R v Collins[2016] QCA 256

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:  On 11 March 2015, Mr Collins was convicted by a jury, after trial, of three counts of rape and one count of sexual assault.  The indictment alleges that the offences took place on an unknown date between 31 December 1985 and 1 January 1987.
3. The Crown case alleges that Mr Collins, who was about 42-years old at the time of the offences, met the 19-year old complainant after she interviewed to become a nanny for his son, and travel on their yacht for a number of weeks.  The complainant alleged that during this time Mr Collins raped her three times and sexually assaulted her.  It was 20 years before a statement was made to the police.
4. Mr Collins submits that there was a sexual relationship but that it was consensual.  He appeals against his conviction on the sole ground that the verdict of guilty is unreasonable and cannot be supported having regard to the whole of the evidence.
5. This ground was particularised as follows:

1. the case against Mr Collins was stale; the complainant’s evidence could never be adequately tested, with the consequence that it was too dangerous to act upon;
2. the complainant had made contradictions in her evidence therefore making her an unreliable witness;
3. there were aspects of the complainant’s evidence that were implausible and, if approached rationally, defied acceptance;
4. the complainant’s evidence was uncorroborated; and
5. other unchallenged evidence contradicted material aspects of the complainant’s evidence.

6. The Notice of Appeal also lists as Ground 3 the application for leave to appeal against sentence.  It was agreed that the sentence application, if it were pursued, would be dealt with at a subsequent time. It is therefore not addressed in these reasons.

The applicable legal test

7. In a case where the ground is that the conviction is unreasonable or cannot be supported having regard to the evidence, SKA v The Queen^[1] requires that this Court perform an independent examination of the whole evidence to determine whether it was open to the jury to be satisfied of the guilt of the convicted person on all or any counts, beyond reasonable doubt.  It is also clear that in performing that exercise the Court must have proper regard for the pre-eminent position of the jury as the arbiter of fact.
8. In M v The Queen the High Court said:^[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.”

9. M v The Queen also held that:^[3]

“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.”

10. Recently the High Court has restated the pre-eminence of the jury.  In The Queen v Baden-Clay^[4] the Court said:

“[65]It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is “the constitutional tribunal for deciding issues of fact.” Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is “unreasonable” within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury’s function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.

[66]With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court ‘must always be whether the [appeal] court 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.’”

The complainant’s evidence

11. The complainant was 19 years old in 1986.  She had just come out of seven years in boarding school.  Her mother saw Mr Collins’ advertisement seeking someone to teach an eight year-old boy, and deal with correspondence, on a yacht travelling to the Whitsundays.  The complainant answered the ad, and made an appointment to be interviewed by Mr Collins.  The interview took place on the yacht.  The complainant was able to identify a photograph of the yacht.
12. During the interview Mr Collins explained the sleeping arrangements, where they would be travelling, who else would be on the yacht, and how much and when she would be paid.  Apart from Mr Collins and his son, three others were to be on the yacht, a couple called Karen and Allen,^[5] and another female, Gaye.  Karen and Allen were to sleep in a cabin forward on the yacht, then on one side Gaye’s bunk, and opposite that, two bunks for the son and the complainant.  Mr Collins’ cabin was at the front of the yacht.
13. A few days later the complainant was dropped off at the yacht, and several days after that, the journey commenced.  In the meantime the complainant accompanied Mr Collins when shopping for provisions for the trip, during which time he pointed out his businesses and properties.  In cross-examination she agreed that Mr Collins was affable and friendly in a non-sexual way during this time.  She denied that she spent a night at Mr Collins’ penthouse or that they went out to restaurants.^[6]  However, in cross-examination she agreed that at the committal^[7] she had said that they did go to restaurants or takeaways.^[8]  She explained that as simply being that her recollection at trial differed from her recollection in 2010.
14. In cross-examination she said the trip to Hamilton Island took about six weeks, and agreed it was possible that it was a day to Bundaberg, two days from there to Great Keppel, and four and a-half weeks from Great Keppel to Hamilton Island.^[9]
15. The narrative of what took place can be summarised by reference to the locations along the way, and those where the complainant alleged the offences had occurred.  Where relevant the following summary includes evidence given in cross-examination.

To Bundaberg

16. This account covered the trip from Mooloolaba to Bundaberg:

1. the complainant was starting to feel uncomfortable because Mr Collins was starting to make sexual references, such as suggesting she sunbathe nude or topless; he was also touching her arms, back and shoulders a little bit; she asked him to stop, but he did not;^[10]
2. in Bundaberg they went shopping and Mr Collins bought her a skirt and top; he paid because she had not been given any of her wages at that point; she accepted it because she regarded it as part of her wages;^[11]
3. she went to a doctor in Bundaberg, to get a certificate saying she had thrush “so that I could let Mr Collins know that, therefore he’d leave me alone”;^[12] and
4. Gaye left the boat in Bundaberg.^[13]

17. In cross-examination the complainant denied the suggestion that she was in a relationship with Mr Collins during this time.^[14]  She agreed that she had kept the dress he purchased, as she liked it a lot.^[15]
18. She agreed in cross-examination that she did not have thrush, and said she was not concerned she might be examined as her experience in the past was that doctors usually simply asked questions and gave a certificate.^[16]  She said she would have taken her Medicare card and had no recollection how it was paid for given she did not have any money.^[17]  She denied the suggestions that: (i) she was suffering from thrush, or a like condition, and that it was because she was having regular sex with Mr Collins; and (ii) he accompanied her to the doctor, and paid in cash.^[18]
19. In cross-examination it was put to her that the interview occurred at her home, which she denied.^[19]

Bundaberg to Great Keppel Island

20. The complainant’s account of events was that every day Mr Collins made sexual innuendos, such as suggesting she sunbathe nude, or topless, like the other girl (Karen) was doing.  He was also touching her arms, back and shoulders.^[20]

Great Keppel Island to Hamilton Island

21. In cross-examination the complainant agreed this leg took about four and a-half weeks.  She said they stopped at some of the islands along the way.  She thought they were deserted.  She said that several incidents occurred, on successive nights.

First night

22. They moored off one island.  There were no other yachts there.  It was decided that they would picnic on the beach, so around dark they all headed to shore in a dinghy, and started a fire.  After the meal Karen and Allen volunteered to take the son back to the yacht, to put him to bed.  That left the complainant and Mr Collins on the beach.  Then:

1. Mr Collins was “touching me quite intimately at times, and he was talking to me about having sex, and he was saying that he’s a man and that I’m there and that … I was to be available for him … and to have sex with him. And when I refused he said that he knew people, and some very bad people, and if I didn’t have sex with him that he would have these people go to my family and physically abuse them”;^[21]
2. the complainant gave weight to the threats because Mr Collins had spoken during the trip of “how wealthy he was, and … he knew people in high places, but he also knew people in very low places … And he had the money available to get anything done that he wished”;^[22] “I believed he was capable of getting it done”;^[23]
3. Mr Collins laid a towel down and asked her to lie down on it; when she initially resisted he kept threatening her family;
4. he “pulled my skirt up and pulled my underpants down, and there was no foreplay or … anything. It was just his penis … he pulled his pants down and put his penis inside my vagina”; he was kneeling between her legs; during that time he was saying that “it’s about time I had a real man, and he was a real man. He was going to show me what a real man was really like”;^[24]
5. she was sobbing and asking him to stop, but he did not; he ejaculated and withdrew;
6. in cross-examination she said she submitted because of the threats to her family;^[25] she also said she called out “please” to the yacht but not loudly that it would disturb the son, as she did not know how much he should know about what was happening;^[26] and
7. he told her to get dressed and tidy up, and he called for the dinghy; it was dark when they rowed back to the yacht, and she was crying and sobbing; in cross-examination she accepted that she was sobbing and crying in close proximity to Allen;^[27] she was in the front of the dinghy, and facing forward whereas Anthony was behind her, rowing;^[28] once back on the boat she showered and went to bed.^[29]

23. In cross-examination she said it had not crossed her mind to go with the others when they took the son back to the yacht, even though she was feeling uncomfortable with Mr Collins: “I didn’t honestly think he would [do] anything to hurt me… because I still believed in people and I still believed that humanity existed”.^[30]
24. She recalled the things Mr Collins was saying on the beach, in much the same terms as her evidence in chief:^[31]

“Word-for-word, I don’t recall, but it was cases (sic) of he’d been trying to indicate that he was interested in sex and that he was a male so, therefore, me being on the yacht, I should have known that that – that’s what I was there for and when I kept saying, no, I was here to teach Robbie and that was my job. He said, “But you knew all along,” that along the lines of, “That you knew all along that, you know, I wanted you here for sex,” and things like that. And I kept saying, no, I was there to teach Robbie. I did believe in innocence and I did believe that that’s what I was there for.”

25. In cross-examination she accepted that at the committal she had said she saw silhouettes on the yacht, and that it followed that she was prepared to seek help from the people on the yacht.^[32]  She explained that she believed that he would not go through with it:^[33]

“And immediately after these threats which you say were so scary that you were prepared to submit to sexual intercourse?---Yes. This was before intercourse. I was hoping, in my naiveté that someone coming over would stop him and I honestly did believe that he would not go through with intercourse with me, because I’d said no. I was innocent. I believed that no meant no.”

26. She denied the suggestion put to her that Mr Collins “never had sex with you on the beach on any occasion”.^[34]

Second night

27. The complainant spent the following day teaching the son.  That evening they moored next to a trimaran yacht.  After dinner the others decided to go and meet the people on the trimaran, but the complainant decided to stay back and put the son to bed.  Mr Collins decided he would stay as well.  After the son was in bed the complainant went up into the wheelhouse, where Mr Collins joined her.  Then:

1. Mr Collins  “was starting on about the sex again, and I said I thought he’d learnt from the night before that I wasn’t interested. And he said that he didn’t want to … have to threaten my family again, that … I should just accept that’s what I was on the yacht for, and … I was to be there for him, and a man has needs and a woman has … to fulfil those needs”;^[35]
2. she kept saying no, but Mr Collins grabbed her hand and pulled her down the ladder and into his cabin; she was crying and begging him to stop, and tried unsuccessfully to pull away from him;
3. “He pushed me onto the bed. My head was down at the foot-end at the bed and he shut the door and locked it. I was begging for the whole time for him to stop and he kept going on about … he didn’t want to make it hard and tough. He didn’t want to threaten my family, but I was there and a man had needs and he kept going on about things like that. And he held me on the bed and pulled my skirt up and pulled my panties down. … I was lying on the bed on my back. … He was above me kneeling in front between my legs. … He stripped himself, pulled his pants down and got in between my legs. … [his hands] were holding me down, leaning on my chest holding me down. He just put his penis in my vagina and kept going until he ejaculated”.^[36]

28. In cross-examination she said she went up to the wheelhouse believing “that at the time … he’d got it out of his system, and he would leave me alone”.  She denied that she had a consensual sexual relationship with Mr Collins at that time.^[37]  She accepted that in her police statement in 2007 she said she called out, though at the trial she could not recall doing so.^[38]
29. She explained in cross-examination that she was physically smaller than Mr Collins, and there was not much she could physically do to resist.^[39]

Third night

30. The next day it was as if nothing happened.  That evening they again moored near the trimaran and Karen and Allen went over to the trimaran.  Mr Collins stayed back.  The complainant stayed to put the son to bed.
31. The complainant joined Mr Collins in the wheelhouse where Mr Collins was having a few drinks.  Then:

1. he asked her to masturbate him; he pulled his pants down and “went to put my hand on his penis … It did touch it, but I didn’t do anything … I pulled away and kept saying ‘no, no’”;^[40]
2. Mr Collins became angry, and pulled her by the arm down to his cabin, saying that “I should have learnt by now that this was going to go on and that I just have to accept that that’s what women for men when they have needs and things like that”; she was begging him to stop and trying unsuccessfully to pull away;^[41]
3. he pushed her onto the bed; she had worn a pair of shorts “because I was hoping that would restrict any access … but he just unzipped and pulled … my shorts down, and my underpants came with them”; she was lying on her back and he “was in between my legs again holding me down with his forearm leaning on me, pushing me down”; she was begging him to stop; he masturbated then put his penis in her vagina and kept going till he ejaculated; the complainant said she was “quite hysterical” and sobbing;^[42] and
4. afterwards “he just lay down next to me and just sort of touching, cuddling behind me. I rolled over and faced the hull wall and he just snuggled up behind me and he wasn’t angry, but he wasn’t friendly either. He was just sorry that it had come to this. … He said he was sorry that it had come to this; it shouldn’t have taken for him to threaten my family”.^[43]

32. The complainant said she spent that night in Mr Collins’ room, and thereafter each night.  She explained why: “It just continued.  I stayed in his room.  I figured that it was going to be continual until such time as I could get off the yacht and there was no use fighting it every single way.  It was just going to hurt me more and more.”^[44]
33. In cross-examination she accepted that at the 2010 committal she said that she had masturbated him for a few minutes but he did not ejaculate, whereas her evidence at trial was that she only touched his penis for a matter of seconds.^[45]  She also accepted that at the committal she had said that she thought the sexual intercourse took place in the wheelhouse or it might have been in his room.  She explained that her recollection at the trial was that it was in his cabin.^[46]
34. She accepted that at the committal she had said she had given up fighting and arguing, that she did not call out, and that meant she was not physically resisting.  Once again she explained that her recollection was different in 2010.^[47]

Fourth night onwards

35. The complainant said that for the rest of the trip she stayed in Mr Collins’ room, and her belongings were moved in there.  Mr Collins had sex with her every night.^[48]

Hamilton Island

36. Once at Hamilton Island the complainant said that Mr Collins and the others had gone to the resort while she stayed with the son on the yacht.  Later she and the son went over to the resort, where she asked Mr Collins to mind his son while she had a sleep.^[49]  She went back to the yacht and gathered her belongings.  Mr Collins arrived back and she asked for her wages and said she was leaving.^[50]  She accepted in cross-examination that her recollection was not complete given that the events were 30 years ago, and said “possibly” he came back and she “could have seen him”.^[51]  Her evidence at the committal and at trial matched in this respect: on each occasion she said she could not get into the yacht as Mr Collins had the key, and it was only when he came back that she could get her belongings.^[52]  She explained the differences in her accounts:^[53]

“I had given evidence that I went back to the yacht, Mr Collins was there, and I asked him about my wages, and I gathered my belongings. I don’t recall whether he was already there. I don’t recall whether I went there first. I’m sorry, but, in all three cases, I have stipulated that I did go back. Yes, I didn’t want to confront him. No, I didn’t want to see him. But I had to get my belongings, and I wanted my wages. I’d been on the yacht for that long.”

37. She tried to call her parents a number of times from a payphone, but there was no answer.  She was crying and when a cleaner asked if she was okay, she said she needed to leave and was trying to get hold of her parents.  The cleaner offered her a pass so she could leave on the ferry.^[54]
38. In cross-examination it was put to her that she left on the trimaran, which she denied.^[55]
39. The complainant went to the mainland, where she managed to find a place to stay for two nights until she contacted her mother by a reverse charge phone call.  Her mother sent her a bus ticket to get home.^[56]  When she got home her father verbally abused her.^[57]
40. In 2006 the complainant contacted Crime Stoppers and made a complaint.  In the meantime she had married and raised a family.

General matters in the complainant’s cross-examination

41. One matter of particular note is the failure to put to the complainant that there was a girl called Amanda on the boat.  That name was first mentioned by Mr Collins in his evidence in chief,^[58] but on the basis that no-one seemed to know how she got there, and she was not the nanny.  Mr Collins interviewed all the potential nannies, but clearly had no recollection of interviewing Amanda.  The name was then mentioned by Anthony in his evidence, and he said she was the tutor or nanny.^[59]  Further it was not put to the complainant that she was not the nanny but someone else was.
42. The complainant agreed that the lapse of 30 years between the events and the trial meant that timeframes were difficult to remember.^[60]  She said her memory of the ages, and some of the names, of the other people on the yacht differed from those put to her; likewise whether it was Gaye or Karen in a relationship with Allen.^[61]
43. She denied knowing much about the radio room on the yacht, or that people used it regularly.^[62]  When asked if it would have been of interest to know that there was a radio on the yacht, given she was subjected to unwanted sexual contact during the trip, the complainant answered:^[63]

“I was a 19 year old girl, who’d come out of seven years of boarding school; I was innocent; I was naïve; I believe in people. I came from New Guinea – Bougainville; I was naïve and innocent.”

44. She agreed that after first mooring near the trimaran they sailed to Hamilton Island “in loose company with that trimaran”.^[64]  She explained that she did think about contacting the boys on the trimaran, but did not do so because she characterised it as “jumping from the pan into a fire … I didn’t know the three people.  I didn’t know what they were like.  One person was bad enough.  What if three of them tried to attack me?”^[65]
45. She said she did not complain to the other adults on the yacht because they were friends of Mr Collins, and had not responded at all when they could see her red eyed and crying, and she therefore assumed they would not have assisted.^[66]
46. She agreed she had not used the radio during the trip, and denied that there were occasions to get off at populated islands or onto other boats.  She also said she never met the boys on the trimaran.^[67]  She was confronted with the fact that at the 2010 committal she said it was possible that she spoke to them on Hamilton Island.  She said that her recollection in 2010 was different from her recollection at trial.^[68]  She gave the same reason for various differences in her evidence at the committal and her evidence at trial.^[69]
47. She agreed that her parents turned up unexpectedly one day before they sailed, but denied that she had already struck up a sexual relationship with Mr Collins, or that she was then staying in Mr Collins’ cabin, or that there was a rush to move her things out in case her parents found out.^[70]
48. When asked if she had been drinking on the second night (and on other occasions), she explained she did not drink.^[71]
49. She was confronted with the fact that in her 2007 police statement she had said that the sexual attacks happened on three consecutive nights after leaving Great Keppel Island, and that it was the next day when they arrived at Hamilton Island.  She agreed she had said that but said she was wrong in 2007.^[72]
50. She also accepted that in the 2007 statement she had not mentioned the fact that she stayed in Mr Collins’ cabin for over four weeks.^[73]  She maintained that even though she remained in his cabin, his sexual attentions were still unwanted.^[74]  She explained the failure to mention staying in his cabin over the four week period:^[75]

“When I was interviewed by the police, I was asked to recall the attacks and I recalled the three attacks. Nothing was ever said that I would have to – or did stipulate that I was in his cabin, because it was not attacks after that, because I could not get off the yacht until I found somewhere acceptable to get off, …”

51. She maintained her denial that there was any consensual relationship with Mr Collins.^[76]  She rejected that in these terms:^[77]

“And I would suggest that throughout the course of this yacht trip, you weren’t pulling away. You were happy to be in Mr Collins’ company, you were friendly, affectionate to him, because you were in a relationship with him?---No, I definitely wasn’t. I was a 19 year old girl, I was slim, I was fairly attractive back then, and Mr Collins was, to my knowledge, 42 years old, he was short, he was round. What need would I have to be around someone like that? So no.”

Evidence of other witnesses for the prosecution

The complainant’s mother

52. The complainant’s mother gave evidence,^[78] salient features of which were:

1. the interview took place on the yacht, and the two parents accompanied the complainant; and
2. she arranged a bus fare home when the complainant called later, saying a stranger had helped her to go across on the ferry; in cross-examination it was put to her that the complainant said she got ashore on a trimaran, which the mother denied, saying that she said she did not have the fare for the ferry.^[79]

The complainant’s father

53. The complainant’s father gave evidence,^[80] salient features of which were:

1. the interview took place on the yacht, and the two parents accompanied the complainant; that was the only time he went to the yacht; Mr Collins did not go to his house; and
2. when the complainant arrived home he was disappointed that she was not on the yacht, and expressed that disappointment to her.

Police evidence

54. Police evidence established that the complainant’s Medicare records had been retrieved.  There was no record of a Medicare payment in Bundaberg in 1986.

The evidence of Mr Collins

55. Mr Collins gave and called evidence.  His own evidence contained these relevant parts:

1. the ad was placed by him with the intention of getting someone to help with his eight to nine year old son;^[81]
2. he thought he went to her home for the interview; he interviewed quite a few others for the job; after she was given the job she came down on a regular basis to get to know his son;^[82] she was on the yacht between three and seven days before they sailed, staying in his cabin the whole time; he said “we’d become a couple at that stage”;^[83]
3. they struck up a consensual sexual relationship quickly after meeting;^[84] in cross-examination he said this happened from before she moved onto the yacht, when they spent a night together at his unit at Point Cartwright;^[85] then from the first moment when she moved her belongings onto the yacht: “… then became my partner, moved into my cabin and we started a life together. ... Right from day 1. So help me God. The Lord’s listening to what I’m saying”;^[86]
4. the people on board were: Anthony and Kay who had a cabin toward the bow; a girl called Amanda who took the bottom bunk next to the son; and he and the complainant shared the cabin at the stern;^[87]
5. in cross-examination he said that he could not recall how long he had known Anthony, but he was aboard at the request of Kay; also as to what Anthony knew of the complainant and Mr Collins, he said: “I don’t honestly think that he even knew that she came through an ad. I think he just thought she was me girlfriend and that was it. I don’t think he knew anything … He could see she was me girlfriend. We were living together”;^[88]
6. he could not remember how the girl called Amanda was on board or where she came from; he supposed that she “may have answered the ad.  That’s what I think, that she may have answered the ad.  And when [the complainant] and I got together as a couple we immediately – I then put somebody to help Robbie.  That’s the only way we can put it together”;^[89]
7. the yacht was a new version and there was a lot of interest in it; a lot of people asked to come aboard to inspect it during the trip;^[90]
8. by the time they reached Bundaberg he and the complainant had an “excellent” relationship; “I was madly in love with her and … I thought she was in love with [me]”;^[91]
9. in Bundaberg he took the complainant to a doctor because she was sore because they were too active sexually;^[92] Kay left in Bundaberg, leaving Mr Collins, his son, the complainant, Anthony and Amanda on board;^[93]
10. at Percy Island they came across the trimaran; there were about 10 yachts there already;^[94] after that they stopped at Brampton Island which had a resort on it; he gave the complainant a few hundred dollars to entertain the boys from the trimaran; Brampton Island also had a boat service to the mainland; from there they went to Lindeman Island;^[95] Lindeman Island also had a service to the mainland;^[96]
11. at the islands they stopped at, such as Percy, Brampton and Lindeman, they went ashore and ate in the resort restaurants;^[97]
12. the yacht had a radio on board; Mr Collins made a lot of calls for business reasons; he taught the complainant how to use it;^[98]
13. the complainant left the yacht in Hamilton Island; he called her parents to tell them not to worry, that she had gone; a week later he rang the parents’ house, and the complainant was there;^[99] and
14. Mr Collins said he never had sex with the complainant on a beach;^[100] she was “a very loving, beautiful person”; he denied that he raped her, saying it would “never be necessary to do something like that … she was part of my life for goodness sake”.^[101]

56. A constant theme in Mr Collins’ evidence was that he and the complainant had developed a consensual and loving sexual relationship early after meeting, and she was an active participant, if not pursuer:^[102]

“… she started – what happened – we were sort of driving around looking at things – I’ve got to explain this to you this way, how it became a relationship – and we just sitting there having meals together, talking about things, the trips and things like that, and then all of a sudden she’d – like, I’d be sitting at the dining room and she’d have her hand on me or something like that and – thing, and I’d already, you know, had good feelings for her at that stage, I’ve got to be honest, but I could see that she did also. So – and then I’d be driving the car and she’d have her hand on me leg. I mean – and then all of a sudden – the first time that we got together was when we went to the – the unit at Point Cartwright and she decided to stay the night. And after she stayed that night she then went back and – and packed her gear and got her mother to drop her off with her – with her clothes. And that was a few days before we left and there was other people on the yacht at that time.”

57. He was asked to describe what the interaction was between them during the trip:^[103]

“Well, we were getting on so good. We never had an argument, never had anything – no words against each other. She said nothing nasty to me, I said nothing nasty to her. It was just a complete, beautiful, wonderful part of my life.”

58. In cross-examination he was asked if sexual intercourse was usually initiated by him:^[104]

“Each time you had sex, was it always you that initiated it?---Oh, no. No, no, no, no. She sometimes would come in, and she was the only female that I can remember in my life that would always be the aggressor on top of you, sort of thing, if – I don’t want to talk about sexual things to you people – there’s young ladies there – but I have to.”

59. In cross-examination he described the relationship in greater detail.  It was “very much” a loving relationship, and “the happiest time of my life”.^[105]  He said he thought she was madly in love with him, and she told him that she loved him.^[106]  He said “we were partners … we were just normal people like anybody else would be”, they did not kiss a lot but would cuddle and “sit up in the wheelhouse … at night and talk about things and things like that”.^[107]  When asked if it was a genuine, mutual, loving relationship, he said “It honestly was, yes”.  Then when asked if there were any disagreements, “No, none whatsoever”.^[108]  It was a “perfect” relationship, and “She was very, very much in love with me, I think, and I was in love with her”.^[109]
60. Mr Collins said in cross-examination that the complainant’s interest in sex “never changed from the time … she came into my life till the time she walked out …”.^[110]
61. Before they sailed the complainant’s parents and her brother came down unexpectedly to see her off.  He said that there was a panic started by the complainant, to move her things out of his room.  She asked her brother, amongst others, to move her things:^[111]

“And as the parents came down the jetty [the complainant] hit the panic button and said to her brother, and to my son, and to the others, quickly, get the gear out of John’s cabin and put it in the front cabin because Dad might want to look over the boat. And that’s what happened. But he didn’t actually go on the boat that day when we left.”

62. Mr Collins explained what happened on Hamilton Island.  After they went ashore to a restaurant:^[112]

“When we got to the restaurant these – oh, this is what wrecked my whole life. The staff that worked for me at – up at that – liked me so much they come up and gave me a great big cuddle, and there was three or four girls cuddling me and a couple of boys shaking me hands, and [the complainant] seen the girls cuddling me, she got in a huff … and she went down the staircase, took Robbie with her, and that’s the last time I ever seen [the complainant] until … I met her at … Mooloolaba.”

63. In cross-examination he said he was shocked when she left, and that incident was the only thing that he could determine was the trigger for the complainant leaving.^[113]
64. Mr Collins exhibited a tendency to being garrulous in his evidence, and a preparedness to alter his evidence depending on what other witnesses said.  An example will suffice from his cross-examination, when he was being asked about answers given on a previous occasion:^[114]

“Mr Prosecutor, you just said to me did you say that at that time. Yes, I did say that at that time, but as you said, after hearing them saying – sitting here and saying that they didn’t interview me at the house, what am I to think? That 30 years ago this idiot of a man sitting in front of you didn’t realise? I just didn’t realise. … I’m sure I went to their house, but maybe I didn’t. Maybe they were telling the truth and I didn’t go to their house. Maybe it didn’t happen that way. But I went to some houses and … I knew where the house was, I knew it was on a corner, I knew it had … a garden thing over the gate. I knew all those things. I knew where the lounge was. I knew everything. But – but nobody wants to believe me because I said it and they said I didn’t go there.

No, the original question was do you tend to change your evidence when you hear other peoples evidence?---I had to change it because of the fact that they said that I didn’t. You are correct what you said. I’m sorry, Mr Prosecutor. Yes, you are correct.”

65. Another example occurred when he was cross-examined about the girl he called Amanda:^[115]

“You were being asked generally who was travelling on the yacht with you to Hamilton Island?---Yes.

And you also – the question was:

Did anyone else end up going on this trip to Hamilton Island?

This was your response:

Yes, there was another girl on board, but – I don’t know how to explain it, but I really don’t know her name - - -

?---Nuh.

Continuing:

- - - and I don’t know how she got there. I don’t know whether she was one of the girls that answered the ad or whether she was [the complainant’s] friend. We always thought all these years that it was [the complainant’s] friend - - -

?---Yep.

Continuing:

- - - and she’s asked to bring her along, but I don’t know.

?---Not after 30 years. I can’t remember.

But today you name her as Amanda?---Only because somebody’s told me that was her name.

Oh. Because you heard that name used by another witness - - -?---That it rung a bell. When I heard the name Amanda it rang a bell in my brain and I thought, yeah, that was that girl’s name.

So you accept that you’re adopting that name because you did hear it from another witness six weeks ago?---Because I – when I heard the name Amanda, I knew then that was the name of the girl. It just – it’s – it brought back me memory to the thing. What’s the big deal about a name? I mean, I – I don’t know whether – at this stage as I sit here with this Bible and given an oath that I’ll tell everything true in God’s name, I’m telling you now, I – I can’t remember whether she was [the complainant’s] friend or whether she come through the ad or what.”

Mr Collins’ son

66. The son was about 38 years old at the trial, and about eight or nine at the time of the offences.  The salient parts of his evidence were as follows:

1. he described the complainant as “Dad’s girlfriend” because the complainant applied for a job as his nanny, and a week before they sailed she “kept coming down to the boat and then stayed overnight maybe about three or four days before we actually left”; she was always in the cabin with his father;^[116]
2. the others on the yacht were Anthony and Kay (Anthony’s girlfriend), and another girl who was a friend of the complainant;^[117] the other girl remained throughout the trip;^[118] Kay got off in Bundaberg;^[119]
3. her parents came to see them off; there was “a bit of a mad rush to move her bags from Dad’s cabin to one of the forward cabins”; the complainant asked him to move the bags and he did so;^[120]
4. at Brampton Island they stopped around the back of the island on the first night, and had a barbecue, then went to the resort the next day;^[121]
5. after Brampton Island they went to Lindeman Island, then on to Hamilton Island;^[122] they had contact with people from other boats every day of the trip;^[123]
6. he explained how the complainant left from Hamilton Island, responding to a question as to how long the complainant remained his nanny on the island:^[124]

“Not very long. She – she got off the boat – well, not straight away, but a few hours – few hours after we’d parked in front of the steakhouse on Hamilton Island, and I think might have gone up and got some lunch or a drink, and then we went back to the boat and then shortly thereafter she literally – she had her bags in her hand and then just went up the stairs and then got in a dinghy with the guys on the trimaran and off she went.”

7. in cross-examination he said that his father looked after him after his parents separated and his mother gave him the choice as to who to live with; he sailed often with his father;^[125] he had a lot of nannies during his childhood;^[126]
8. in cross-examination he agreed that his memory had “foggy areas”, and that he remembered the bits that stood out or because they were fun;^[127] and
9. he said in cross-examination that he was absolutely clear that his relationship with the complainant, up to the point that she left with the men on the trimaran, was “absolutely” a positive one, and he was quite close to the complainant because of the absence of a mother figure in his life; the complainant appeared, from his observations, to be quite close to his father.^[128]

Evidence of Anthony

67. He was 23 in 1986 when he went on the trip on Mr Collins’ yacht.  Kay was his girlfriend.  He said that the people on the trip were Mr Collins and his son, Kay and himself, the complainant, and a girl called Amanda.  He met the complainant about a week before they sailed.  He described meeting the complainant:^[129]

“Do you recall how you came to meet her?---Well, she came on to the yacht and – basically introduced as John’s partner and she was coming on the trip with us.

All right. And you say that was about a week before you left?---Yeah.

All right. And what sort of interaction in that week before you left did you see going on between Mr Collins and this … girl?---Well, I just presumed they were partners.”

68. He said that the complainant and Mr Collins “were together all the time”.  They sat together, kissed and cuddled, ate dinner together, and were in the same cabin together.^[130]  He said the main cabin was forward on the yacht, his own cabin was mid-ship, and opposite his cabin was the cabin for Amanda and the son.^[131]
69. On the day they sailed he said the complainant’s parents came down to see them off, and the complainant got her brother to help her to move her clothes from Mr Collins’ cabin.  He explained his reaction to that:^[132]

“Well, I felt a bit embarrassed for [Mr Collins]. I was – because I thought they were partners. It seemed peculiar that she’d be removing her clothes when she’d already been there a week on the yacht, basically.”

70. He said the trip took about six weeks and they stopped at populated islands every second night.  There were usually other yachts around and they socialised with other people from other yachts.  Kay left in Bundaberg.^[133]
71. At Brampton Island he said he stayed on the yacht to look after it while the others (Mr Collins and his son, Amanda and the complainant) went ashore to the resort.  There were facilities to get to the mainland at Brampton Island and Lindeman Island.^[134]
72. In cross-examination he was asked to describe the interaction he saw between the complainant and Mr Collins:^[135]

“I just presumed they were partners like me and Kay. We were all couples on the boat except for, well, Amanda and young Robbie.

Well, as best you can say – you say you presume that. Can you say - - -?---Well, they slept in the same cabin the whole time.

Did you see them interacting during the trip?---Well, they cuddled at meals and sat together. I saw them kiss. But, I mean, I didn’t take much notice of it but they were partners – that’s what I thought.”

73. In cross-examination he said he never saw the complainant upset or avoiding Mr Collins.  Then he described what happened on Hamilton Island:^[136]

“I had to park the yacht in front of a restaurant and that was pretty amazing and everyone went up to the restaurant. Some girls came out and greeted John, which usually happened when we turned up somewhere because he was so well-liked and well-known and I think – [the complainant] disappeared for some reason. I think she probably got jealous of these girls that hugged John but blokes hugged him too.

Did you – did you see her again?---No.”

74. He said the trip was “a fantastic trip of a lifetime and we just had fun the whole time”.  The complainant “seemed like she was having a fantastic time like the rest of us”.^[137]
75. In cross-examination he said that he met Mr Collins about four weeks prior to leaving.  Mr Collins said that when he met him that he (Mr Collins) had a girlfriend and that she was coming on the trip.  Part of the preparation for the trip, which he observed, was interviewing nannies.^[138]  As far as he recalled, the person hired for the nanny job was the girl, Amanda.  She stayed on the yacht for two nights before they sailed, in the bunks where the son slept.^[139]

Discussion

76. I propose to deal with the specific aspects raised in Mr Collins’ Notice of Appeal.  At the same time I shall deal with the overall submission that the verdict is unreasonable and cannot be supported by the whole of the evidence.

The case was stale - too dangerous to act upon the complainant’s evidence

77. It is true that a very long period of time elapsed between the offences (1986) and the first complaint (2006).  It is also true that the complainant did not complain to anyone about what happened.  There was, therefore, reason to treat the complainant’s evidence with caution, especially as the extraordinary delay meant that avenues of responding were adversely affected.
78. However, in assessing the evidence one must bear in mind that the defence case was that sexual intercourse did take place, repeatedly, and from before the yacht sailed from Mooloolaba.  The whole thrust of the defence case was simply that all sexual interaction was consensual, not that it did not occur.  The one exception to that was the claim that Mr Collins did not have sex with the complainant on a beach.
79. Therefore, the lost means of testing the complainant’s accusations has to be judged with that in mind.  No rational complaint could be levelled at the lack of medical evidence, or the inability to gather it.  Nor the chance to test those to whom the complainant made preliminary complaint, because there were none.  As for possible witnesses that might have been sought, the complaint falls away for several reasons.
80. First, of those on board the only ones not called were Anthony’s girlfriend, Kay, and the girl called Amanda.  There were powerful reasons to doubt that the girl Amanda was actually aboard at any relevant time given that the very person who she was supposedly looking after (the son) did not mention her being there, and said the complainant was his nanny.  He did say there was another girl, but not his nanny, and that person was supposedly a friend of the complainant, which was supported by no-one.  Further, in so far as Mr Collins referred to her, his propensity to change his account according to what others said means it was quite likely that he was echoing what Anthony said.
81. Secondly, of the potential witnesses from other boats or islands, what was it that they could likely say that was relevant?  Nothing more than the fact that the complainant was on shore and how she behaved in a general sense.  None of them were suggested as being party to any greater detail than that.
82. Thirdly, both of the parents were called.  No medical or forensic evidence was likely to assist; there were no phone records because no relevant calls were made until Hamilton Island, and any medical examination would have shown nothing that was relevant given that the complainant and Mr Collins both said that there had been frequent sexual intercourse over the weeks leading to her return home.
83. That means that the real thrust of the lost means of testing the evidence came down to the fading memories of all witnesses.  Because of that Mr Collins contended that it was dangerous to rely on what the complainant said.
84. However, the learned trial judge directed the jury in clear terms about the problems caused by the delay and the necessity to scrutinise the complainant’s evidence with care.  Indeed, the jury were directed that it would be dangerous to convict on the complainant’s evidence alone, unless satisfied beyond reasonable doubt that it was accurate:^[140]

“There is another matter which I must raise with you. This relates to the delay in the complaint. There is a consequence of the delay, and that is that evidence which might have been available is no longer available. So some avenues which might be used to test the evidence probably are not now available, and the accused has lost, by reason of that delay, means of testing and meeting the allegations which would otherwise have been available. By the delay, the accused has been denied the chance to assemble soon after the incident is said to have occurred evidence as to what he and other potential witnesses were doing when, according to the complainant, the incident happened. Had the complaint instead been made known back then, it would have been possible, perhaps, to explore the pertinent circumstances in detail and perhaps to gather and to look to call at a trial evidence throwing doubt on the complainant’s story, opportunities lost by the delay, and the fairness of the trial has necessarily been impaired by the long delay.

And so I warn you: it would be dangerous to convict upon the complainant’s testimony alone, unless, after scrutinising it with great care, considering the circumstances relevant to its evaluation and paying heed to this warning, you are satisfied beyond reasonable doubt of its truth and accuracy. So that is a warning that it would be dangerous to convict unless you carefully look at the complainant’s evidence, you assess the relevant circumstances, you keep in mind my warning. If you, despite all those things, are satisfied beyond reasonable doubt of the truth and accuracy of her evidence, you can find the accused guilty. If you are left with a reasonable doubt, you should find the accused not guilty.”

85. There is no reason to think that the jury did not heed and obey that direction.^[141]  Especially is that so, as it was reiterated a short time later when the learned trial judge was summing up the opposing cases.  Dealing with what counsel for the defence had said about the delay, her Honour said:^[142]

“He spoke to you about the delay and said I would give you a warning, and I’ve given you that warning, which I am required to do as a matter of law, and you have heard it – that warning about it being dangerous to convict unless you examine the circumstances and examine the evidence.”

Reasons to reject the defence evidence

86. There are ample reasons why the jury may have rejected the defence evidence, especially that of Mr Collins.
87. First, Mr Collins’ version of events may well have seemed genuinely implausible, if not delusional.  He said that within a couple of days of their first meeting the 19 year old complainant had commenced a torrid sexual affair with him, about 23 years her senior, each being immediately deeply in love with the other.  On that version both she and he were prepared to flaunt the relationship in the face his son, for whom the complainant was supposed to be the nanny.
88. Further, Mr Collins’ version had the complainant as the initiator of the sexual relationship and the pursuer of it.  Moreover, on Mr Collins’ version the complainant left what was a mutually fulfilling, loving relationship, for either a trivial reason, or no reason at all.  His evidence that she left because she was upset at the attention he received on Hamilton Island from other girls, may well have been taken to have the hallmarks of his adopting what Anthony said: compare paragraphs [61] and [72] above.
89. Secondly, Mr Collins revealed a propensity to tailor his evidence according to what others had said: see paragraphs [63] and [64] above.
90. Thirdly, Mr Collins may well have been seen by the jury to have a poor genuine recollection of the events, and a propensity to augment his poor memory of things by drifting into reconstruction.  A good example is his evidence about the girl called Amanda.  He could not remember her, or her name until someone mentioned it, nor how she came to be on board, nor where she came from.  Instead he supposed that she “may have answered the ad”, then firmed on that being what happened.  Then he rationalised it further by saying: “And when [the complainant] and I got together as a couple we immediately – I then put somebody to help Robbie.  That’s the only way we can put it together”.^[143]  The last answer may have worried the jury about the genuineness of any of Mr Collins’ recollections.
91. Fourthly, the son’s evidence could well have been discounted given that he was only eight or nine when the events occurred, and he had no reason to recall them for 30 years.  Further, the jury may well have thought that at eight or nine years old he did not have the maturity to make accurate observations of the true nature of the relations between his father and the complainant, and then recite them 30 years later.
92. Fifthly, the accounts of the son and Anthony as to the apparent on-board relationship may have been taken to simply reflect that part of what the complainant described as her submission to the threats against her family.  Once she gave in and moved into Mr Collins’ cabin they may well have seemed to be a couple to others who were not aware of what had happened privately.
93. Sixthly, the evidence of Anthony may have been discounted for the reason that he had no reason to retain any of the detail in his memory for 30 years.  As he said, he was on the trip of a lifetime, having fun every day.  What likelihood was there that he was actually picking up the reality of the situation between Mr Collins and the complainant, as opposed to a holiday snapshot?  In any event, weeks before the complainant was even interviewed Mr Collins told Anthony that his girlfriend would be coming aboard.  The jury may well have concluded that Anthony’s evidence was coloured by his presumption that the complainant was the girlfriend.

Acceptance of the complainant’s evidence?

94. Mr Collins attacked the complainant’s evidence as being implausible, uncorroborated, containing contradictions, and being contradicted by other evidence, such that it made her an unreliable witness.
95. The jury were faced with a situation where the complainant’s account was corroborated to some extent by admissions from Mr Collins and others:

1. the interview for the job took place on the boat; after it was put to her that it was at her home, Mr Collins evidently changed his evidence and agreed it was at the boat;
2. she was aboard as the son’s nanny, as the son said;
3. sexual intercourse did take place, and frequently;
4. she went to a doctor at Bundaberg about the condition called thrush;
5. Mr Collins did buy her a dress in Bundaberg; he agreed it was the one in the photo she produced;
6. the girl Kay (or Gaye) left the boat in Bundaberg;
7. the complainant left abruptly and without explanation from Hamilton Island, almost the moment they arrived there; and
8. her mother did arrange a bus ticket home; her father did berate her when she arrived home.

96. Thus large parts of the story were corroborated or uncontroversial, and the only real issue was whether the sexual intercourse, and other sexual conduct, was consensual.
97. The jury were unlikely to be swayed by mere inconsistencies after a 30-year lapse between the events and complaint, then trial.  The memories of all witnesses are likely to have been affected by such a delay.
98. The jury may have reasoned that they could accept the complainant’s evidence for a variety of reasons, including:

1. the inherent improbability of a 19 year old naïve girl striking up a sexual relationship so quickly with an older man she hardly knew;
2. of why would the complainant decide to lie about the consensual nature of the relationship, 20 years after the event;
3. it seems unlikely that she would have put herself and current family through the ordeal of the trial, and publication of the events, if the account was not true.

99. It is true, as counsel for the defence emphasised at trial, that there were matters that the jury had to grapple with and which could argue against accepting the complainant’s evidence.  They include:

1. even on her own account she moved into his cabin and had a sexual relationship for four weeks, but did not tell the police about that aspect; whilst she says that she was asked to describe “attacks” and that is why she did not mention that period;
2. she did not say anything to anyone at Bundaberg;
3. she not say anything to the others on board; she said that was because they were friends of Mr Collins and they had not responded before;
4. she did not try to tell anyone else on the other boats or islands; she said she did not meet them or go ashore, but that is contradicted by Anthony and the son (apart from Mr Collins), and perhaps unlikely to be true given the son would have most likely wanted to go ashore at new places;
5. she not tell the cleaner on Hamilton Island or the person she stayed with on the mainland; and
6. she did not go to police straight away, or her parents at all;  maybe her father's reaction would go some way to explain that.

100. One troubling consideration is that in Bundaberg the complainant said and did nothing to escape, complain or seek help.  The boat stopped in Bundaberg and, on the complainant’s account, that was after comments containing sexual references or sexual innuendo and some touching had occurred, to a point making her feel uncomfortable.  However that was before any sexual intercourse or direct suggestion of it.  She went to the doctor there and it could be assumed that she saw the doctor alone. She said she had decided to tell the doctor she had thrush “so that I could let Mr Collins know that, therefore he’d leave me alone”. But she did not: (i) tell the doctor or the receptionist what was happening; (ii) ask the doctor or receptionist to call the police, even if they were not told why; (iii) run away; (iv) go to the police; or (v) call her parents.  The jury may well have thought it odd that at the start of the offending behaviour she did nothing to seek help.  Of course, on her account Mr Collins’ conduct had not then progressed to the offences, but seemed confined to repeated suggestions that she go topless or nude, and touching her arms, back and shoulders.
101. The later conduct occurred, the complainant said, under the threats made by Mr Collins.  If the jury came to the conclusion that the threats were real, or believed by the complainant to be real, then they could accept that as explaining the failure to seek help at all times.  Could they accept the complainant’s evidence that the threats were made and that she believed them to be real?  I am unpersuaded that they could not accept the complainant on these matters.  Mr Collins was described by her as an older wealthy individual who was prone to boasting about his wealth and splashing his money around.^[144]  What is so unlikely about the prospect that he might have gone further and said he had the connections to bring about what he wanted, by whatever means he chose?
102. On this aspect, as on all other aspects of the weighing of the evidence, one of the most important factors to be borne in mind is that the jury saw the complainant in the witness box, so they had the opportunity to make a judgment on the credibility and reliability of her as a witness, and of the account she gave.  That is a significant advantage which must be given appropriate weight by this Court.  So much was made clear in M v The Queen, when the High Court explained that the court must give “full regard” to the fact 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.^[145]  The High Court said:^[146]

“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.”

Specific matters raised by Mr Collins

103. On the hearing of the appeal senior counsel for Mr Collins raised a number of suggested inconsistencies in the evidence of the complainant.  There were four main areas involved: (i) the failure to refer to the four weeks during which the complainant lived in Mr Collins’ cabin; (ii) the failure to get help from others on the boat or visiting it; (iii) the failure to get away on any of the resort islands before Hamilton Island; and (iv) the inconsistent accounts of where count 2 occurred.

Failure to refer to the period in Mr Collins’ cabin

104. The complainant accepted that in her 2007 police statement she had said that the three rapes occurred on consecutive nights after leaving Great Keppel Island, and that they arrived in Hamilton Island the next day after that.  Further, that she had made no mention of the four-week period when she occupied Mr Collins’ cabin.^[147]
105. That omission was attacked by senior counsel for Mr Collins as being beyond the usual sort of inconsistency, and going to the heart of the relationship between the complainant and Mr Collins, rather than something about which a reasonable or otherwise reliable witness might be mistaken.  It was submitted that the omission was because the complainant had excluded it, and that it was “inexplicable and impossible to reconcile with the proposition that she was a reliable witness”.
106. The complainant said two relevant things about the account given at the committal.  First, when she made the statement to the police she had not forgotten that period, but “I was asked to recall the attacks and I recalled the three attacks”.  She did not include the period in the cabin “because it was not attacks after that, because I could not get off the yacht until I found somewhere acceptable to get off”.  That explanation is not so extraordinary that the jury could not accept it.  Secondly, when she gave evidence at the committal she “had been reading my statement and that’s what I recalled from the statement”.^[148]  The jury could well accept that as meaning that her committal evidence mirrored her statement because she had been reading it beforehand.
107. I do not accept that it was not open to the jury to accept the complainant’s explanations of how that occurred.  The submission that the omission was irreconcilable with the proposition that she was a reliable witness, cannot be accepted.

Failure to get help from others

108. The submission here was that the complainant’s evidence of having no opportunity to contact others was critical to acceptance of her evidence.  The evidence of Anthony and Mr Collins’ son was that there was continual contact with other people on yachts and ashore.  It was said that evidence was unchallenged and not contradicted.  Therefore, the submission went, the jury could not have accepted her evidence as reliable.
109. It must be borne in mind that the complainant gave evidence of opportunities to contact others (in the period after the sexual offences started), both on boats and ashore.  That includes daily contact with those aboard Mr Collins’ boat and frequent contact with the trimaran.  She did not say that there were no opportunities, but rather, she did not take advantage of them.^[149]  Further, she gave explanations for why she did not seek the assistance of others: see paragraph [44] above.
110. The complainant also gave evidence that she thought of calling for help at various times, either to those on Mr Collins’ boat, or others such as the trimaran.  However, she gave reasons for not doing so, or doing so in a subdued way that would not lead to disturbing the son or being put in a position where he could find out what was happening.^[150]
111. I do not accept that it was not open to the jury to accept the complainant’s explanations.

Failure to get away

112. The complainant did not try to leave until she reached Hamilton Island.  Whilst she denied that they visited resorts on other islands on the way, or had no recollection of it, there was evidence from Mr Collins, Anthony and the son that they did so.  However, the complainant was a 19 year old girl without any experience of the islands, or knowledge of the means that might exist on any of them for transport to the mainland.  Further, her unchallenged evidence was that she had not been paid her wages when they arrived at Hamilton Island, and still had no money when she tried to use the ferry to the mainland.^[151]  Therefore the jury could well have reasoned that even if the means of getting away was available she did not have the money to pay for it.  It was not suggested that she could be criticised for not leaving with unknown persons on other boats.  As the complainant said, she “could not get off the yacht until [she] found somewhere acceptable to get off”.
113. In my view, the failure to get away earlier by that the complainant does not lead to the conclusion that she was an unreliable witness.

Location of count 2

114. At the trial the complainant said she was raped in Mr Collins’ cabin, having been dragged down from the wheelhouse, whereas at the committal she had said she thought it was in the wheelhouse but it might have been down in the room.^[152]
115. This inconsistency, as with all the others raised as between the committal and the trial, was met with frank acceptance by the complainant that she had said different things but her recollection was different at the trial.  When the questions in cross-examination are examined it is evident that at the committal she said she could not recall if the act of intercourse occurred in the wheelhouse or in the cabin.  At the trial she said her recollection then was that it was in the cabin.  On either case she was consistent in saying that the masturbation preceded the rape, and that her clothes were taken off in the cabin.^[153]  As with the other areas where there was a difference between her account at the committal and at trial, the complainant said that she accepted she said those things at the committal but her recollection at the trial was different.
116. I remain unpersuaded that the jury were not entitled to accept her evidence notwithstanding the differences.  The overall thrust of her evidence remained, and after such a time lapse it is not surprising that recollections will have faults.

Conclusion

117. As will be evident from what has been said above I have made an examination of the whole of the evidence at trial to determine whether it was open to the jury to be satisfied of the guilt of Mr Collins on all or any counts, beyond reasonable doubt.
118. All the suggested inconsistencies and inadequacies in the evidence raised on this appeal were fully tested before the jury at the trial, and the jury was addressed upon them and had the benefit of the learned trial judge’s summing up.
119. Notwithstanding having my own reservations about the evidence of the complainant, especially as to the failure to seek help at the earliest time, I am unable to conclude that it was not open to the jury to accept the complainant’s evidence as to the way in which the offences occurred, and the fact that the making of threats against her family was the motivating factor that overcame her resistance and explained her failure to seek assistance from the earliest time.  The complainant’s evidence was generally consistent and plausible.  As mentioned above, this was a case where the real issue was not whether there had been any sexual contact and intercourse but whether it was consensual.
120. The jury’s advantage in seeing and hearing the witnesses in this case must be given appropriate weight.  Once making allowance for that advantage I cannot conclude that the evidence is so inconsistent, inadequate, or lacking in probative force that there is a significant possibility that an innocent person has been convicted.

Proposed order

121. For the reasons expressed above, I would dismiss the appeal.
122. I propose the following order:
     1. The appeal is dismissed.
123. BURNS J:  I agree that this appeal must be dismissed for the reasons stated by Morrison JA.