centimetre laceration to the right side of the labia minora with no sign of fresh healing.  That was consistent with blunt force trauma causing the tissue to stretch and split.  It was consistent with recent vaginal intercourse.

The pretext call

27. The transcript of the call was in evidence,^[81] and the recording of the call itself.  The call contained a couple of significant passages where the issue of Ms NEAM telling Mr Johnson was raised:^[82]

“AAnd well I’ve got a labial graze and I’m just sought (sic) of thinking to myself, like, what happened?  Speak to me I need to understand.

GI don’t know darling, I think I was concerned that I felt I was having to perform more because you weren’t getting into it and I really was confused and I’ve gone way too far and destroyed everything and um I know I’ve lost you

AWell you know, you hurt me

GYes I know

AAnd I wanted you to stop and you didn’t stop

GYeah

AWhat was going on in your head at that point?

GI really don’t know.  I had you hanging onto my neck and I don’t know why.  I really don’t know why.”

then

“AI just don’t know why you did that

GI don’t know why I did it either, you know as I said I was thinking I was having to perform more because I wasn’t getting you into it and

AYou weren’t getting me into it because you were hurting me

GYeah, Yeah

Aand I asked you to play nicely

GUnfortunately I realised that too late NEAM

AI asked you to, I said to you; I’d been saying to you the preceding day play nicely, don’t hurt me

GYes

AI kept saying to you I’m into pleasure not pain

GYeah unfortunately it took me far too long to realise and I’ve blown something very very special to me”^[83]

and

“ADid you at any point in time during that whole thing when I’m, I’m saying No, it’s hurting, No, No, No and I’m disagreeing with the whole thing, did you, what was going on in your head?  Did you ever think at any point in time think I’m doing the wrong thing here I should stop?

GThat’s the stupid part about it NEAM is No I didn’t.”^[84]

Mr Johnson’s interview

28. Mr Johnson did not give or call evidence.  However, he was interviewed by police and that transcript went into evidence.^[85]  The essential features of his account were as follows:^[86]

1. he was 54 at the time of the incident; he was a chef who worked at the mines at Injune and worked two weeks on, one week off;^[87]
2. they enjoyed a very active sex life, which was mutually enjoyed; Ms NEAM had told him their sex life was very active and exciting compared to the sex life she had with her late husband; at the start of the sexual relationship they were each feeling their way, and it just evolved into heavy sex over time;^[88]
3. Ms NEAM had “often said to me that she doesn’t get into the rough play ever”; “I respected that”; she said that several times, and not always when they were in bed; “I knew … [she] had previously said that she doesn’t get into the heavy sex”;^[89] he said that “right from the start, even before we met in person, she … said that she wasn’t into rough play”; he took that to mean she was not interested in “kinky sex, tying up, or any of that sort of thing”;^[90]
4. she had never once said that he was too rough or anything like that; “I’ve never been aware that what I do was … rough on anybody”;^[91] he said that “I’d never been made aware before that what I do was rough play.  So I didn’t know any different”;^[92] he said that “it was really only … on the eighteenth that I was really made aware that that was too rough for her”; “I’d never been asked to stop doing what I was doing, until Tuesday night”;^[93]
5. however the mutual sex on the night of 18 September “just evolved into … some fairly heavy sex …then [she] got upset with me … I was restraining her hands and ... that seemed to be a mutual accepted thing to start with … I didn’t think too much more of that … But then she broke free and was kicking away … from me …”;^[94]
6. he initiated the sex on that night;^[95] she was touching his penis and it “just evolved into being … fairly full-on, heavy session”; at one stage she was on her back and he “brought [her] legs up over [his] shoulders … and we were both getting into that”;  then he was “penetrating [her] with [his] penis and it just got faster and faster, harder and harder”;^[96]
7. he asked her to “grab hold of [him] around [his] neck”, and “it seemed to go on for a little while” and it “was then that obviously [she] wasn’t enjoying it any longer and just forced me off”; she kicked him off;^[97]
8. he could not recall what was said during the sex;^[98]
9. he asked if she was OK, and she went downstairs to talk to the children; then she came back to bed and at some point they cuddled and she went to sleep with her head on his chest;^[99] he said “I knew … she was upset with me …she said things along the lines of well why would you do that … I couldn’t apologise enough … for … hurting her … she did say she felt grazed inside and sore, spoke of a sore rib ... for which I was really sorry … but you know they were only words to [her]”;^[100] he said he “was remorseful for hurting her”;^[101]
10. the next morning they went for a walk, and talked;^[102]
11. the next evening things “were quite icy” between them;^[103] he asked whether he should leave,^[104] and that he could stay with friends; when he had grabbed his things he spoke to the youngest daughter and told her he was going; she asked why and he said that he had hurt her mother; when he went back downstairs Ms NEAM asked him if he wanted to wait there till his friends came; he declined;^[105]
12. he said there were times  during sex when he would tweak her nipples; “we both got enjoyment from that”; she said “she wasn’t used to that but still enjoyed it”; but “she said that I was sometimes a bit rough … with that ... [a]nd hurting her nipples … she was saying that, she would end up with sore breast”; but “never at any stage did she say to stop … But just saying that it used to cause her sore nipples”;^[106]
13. he was asked to explain the tweaking, and he said that because he was a chef he had lost some sensation in his fingers, and “probably with arousal and more and more getting into it, I probably did”; but “I wasn’t made aware of it during the actual time of doing that”;^[107] he said “yes the tweaking of the nipples sometimes did get a bit hard on her…  I didn’t realise that at the time That I was really hurting her with that.  She had spoken about sore nipples.  But I … thought maybe that was because … neither of us had had … a sex life for a long time prior to this”;^[108] and
14. he said he had not intended to hurt Ms NEAM.^[109]

29. Parts of Ms NEAM’s version were put to Mr Johnson during the police interview and he was given the chance to comment upon them, particularly what she said had happened on the night of 18 September:

1. he said that he did not recall Ms NEAM saying to stop tweaking nipples, biting or scratching; “I don’t recall … where she said stop, or anything like that”; “what I do recall was not to be so hard perhaps”;^[110] “what I was hearing, was that it wasn’t saying stop, it was to take it easier perhaps”;^[111]
2. he agreed that on the night of 18 September he asked Ms NEAM to take off her pyjamas because he liked to sleep skin on skin; he also agreed that he was penetrating her vagina with two or three fingers;^[112]
3. she had a cold sore on her lip; “…  I hadn’t bitten her lip all this trip^[113] at all.  Previous trips, yes … I may have”; but the bites were gentle;^[114]
4. as to the suggestion that she did not want sex that night, he agreed that Ms NEAM had been experiencing headaches since a fall on about 27 August, but said he was “a bit disturbed to think that now she’s saying that it wasn’t a mutual thing”;^[115]
5. his body weight may have been holding her legs down, but not his hands;^[116] and he agreed that he asked her to put her hands around his neck;^[117] at that point “it was evolving into probably more firm penetrating”;^[118]
6. he said that “at no stage did [she] say stop or anything like that”; “at no stage did she give me indication that it was ungratifying for her … yes it was evolving into probably firmer sex for myself”;^[119] but she did not say to stop or that he was hurting her;^[120]
7. he did not recall using a strange voice, but agreed that he had said that “I’m going to get all the way up inside you”, “I’m a naughty boy”, and “you want me to fuck you, don’t you, tell me you want me to fuck you”;^[121]
8. he agreed that she kicked him off, that he said “oh my god, oh my god”, and she asked “what was that all about”;^[122]
9. he agreed that when she came back to the bed she was on the side of it, but “she did come back over to me … I put my arm around her ... I know we both slept, because I woke up at times and she was asleep”;^[123]
10. he agreed that the next night he said to her something like “I understand I’ve hurt you, and I know what I did was wrong, I don’t know what got into me”;^[124]
11. he agreed that after speaking to the daughter, and telling her that he was leaving because he had hurt her mother, he left but then came back to the front door , and Ms NEAM said what were you thinking, engaging the children, I would never tell the children;^[125]
12. the pretext call was played to him and he was asked about the part where Ms NEAM says she was asking him to stop, and he did not; then this exchange followed:^[126]

“CON FLEMING: … and it says I wanted you to stop and you didn’t stop.  And you replied yeah.  What was going on in your head at that point?  I don’t really know, I had you hanging onto my neck and I don’t know why, I really don’t know why.

JOHNSON: That’s right.  It was something that just evolved.

…

UNIDENTIFIED FEMALE SPEAKER: So just going back to that, [she] goes I wanted you to stop.  And you replied yes.

JOHNSON: She, she, she didn’t ask me to stop.  … never was there a … time up until the stage where she pushed me off and kicked [INDISTINCT].

CON FLEMING: Well how do you know that she wanted you to stop?

JOHNSON: Um oh I don’t know if I really did.

…

JOHNSON: Um at that stage I don’t believe … I really didn’t know.  …  It was only afterwards, thinking about it, yes I probably should have stopped, you know…”

13. he was taken to part of the pretext call where Ms NEAM referred to having said no, and he had said that he didn’t think he was doing the wrong thing; he responded: “Because with her saying no, no, no, I … can’t recall that having actually being said in that … put together like that”; and then “there was no stage that I thought it meant completely stop what I was doing”.^[127]

Unreasonable verdict

30. The evidence of Ms NEAM was that she withdrew consent during the sexual intercourse that took place on 18 September.  That was made plain well before she kicked him off, by her saying: “stop” three or four times, “this is hurting”, “I don’t want any part of this”, “stop, you have to stop.  What do you not understand about this is hurting?  … what do you not understand about not hurting me?”
31. Senior counsel for Mr Johnson contended that the prosecution had to negative mistake pursuant to s 24 of the Criminal Code 1899 (Qld).  For that purpose it had to negative that Mr Johnson reasonably and honestly believed that she was consenting to sexual intercourse.  Focussing on Ms NEAM’s evidence, it was said that whilst she voiced displeasure and said stop, she also said that: Mr Johnson appeared oblivious to her protests; “it was like he was in a zone”; “it was like he was in another place.  He was ignoring me”; and he was speaking in a funny voice.  It was contended that the things attributed to him while speaking in the funny voice indicated that he believed she wanted sexual intercourse.  He was extremely remorseful immediately afterward.  That was consistent with Mr Johnson’s account.  Consequently mistake could not be negatived.
32. For a number of reasons I cannot accept that contention.  In my view it was open to the jury to accept Ms NEAM’s evidence of saying to stop, and why, and be satisfied, beyond reasonable doubt, that Mr Johnson did not have a reasonable and honest, but mistaken, belief that she consented.^[128]
33. First, if the jury accepted Ms NEAM’s evidence, then there was no suggestion that she made her protests in a muted or diffident way.  Notwithstanding that she did not scream out because she did not wish to alert the children,^[129] it was open to the jury to accept that what she said was capable of being heard by Mr Johnson, and understood by him.  Furthermore it was not a new topic, as she had complained to him previously about his hurting her in various ways, including the tweaking of nipples, biting and scratching.
34. Mr Johnson himself agreed that she had said early on in the relationship that she wasn’t into rough play.  He also said that he had bitten her before, resulting in a sore lip, and that he had tweaked her nipples before, hard, to the point she complained about it.  Further, he said that the sexual intercourse that night evolved into heavy sex, “a full on heavy session”, and was evolving into “probably firmer sex for myself”.
35. Putting what he said in the interview together with what Ms NEAM said, in my view the jury could conclude that on this occasion she was complaining about the very thing that she had complained about before, and that the roughness of it, this time involving painful penetration, would have meant that she complained in a way that couldn’t really be missed or misunderstood.
36. Secondly, it was open to the jury to accept that what was said by Mr Johnson in the pretext call were admissions that he did, in fact, hear her saying to stop and continued regardless.  Thus when Ms NEAM said to him “I wanted you to stop and you didn’t stop”, he answered “Yeah”.  Then when he was asked to explain why he did what he did, he said “I think I was concerned that I felt I was having to perform more because you weren’t getting into it”.  That, of itself, is an acceptance that Ms NEAM was not “getting into it”, which lends weight to her own evidence of protesting to stop.
37. Further, when Ms NEAM confronted him with the fact that she said to stop, and asked whether he had thought he should, his answer was not to deny that she had said to stop, or to say that if she did he did not hear it, but to say, “That’s the stupid part about it … No I didn’t”.  In my view it was open to the jury to construe that as an admission of hearing that she said to stop but proceeded anyway.
38. Thirdly, the jury could conclude from Mr Johnson’s interview that he did hear Ms NEAM’s protests but ignored them.  At one point when confronted with the text of the pretext call, he said: “Because with her saying no, no, no, I … can’t recall that having actually being said in that … put together like that”, and then “there was no stage that I thought it meant completely stop what I was doing”.^[130]  The last part of that answer suggests clearly that he heard but construed it as meaning a protest but not a call to stop completely.
39. In the pretext call Ms NEAM asked what was going through his head at the point that she said “stop, stop, stop”.  His reply was “I really don’t know.  I had you hanging onto my neck.”  That was the point which Ms NEAM had identified as being when she was able to draw breath and tell him to stop.^[131]  The jury could accept that evidence as recognition by Mr Johnson that she had, in fact, said to stop and he heard it, but continued.  If so accepted, it was fairly destructive of the s 24 defence.
40. Fourthly, accepting Ms NEAM’s evidence the jury could conclude that Mr Johnson ignored her protests just as he effectively ignored her other protests about rough sex, tweaking her nipples, biting her lips and scratching.
41. Fifthly, there was evidence as to the nature of the sexual intercourse that could be drawn from Mr Johnson’s police interview.  He said Ms NEAM had “often said to me that she doesn’t get into the rough sex play ever”, and “I respected that”.  She said that several times, and not always when they were in bed: “I knew … [she] had previously said that she doesn’t get into the heavy sex”.^[132]  He said that “right from the start, even before we met in person, she … said that she wasn’t into rough play”, though he took that to mean she was not interested in “kinky sex, tying up, or any of that sort of thing”.^[133]
42. However, as to the night of 18 September he said that it “just evolved into … some fairly heavy sex” and a “fairly full-on, heavy session”.  He said then “[she] got upset with me … I was restraining her hands and ... that seemed to be a mutual accepted thing to start with … I didn’t think too much more of that … But then she broke free and was kicking away … from me …”.^[134]
43. The jury could accept that as Mr Johnson’s description of his approach to sex that night, as being in a way that Ms NEAM had already said was not acceptable, and he knew it.  The words “I was restraining her hands … but then she broke free” suggest compulsion, not acceptance.
44. Sixthly, the assertion put to Ms NEAM was that she had fabricated the evidence of rough sex for the purposes of the trial.^[135]  Yet she had said that from the start of her dealings with the police and particularised examples of tweaking the nipples very hard, biting her lips and scratching.  Mr Johnson accepted that he had tweaked the nipples to the point they were sore and she complained, and that he had bitten her.  However, he seemed to dispute that his approach to sex was rough, saying that no-one had said it before: “I’ve never been aware that what I do was … rough on anybody”,^[136] and “I’d never been made aware before that what I do was rough play.  So I didn’t know any different”.^[137]
45. As for Ms NEAM’s complaints he said that “it was really only … on the eighteenth that I was really made aware that that was too rough for her”, “I’d never been asked to stop doing what I was doing, until Tuesday night”.^[138]  That was contradicted by this: “she said that I was sometimes a bit rough … with that ... and hurting her nipples … she was saying that, she would end up with sore breast”, but “never at any stage did she say to stop … but just saying that it used to cause her sore nipples”.^[139]  And: “yes the tweaking of the nipples sometimes did get a bit hard on her…  I didn’t realise at the time that I was really hurting her with that.  She had spoken about sore nipples.  But I just thought maybe that was because … neither of us had had … a sex life for a long time prior to this”.^[140]
46. Seventhly, the jury’s rejection of the proposition that Mr Johnson held a mistaken belief sufficient to satisfy s 24 of the Criminal Code, was made easier by responses given by Mr Johnson in the police interview.  Specifically his response that “at no stage did she give any indication that it was ungratifying for her … yes it was evolving into probably firmer sex for myself”,^[141] but she did not say to stop or that he was hurting her.^[142]  Given that the unquestioned circumstance was that the sexual intercourse left Ms NEAM with a labial graze, and tenderness under the breast, and Mr Johnson’s acceptance that it hurt her, the jury could well conclude that the pain would have made her protest as she said she did, and that his response was self-serving or indicative of a form of wilful blindness to her calls to stop.
47. Having undertaken a review of all the evidence, I am unpersuaded that the verdict was unsafe or unsatisfactory, unreasonable or unsupported.  I have concluded that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that Mr Johnson did not have a reasonable and honest but mistaken belief that there was consent, and that he was guilty of rape.
48. This ground of appeal fails.

Conduct of the trial

49. The contention on this ground is that there were serious deficiencies in the way in which counsel for Mr Johnson conducted the trial, such that a miscarriage of justice occurred.^[143]  The complaints were directed at the cross-examination of Ms NEAM, saying that it was a “lengthy, ill-prepared, misconceived and counter-productive shambles”.^[144]
50. Examples were given such as: she was cross-examined aggressively, at great length on matters of marginal relevance; preposterous motives for false complaint were put; there was an inability to confine the cross-examination to relevant matters, leading to interruptions, the jury witnessing legal argument and the trial judge’s admonishment of counsel.^[145]  Further, some of the cross-examination was calculated to humiliate so that it likely garnered sympathy for Ms NEAM, and antipathy towards counsel and Mr Johnson.^[146]
51. The Crown concedes that the cross-examination was, at times, argumentative, repetitive, prolix, it resulted in Ms NEAM becoming confused, and counsel had demonstrated difficulty in confining it to what was relevant.  It was accepted that it “achieved a standard far less than that of a textbook example of the art”.^[147]
52. The High Court has said that the relevant question is whether there has been a substantial miscarriage of justice, or, to put it differently, whether the accused lost a chance of acquittal that was fairly open.^[148]  Thus in TKWJ it was said:

“[25]Where decisions taken by counsel contribute to a defect or irregularity in the trial, the tendency is not to inquire into counsel’s conduct, as such, but, rather, to inquire whether there has been a miscarriage of justice, or, if the proviso to the criminal appeal provisions is engaged, whether “no substantial miscarriage of justice has actually occurred”.  In that exercise, the question whether the course taken by counsel is explicable on a basis that has or could have resulted in a forensic advantage is a relevant, but not necessarily a decisive, consideration.

[26]The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question ‘deprived the accused of a chance of acquittal that was fairly open’.  The word ‘fairly’ should not be overlooked.  A decision to take or refrain from taking a particular course which is explicable on basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open.”^[149]

53. And

“[79]The critical issue in an appeal like the present is not whether counsel erred in some way but whether a miscarriage of justice has occurred.  However, ‘whether counsel has been negligent or otherwise remiss ... remains relevant as an intermediate or subsidiary issue’.  That is because the issue of miscarriage of justice in such cases ordinarily subsumes two issues.  First, did counsel’s conduct result in a material irregularity in the trial?  Secondly, is there a significant possibility that the irregularity affected the outcome?  Whether a material irregularity occurred must be considered in light of the wide discretion that counsel has to conduct the trial as he or she thinks best and the fact that ordinarily the client is bound by the decisions of counsel.  Accordingly, ‘it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence’.  The appellant must show that the failing or error of counsel was a material irregularity and that there is a significant possibility that it affected the outcome of the trial.”^[150]

54. That approach was adopted by Hayne J in Ali v The Queen:^[151]

“[18]As McHugh J pointed out in TKWJ v The Queen, ‘[t]he critical issue in an appeal like the present is not whether counsel erred in some way but whether a miscarriage of justice has occurred’.  The conduct of counsel remains relevant as an intermediate or subsidiary issue because the issue of miscarriage of justice in a case such as the present requires consideration of the two questions which McHugh J identified in TKWJ.  Did counsel’s conduct result in a material irregularity in the trial?  Is there a significant possibility that the irregularity affected the outcome?  But the ultimate question is whether there has been a miscarriage of justice.”

55. Some years after TKWJ and Ali the High Court restated that miscarriage of justice is the true question, in Nudd:^[152]

“[24]As four members of this Court explained in TKWJ v The Queen, describing trial counsel’s conduct of a trial as ‘incompetent’ (with or without some emphatic term like ‘flagrantly’) must not be permitted to distract attention from the question presented by the relevant criminal appeal statute, here s 668E of the Criminal Code (Qld).  ‘Miscarriage of justice’, as a ground on which a court of appeal is required by the common form of criminal appeal statute to allow an appeal against conviction, may encompass any of a very wide variety of departures from the proper conduct of a trial.  Alleging that trial counsel was incompetent does not reveal what is said to be the miscarriage of justice.  That requires consideration of what did or did not occur at the trial, of whether there was a material irregularity in the trial, and whether there was a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial.

[25]Pointing to the fact that trial counsel did not take proper instructions from the accused, did not properly understand the statutory provisions under which the accused was charged, or had not read the cases that construed those statutory provisions, would reveal that counsel was incompetent.  Showing all three of these errors would reveal very serious incompetence.  But an appeal against conviction must ultimately focus upon the trial and conviction of the accused person not the professional standards of the accused’s counsel.  Was what happened, or did not happen, at trial a miscarriage of justice?”

Context for the cross-examination of Ms NEAM

56. The charge was one of rape.  There was no doubt that sexual intercourse had occurred.  Therefore the element of carnal knowledge was satisfied.  The real issues that occupied the jury’s attention were: (i) whether the intercourse occurred without Ms NEAM’s consent; and (ii) could the jury be satisfied beyond reasonable doubt that Mr Johnson did not hold an honest and reasonable belief that she did consent.
57. As to the first point the case was never that there was no consent to the sex when it started.  The case advanced was that at some point, at the earliest when she put her arms around his neck, consent was withdrawn.  As the trial judge put it to the jury: “it’s a question for you to decide … firstly, to determine whether Ms NEAM did withdraw her consent and then at what stage that occurred”.^[153]  That time had to be before she pushed or kicked him off because there was no suggestion of continued intercourse after that moment.
58. So the issue was whether the jury could be satisfied beyond reasonable doubt that Ms NEAM had withdrawn consent at a point before she kicked Mr Johnson off.  Whilst there was a deal of evidence to look at, ultimately the resolution to that question turned upon the events at the time of the sexual intercourse, and that turned largely upon acceptance or rejection of Ms NEAM’s evidence.
59. As to the second point, if the jury reached the stage of being satisfied to the requisite degree that intercourse continued beyond the withdrawal of consent, then they had to consider whether the defence of honest and reasonable belief that she was consenting, had been excluded.  That required the jury to be persuaded beyond reasonable doubt of one of two things: either (a), that Mr Johnson did not honestly believe she was consenting; or (b), if he held that belief, it was not reasonable in the circumstances.
60. The resolution to the alternative questions turned largely upon the events at the time of the sexual intercourse, and therefore largely upon acceptance or rejection of Ms NEAM’s evidence, but also on the evidence as to matters before that night.  For example, to the extent that the sexual intercourse on 18 September involved “rough sex” then evidence of Ms NEAM’s prior expressions of dislike for that might be relevant, as would the evidence of biting, tweaking and scratching, and her response to that.  Likewise, regard might be had to Mr Johnson’s responses to her complaints about such matters.  In any event, Ms NEAM’s evidence loomed large in consideration of those matters.
61. As it was put to the jury: “…even if you are satisfied beyond reasonable doubt that Ms NEAM was not consenting, you must consider did Mr Johnson, in the circumstances, honestly and reasonably believe that she was consenting until the moment that she kicked him off her?  A mere mistake is not enough.  A mistaken belief in consent must have been both honest and reasonable.”^[154]
62. However, whilst the questions did turn to large degree on acceptance or rejection of Ms NEAM’s evidence, there were aspects of the evidence that made it a strong case for finding lack of consent, or lack of a reasonable basis for a mistaken belief as to consent.
63. First, the medical evidence of the labial graze supported Ms NEAM’s evidence in two respects, that she was not aroused and the force of the sexual act.
64. Secondly, there was evidence of preliminary complaint, to her daughter FJSM.  The text messages lent weight to the conclusion that FJSM did go over and a conversation occurred along the lines that each said in evidence.
65. Thirdly, the responses by Mr Johnson in the pretext call could have been accepted as admissions to rape: “I think I was concerned that I felt I was having to perform more because you weren’t getting into it”, and answering “Yeah” in response to the statement “I wanted you to stop and you didn’t stop”.
66. Fourthly, Mr Johnson’s interview with the police contained statements that supported Ms NEAM’s account of the events:

1. on the night “she did say she felt grazed inside and sore, spoke of a sore rib”; she had “previously said that she doesn’t get into the heavy sex”, and then the events on the night of 18 September “just evolved into being … fairly full-on, heavy session”;
2. “it was really only … on the eighteenth that I was really made aware that that was too rough for her”;
3. he agreed that he had tweaked her nipples from time to time and in a way that made them sore, which she complained about;
4. he agreed that he had bitten her before; and
5. he agreed that on 18 September he had said that “I’m going to get all the way up inside you”, “I’m a naughty boy”, and “you want me to fuck you, don’t you, tell me you want me to fuck you”.^[155]

67. Fifthly, there were statements by him in his police interview from which the jury could conclude that Mr Johnson was prone to hearing what he wanted to hear, and therefore any belief he had as to consent was not a reasonable belief:

1. “right from the start, even before we met in person, she … said that she wasn’t into rough play”, which he took to mean that she was not interested in “kinky sex, tying up, or any of that sort of thing”, notwithstanding that she then complained about the rough sex in the form of biting and tweaking the nipples till they were sore;
2. “She had spoken about sore nipples.  But I just thought maybe that was because … neither of us had had … a sex life for a long time prior to this”;
3. as to the tweaking nipples, biting and scratching, “I don’t recall … where she said stop, or anything like that”, “what I do recall is not to be so hard perhaps”, and “what I was hearing, was that it wasn’t saying stop, it was to take it easier perhaps”;
4. “Because with her saying no, no, no, I … can’t recall that having actually being said in that … put together like that”; and
5. “there was no stage that I thought it meant completely stop what I was doing”.

68. Sixthly, the police interview with Mr Johnson contained what might be accepted as admissions that Ms NEAM did say to stop:

1. by reference to the pretext call, “Because with her saying no, no, no, I … can’t recall that having actually being said in that … put together like that”; and
2. “there was no stage that I thought it meant completely stop what I was doing”.^[156]

69. It is against those matters that the conduct of the cross-examination must be assessed to see if it denied Mr Johnson a fair trial or a fair chance of acquittal.
70. The cross-examination was conducted over two days but did not take all of that time.  Examination in chief started at 4.10 pm on 7 April, and concluded at 11.58 am on 8 April.  There was a break and cross-examination started at 12.27 pm.  The transcript reveals that the cross-examination followed this sequence:^[157]

• before lunch on 8 April – 23 minutes;
• after lunch, 8 April – one hour 51 minutes between 2.20 pm and 5.30 pm, with five or ten minute breaks interspersed;
• before lunch, 9 April – one hour 32 minutes between 9.19 am and 12.34 pm, with a break of one hour 38 minutes from 9.32 am to 11.08 am;
• after lunch, 9 April – two hours and one minute, between 1.37 pm and 4.35 pm, with breaks of 21, 7 and 20 minutes.

Intervention by the trial judge

71. The learned trial judge intervened in relation to the way in which counsel was conducting the trial in a number of ways, on a number of occasions.  Leaving aside some abbreviated interventions to rule on objections to questions or clarify what the question concerned or meant, they included the following in the presence of the jury:

1. when he put a prior inconsistent statement but in the wrong way;^[158]
2. when he cut off an answer;^[159] in some of these cases counsel and Ms NEAM were talking over each other, and therefore the intervention was directed at both of them;^[160]
3. when his instructing solicitor spoke to counsel while an answer was being given, causing distraction to counsel and to the jury; this was mostly aimed at the solicitor;^[161]
4. when he had put a proposition to her, such as she was lying, and notwithstanding that she had answered it, he put it again instead of making the point in address to the jury;^[162]
5. when he was making a point in the form of commentary that might be the subject of address to the jury;^[163]
6. when questions involved too many components that were better put separately;^[164]
7. when Ms NEAM had answered a question, but the question was asked again;^[165]
8. to question the relevance of a question or a line of questions (such as to Ms NEAM’s financial circumstances,^[166] what the children knew of her activities,^[167] what routes she normally used for walks,^[168] whether Mr Johnson had driven one of her sons to seek treatment,^[169] whether she told her daughter FJSM why she didn’t do certain things,^[170] whether she had masturbated Mr Johnson during sex)^[171] or where the line of questions were on collateral issues;^[172] after a lengthy exchange in the absence of the jury, when counsel explained what his intended lines of questioning were, he accepted that the trial judge should intervene if he strayed into collateral issues;^[173] questioning the relevance of some questions or lines of questions was done in the normal way, and did not involve undue criticism of counsel;^[174]
9. when an objectionable question was asked;^[175]
10. when the question asked asserted or assumed that Ms NEAM had given certain evidence when she had not;^[176]
11. when a question was asked that contravened a pre-trial ruling;^[177]
12. when Ms NEAM was simply being asked to repeat evidence from the previous day;^[178]
13. when the questioning became repetitive;^[179]
14. to clarify what the question was about;^[180]
15. to ensure a question was properly formulated;^[181] and
16. to ensure that the question would elicit productive evidence.^[182]

72. The learned trial judge also intervened to ensure Ms NEAM’s evidence ran properly, such as where she started to answer before the question was finished.^[183]
73. This aspect of the trial was characterized in the appeal submissions as a departure from the normal rule that apply to criminal trials, relying on what was said in Libke v The Queen:^[184]

“[73]Unfairness may take many forms.  Often what is unfair will constitute a departure from the ordinary rules that ensure the orderly conduct of a trial.  Those rules encompass not only the rules of evidence but also such diverse matters as when and how counsel may address the judge and the jury.  This is not to say that every departure from those rules is to be branded as causing unfairness.  But, because the rules of orderly procedure are designed to safeguard the fairness of the proceedings, what is unfair will often be a departure from those rules.”

74. Reliance was also placed on Libke,^[185] in relation to the trial judge’s reproof or criticism of counsel for Mr Johnson:

“[84]Although it is for these reasons that the complaint of miscarriage on account of the prosecutor's conduct should be rejected, it is as well to say something further about the role of the trial judge.  It would have been both possible and desirable for the trial judge, at an early stage of the prosecutor's cross-examination, to have said something requiring him to desist from making comments on the evidence that was being given.  There should have been no need to make the point at any length or to draw undue attention to it.  If, for some reason, it had become necessary to engage in some sustained reproof or extended criticism of counsel, that should have been done in the absence of the jury.  But an early intervention from the judge would have prevented any suggestion of unfairness of the kind now said to have arisen from the conduct of the prosecutor.”

75. That passage clearly envisages a staged approach.  If there was offending conduct by Counsel (there, comments on the evidence) then an early statement against it was desirable.  It is not suggested that has to be done in the absence of the jury.  However, if sustained reproof or extended criticism of counsel became necessary then that should be done in the absence of the jury.
76. In the absence of the jury the learned trial judge expressed surprise at some of counsel’s intended approaches, such as his intention to read out to Ms NEAM hundreds of text messages.^[186]  The argument over that point went on for some time in the jury’s absence, and it was made clear by the trial judge that simply reading out texts was not acceptable, but rather they had to be used to establish or debunk some particular proposition put to Ms NEAM.^[187]  The discussion got to the point where the trial judge suggested that counsel might “want to consult with a colleague about different ways that you might do it”.^[188]
77. About 15 minutes into day three counsel asked a question that ran contrary to a pre-trial rulings, concerning Ms NEAM’s subjective thoughts at times other than when the alleged rape occurred.  In the jury’s absence the learned trial judge expressed some concerns about the impact that her having to intervene might have on the jury:^[189]

“I’m also concerned, I have to say, and place this on the record, that my constantly having to correct you, Mr Henry, about the proper approach to take in dealing with these matters could create some concern in the jury about the defence case.”

78. As the debate continued (in the absence of the jury) the trial judge also expressed concern as to the lack of precision so far as paraphrasing the evidence was concerned:^[190]

“This looseness of language must stop because - and I'm counselling you most strongly about it, Mr Henry, because we have to get through this witness’s evidence.  You keep doing this in your questions that you put to her.  You make a statement which is incorrect.  You've just done it to me again, after I have corrected you on the evidence.”

79. The trial judge also questioned counsel as to an avenue he wished to pursue, to make a case of motive for false complaint (namely in order to get Mr Johnson out of her life), asking that he be precise and identify the texts that would be put to Ms NEAM:^[191]

“Well, I want you to be precise.  I’m not making your case for you.  I want you to tell me why it is relevant.  We're not just trawling through this woman’s life for no purpose.”

80. Finally the trial judge asked that both the prosecutor and Mr Johnson’s counsel confer so as to identify the texts that might be relevant to the line that counsel wished to take, and then came back to the question of the impact on the jury:^[192]

“Rulings that I should make, without constantly interrupting the flow of the cross-examination, and I should say that my concern is not just fairness for the witness, of course.  I’m concerned about constant interruptions for the jury, being in and out of the courtroom, and importantly for your client, Mr Henry, I’m really concerned that if I’m constantly correcting you on these things, it will have an impact on – or could have an impact on the jury’s view of either you or your client.  And so I want it to be very clearly understood the reason why I am approaching it in this way.”

81. A particular source of annoyance to the trial judge was the instructing solicitor’s constant habit of speaking to counsel whilst an answer was being given or the trial judge was speaking.  The matter got to the point where the trial judge said:^[193]

“HER HONOUR:  You’re doing it again, Mr Solicitor.  Stop it.  It’s slowing down the – no.  No.  You can get instructions from him.  I have no difficulty with that.  But you will pause after the witness has finished her evidence.  You need to listen carefully to what she says, because on occasions, you’ve said she’s said things that I haven’t heard and I think it’s because you’re not hearing her evidence because you’re being constantly interrupted.  Now, it’s not my normal practice to interfere in this way, but it’s been something that’s been going on throughout the trial and it doesn’t seem to stop, regardless of what I say.  Now, please, after each question has been asked, allow the witness to answer the question, listen to her evidence, then, by all means, Mr Solicitor, if there is something that you want to – it’s your job to raise that with Mr Henry and I wouldn’t stop you.

It’s only a question of when and how you do it.  And if you’re distracting Mr Henry from listening to the evidence and I’ve got to say, I don’t know if it’s affecting the jury, but your talking cuts over from me up here.  I can’t hear the witness answering.  So please respect the request that I have made of you as to how you conduct yourself in this courtroom during any witness’s testimony.  Can we start with that question again please, Mr Henry.”

82. It must be observed that the comment in the second paragraph of that passage would suggest that if it was an interruption to the ability of the judge to hear, then so it was likely to be an interruption to the jury.
83. It is true that counsel struggled at times to formulate questions in a way that was unobjectionable or did not repeat what Ms NEAM had said.  An example was when she was asked whether she told the children of the scale and scope of her “sexual escapades”.^[194]  Ms NEAM answered that she did not, as it was none of their business.  Then followed this exchange:

“But you were concerned that they would discover – now, none of your children knew this, as you’ve just said – well, you didn’t make any of them aware of it - - -?---But I – well, I mean, do you tell your children that you have sex?  I mean, is that something you discuss?

No.  No.  No.  But - - -

HER HONOUR:  Ms NEAM, just wait.  I’m hoping Mr Henry can formulate the question in a proper way if we just give him a moment to do that.  Just think carefully about what it is you want to put to this witness and then I’ll give you the opportunity to do that.

MR HENRY:  Yes.  So information about what your – and I’m – okay.  So information is disseminated on a need-to-know basis.  Obviously, your children don’t need to know – that’s correct – about what you’re up to sexually.

HER HONOUR:  Yes.  She’s already said that.  Yes.”

Characterisation of the cross-examination

84. Counsel for Mr Johnson also placed reliance on a passage in Libke, likening the cross-examination referred to in that case to the cross-examination of Ms NEAM:^[195]

“[123]In this case the questioning was conducted “without restraint and without the courtesy and consideration which a witness is entitled to expect in a Court of law”, and, as a result, it was “indefensible”.  The cross-examination was improper because it was “calculated to humiliate, belittle and break the witness”.  Its tone “was often sarcastic, personally abusive and derisive”.  It resorted to remarks "in the nature of a taunt”.  It amounted to “bullying, intimidation, personal vilification or insult”, none of which is permissible.

[124]The cross-examination not only offended these common law rules.  Many of the questions were annoying, harassing, intimidating, offensive or oppressive, contrary to s 21 of the Evidence Act 1977 (Qld).”

85. The cross-examination, it was contended, had the tendency that was identified in R v McIntyre:^[196]

“[21]However, while much of counsel’s impropriety occurred in the absence of the jury, there were many grossly inappropriate incidents in its presence.  I would not readily infer that a jury was diverted from its task by such incidents; but the nature of them and the frequency with which they occurred cannot but have been calculated – a term I use in contradistinction to ‘designed’ – to lead the jury to doubt the worth of listening to anything that defence counsel said.  There is nothing in this case which suggests that the appellant himself was, or may have been, a participant in the activities of his counsel; and, although generally a party is bound by the way in which counsel conducts a case, the circumstances here are such as to constitute a miscarriage of justice see R v Birks (1990) 19 NSWLR 677 at 684-685.”

86. McIntyre was a case where the uncontrolled and offensive behaviour was towards the judge and prosecutor.  That included saying (in the absence of the jury) that: the judge was “totally prejudiced and biased” against his client; the judge and the prosecutor were “anxious for a conviction”; and the judge had the “gall and audacity” to ask for a doctor’s certificate in relation to counsel being unavailable, and that request was “astounding and obnoxious”.
87. Then in the presence of the jury; that a witness was “lying through her teeth” and making up a story “on the spur of the moment to justify herself”; that the judge was “anxious to get a conviction”, and had been asked by counsel to stand down because of his “obvious prejudice”; “apparently we are after a conviction of my client no matter what”; that the judge prejudiced counsel by asking the jury to go out “every time I make an objection”; and accusing the police force of “absolutely gross misrepresentation of facts” and adopting tactics to “manufacture evidence”.
88. The conduct in McIntyre was far removed from that in this case.
89. Particular reliance was placed on: (i) the learned trial judge being “driven to the limits of her patience” and adjourning to regain her composure; (ii) the trial judge questioning Ms NEAM on inconsistencies in her evidence; and (iii) the jury’s note.

Discussion

Trial judge’s expression of frustration and questioning of Ms NEAM

90. Late in the afternoon on the third day the trial judge, in the presence of the jury, dealt with a question asked by counsel, about Ms NEAM hanging off Mr Johnson’s neck and whether a previous statement concerning inflexibility of Ms NEAM’s hips was inconsistent with her evidence at the trial.  Having pointed out that counsel had “been over this ground”, her Honour questioned whether there was any inconsistency, and said: “I’m really losing my patience, Mr Henry.  … I’m going to have to adjourn shortly to control myself.”^[197]  Then followed this exchange:^[198]

“MR HENRY:  Well, she just said that she doesn’t have inflexible hips.

HER HONOUR:  That doesn’t say she has.

MR HENRY:  Okay.

WITNESS:  I just said I’m not that flexible.  I didn’t say what part.

HER HONOUR:  It’s all right, Ms NEAM.  You don’t need to respond to it.  Mr Henry, move on to your next area of cross-examination or I am going to shut it down.

MR HENRY:  Okay.

So I’m going to put to you that when you were hanging off Glenn’s neck that you are actually consenting - - -

HER HONOUR:  All right.  That’s it.  Ladies and gentlemen, afternoon tea adjournment.

Ms NEAM, outside for a moment.  I’ll be as brief as I can.”

91. After the jury had left the trial judge then said that she was going to stand down “because I don’t think I’m able to control myself any more”.  Counsel was asked “What don’t you understand about the rulings that I’ve given you and the directions I’ve given you?”  Her Honour said she would adjourn and that “I’ll be outside as long as it takes for me to calm down”.
92. When the trial resumed, but still in the absence of the jury, the trial judge questioned how much more time was needed to conclude the cross-examination.  The exchange with counsel ended with her Honour ruling that he would be allocated a further 20 minutes to finish.^[199]
93. Before the jury came back in the trial judge also asked the prosecutor to assist, once cross-examination had finished, by identifying “any inconsistencies between this witness’ evidence … and what she has said either to the police or during committal”.  Her Honour explained that was so that she might “ask her questions about inconsistencies … to ensure fairness to the defendant”.^[200]
94. The remainder of the cross-examination was largely uninterrupted, except for a few occasions where the question was clarified, or it was pointed out that some questions had been asked before.
95. Once cross-examination concluded the prosecutor drew the trial judge’s attention to various inconsistencies.  Some were identified as having been adequately covered already.  In some cases her Honour took the view that there may be good forensic reasons why the topic was not touched on.^[201]
96. During the course of that exercise the trial judge explained her intended process to counsel for Mr Johnson: “I’m just, as you understand, Mr Henry, as a matter of fairness to your client, ensuring that any potential inconsistencies in the witness’s evidence are being drawn out.”^[202]  Neither the prosecutor nor counsel for Mr Johnson objected to that course.  The trial judge then explained to the jury:^[203]

“All right.  Thank you for your assistance with that, Mr Kinsella.  Just to explain to you, Ms NEAM, and ladies and gentlemen, I just wanted to ensure that if there was anything that had been said by Ms NEAM that was inconsistent with her evidence before you – if she’d said anything inconsistent on previous occasion that was put to her – and I’ll explain to her why inconsistencies – I’m sure it’s obvious to you – why inconsistencies might be relevant.  I’ll explain that further in my directions.”

97. There were only two topics dealt with, the first being that she had previously said she did not use the word “rape” when she spoke to FJSM, and the second being her awareness of the threatening phone messages that FJSM sent to Mr Johnson.  When they concluded the trial judge said “That’s all I wanted to do, just by way of dealing with the inconsistencies, in fairness to the defendant”.^[204]
98. In my view there was no prejudice caused to Mr Johnson by the course taken by the learned trial judge.  What was done was caused by the trial counsel’s failure to properly address the inconsistencies in the evidence given by Ms NEAM on a prior occasion when compared to her evidence at trial.  In my view one clear explanation for the trial judge’s approach is that her Honour wanted to ensure that there was no chance that inconsistencies might be raised in addresses to the jury, when they hadn’t been dealt with.  One course would have been to send the jury out and raise that issue with Mr Johnson’s counsel, leaving it to him to decide what he intended to do.  However, the course adopted did not result in relevant unfairness to Mr Johnson’s interests.
99. The questioning is far removed from the questioning which occurred in R v Esposito^[205] or R v Brdarovski.^[206]  Rather it came with what Wood CJ at CL described as the correct bounds in Esposito:^[207]

“... There is nothing wrong with questions designed to clear up answers that may be equivocal or uncertain, or, within reason, to identify matters that may be of concern to himself.  However, once the judge resorts to extensive questioning, particularly of the kind that amounts to cross-examination in a criminal trial before a jury, then he is treading on thin ice.  The thinness of that ice will depend upon the identity of the witness being examined (here the person on trial), and on whether the questions appear to be directed towards elucidating an area of evidence that has been overlooked or left in an uncertain or equivocal state, or directed towards establishing a point that is favourable or adverse to the interests of one or other of the parties.”

100. Further, it fell outside what Nettle JA described as what was impermissible in Brdarovski:^[208]

“Sometimes, it is a nice question whether a trial judge should ask any questions of a witness and if so how far they should go.  At such points views are liable to differ.  But, whatever differences in views there may be at the margin, there should be no doubts about the basics.  It is not part of the functions of a trial judge to endeavour to fill gaps in a Crown case; nor to ask questions of an accused or any other witness in order to raise an issue which the Crown and the accused have left alone; nor to ask leading questions of an accused or any other witness in an endeavour to throw doubt upon the witness’s credit, particularly if the witness is the accused.  With respect, I consider that the judge’s questioning of the applicant in this case crossed that line.”

The jury’s note

101. In the afternoon of the third day of the trial, counsel had been asking a series of questions about the nature of the sexual activity, the rough sex, what it involved, and whether she had told him to absolutely stop tweaking her nipples.  At about 3.00 pm counsel asked Ms NEAM whether she had masturbated Mr Johnson during sex.^[209]  The trial judge sent the jury out and questioned the relevance of that line of questioning, saying: “You are simply not conducting a proper cross-examination.  This is not an opportunity to rake over every detail of every act that the two people may have engaged in.”
102. Shortly after 3.01 pm when the jury was sent out, a note from the jury was delivered to the trial judge.  The note^[210] states: “If the witness has already accepted/rejected a claim made by defence council (sic), how many times is it reasonable to ask again?  Constant repition^[211] (sic) is distracting from relevant facts.  The jury is becoming increasingly challenged to understand relevance.”
103. The trial judge regarded it as a comment by the jury, not a question that she had to answer.^[212]
104. The following day, and before the evidence closed, the trial judge returned to that note, saying:^[213]

“It occurs to me that I did not respond to the note that you provided me with yesterday.  And I think it’s appropriate that I say something to you.  Firstly, I should say that when I received that note I did provide it to both counsel so that they were aware also.

And I read in that note some note of frustration about the fact that the cross-examination was taking some time.  Now, I just want to say something to you about the role of defence and it’s important that you understand this, I believe.  The defence counsel has got a really difficult job, well, in any case, but certainly in a case involving a sexual offence within a relationship.  It’s a very difficult matter.  The evidence had been led by the Crown that the defence had to explore.  Sometimes when questioning occurs during a cross-examination it’s not immediately obvious to you why that might be relevant, and it might seem like the question is repetitive but it may not – it might be trying to move on to a different topic.

It can be difficult to asses (sic) that at the time.  And of course my job is to control what happens within the courtroom from both counsel to ensure that it complies with the rules of evidence.  And that was what I did yesterday.  I just – when the – all of the evidence has been heard and when you’ve heard the address from defence counsel, some – some of the questions that you might have had in your mind about why he was asking a particular question might well be answered by an argument he puts to you.  So I just ask you to bear that in mind, not just in assessing questions that Mr Henry might ask, but also questions that Mr Kinsella might ask.  They both have very weighty responsibilities and difficult jobs that they’re performing and they do so honestly and professionally and with – I’m grateful for their cooperation in the trial proceeding as best it can.”

105. In my view the note demonstrates that the jury were adhering to their proper role and not pursuing a course that was infected by sympathies or antipathies caused by the cross-examination.  Plainly they were trying to concentrate on what was relevant, though observing that constant repetition was distracting from relevant facts.  The second sentence of the note might be said to betray a level of frustration on the jury’s part that the cross-examination was following irrelevant lines of inquiry, but it does not, in my view, reveal that the trial was departing from the ordinary rules that apply.

Ms NEAM’s intervention in the cross-examination

106. There were many occasions where Ms NEAM’s responses suggest that the cross-examination would not necessarily have led to the jury developing sympathy for her or antipathy towards Mr Johnson because of the way the cross-examination was conducted.  In summary, she was revealed as a witness who gave as good as she got, notwithstanding that it must have been distressing for her to give evidence.
107. Ms NEAM found ways to make some voluntary statements about the effect of counsel’s questions on her:

1. “As I said, Mr Henry, you really unnerve me and you did this to me the last time and you had me so confused I didn’t know which way I was facing…”;^[214]
2. “You had me … frightened like you’ve got me now … and you’re tripping me up like you did before.”^[215]
3. “Mr Henry, I’ve answered you three or four times now.  I was terribly confused.  I – you’re actually making me more confused.”^[216] and
4. “You know, if you’re trying to humiliate me, you’re doing a good job.”^[217]

108. There were numerous times when Ms NEAM went beyond a simple responsive answer and, in effect, went on the offensive in justifying herself or attacking counsel for Mr Johnson, and at times talking over the trial judge.  Some involved the trial judge having, in effect, to admonish Ms NEAM for her conduct.  Examples are:^[218]

1. when asked about the difference between evidence she gave at the committal and that at trial, concerning the sequence of events on particular days:^[219]

“I’m not sitting here for the good of my health and I’m not sitting here because I’m enjoying this.  This is actually really humiliating and it’s really embarrassing and I wouldn’t put myself through this unless I absolutely had to.”

2. when she was asked about a particular text and whether she had sent it:^[220]

“There’s a good reason why - - -?---There’s a good reason why I’ve obviously replied the way I have.

Excuse me?---It’s very - - -

HER HONOUR:  Are you asking a question, Mr Henry?  What’s the question?

MR HENRY:  What I did, your Honour, was I - - -

WITNESS:  Well, I’m saying yes.  I agree.

MR HENRY:  Excuse me.  I’m sorry.  I’m answering a question from her Honour.  I’m sorry, your Honour.”

3. only a short time later in respect of the same issue:^[221]

“HER HONOUR:  No.  No.  Mr Kinsella is entitled to call for the document that you’re questioning the witness about.

WITNESS:  We had a lot of messages, Mr Henry.

HER HONOUR:  Ms NEAM - - -?---This could go on for days.

Ms NEAM, just wait?---Sorry.”

4. when asked about text communications for a particular day:^[222]

“Do you accept that, on the 28th, you communicated to my client that you loved him again?---There are so many of these.  There’s pages and pages and pages.  Are we going to go through every page to prove a point, Mr Henry?  If it’s there, yes, I said it.  I’m sorry.  I’m going to have to take a break.  I’m just going to have to leave the room.”

5. when asked about what position was adopted in a particular sexual encounter:^[223]

“Missionary.  So you can’t exclude that you were involved in other sexual positions?---I don’t diarise these things, Mr Henry.  I’m sure you don’t either.  I can’t remember.  It’s a long time ago.”

6. when asked about feeling “hot-housed”:^[224]

“Okay.  And this was after you had expressed that you were feeling hot-housed?---No.  I think I started to express that afterwards, I'm not sure.  I'm not sure of the chronological order.  I know that I was starting to feel hot-housed.  Why doesn’t this young gentleman just ask me the questions.”

7. when asked about the possible purchase of a house:^[225]

“Now, on 15 September – well, around this period your brother was intending to purchase you a house, wasn’t he?

HER HONOUR:  Struggling with relevance.

MR HENRY:  Your Honour, I'm happy to discuss it in the absence of the jury.

HER HONOUR:  I think I've already made a ruling about financial circumstances.

MR HENRY:  It’s got nothing to do with the financial circumstances, your Honour, it’s – I’d rather discuss it in the absence of the witness.

WITNESS:  I think it actually has.  I think I know where you're going with that.”

8. when asked about what routes she took when going for a walk:^[226]

“Can you just take me through each of the routes, please?--- Street by street?

Yes, please.

HER HONOUR:  Is this relevant to an issue in contest, Mr Henry?

WITNESS:  Seriously?

MR HENRY:  It should become that way, your Honour.  In any event, if your – I - - -

HER HONOUR:  I understand the contest about when the walk occurred.  Is it relevant to that?  I’m - - -

MR HENRY:  Your Honour, I’ll revisit it tomorrow.  That’s fine.

WITNESS:  Well, that’ll give me time to write the routes out for you.

MR HENRY:  By all means - - -

HER HONOUR:  No, Ms NEAM.  Go on, Mr Henry.  Ask your questions.”

9. when asked about the fact that she said she thought she was in love:^[227]

“MR HENRY:  What does it means (sic) that you thought you were in love with him?---Well, they were very early days, Mr Henry, and those early days are very heady and you get a lot of different feelings.  I'm sure that you've been there yourself on occasion.”

10. when asked if she was concerned her children may find out about the sexual relations:^[228]

“But you were concerned that they would discover – now, none of your children knew this, as you’ve just said – well, you didn’t make any of them aware of it - - -?---But I – well, I mean, do you tell your children that you have sex?  I mean, is that something you discuss?”

11. when asked about Mr Johnson’s  behaviour when leaving:^[229]

“HER HONOUR:  Do you – well, Ms NEAM, do you think that the defendant was behaving like a gentleman at the time he said to you – asked you if you wanted him to leave?---I think he was behaving like a guilty person who realised they had to - - -

MR HENRY:  Well, no?--- - - - get out of the situation.

You can’t give evidence about - - -

HER HONOUR:  Well, it was a question – it was a proposition - - -

MR HENRY:  Yes, certainly.

HER HONOUR: - - - that you - - -

WITNESS: You asked me, and I’m telling you.

HER HONOUR:  Ms NEAM, please, when I am engaging - - -?---Sorry.

- - - Mr Henry I need him to be able to listen to me as well?---Sorry.

I understand this is – it’s difficult for everyone.  Yes, Mr Henry.”

12. shortly after that when asked a question about her evidence:^[230]

“Okay.  All right.  So everything you told the jury, you told FJSM?---Yes.

HER HONOUR:  Are you saying everything that she’s told the jury in her evidence today or everything about the incident?

MR HENRY:  Everything in her evidence that has gone to the jury; I’m just asking if she’s told – she responded yes, so - - -

HER HONOUR:  Well, I think there’s been evidence - - -

WITNESS:  Well, it’s a bit open-ended - - -

HER HONOUR:  Ms NEAM.  There’s been evidence about a lot of matters.  Do you mean everything that she – all of the details she’s given in court about the actual rape allegation?”

13. when being asked what she said to her daughter FJSM about the events:^[231]

“Did you say to FJSM that you – okay.  Did you explain to FJSM how a large woman like yourself would be unable to kick off a smaller man?---Mr Henry, you didn’t know me back then.  I was 15 kilos lighter.  I was actually marginally lighter than the little man you’re referring to.  So, you know, forgive me for having put on a great deal of weight.  I am a large woman now, but I wasn’t then.”

14. when counsel sought to ask questions about the extent of information given to FJSM and whether proper enquiries had been made:^[232]

“MR HENRY:  Okay.  There are special arrangements in place for the conduct of this matter.  It’s the case that this person has threatened my client with FJSM, and that’s established in the evidence as - - -

HER HONOUR:  Well, that’s not accepted.  That’s something that you put to her.

MR HENRY:  I think it was one of the - - -

WITNESS:  It came from me and it was a throwaway line.  It was a - - -

HER HONOUR:  It was put to her.  It was put to her - - -

WITNESS: - - - joke.

HER HONOUR: - - - and she rejected your proposition that there was any threat and explained the reference to the bigwig lawyer or whatever it was.

WITNESS:  I was being silly, you know.  I was just - - -

HER HONOUR:  Ms NEAM, please?---Sorry.”

15. when being cross-examined as to whether she used her daughter’s position with the DPP as a form of controlling threat:^[233]

“You were effectively saying, “Yes.  I’ll have sex with you, but I’m in control.  I’m not in any danger, because my daughter will have you thrown in jail”?---No.  That’s – that’s ridiculous.  That’s – that’s absolutely absurd and absolutely not on.

That’s what you were doing?---No.  I was not doing that.

Okay?---You’re trying to intimidate me, Mr Henry.  It’s not working.  I did not do that and I did not say that.”

and

“You were saying, “Hey, don’t mess with me.  I’m always with charge”?--No.  That’s not true.

Effectively, that’s what you were saying?---That’s not true at all.

HER HONOUR: I think you’ve now put this - - -

WITNESS: Wow – every way you can do it.

HER HONOUR: - - - the substance of that – Ms NEAM.  I think you’ve put the substance of that allegation on a number of occasions and it’s been refused.  I’m not going to allow you just to keep re-putting it in a different form.”

16. when being asked about the number of times they had sex:^[234]

“But you – sorry.  On your evidence, you did this repeatedly though.  You just kept having sex with him.

HER HONOUR:  Well look, I think you’ve now gone over this territory - - -

WITNESS:  Makes me sound like a machine.

HER HONOUR:  Ms NEAM.  I think you’ve gone over that territory.  You’ve put that proposition to her fairly.  She’s responded to it.  I don’t think you’re putting anything new, Mr Henry.”

17. when one motive to lie about what happened, that it was to validate FJSM’s decision that it was rape, was put to her:^[235]

“HER HONOUR:  You’ve put that to her, about FJSM.

MR HENRY:  Well, I’m specifically talking about this propensity evidence, your Honour.  My - - -

WITNESS:  I put it to you if it was my other daughter, FC, we wouldn’t be having this argument.

HER HONOUR:  No.  Ms NEAM, Ms NEAM, it’s not – the process of a criminal trial, unfortunately, for witnesses, is that they answer questions, not ask them.  I appreciate the situation you’re in.  Mr Henry, you’ve already put that proposition about FJSM to this witness.  Is there any other motive that you want to put to her before you finish your cross-examination?”

18. when it was put to her that the sex she had with Mr Johnson was the sort of sex that one would expect when hooking up with someone on the internet:^[236]

“MR HENRY:  All right.  It wasn’t rough sex at all.  It was exactly the sort of sex anyone would expect when hooking up with someone on the internet in the context of a - - -

HER HONOUR:  Mr Henry, you can make an argument to the jury - - -

WITNESS: That’s just nasty.

HER HONOUR:  No, Ms NEAM.  You can make an argument to the jury about the evidence that they have heard.  If you have a proper question you want to ask this witness about the relationship or about her motive and about her complaint, please do so, otherwise we’re going to have to draw this to a close.”

19. when she was being asked precisely how they were positioned during the sexual intercourse:^[237]

“And your back was flat on the bed?---Yes.

Okay.  All right?---Would you like to lie down and I’ll show you how it was done?

Look.  Wish we could have it, but no.  I’d rather not do that if it’s all the same.  But – in any event, so you’re lying down – I’ll just draw you a representation so I can try to understand this better myself.”

20. when she was asked about the point when she kicked him off:^[238]

“Then it was like he changed position and he pushed my leg – my leg down, right.  And he’s still penetrating me, but he’s pushed my leg down, and I said something like stop, stop, you’re hurting me.  I know there were three occasions where I gave him an opportunity to stop.  And when my leg went down, it availed the oxygen to get back into my lungs.  So with that, it gave me the strength then to sort of rock as far – hard enough to roll him off to my left.

And your knees at this point- - -?--- - - - and follow through with my foot.

Your knees were up - - -

HER HONOUR:  No, no.  She’s already said one leg was down, one leg was up.

WITNESS:  I’ve got one down by now.  Catch up.”

and

“Okay.  All right.  So – and then you were able to pull up and that increased the amount of air that was in your lungs, and it was only at that opportunity that you were able to express to my client, softly, that you weren’t interested in the intercourse?---I’ve already said that.  I’ve already said that when I pulled by arms around his neck it gave me the opportunity to get some air into my lungs and tell him to stop.  But it was very soft, because I didn’t have that much air in my lungs.  You want to go home and try this position out.  You’ll work it out for yourself.”

109. In my view the conduct referred to above must be taken into account when assessing the question whether the cross-examination might have had the effect of garnering sympathy for Ms NEAM at the expense of Mr Johnson.  The voluntary comments and assertions were likely, in my view, to significantly temper any such feelings on the part of the jury.

The cross-examination – miscarriage of justice?

110. There is no doubt that trial counsel for Mr Johnson at times experienced difficulty with repetitive questions, formulating unobjectionable questions, irrelevant questions and trying to establish one of the motives he was putting forward for what was said to be a false allegation of rape.  Those motives were:

1. that Ms NEAM had let Mr Johnson become very quickly enmeshed in her children’s lives, and she had lied to NMAM (and possibly the others) about how long she had known him, and did not want that exposed;^[239] lying about being raped was the easiest way to get Mr Johnson out of her life and the easiest way to explain to her family what had happened;^[240]
2. that Ms NEAM lost control of the situation when she discovered that Mr Johnson had told NMAM that he had hurt her mother, and FJSM came over and decided that her mother had been raped;^[241]
3. that she was lying about what happened because it was necessary in order to validate FJSM’s massively ill-informed decision that her mother had been raped;^[242]
4. that she was protecting FJSM because there may have been professional consequences for FJSM if Ms NEAM laid a complaint which culminated in an unsuccessful prosecution.^[243]

111. In respect of the question of motive, the learned trial judge gave directions to the jury in these terms:^[244]

“I want to give you a legal direction about how you much (sic) approach it, where there has been cross-examination about a potential motive to make a false complaint.  If you reject the motive, or any of those motives, to lie that Mr Henry has put forward on behalf of Mr Johnson, this does not necessarily mean that Ms NEAM is telling the truth.  You just set it aside.  All right.  The burden – it’s not a case of you saying, ‘Well, we reject a motive to lie; therefore, she must be telling the truth.’  You just set it aside.  It’s for the Prosecution to satisfy you that Ms NEAM is telling the truth, and it’s the Prosecutor’s burden to satisfy you beyond reasonable doubt of Mr Johnson’s guilt.”

112. It was urged that the cross-examination was aggressively directed, at great length, at matters of marginal relevance.^[245]  The examples refer to various attempts: (a) to establish that Ms NEAM was not to be believed because she was lying or unreliable;^[246] or (b) to establish the motives being put forward.^[247]  In some cases the examples are matters that were irrelevant and ruled to be so.^[248]  I do not consider that the attempts to convince the jury that Ms NEAM was lying or unreliable, tedious though they may have been, would have had a significant impact on the jury’s fair minded consideration of the evidence.  Further, whilst the suggested motives were described on appeal as “preposterous”, I am not convinced that pursuit of them resulted in Mr Johnson being denied a fair trial.  In my view, the jury were more likely to see them for what they were, inept attempts to attack the Crown’s case.
113. Similarly, it was urged that the inability of trial counsel to focus on the relevant rather than irrelevant, and proper questions, resulted in numerous times when the jury had to be sent out, and others when the jury witnessed legal argument on the questions, and admonishment of counsel.^[249]  The examples given concerned: (a) irrelevant questions and determination of the proper basis on which counsel could proceed;^[250] (b) determination whether documents come within the bounds of a ruling;^[251] (c) rulings that repetition of previous evidence was not allowed;^[252] (d) rulings against repetitive questions;^[253] (e) questions that involved commentary appropriate for address to the jury rather than cross-examination;^[254] (f) identification of the lies that related to the suggested motive;^[255] and (g) confining questions within proper scope.^[256]
114. It is true to say that many of those instances involved the resolution of the issue while the jury were present, and others involved the jury being sent out.  However, I do not accept that there was such a level of admonishment in that process, or in the direct words of the judge, that it had a serious risk of garnering sympathy for Ms NEAM or antipathy towards Mr Johnson or his counsel.  Of course one must bear in mind that the transcript does not give the tone or manner in which the trial judge’s words were delivered.  Having read the transcript carefully it is my view that the jury would more likely have seen trial counsel as simply making inept attempts to advance his case.  The attraction to mixing commentary with a question, or in the guise of a question, is a good example where the jury were unlikely to think anything other than this was a junior and inexperienced counsel trying to do his best for his client, however ham-fisted it was.
115. It was urged that some of the cross-examination “could only be regarded as calculated to humiliate the complainant”, and therefore likely to garner sympathy for Ms NEAM and antipathy towards Mr Johnson.^[257] The examples given concerned questions: (a) about numerous text messages proposing various sexual acts;^[258] (b) about the type of sexual intercourse in which they engaged and that it was from the first day they met;^[259] (c) on impermissible matters such as whether Ms NEAM would object if her youngest daughter did as she did;^[260] (d) that consisted of commentary rather than legitimate questions, namely that Ms NEAM was being sexually adventurous but lying in court;^[261] and (e) asking whether she had masturbated Mr Johnson during sex.^[262]
116. The questions about the text messages were part of a longer line designed to establish the depth of feeling of Ms NEAM towards Mr Johnson over time, and that their proposals to each other were of a nature that her story of withdrawn consent was not to be believed.  The questions about the type of sex, and when it occurred, were part of the attempt to challenge Ms NEAM’s evidence that she objected to “rough sex”, show her feelings for Mr Johnson were such that her evidence as to withdrawal of consent was not to be accepted, and establish one of the motives for lying.  The other questions were not permitted.
117. The questions were certainly intrusive, but then the whole case was, as it concerned the question of withdrawn consent during an occasion of sexual intercourse between people who had known each other only seven weeks.  I do not consider that in the context of the case the questions identified would have had the result of humiliating Ms NEAM beyond that which she identified, more than once, as being caused by the whole trial in any event.
118. Nor do I consider that the jury would have seen those questions in such a way that they garnered sympathy for Ms NEAM at the expense of Mr Johnson.  In my view the jury’s note delivered very shortly after the last question demonstrates why this contention cannot succeed.  The note from the jury states: “If the witness has already accepted/rejected a claim made by defence council (sic), how many times is it reasonable to ask again?  Constant repition^[263] (sic) is distracting from relevant facts.  The jury is becoming increasingly challenged to understand relevance.”  Plainly the jury were concentrating on the issues they had to decide rather than being swayed from that task by feelings of sympathy.
119. Further, there is no reason to think that the jury ignored the direction they were given against letting their deliberations be infected by sympathy:^[264]

“At the outset of Mr Kinsella’s address, he said you must put aside any feelings of sympathy or prejudice, and that’s absolutely essential, particularly in a case like this.  Sexual offences invite strong emotions, and we all, at some point in the trial, probably felt that our emotions were played upon in the course of the evidence and the questioning.  In your role, in determining the facts of the case, you’ve got to put that aside and apply a clear mind and an objective consideration to all of the evidence that you have heard.”

120. The respondent contends that it should not be lightly assumed that trial counsel was not following his instructions in taking the course that he did.^[265]  Further that counsel presumably cross-examined “mindful that the jury would be left to consider whether [Ms NEAM] did in fact withdraw consent prior to extracting herself from [Mr Johnson]”.^[266]  There is force in that submission given that withdrawal of consent was a live issue that was left to the jury, and Mr Johnson’s evidence in the interview that the first he knew of any dissatisfaction on Ms NEAM’s part was when she kicked him off.  It has to be noted that there was no submission that Mr Johnson’s trial counsel was not adhering to his instructions.
121. The tack taken by trial counsel may not have been one adopted by other counsel, but that does not mean that a substantial injustice resulted from doing so.  As Gleeson CJ said in Ali:^[267]

“It is not to the point for the appellant to show that in certain respects the trial might have been conducted differently, or that in certain respects it might have been conducted more skilfully.  Nor is it sufficient to show that some inadmissible evidence was received.  Notwithstanding that her previous inconsistent stories made her evidence vulnerable to attack, the jury found the co-accused to be a convincing witness.  (That is reflected in her conviction of manslaughter rather than murder.) There was, in addition, a strong circumstantial case against the appellant.  He said nothing at trial, either to contradict the co-accused, or to explain away the damaging circumstances.  Those are the reasons why he was convicted.  The attempt to blame his counsel is misdirected.”

122. After the conclusion of the summing up the jury asked for two things.  First, about two hours after deliberations started, the jury asked for a copy of the transcript of the pretext call.^[268]  That was debated with both counsel, and on the suggestion of Mr Johnson’s counsel, the jury was played the recording in court and then given the transcript.^[269]  Secondly, nearly four hours later again, the jury asked for further clarification of the s 24 defence.^[270]  That clarification was given.
123. In my view those matters, and what one can draw from the note Exhibit MFI “A”, demonstrate that the jury were properly focussed, and remained properly focussed, on the issues they were charged to consider.  The requests made after the end of summing up serve to show that the jury were not infected with sympathy for Ms NEAM, or antipathy towards Mr Johnson, as a result of the way the trial was conducted in any individual aspect or by the aggregation of events.
124. I do not consider that the conduct of which complaint is made had the effect of producing a miscarriage of justice by denying Mr Johnson a fair chance of acquittal.

Conclusion

125. For the reasons expressed above I would dismiss the appeal.
126. PHILIPPIDES JA:  I agree with Morrison JA that the appeal should be dismissed for the reasons stated by his Honour.
127. I add the following additional observations concerning the ground of appeal that counsel’s conduct of the trial was “flagrantly incompetent”, resulting in a miscarriage of justice.  Where such a contention is raised it is relevant to ask two questions.  The first is whether counsel’s conduct resulted in a material irregularity in the trial.  The second is whether there is significant possibility that the irregularity affected the outcome.^[271]  Where the Court concludes that a miscarriage of justice has occurred the conviction must be quashed; there is no scope for applying the proviso.^[272]  Where the Crown case is overwhelming (which was conceded not to have been the position here), then it will be unlikely that a miscarriage of justice will be shown to have occurred.^[273]  The heavy burden of establishing that counsel’s conduct constituted material irregularity amounting to a miscarriage of justice is likely to be discharged where counsel’s conduct has been shown to be flagrantly incompetent.^[274]  But even where counsel’s incompetence cannot be described as “flagrant”, it may have so plainly affected the result that miscarriage of justice is shown.^[275]
128. In the present case, such complaints as to defence counsel’s conduct of the trial that are pointed to by the appellant, including that other counsel may have legitimately limited the defence case to issues raised by s 24 of the Criminal Code and thus not attacked the credit of the complainant nor cross-examined on the possibility of motive, did not, as Morrison JA has explained, result in there being a miscarriage of justice.  Even if the deficiencies identified by the appellant can be seen as an irregularity in the trial, they were immaterial to the outcome.  As the respondent correctly submitted, such deficiencies as occurred in the conduct of the defence case, did not result in a viable defence not being left for the jury, nor the possibility of the jury not giving fair consideration to their verdict.  The latter point was borne out by the terms of the jury’s note and the jury’s requests to rehear the pretext call and clarify directions as to s 24.  Nor was the clarifying questioning by the learned trial judge such, as was the case in R v Esposito,^[276] that the judge “enter[ed] the arena”.