R v Davari[2016] QCA 222

SUPREME COURT OF QUEENSLAND

[1] GOTTERSON JA:  On 6 April 2016 and at the conclusion of a trial over three days in the District Court at Brisbane, the appellant, Vahid Davari, was found guilty of an offence against s 349 of the Criminal Code (Qld).  The single count of which he was charged and then convicted was that he raped the complainant on Wednesday, 1 April 2015, at Carindale.  On 7 April 2016, the appellant was sentenced to five years’ imprisonment to be suspended after two and a half years, for an operational period of five years.

[2] The appellant appealed against his conviction by a notice of appeal filed on 7 April 2016.[1]

The circumstances of the alleged offending

[3] The complainant’s evidence-in-chief: The complainant was an Iranian woman who had moved to Australia in 2011.  At the time of the alleged offending, she was 32 years old.  She had two children, but was divorced.  She had known the appellant, an Iranian man then 52 years old, since 2012.  Once or twice a month during a period of two years from 2012, she had cleaned the house where he resided with his wife, M.  The complainant ceased cleaning their house in the summer of 2014.

[4] The complainant, whose first language is Farsi, gave evidence with the assistance of an interpreter.  She testified that on Monday, 30 March 2015, the appellant telephoned her.  Having missed his call, she called him back.  He told her that his wife no longer resided at the house and that he was unable to clean his bathroom properly.  He asked her if she would come over to do it.  She agreed that she would.[2]

[5] At 7.40 am on Wednesday, 1 April 2015, the complainant sent the appellant a text message enquiring whether she could attend at his house that day.  He replied that she could.  She arrived at about 10 am.[3]  According to the complainant, the appellant suggested that they have tea.  She agreed.  They sat in the backyard drinking the tea and talking about some mutual friends, the death of a mutual acquaintance, and the appellant’s separation from M.  He said that he was happier without her.  The complainant then took cleaning implements to the upstairs ensuite and cleaned the toilet, the shower glass, the basin and the floor.  It took her “one hour or more”.[4]  When she finished, she went down to the kitchen to collect her handbag.

[6] The complainant testified that the appellant came over and put his arms around her.  She asked him what he was doing.  He told her to relax and said:

“You know, I’m going to do that because I like to do that and I am being crazy for it.”[5]

She asked him to stop and said that she wanted to go home.  The appellant ignored her.  She tried to “convince him” or “trick him” by saying she was all sweaty and smelly and asking him to let her go home to clean up and then come back.  He said that that was not necessary and that he would take her to the shower himself.  She kept saying no.[6]

[7] The appellant kissed the complainant on the lips several times.  He lifted her up with one arm around her shoulders and the other under her legs and carried her upstairs to his bedroom.  She asked him to put her down and let her go.  He put her on the end of his bed.

[8] The complainant gave evidence that the appellant stood between her legs.  He tried to take off her clothes and she tried to stop him saying no repeatedly.  As he undid buttons she would redo them.[7]  He took off her shirt, bra and pants.  She asked him to stop and to let her leave.  He told her to relax and try to enjoy it.  He took off all his clothes, kissed her on the lips and lay on top of her.  Sexual intercourse began.  She had pain internally in her “lower tummy”.  She asked him to stop at least five or six times.  The intercourse continued for “maybe more than 10 minutes”.  He withdrew his penis and ejaculated on her stomach.  He went to the bathroom, obtained toilet paper, used some of it to clean himself up and gave the rest to her.  He then went to the bathroom for a quick shower.[8]

[9] At that point in her evidence-in-chief, the prosecutor had asked the complainant if she had consented to the sexual intercourse with the appellant.  She answered no.[9]

[10] The complainant got dressed, went downstairs and packed up her bag.  The appellant asked her for her bank account number in order to pay her for the cleaning.  She told him that it did not matter.  She left and went home.

[11] Cross-examination of the complainant: Under cross-examination, the complainant said that she stopped cleaning the appellant’s house in 2014 because it was too far for her to travel.[10]  She denied that M had told her not to come to the house again.[11]  She said that on the last visit, M had told her not to wear the clothes she had on there anymore because it was “bad, … inappropriate”.[12]

[12] The complainant denied that M wanted her to leave straight away.[13]  She denied that she requested to be allowed to stay to clean because she had driven a long way.[14]  She agreed that, on that visit, the appellant had opened the door on her arrival.  She also agreed that she had bent down to pat his dog on the head.  However, she denied that it was, at that point, that M spoke to her about her clothing.[15]

[13] According to the complainant, that conversation about her clothing occurred during a break while she was cleaning.[16]  She told M that she had an appointment with the authorities at her sons’ school and that she wanted “to look nice”.  She denied that a person could look all the way down her top and see her breasts.[17]

[14] The issue at trial: The appellant’s case at trial was that the sexual intercourse that took place between him and the complainant on 1 April was consensual.  He maintained that prior to that date, the complainant had demonstrated a sexual interest in him.  Thus the issue at trial was one of consent.

[15] The appellant’s evidence-in-chief: The appellant, who is also Iranian, gave his evidence in English.  He testified that he first met the complainant after M had arranged for her to clean their home.  He last saw her prior to April 2015 in January or February 2014 when she came to the house to clean it.  On that occasion, he happened to be home.  When the bell rang, he went to the door.  M was on the balcony upstairs.  He opened the door to let the complainant in.  His dogs were excited to see her.  The complainant bent over to greet them.[18]  She was wearing a “white dress – open dress and a short”.[19]  He said that when she bent over, “all the body showing”.[20]

[16] According to the appellant, on another occasion, she told him that she liked him.  She once told him that she had told her ex-husband that he [the appellant] looked like the Iranian King.  After the complainant’s last visit in 2014, he went to Iran.  The complainant contacted him on a “Viber” video-link.  They chatted for about an hour.  She was lying on a bed wearing a white dress.  Her main topic of conversation was her disappointment with her body, particularly her breasts and stomach.  She told the appellant that she had kicked her husband out of the house but that she could not get a boyfriend because she had no “feeling” with Australian men.  She asked him to call her when he returned.  He assured her that he would.  He perceived that she wanted him to be her boyfriend.[21]

[17] When he returned to Brisbane, the appellant called the complainant and she texted her new address to him.  He began a car trip there but pulled out because he thought it would “destroy” M if she found out.  He called the appellant and told her that he could not visit her.

[18] No further contact occurred until after the appellant had spoken to a Turkish friend who also knew the complainant.  He called the complainant.  She told him about her new job.  He told her that he was divorced from M.  She asked if he needed a cleaner.  He said that he had enough time to clean, now that he was staying in Australia.  He did mention a difficulty he had in cleaning his daughter’s moisturisers off the glass in the bathrooms and asked her if she could suggest something for that.  The complainant offered to come over to clean it off but he told her that that was not necessary.  However, he did say that she was welcome to visit.  Two days later she called him to see if she could come over.  He said that he was out and that he could not go home.

[19] Two days after that, she texted him and he agreed to her visiting.  When she arrived, they had tea near his pool and chatted.  Eventually, she prepared a cleaning solution and they went up and applied it to the glass in the bathroom.  It worked.  They returned to the kitchen.  She complained about her body.  He told her it was beautiful and they kissed.  They went upstairs and undressed.  Despite embarrassment on her part about her breasts, which she shielded from his sight with her hands, they had sex.  She kissed and touched him.  She never said that she did not want to have sex.

Post-alleged offence communications between the complainant and the appellant

[20] The complainant sent a “Viber” message to the appellant at 12.11 pm on 1 April 2015 saying, “If you next time needed me or need me to do something, just let me know beforehand so it doesn’t happen like that – it doesn’t go on like that”.[22]  He replied, “Okay, thanks.  Thank you for letting – thank you for your advice or, like, your guidance”.[23]  A few minutes later, the appellant telephoned the complainant.  She did not answer.  She sent him a “Viber” message saying, “Sorry.  I am home.  The children are here.  Send me a message if you need to”.[24]

[21] At 1.41 pm that day, the appellant texted the complainant, “Give your account name and tell me how much I put into your account”.[25]  She texted him her bank account details followed by “mrc”.[26]  She followed up with another text, “As much as you are happy with” which ended with “x mrc”.[27]  In cross-examination, the complainant said that she had learned to end a message with an “x” from her “Aussie” friends.  She had no idea that it meant a kiss.[28]  To her it was akin to a full stop.[29]

[22] At 4.33 pm on the same day, the complainant texted the appellant to say, “Mr Vahid, can you give me $300 more, I will pay you back when I see you next week, thanks”.[30]  Having received no response, she followed up at about 8 pm.  He then replied, “Sorry, I was busy ‘til now, I am going next week, as my account is nearly empty, definitely when I am back”.[31]  The complainant responded at 8.31 pm, “Ok no worries” and ended the message with a smiley face emoticon.[32]  In cross-examination she said that her request for money and use of the emoticon were part of her plan “to deceive” the appellant and “to take [her] revenge against him for what he had done to [her]”.[33]

[23] The complainant confirmed that at about 12.45 am on 2 April 2015, she sent the following text message to the appellant:

“I have not been feeling well since noon.  I have been trying everything to forget what you have done, but not succeeded.  I came to your home for work and you … I am going crazy and I hate myself.  I have decided to go to police to say that you have raped me so that the hatred towards you and myself gets reduced.  I have cried so much that even my children are crying with me.  I cannot eat anything, smoking and crying.  I can never forgive you.”[34]

She was not cross-examined about this message.

Complaint communications

[24] In evidence-in-chief, the complainant testified that she telephoned her brother in Iran, her friend, N, and another friend, E.  She spoke to her brother and N separately early in the evening of 1 April.  She told her brother that “that incident” had happened to her at her workplace.  She gave him “not much” detail because she was too embarrassed to do so.[35]  In her call to N, she said that she went to the appellant’s house for work and that an incident happened.[36]

[25] The next morning, the complainant told E “he raped me – he assaulted me”.[37]  E asked her why she had not gone to the police.  The complainant said that she was scared that her family might find out or that she might be blamed “like what happens in Iran”.[38]  She then went to a police station between 9 am and 10 am on 2 April 2015.

[26] E gave evidence in the prosecution case.  In a telephone conversation initiated by the complainant, she told E that she had been working for a person the day before and when she finished her job, he did not let her go.  The complainant told E that “he basically raped her”.[39]  The call took place at about 7 am on 2 April.  The complainant was crying while she gave her account to E.[40]  E said that she had to convince the complainant to report the alleged incident to the police.  The complainant was scared to do so because she thought she might be in trouble.[41]

Medical examination and scientific analyses

[27] Formal admissions were made on behalf of the prosecution and the defence.[42]  They were read to the jury.[43]  The admissions were in the terms which are summarised in the two immediately following paragraphs.

[28] On 2 April 2015, the complainant was examined by a clinical nurse.  No obvious injuries were observed.  On palpitation by the nurse, the complainant complained of abdominal tenderness which was not capable of confirmation or refutation by the nurse since it was a subjective feeling.  There were no obvious genital injuries.  In most instances, genital injuries are not found in adults where vaginal penetration is involved.  The absence of such injuries neither proves nor disproves that vaginal intercourse had been without consent.

[29] Swabs taken from the complainant’s umbilical area contained spermatozoa.  Cells from it contained the appellant’s DNA.  A police search of the appellant’s house on 3 April 2015 revealed that the bedspread in the master bedroom tested positive in three areas for acid phosphatase, an enzyme found in seminal fluid.

Appellant’s police interview

[30] The investigating police officer for the complainant was Plainclothes Senior Constable S Wilson.  The appellant went with the investigating officer to a police station on 3 April 2015.  He asked what the allegations against him were.  In evidence-in-chief, Senior Constable Wilson continued:

“ … I told the defendant after she’d finished cleaning, you started kissing her.  She said she didn’t want it.  You said this is going to happen.  You then carried her upstairs, laid her on the bed and had sex with her despite her continually saying no.

And what did he reply?---He replied then you could say sex all over the world is rape.”[44]

The course of the trial

[31] Two matters ought be mentioned to give context to the grounds of appeal.  One is that immediately before the opening of the defence case, the learned trial judge ruled that he would not permit M to give evidence of the circumstances of the termination of the house cleaning relationship with the complainant in 2014.[45]  In the end, M was not called in the defence case.

[32] The other matter is that his Honour declined a request by defence counsel, made after the summing up had concluded, that a Robinson direction be given to the jury.[46]  He had earlier indicated before the summing up that he was not inclined to give such a direction.[47]

[33] The jury retired at 3.35 pm on the third day of the trial.  The guilty verdict was given at 5.10 pm that afternoon.

The grounds of appeal

[34] The appellant relies on the following grounds of appeal:

“1.The trial judge wrongly decided that the evidence of [M], the former wife of the appellant, concerning the dismissal of the complainant from her employment as a cleaner was inadmissible and irrelevant.

2.The trial judge erred in failing to direct and/or warn the jury of the need to scrutinise the evidence of the complainant with great care where such a direction was warranted in the circumstances.

3.The conviction was unsafe and unsatisfactory in all of the circumstances.”[48]

It is convenient to consider these grounds in that order.

Ground One

[35] The content of, and reasons for, the ruling made by the learned primary judge with respect to evidence by M may be seen in the following passage from it:

“I indicated to the defence counsel that I would be prepared to allow the ex-wife to give evidence of the clothes she said were worn by the complainant on that occasion in 2014 because that might be supportive of the defendant’s own evidence of the complainant having a sexual interest in him but was not prepared to admit evidence about the circumstances of the termination of the cleaning relationship.  I did not see that whether or not the defendant’s ex-wife had dismissed the complainant or the complainant had herself determined not to go back to the house to clean was relevant or that evidence about it was admissible.  It was my view that it offended the finality rule.

I did so in circumstances where, when she gave evidence, it was not suggested to the complainant and she was not asked questions designed to ascertain whether she had any basis for believing that the defendant was or might be at the house on the day in question.  I also did so in circumstances where it was put to her and she agreed in evidence that she had said that the reason she was wearing the clothes was that she was seeing her son’s teacher on that day and wanted to look nice, or words to that effect.  As I have said when defence counsel opened, before me and not the jury, the evidence that he proposed to call from the defendant’s ex-wife, he indicated she would say that the defendant was not usually at home when the complainant called but he was there on this last occasion.

In that circumstance, it does not seem to me that evidence of whether what she was wearing on that day caused her to be dismissed and the circumstances of the termination of the relationship can be relevant to the issue of whether or not she had a sexual interest in the defendant.  Rather, it seems to me it relates only to an entirely peripheral issue.”[49]

[36] This ground of appeal is formulated on a correct premise that what was ruled inadmissible was evidence concerning the termination of the complainant’s engagement as a house cleaner.  The ruling clearly did not foreclose evidence from M as to the clothing that the complainant was wearing on the day that the engagement was terminated.[50]

[37] The ruling was made after defence counsel opened the evidence he proposed to adduce from M as follows:

“MR WILSON: That she was told that they had arrived by boat and were in need of money and so she did employ her to clean every two weeks from 2012.  In 2014, usually the defendant wasn’t home.  But in 2014 on the last occasion she worked there, the defendant was home and the witness will say that she saw the complainant arrive, that she was wearing very short shorts and a revealing top and that you could see down.  You could see all of her top.

HIS HONOUR: She’s not saying she could see that from the house when she arrived?

MR WILSON: Yes.

HIS HONOUR: You mean after she’d arrived she observed that?

MR WILSON: When she arrived.

HIS HONOUR: Anyway.

MR WILSON: She will say that she confronted her about that, that the complainant pulled up her top and said, “Sorry.  I was at a school, meeting with the principal and I wanted to look nice.”  Or words - - -

HIS HONOUR: What does that mean, pulled up her top?

MR WILSON: Lifted the top to cover the breasts.  She lifted - - -

HIS HONOUR: Anyway, I understand.

MR WILSON: She’ll use the motion.

HIS HONOUR: Yes.

MR WILSON: She will say that she told the complainant that she wanted her to go.  That is, “I want you to go.”  The complainant protested saying that she’d driven a long way.  So the witness will say she relented and allowed her to remain and clean that day.  However, within less than an hour the complainant got a – received a phone call and said, “Well, I have to leave.”  And the witness will say that she said to her, “After only an hour.  That’s not responsible.  I don’t want you to come back any more.”  So, effectively, her evidence is that she dismissed the complainant, that there was no discussion - - -”[51]

[38] The appellant has challenged his Honour’s expressed view that the circumstances of the termination were not relevant.  In written submissions, the challenge is put in these terms:

“The relevance of the evidence that the wife was inclined to order the complainant from her house almost immediately after her arrival was that it was a reaction of the wife to the way the complainant dressed and behaved (bending over to pat the dogs in a revealing top) in front of the appellant … The wife’s reaction to the complainant’s conduct furnished a basis for the jury to infer that the complainant had a sexual interest in the appellant independent of the appellant’s assertion that the complainant had an interest in him.  Thus, the evidence of the wife’s reaction was a fact relevant to a fact in issue, namely, whether the complainant consented to sex with the appellant about 14 months later.”[52]

[39] Counsel for the appellant has referred to the observations of McHugh J in Goldsmith v Sandilands[53] that a fact is relevant to another fact when it is so related to the fact that, according to the ordinary course of events, either by itself or in connection with other facts, it proves or makes probable the past, present or future existence or non-existence of the other fact.  The following submission is then made:

“The fact that the wife’s reaction was explicable on the basis that she perceived that the complainant was attempting to attract the sexual interest of her husband tended to suggest that the complainant was receptive to sexual attention from the appellant which in turn bore upon the likelihood that she consented to sex with him on 1 April 2015.  The evidence was therefore admissible.  It was not evidence which merely went to the complainant’s credit.”[54]

[40] In oral submissions, the immediacy of M’s reaction in wanting the complainant to go was stressed.  Counsel submitted:

“…Mr Wilson said she, meaning the ex-wife, will say that she told the complainant that she wanted her to go, that is, “I want you to go”.  That’s the important or the crucial piece of evidence that, in my submission, the jury was erroneously denied the benefit of in this case, that the wife’s immediate response was she wanted the … complainant out of the house.  It perhaps didn’t matter greatly ultimately why the complainant left in the circumstances of that, but the wife’s initial reaction…” (emphasis supplied).[55]

[41] Thus, the emphasis in the submissions is not upon the actual reason expressed by M for dismissing the complainant.  It will be recalled that her evidence, as opened, was that the dismissal came immediately upon the complainant, who had received a phone call, saying that she had to leave and M then commenting that to leave after an hour of cleaning was not responsible.  It was at that point that M said she did not want the complainant to return.

[42] In my view, this ground of appeal faces difficulty at two levels.  One is that the evidence of M, as opened, was not of an immediate confrontation over the complainant’s clothing.  In the passage from the trial which I have quoted, defence counsel recounted that M saw the complainant’s clothing when she arrived at the house.  Next, counsel referred to a confrontation over the clothing, but not in terms that it was immediate.  The matter was then clouded by an apparent acceptance made by defence counsel a minute or so later, that M was not present when the complainant bent over to pat the dog.[56]  Furthermore, consistently with the evidence as opened, it had not been put to the complainant in cross-examination that M had immediately spoken to her about her clothing after M had first seen it.[57]

[43] The greater difficulty is, however, with relevance.  The appellant’s contention is that immediacy in M’s confrontational reaction was apt to establish that, some 14 months later, the complainant was attempting to attract the sexual interest of her husband.

[44] Evidence is relevant if it could rationally affect, directly or indirectly, the probability of the existence of a fact or facts in issue.[58]  The fact in issue was one of consent.  It may be accepted that behaviour on the part of the complainant, including her mode of dress, towards or in the presence of the appellant, was rationally related to this fact in issue.  Thus, evidence of the complainant’s clothing both at the time of the 2014 visit and of the alleged incident was relevant, and was adduced.  Such evidence might extend to a qualitative description of it by an observer as “bad” or “inappropriate”.[59]  The jury were able to take all that evidence into account in reaching their conclusion on the fact in issue.

[45] However, any opinion of M, formed on the basis of the complainant’s mode of dress, that the latter had a sexual interest in the husband appellant is of quite a different character.  That is so whether evidence of such an opinion were to be given directly by M or, as is proposed here, were to be inferred from an immediacy in M’s reaction.  Such an opinion would be highly subjective.  It would be based upon M’s own personal views and standards, informed as they necessarily would be, by her perception of the state of her relationship with her husband.

[46] Accordingly, the fact that M had formed such an opinion could not, in my view, bear upon whether, as a matter of fact, the complainant held a sexual interest in M’s husband.  Not only is that so in respect of an interest in early 2014, but it is also all the more so in respect of such an interest some 14 months later in April 2015.

[47] I am therefore unable to perceive a rational relationship between such an opinion and the presence or absence of consent on the complainant’s part at the relevant time.  I am unpersuaded that his Honour erred in ruling that he did.  I conclude that this ground of appeal is not made out.

Ground Two

[48] Counsel for the appellant reminded the Court that in Robinson v The Queen,[60] the High Court held that in negating a requirement, either generally or in relation to a particular type of case, to warn a jury “that it is unsafe to convict the accused on the uncorroborated testimony of 1 witness”, s 632(2) of the Criminal Code (Qld) does not preclude that, in a particular case, there may be matters personal to the uncorroborated witness or matters relating to the circumstance which bring into operation the general requirement considered in Longman v The Queen.[61]  That requirement is that a warning be given “whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case”.[62]

[49] In oral submissions, counsel for the appellant conceded that a warning need only be given in circumstances where there are matters or factors apparent to a judge but not a jury that require that there be a warning.[63]  The concession was made in acknowledgement of the respondent’s reliance upon the opinion to that effect expressed by Crennan J in Tully v The Queen[64] to which Keane JA made emphatic reference in R v Tichowitsch.[65]

[50] At trial, defence counsel had submitted that a warning of the type under consideration in Robinson was required because the complainant’s evidence was uncorroborated.[66]  The observations of Keane JA in Tichowitsch[67] reveal why that submission is unsustainable.  His Honour there said of Robinson that “it does not stand for the proposition that a warning must be given in every case where a Crown case of sexual assault depends on the uncorroborated evidence of a child complainant.”

[51] On appeal, however, it is submitted for the appellant that a number of circumstances, if not singly, then in combination, warranted the giving of a Robinson direction.  They are:

(a) neither the complainant’s brother, nor N, were called as witnesses, nor was their absence explained or apparent;

(b) M was not called as a witness;

(c) the appellant gave evidence in his own defence;

(d) an absence of corroboration as to the issue of consent, especially in light of the text messages that began shortly after 12.11 pm;

(e) the early text messages were of a friendly tone, in contrast to the “ominous” tone of the text message sent shortly after midnight; and

(f) the complainant’s explanation for her texts that she had conceived a plan to exact revenge against the appellant, which, it was submitted, demonstrated that she was willing to represent her intentions falsely, a matter relevant to her credibility generally.[68]

A contrast is drawn with an instruction given to the jury by the learned trial judge to “scrutinise the evidence carefully” in respect of the appellant’s explanation for his comments to police when initially informed of the allegations.[69]

[52] Counsel for the appellant told the Court that (a) and (b) were “the two most significant” circumstances.[70]  As to (a), a point tellingly made by the respondent is that had there been any concern arising from this circumstance, then it could have been addressed by a “Jones v Dunkel-type direction”.[71]  Such a direction would have told the jury not to speculate about what those witnesses might have said and that their absence could not be used against the appellant.  However, defence counsel made it clear that he was not asking for such a direction.[72]  Nevertheless, his Honour told the jury that nothing turned on their not having heard from the two individuals.[73]  That direction sufficiently addressed the circumstance in my view.

[53] With regard to (b), it will be recalled that it was the appellant who elected not to call M in his case.  Had she been called, she might have given relevant evidence, subject to the ruling that had been made.  It would not have assisted, and would perhaps have harmed the defence case, for attention to have been drawn to an apparent decision on the part of the defence not to call M.

[54] As to the other circumstances, it is difficult to see why the fact that the appellant testified in his defence, of itself, warranted the direction.  Besides, in Tully, Callinan J regarded it as not “a valid point of distinction” between that case and Robinson that, in the former, Tully had remained silent, as he was entitled to do, whereas in the latter, Robinson had given evidence at trial.[74]

[55] That the complainant’s evidence was uncorroborated did not, in light of the authorities, itself call for the direction.  The apparent difference in the tone of the complainant’s messages was the subject of evidence by her in which she spoke of her distress when she wrote them.  It was a matter for the jury to decide whether they accepted her explanation.  The competing considerations relevant to that decision were all of a type that would have been apparent to the jurors.  None would have been apparent to the trial judge alone.  It was not suggested, for example, that the experience of criminal courts is that, for an offence of rape, it would be “curious” for a complainant to observe social politeness towards a former employer-offender in the immediate aftermath of the event before making a complaint.  To the contrary, the experience of such courts is that people may react differently to sexual offences and there is no typical or proper response.[75]

[56] That the complainant gave an explanation of deception of revenge also did not call for a direction.  Here, too, it was for the jury to decide whether they accepted the explanation.  Of course, they need only have considered that had they first accepted her evidence that she had not consented to the intercourse.  The seeking of revenge against an alleged rapist is behaviour which the jury could well evaluate in light of their own observations of human behaviour.

[57] In my view, the circumstances to which the appellant now points did not require a Robinson direction that the complainant’s evidence be scrutinised with great care.  That it was not given did not give rise to a perceptible risk of a miscarriage of justice.  This ground of appeal has not been established.

Ground Three

[58] A complaint about the reasonableness of the verdict requires this Court to make an independent assessment of the whole of the evidence to determine whether it was open to the jury to conclude beyond reasonable doubt that the appellant was guilty.[76]  A complaint that a verdict cannot be supported by the evidence will be successful if “after making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted”.[77]  The appeal will fail if, “upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the [appellant] was guilty”.[78]

[59] In MFA, McHugh, Gummow and Kirby JJ remarked that, in effect, it was “not uncommon in most trials” for “some aspect of the evidence [to be] less than wholly satisfactory”.  Their Honours said in that regard:

“…Experience suggests that juries, properly instructed on the law (as they were in this case), are usually well able to evaluate conflicts and imperfections of the evidence.  In the end, the appellate court must ask itself whether it considers that a miscarriage of justice has occurred authorising and requiring its intervention…”[79]

Their Honours had observed earlier in their reasons that determination by an appellate court as to the reasonableness of a jury’s verdict “involves a function to be performed 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.”[80]

[60] Counsel for the appellant submitted that, in undertaking its task, this Court ought not characterise the appellant’s comments to police as an admission of rape.  He described them as “equivocal” and referred to considerations which had prompted the instruction given to the jury about them.  I accept this submission and propose to put those comments to one side for present purposes.

[61] The appellant also has submitted that certain aspects of the complainant’s conduct and evidence in combination should have caused the jury to have had a reasonable doubt about guilt.  Those aspects are summarised by the appellant as follows:

“•The complainant’s message at 12.11 pm was entirely inconsistent with a recent non-consensual sexual encounter.  First, it spoke of there being a next time.  Second, it suggested that notice to her beforehand would assist to ensure a more congenial interaction.

• There was no suggestion that the clothing the complainant wore on 1 April, and which she gave to the police on 2 April, was damaged notwithstanding her description of a struggle as he undressed her.
• The absence of genital injuries notwithstanding the complainant’s description of pain, albeit internal pain, during the incident.
• The complainant’s request for more money from the appellant with a promise to repay him when she saw him the following week which only could be construed as a request for assistance in the context of a cordial relationship.
• The change in attitude many hours later and the way the complainant expressed herself – “I’ve decided to go to the police and tell them you have raped me” – the language suggestive of a recent re-consideration of how an incident was to be characterised.
• The complainant’s evidence that she had devised a plan to get revenge against the appellant demonstrated that she was willing to falsely represent her intentions which warranted doubt about her truthfulness generally.”[81]

[62] These aspects fall to be considered within a context in which the complainant gave a coherent and plausible account of conduct which constituted the offence.  Cross-examination did not reveal any material inconsistency in it.  The complainant’s evidence of sexual contact was supported by scientific evidence and was unchallenged at trial.  It was also consistent with the complaint that she made on the following morning.

[63] Only two of the aspects referred to by the appellant relate directly or indirectly to the appellant’s offending conduct.  In the first place, it is said that there was no evidence of damage to the appellant’s clothing.  However, the complainant’s evidence was not of a “struggle” in which it might have been expected that damage to her clothing would have resulted.  As noted, her evidence was of his undoing her buttons and her doing them up again as she resisted the appellant.  She did not speak of buttons being ripped off or clothing being torn at the time.

[64] The second aspect in this category is the absence of genital injuries.  Yet, the admission at trial had been that, in most instances, injuries are not found in adults where vaginal penetration is involved.  This admission was not confined to instances of consensual penetration.

[65] The other four aspects have, as a common theme, inconsistency in conduct on the complainant’s part.  I accept that the tone of her communications with the appellant did change.  However, my impression is that the extent of change has been rather overstated by the appellant.  To read the text message at 12.11 pm as referable to a sexual “need” on the appellant’s part, to a “next time” as a time when a sexual encounter would take place between them, and to advance notice as a facilitator of “more congenial interaction”, is to place glosses upon the content of the message which it does not unambiguously have.

[66] Further, the appellant interprets the complainant’s later advice to him that she had decided to go to the police and tell them that he had raped her, as suggestive of a recent re-consideration.  It is an interpretation that pays no heed to the complainant’s corroborated explanation of adverse consequences that she initially felt that that course could have had for her.  As well, for reasons which I have already mentioned, the exaction of revenge, to my mind, did not raise genuine doubt about the complainant’s account of the alleged offending.

[67] The jury were given the benefit of careful directions which were apt to guard against misuse of the evidence.  His Honour reminded the jury that the defence relied “strongly” on the text messages, suggesting that they were inconsistent with events as the complainant had recounted them.[82]  No complaint was made at trial, or is made on appeal, as to their adequacy.

[68] I accept the respondent’s submission that nothing raised by the appellant compels the conclusion that the finding of guilt was unreasonable.  This is, in my view, a case in which it was quite clearly open to the jury on the whole of the evidence to have been satisfied beyond reasonable doubt of the appellant’s guilt.  This ground of appeal also fails.

Disposition

[69] Since none of the grounds of appeal has succeeded, this appeal must be dismissed.

Order

[70] I would propose the following order:

1. Appeal dismissed.

[71] MORRISON JA:  I have read the reasons of Gotterson JA and agree with those reasons and the order his Honour proposes.

[72] PHILIPPIDES JA:  I agree that the appeal should be dismissed for the reasons given by Gotterson JA.