R v Duckworth[2016] QCA 30

SUPREME COURT OF QUEENSLAND

1. MARGARET McMURDO P:  This appeal against conviction must be allowed, the guilty verdict set aside and a new trial ordered for the reasons given by Burns J.
2. PHILIPPIDES JA:  I have had the advantage of reading the reasons of Burns J.  I agree with what has been said about the grounds of appeal, except those relating to the third category of lies and s 24 of the Criminal Code (Qld).  In my view each of those grounds of appeal are not made out and the appeal should be dismissed.

Direction as to the third category of alleged lies

3. The approach taken by the trial judge was to outline the three categories of the appellant’s answers in his police interview to be considered by the jury as capable of indicating a guilty mind.  Her Honour identified three conditions of which the jury were required to be satisfied before the answers could be used as showing an awareness of guilt of the offence of rape, giving directions as to each of those conditions.  These conditions were, firstly, that the appellant had told a deliberate untruth, secondly, that the lie was connected to the offence, and, thirdly, that the appellant told the lie because he knew that the truth would implicate him in the alleged rape.
4. I agree that there was no error in directing the jury as to the first two categories of alleged lies.
5. I do not share the view expressed by Burns J that there was error in the trial judge’s directions concerning the third category of answers given by the appellant (being those to the effect that the appellant never spoke to his two friends, Mr Foster and Mr Pratt, about the allegations of rape or had no memory of speaking to his friends about it).
6. Mr Foster and Mr Pratt both gave evidence of a conversation that the appellant had with Mr Foster concerning the complainant, although it differed in certain aspects.  In particular, Mr Foster said the conversation occurred in the hotel room, while Mr Pratt’s evidence was that it occurred in the car after they had checked out of the hotel room.
7. Mr Foster’s evidence as to what occurred in the period immediately before the conversation with the appellant was that Ms Picard joined him and the appellant on the balcony after putting the complainant to bed.  The appellant said he was going to bed and went inside.  Mr Foster did not see which bed the appellant went to as the curtain in the room was closed because daylight was breaking outside.  He remained on the balcony with Ms Picard for between half an hour to an hour.  Ms Picard said she was going to check on her friend and he followed her inside and saw the appellant in bed with the complainant.  He observed the blanket was over the top of them and the appellant’s right arm was over the top of the complainant like they were “spooning”.  He observed the appellant asleep and Ms Picard walked to the side of the bed and quietly asked the complainant if she was ok.  The complainant answered “No”.  Ms Picard asked the complainant if she wanted to go and she responded “Yes”.  Mr Foster assisted Ms Picard with the complainant.  As all three got outside the hotel room, he clearly heard the complainant say “he entered me”; she appeared to be upset.  He described the complainant as still appearing to be intoxicated.
8. Mr Foster then gave the following evidence of his conversations with the appellant.  He said he returned to the room and spoke to the appellant, asking him if he had tried to have sex with the complainant to which the appellant replied “No”.  Mr Foster then went back out to Ms Picard and the complainant and helped them to the lift.  He returned to the hotel room and had a further conversation with the appellant.  He told the appellant what had happened outside the room.  He said the appellant was shocked.  He asked the appellant if he had sex with the complainant and the appellant said “Nope”.  The appellant then told Mr Foster that when he jumped into bed with the complainant, he snuggled up behind her, and she reached over and grabbed his arm and draped it over the top of her.  The conversation took place soon after the complainant and Ms Picard had gone.  The appellant and Mr Foster then went to get some breakfast.
9. In cross examination, Mr Foster was asked whether, when he first went back inside the room after the discussion outside the door, he had to physically wake the appellant to which he agreed.  He agreed that the purpose of doing so was to ask him whether anything had gone on.  He also agreed that that was the first time he had seen the appellant rise from his slumber.  Mr Foster said that he and the appellant went out for breakfast about half an hour after Ms Picard and the complainant left.  Mr Pratt was still asleep.  They were out for breakfast for about forty five minutes.  After they returned they went to sleep for about two hours before check out.
10. Mr Pratt’s evidence was that he had seen the appellant in bed with somebody.  He did not know who that was.  He rolled back over and went to sleep.  He was awake for all of maybe 15 or 20 seconds.  He saw “a little bit” of movement in the other bed, “maybe just like an arm movement”.  The following morning after checkout they went to breakfast.  He then took the appellant home in his car, with Mr Foster.  Mr Pratt recalled that during the car trip Mr Foster said “the girl has accused [the appellant] of … touching her”.  The appellant said “you know, that’s pretty bullshit.  I may have tried to spoon her”.
11. When dealing with the third category of answers concerning his denial or lack of memory of conversations with Mr Foster and Mr Pratt, her Honour reminded the jury of the following evidence:

“In relation to this question of the conversations with his friends, Mr Foster’s evidence, you’ll remember, was that after the complaint had been made in the hallway the accused had asked him what was going on.  He, Mr Foster, told the accused – asked him if he had sex, the accused said no and then said when he jumped into bed with her he had snuggled behind her and she grabbed him on the arm.  Mr Pratt said the next day when they were all in the car and Foster again asked the accused about it, the accused said it was bullshit and that he may have tried to spoon the girl.”

12. I do not share the concerns raised by Burns J at [95] and [96] as to the judge’s directions.  The first matter of concern raised is that, while the trial judge appeared to accept that it was possible the appellant might have no genuine memory of the alleged conversations when interviewed some five weeks later, the conversations were still left with the jury as a possible source of evidence to contradict the appellant’s answers to police.  However, the jury were advised that they could only consider the third category of answers, if they were first satisfied beyond reasonable doubt that the appellant had deliberately told untruths.  The trial judge directed the jury that people sometimes lie for innocent reasons and gave examples.  She also told the jury that it was necessary that they be satisfied beyond reasonable doubt that the appellant lied because he knew he had raped the complainant and because he knew that giving a truthful answer would implicate him in the rape.  As the President observed in R v Ali,^[1] Edwards v The Queen does not require a trial judge to set out every possible reason for a lie.
13. In any event, the trial judge set out the arguments of the prosecution and defence in that regard, as is evident in the following portion of the summing up:

“The Crown argues that those conversations – the evidence of those conversations from the accused’s friends show that the accused was aware of the girl being in the bed; he was aware of the things that he did; of things that he’d done while they were in the bed.  And that the relevance of that conversation with those men is this: while the accused was denying to them that he had done anything wrong he gave his friends a positive version.  He was conveying to his friends a denial of the allegations because he was indicating that he knew what happened; he was denying it on the basis that he knew that it was not true, that he knew what happened.  And the Crown argues that that version to his friends is very different to what he told the police, namely, that he was out of it the whole time he was in the bed.  [The prosecutor’s] argument is that while a drunk person might have a memory lapse you would be satisfied that that was not the explanation here because this is not a case where the accused went back to bed and forgot about everything.  The next day he repeated the positive version in the car when both of his friends were present.

The Crown’s argument is that it’s just not credible that he could forget those conversations especially the later one after he’d woken up the next day.  That the Crown argument is that he would not forget a conversation about a serious allegation that had happened only five weeks earlier; that the accused deliberately misled the police; that it was not just a mistake.  Ten times he told the police that he got into bed while the girl and the others were in the bathroom.  He gave a firm denial of any sexual activity until the very end when the police told him about other evidence that they had of him being in the bed; of the girl being in the bed with him.  And it was only then that he said:

Maybe she was in the bed with me, I’m not sure.

The Crown argues that it is clear from what he told his friends that he knew all along that she had been in the bed with him.

The Crown argues that the lies, those lies, were closely connected to the rape.  The allegation was that he had raped the girl in the bed as she slept.  The Crown’s argument is that he denied any awareness of her being in the bed because he knew that the truth, the real truth, would implicate him in the rape; that it would identify him as the rapist; he lied to cover his guilt.  He refused to admit the conversations with his friends because he knew that would expose him in the offence, by revealing that he was with the girl in the bed and he had been awake and he had been conscious of her.

You remember that the police told the accused towards the end of the interview, that they had gathered other evidence against him that was contrary to some of the things that he had said, especially about being in the bed.  And they asked him whether he wanted to explain.  He told the police that he had been in shock after the police came to his cabin with the rape allegations.  He said he had been worried that he might go to jail, lose his girlfriend and his career.  You remember that the officer told him that this was a serious charge and had offered him another opportunity to fully explain his position.  You can listen to the interview again for yourselves.  You might think that his ultimate answer to the police then was that he didn’t know.

Mr Geeves’ submission was that this was a man who was overwhelmed.  He was young; he had been frightened by such serious allegations and that in the circumstances you couldn’t conclude anything more than the fact that he panicked for reasons not related to his guilt.  That didn’t show a guilty mind, just confusion and fear not related to guilt.  All right.  Well, those are matters for you to work through.”

14. Nor do I share the concerns raised by Burns J as to the conversation in the car never being put in those terms to the appellant by the interviewing police.  There was no such complaint by counsel at trial and no request for redirection, nor was any argument along those lines raised by defence counsel on the appeal.  That is understandable because the relevant portion of the police interview identified by Burns J concerned the police raising with the appellant what Mr Foster had told them.  Their questioning was consistent with Mr Foster’s evidence.  As mentioned, Mr Foster’s evidence was that the conversation occurred in the hotel room.  It would have been incorrect for the police to have suggested that Mr Foster has said otherwise.  I note that Mr Pratt’s evidence preceded that of Mr Foster, but Mr Foster was not challenged by defence counsel as to whether the conversation in question took place in the car as opposed to the room.
15. The interviewing police fairly put to the appellant all the pertinent aspects of Mr Foster’s evidence.  They referred to the complainant having made a disclosure to Mr Foster, that he returned to the room and asked the appellant whether he had done anything.  The appellant replied that he did not remember anything.  The police put it to the appellant that he had actually replied “No” and asked again whether the appellant remembered saying anything to which the appellant replied “Not at all”.  It was also put that Mr Foster had another discussion about what the complainant alleged happened inside the room.  He was again asked whether he remembered “anything about having a discussion with [Mr Foster] about what she said happened in the room”.  The appellant maintained “No not at all”.  The appellant was then asked “even the next day?” and replied “Even the next day like I didn’t speak to [Mr Foster] the next day at, at all because I was [INDISTINCT] basically just passed out or just lazing around the house for a couple o’ days”.
16. I can see no basis for any complaint in the interviewing police questioning the appellant as to whether there was a conversation with Mr Foster “the next day”.  I do not consider that that question was wrongly put to the appellant.  Indeed, the questioning of the appellant as to his recollection the next day was entirely appropriate and consistent with Mr Foster’s evidence as to the timing of the conversation with the appellant.  Mr Foster’s evidence was that daylight was breaking when he was outside with Ms Picard.  He also said that he and the appellant went out to breakfast after the appellant’s statement to him.  He said that this happened about half an hour after the complainant left with Ms Picard.  There was nothing unfair in the questioning and nothing to that effect was suggested by defence counsel on the appeal.
17. As to the last concern raised by Burns J,^[2] it was not erroneous of the trial judge to state that the third group of lies concerned those to the effect that the appellant never spoke to his friends about the complainant’s allegation.  As Burns J states at [99], and I agree, the categories of lies were adequately set out by her Honour.  There was evidence from Mr Foster of his conversation with the appellant and evidence from Mr Pratt of the appellant speaking about the complainant’s allegations when they were all in the car.  The jury would not have been confused about this evidence and, in particular, that both occasions concerned the appellant responding to a question from Mr Foster.  That matter was not the subject of a request for redirection nor any complaint on appeal and I would not find appealable error in respect of this or other matters not raised before the trial judge or on appeal.

Section 24

18. As the High Court has repeatedly stated, defence counsel’s decision not to rely on s 24 does not exempt a trial judge from directing the jury as to any excuse or defence that fairly arises on the evidence: see Pemble v The Queen^[3] and Stevens v The Queen.^[4]
19. In R v Hopper,^[5] this Court explained that a condition of inebriation (as the appellant in that case claimed to have had at the relevant time) may help to induce a belief that a person is consenting to the intercourse; to that extent it may find to show the belief to be genuine or “honest”.  However, the Court emphasised that it did not touch the question whether in terms of s 24 that belief is reasonable; a mistaken belief that is induced by intoxication is not one that can be considered “reasonable” as distinct from “honest”.
20. The propositions stated in Hopper were relied on by the appellant in R v O'Loughlin.^[6]  In O'Loughlin, the trial judge’s initial direction concerning s 24 made no reference to intoxication.  The jury sought further assistance in a note asking for “a restatement of ‘mistaken belief’ defence and how it relates to this case.  Does impaired judgment affect mistaken belief?”^[7]  The trial judge’s redirections included a direction that the jury were to consider “whether … the mistake was, having regard to matters personal to the [appellant] … but ignoring intoxication, both honest and reasonable”.^[8]  Muir JA observed^[9] that those words could easily be construed (inconsistently with what was stated elsewhere by the trial judge) as meaning that the appellant’s state of intoxication should be disregarded when considering the honesty of the belief.  As Muir JA also stated,^[10] the blurring of concepts in the redirection was compounded by the trial judge, who posed the question for the jury as whether they could be “satisfied … that [the appellant] did not have an honest and reasonable belief that the complainant was consenting”, stating, “And it is when considering that question that the question of reasonableness and intoxication comes into play.  As I’ve said, you’ve got to ignore intoxication”.  The words “that question”, as Muir JA commented, plainly referred to the question of whether the appellant had “an honest and reasonable belief”.  The jury failed to receive the assistance they sought about the concept of “mistaken belief” because:^[11]

“… the re-direction gave rise to the distinct possibility that the jury may have been confused about how intoxication was to be taken into account, if at all, in considering mistake.  The most obvious way in which the jury may have been misled by the direction was if they were led to conclude that intoxication was irrelevant also as to whether the appellant may have held an actual or honest belief that the complainant was consenting.”

21. In R v Cook,^[12] it was observed by the President that “Judges must be particularly astute in determining whether s 24 is raised where, as here, there is evidence that the complainant was intoxicated or asleep at the time of the sexual assault”.  In that case, s 24 was raised “by the evidence of the complainant, that she ran her hand up the appellant’s body when she woke up and found him having sex with her; that he told her his name when she asked him; and that after he withdrew she became upset, and said, ‘I thought you want me”.  On appeal the prosecution very correctly raised the issue of a miscarriage of justice in failing to give a s 24 direction.
22. In this case, the trial judge was astute to consider whether s 24 was raised in the context of evidence given by Mr Foster as to the appellant having told Mr Foster after the incident in question that the complainant had “reached over and grabbed his arm and draped it over the top of her”.  Her Honour directed on s 24 out of an abundance of caution, although noting that the defence was tenuous.  Indeed, there was no evidence from Mr Foster (or any other witness) of having observed what the appellant reported to Mr Foster.  Rather, Mr Foster’s evidence was that he saw the appellant’s arm draped over the complainant.
23. The appellant advanced an argument on appeal that, as there was evidence that the complainant and the appellant were asleep, and given that there was no evidence that the complainant had called out, those circumstances also raised the question of mistaken belief as to consent.  I cannot accept that s 24 arose on the basis advanced on the appeal.  Ms Picard’s evidence was that on each time she checked on the complainant, the complainant seemed to be asleep and that it was only on the last occasion, when she saw the doona covers moving, and it looked like the complainant was trying to get out of bed, that she straight away walked in from the balcony and saw the appellant in the same bed.  Ms Picard accepted that when she walked into the bedroom, it looked like the complainant and appellant were both asleep because neither was then moving.
24. However, the only basis for a direction arose in the context raised by the trial judge with counsel, which required that the jury accepted that the complainant placed her arm on the appellant and that in that context he honestly and reasonably believed she was consenting to sexual contact.
25. In the directions given by the trial judge^[13] dealing with s 24, her Honour correctly stated that intoxication was irrelevant to the question of whether a mistaken belief was reasonably held.  Her Honour did so in the context of also having explained that that question was distinct from whether a mistaken belief was honestly held.  The jury clearly had no difficulty in concluding beyond a reasonable doubt that a sober person in the appellant’s position would not have had a reasonable doubt that the complainant was consenting to intercourse.
26. There was no error in failing to direct the jury that inebriation could be taken into account in considering whether the appellant honestly held a mistaken belief that the complainant was consenting.  There was no request for a redirection to that effect.  Nor was there any misdirection in law as to s 24 in failing to direct in the terms contended for by the appellant.  This was not a case like O'Loughlin where the trial judge’s directions amounted to a misdirection because they were to the effect that intoxication was irrelevant to whether an honest but mistaken belief was held.  There could be no basis for concluding in this case that the jury may have been in any way confused about how intoxication was to be taken into account.  Her Honour explained clearly the distinction between whether a mistaken belief was held honestly and whether it was held reasonably and that intoxication was only relevant to the latter.  Nor did the trial judge err in stating that intoxication was “not a defence” when dealing with s 23 and I do not consider that her direction on that matter was at all likely to create a misapprehension of the law in relation to s 24.
27. In my view there was no appealable error.  The appeal should be dismissed.
28. BURNS J:  On 2 October 2014, after a trial in the District Court at Southport, the appellant was convicted of one count of rape.  He was sentenced to a term of imprisonment of five and a half years, with parole eligibility set for 1 July 2017.  He now appeals against his conviction.
29. The appeal was principally concerned with the directions the trial judge gave to the jury concerning what the prosecution alleged to have been three categories of post-offence lies told by the appellant.  These were initially advanced by the prosecutor as going only to the jury’s assessment of the appellant’s credit but, after the trial judge expressed the view that each of the alleged categories of lies was capable of probative use, they went to the jury on that basis over the objection of the appellant’s counsel.  The appeal also raised questions as to the adequacy of directions that were given regarding a possible defence of mistake under s 24 of the Criminal Code (Qld) and whether a direction should have been given at all with respect to the defence of accident under s 23 of the Code.  Finally, in written argument on behalf of the appellant, it was contended that the conviction was unsafe and unsatisfactory.

Overview

30. The offence was alleged to have occurred in Surfers Paradise in the early hours of 5 January 2013.  The complainant was then aged 21 years and holidaying on the Gold Coast with a group of friends – Ms Picard, Ms Bera and two others.  They were accommodated in an apartment situated at Labrador and, on the evening of 4 January, dined at a beachfront restaurant.  At approximately 11.00 pm, the group left the restaurant and walked to a nearby nightclub.
31. On 4 January 2013, the appellant and two of his friends – Mr Foster and Mr Pratt – spent the day together at a theme park on the Gold Coast to celebrate Mr Foster’s birthday.  They returned to the hotel room they were sharing in Surfers Paradise and, in the early evening, left the hotel to participate in an arranged “pub crawl” during which they attended a number of nightclubs, including a nightclub where the complainant and her friends were present.  In circumstances to be shortly described, the complainant first encountered the appellant outside that nightclub.  This was at some time after midnight and, a few hours later, Ms Picard and the complainant travelled with Mr Foster and the appellant to the men’s hotel and went up to their room.  It was there that the incident giving rise to the conviction occurred.
32. The prosecution case at trial was that the complainant was so affected by what she had consumed that evening that, not long after she, Ms Picard, Mr Foster and the appellant arrived at the hotel room, she was helped into one of the beds and fell asleep.  Mr Pratt was seen to be already asleep in another bed.  The complainant was later awoken with a feeling of pain in her vagina and the realisation that a man was having sexual intercourse with her.  She identified the appellant as that man.  She tried unsuccessfully to get the appellant to stop.  At almost the same time, Ms Picard and Mr Foster – who had been together on an outside balcony – re-entered the room, saw the appellant in bed with the complainant and shouted at him.  With that, the appellant desisted.  Ms Picard then helped the complainant from the bed and they left the hotel.
33. The defence case was that no such incident occurred.  The appellant told police that he had gone to bed after returning to the hotel room and, relevantly, that he had done so before anyone else apart from Mr Pratt.  He said that, apart from waking during the night to visit the toilet and observing that the complainant and Ms Picard were in the process of leaving the hotel, he slept through until mid-morning.

The evidence at trial

34. The complainant, Ms Picard, Ms Bera, Mr Foster and Mr Pratt were all called as witnesses in the prosecution case.  In addition, evidence was received from one of the investigating police officers (Snr Const Webber), a medical practitioner who examined the complainant following the making by her of the complaint to the police (Dr Jacobs) and a reporter from the DNA Analysis Unit of the Queensland Police Service (Mr Pippia).  Although the appellant did not give or call evidence at the trial, he participated in a record of interview with police on 14 February 2013.  Snr Const Webber produced an audio-visual recording of that record of interview when he was called at the trial, it was admitted into evidence and played to the jury.
35. It is necessary to provide an outline of the evidence at trial.  It commences with a summary of the events leading up to the point when Ms Picard and the complainant arrived at the hotel room shared by the appellant, Mr Foster and Mr Pratt.  Thereafter, the evidence given at the trial by the complainant, Ms Picard, Ms Bera, Mr Foster and Mr Pratt as to what occurred inside the hotel room is examined in somewhat greater detail.  The evidence of Dr Jacobs and Mr Pippia is then briefly summarised before, lastly, turning to a consideration of the contents of the record of interview.

Background events

36. After midnight on 5 January 2013, the complainant and others in her group went outside the nightclub to which I have referred to have a cigarette.  Mr Foster, Mr Pratt and the appellant were nearby and soon struck up a conversation with them.  When they finished smoking, the complainant and her friends returned to the nightclub.  Although the evidence at trial was not entirely clear as to the sequence of events, at different points in time Mr Pratt returned to the men’s hotel in Surfers Paradise alone and the appellant ventured off on his own to visit other establishments.  Mr Foster remained with Ms Picard at the nightclub.
37. There can be little doubt that, by this time, the complainant and her friends as well as the appellant and his friends had consumed a significant quantity of alcohol over the course of the evening.  However, although the complainant accepted that she had consumed several drinks, she also believed that one or more of her drinks had been “spiked”.  Whether or not that was so, all witnesses spoke of the complainant becoming violently ill at some time after she returned to the nightclub.  When she first began to feel nauseous, the complainant ran to the ladies’ toilet where she remained for approximately 40 minutes until Ms Picard, who had until then been occupied with Mr Foster, came looking for her.  By this time, it appears that Ms Bera and that the two other members of their group had been locked out of the nightclub because it was past 3.00 am.  They decided to return to their apartment in Labrador.
38. Eventually, Ms Picard assisted the complainant out of the nightclub.  The appellant had also returned to the area outside the nightclub to reconnect with Mr Foster.  The complainant had difficulty standing and, by her account, speaking.  She could recall holding on to a palm tree for support, with her face down and, as she put it, “just vomiting”.  She told Ms Picard that she “felt like [she] was dying” and wanted to be taken to a hospital or back to the apartment at Labrador.  Mr Foster and the appellant were talking to Ms Picard, as well as trying to talk to the complainant.
39. In due course, a taxi was successfully hailed and drove the complainant, Ms Picard, Mr Foster and the appellant to the hotel in Surfers Paradise where the appellant, Mr Foster and Mr Pratt were staying.  More than once on the trip, the taxi was required to stop to allow the complainant to alight because she became physically ill.  After they arrived at the hotel, Mr Foster, Ms Picard and perhaps also the appellant assisted the complainant into the building and into a lift to take them up to the room.  The room was furnished with two double beds and, adjacent to the entry to the room, was a separate bathroom.  At the opposite end of the room, was a sliding door that opened on to a balcony.  When they walked into the room, Mr Pratt was observed to be asleep in one of the beds.

Inside the hotel room

40. I turn now to consider in greater detail the evidence given by the complainant, Ms Picard, Ms Bera, Mr Foster and Mr Pratt as to what occurred inside the hotel room.
41. The complainant said that she recalled waking up in a lift with “people holding [her]”.  At first, she did not know who they were but then she recognised the voice of Ms Picard.  She also heard male voices.  Her next recollection was of a man who said, “let’s take her clothes off and put her under the shower because then she’ll sober up”.  She told Ms Picard that she wanted to go home or to the hospital and that she did not want to be “undressed by people.”  Her next memory was of being in the bathroom with Ms Picard.  She recalled being in the shower and that “there were people … banging on the door” and saying, “let us in, we can help her”.  She again told Ms Picard that she felt like she was “dying” and wanted to be taken to a hospital.  Ms Picard helped her to dry herself and get dressed before opening the bathroom door.  According to the complainant, Mr Foster then took hold of her, and “put [her] into a bed”.  She said that the bed in which she was placed was empty and that she was fully clothed.
42. The complainant’s next memory was of waking to a “really sharp pain” in her vagina.  She was shocked and, at first, “didn’t know where [she] was or what was happening”.  The complainant was laying on her left side with both of her arms extended in front of her.  She was under the bedclothes – which consisted of sheets and a doona cover – and they were up “almost to [her] chin”.  Her dress had been pulled up and her underpants were down “past [her] bottom”.  When she realised that “someone was having sex” with her, she said, “Who are you?” and “Stop it.  Get off me”, but there was no response.  She said that she “couldn’t scream” and “didn’t have the energy to push that person away or … get out of bed”.  When she tried to “wiggle away”, the man pulled her closer to him.  The complainant said that, at the same time as she was being penetrated by the man’s penis, the man was fondling her breasts and genitals.  She tried unsuccessfully to “push his hands away”.  The man, she said, had one hand under her left side and his other hand across her body.
43. Ms Picard ran into the room from the balcony, followed by Mr Foster.  The complainant heard Ms Picard shout to Mr Foster, “What the fuck is your friend doing? … [He’s] doing stuff to her.  Get your … fucking friend off my friend.”  At that point, the man behind her moved away, pulled up the complainant’s underpants and pulled down her dress.  The complainant then heard Mr Foster say, apparently to the appellant, “Man, she’s fucked, get off her”, to which the appellant replied, “I’m not doing anything”.  Ms Picard removed the bed sheets from the complainant and assisted her out of bed.  The complainant “latched onto” Ms Picard and said, “please get me the fuck out of here … he just did stuff to me.”  She then looked back and saw that the man who had been in bed with her was the appellant.
44. The complainant left the hotel room with Ms Picard.  Mr Foster followed them out and a short conversation between Ms Picard and him as to what had just occurred took place in the hallway.  On the way to a taxi the complainant repeated to Ms Picard that the appellant “did stuff to me” and, in the taxi, she said that the appellant had “sex with me.”  After arriving back at their apartment in Labrador, they fell asleep.  When the complainant awoke she told Ms Bera in the presence of Ms Picard that “this guy was having sex with me and I woke up and felt a sharp pain”.  The complainant then showered.  Not long afterwards, she attended on police to make a complaint.
45. When Ms Picard gave evidence, she said that it was decided that she and the complainant would go with Mr Foster and the appellant to their hotel in Surfers Paradise because the complainant was “really drunk”, needed “to rest a bit and … was throwing up so much”.  The Labrador apartment was also much further away.  She did, however, recall the complainant telling her that she wanted to be taken to hospital.
46. According to Ms Picard, when they arrived at the hotel room, Mr Foster suggested to her that she take the complainant into the shower to “sober her up”.  She helped the complainant to undress and shower, after which she assisted the complainant to put her clothes back on.  Ms Picard then walked the complainant out into the room, placed her in the bed which was not occupied by Mr Pratt and pulled the bedclothes up to cover her torso.  She sat with her for a short time until the complainant fell asleep.  The appellant then suggested to Ms Picard that she go outside to join Mr Foster on the balcony.  Ms Picard said that, when she left the room to join Mr Foster, the appellant was sitting on the bed in which the complainant was asleep.  When she later looked into the room from the balcony to check on the complainant, the appellant was no longer sitting on the bed and she could not see where he had gone.
47. Ms Picard said that she remained on the balcony with Mr Foster for about “half an hour”.  She said that, during this time, she made a visual check of the complainant from her position on the balcony several times and she seemed to be asleep.  On the last occasion when she checked, she saw the bedclothes “moving around”.  She became concerned that the complainant might be vomiting again, so she walked back inside the room.  When she did, she saw that the appellant was in the bed with the complainant, on his side and “right up close on her back”.  They were both covered with the bedclothes, so that all Ms Picard could see were their heads.  She did not know whether the appellant was awake or not, but she went back out to the balcony to tell Mr Foster what she had seen.  Mr Foster left the balcony, with Ms Picard following close behind.  Mr Foster roused the appellant by shaking his shoulder, and saying loudly, “What are you doing?” Ms Picard, by now also angry, added, “What do you think you’re doing? Get off her.  Why are you in bed with her?” The appellant, Ms Picard remembered, was “talking in a loud voice and just saying that he [had not] done anything wrong”.
48. Ms Picard said that the complainant then looked to be awake and suddenly got out of the bed.  To Ms Picard, she looked “scared and uncomfortable.”  The complainant then said to Ms Picard, “Let’s go” and, with that, Ms Picard gathered up their belongings and they “ran” out of the room.  Mr Foster followed them to the lift and spoke with them.
49. According to Ms Picard, when they were in the taxi on the way to their Labrador apartment, the complainant told her that the appellant had “put himself in her”.  On their return to their apartment in Labrador, they both fell asleep but, after they awoke, the complainant told Ms Picard and Ms Bera that she had been raped by the appellant.  The complainant said that the appellant was in bed with her and “forcing her down so she couldn’t move” or “get out”.  She described waking up to “sharp pain and discomfort”.  When cross-examined, Ms Picard thought that the complainant had said that this pain and discomfort was “in her bottom”.  She said that she saw the bed covers move on just one occasion and went straight in from the balcony.  The complainant and the appellant both appeared to be asleep.  She then told Mr Foster to wake up the appellant and get him out of bed.  In answer to a question from the trial judge, she said that she thought the complainant and the appellant were asleep as she could not see any movement.
50. Ms Bera confirmed when she was called to give evidence that she spoke with the complainant in the presence of Ms Picard at approximately 11.00 am on 5 January 2013.  She was crying, and told Ms Bera that “a random guy … raped her”.
51. Mr Foster said that, once they entered the hotel room, Ms Picard took the complainant into the bathroom so that she could shower.  Mr Foster and the appellant changed their clothes and then walked out on to the balcony where they consumed more drinks.  At one point, Mr Foster went back inside and knocked on the bathroom door to enquire whether the complainant and Ms Picard were alright.  In due course, Ms Picard emerged from the bathroom with the complainant and put her in bed.  Mr Foster saw that the complainant was fully clothed.
52. Mr Foster said that, once the complainant was in bed, Ms Picard joined him as well as the appellant on the balcony.  After some time, the appellant announced that he was going to bed and went back inside.  Ms Picard remained with Mr Foster.  When Ms Picard and Mr Foster had been outside on the balcony for approximately half an hour, Ms Picard went back inside the room to check on the complainant.  Mr Foster followed her.  He saw the appellant in bed with the complainant.  He said, “they were, like, the blanket was over the top of them, and his right arm was over the top of her.  Like, they were, like, spooning.”  Mr Foster did not see any movement and thought that both the appellant and the complainant were asleep.  In cross-examination, Mr Foster agreed that the appellant’s right arm was outside the bedclothes and “draped over” the complainant.  He agreed that the appellant and the complainant appeared to be “cuddling” or “spooning”.  The trial judge sought clarification.  She asked Mr Foster to describe what he had seen.  Mr Foster said that the appellant and the complainant were both “under the covers”, that the appellant “had his arm outside of the blanket, and they were pressed up against each other”.
53. Mr Foster recalled that Ms Picard went up to the complainant and “asked her if she was okay”.  The complainant replied, “No”, and so Ms Picard asked her “if she wanted to go”.  The complainant said, “Yes”.  Ms Picard helped the complainant get out of bed, gathered some belongings and they then left the room.  Mr Foster followed them out of the room.  According to Mr Foster, the complainant turned around at that point and said, “He entered me”.  She appeared to Mr Foster to be upset.
54. Mr Foster returned to the room and spoke to the appellant.  He asked the appellant if he had tried to have sexual intercourse with the complainant.  The appellant replied, “No”.  Mr Foster then went back into the hallway to walk Ms Picard and the complainant to the lift.  When they had gone, he returned to the room.  The appellant asked him “what was going on” and Mr Foster recounted what “had happened outside of the room”.  The appellant appeared to be “shocked”, but Mr Foster again asked him “if he done it, like, if he had sex with her”.  The appellant replied, “Nope” but, according to Mr Foster, the appellant told him that:

“when he jumped into the bed with her, he … snuggled up behind her, and she had reached over and grabbed his arm and draped it over the top of her”.

55. Mr Pratt recalled that, by the end of the “pub crawl”, he, Mr Foster and the appellant were “pretty highly intoxicated”.  Mr Pratt said that he then decided to return to the hotel room in Surfers Paradise by himself.  He had no further contact with either the appellant or Mr Foster until he was awoken when they returned.  They were “clowning around”.  He rolled over to try to get back to sleep and then rolled back to see what was happening.  He saw Mr Foster with “some random girl out on the balcony” and the appellant “in bed with somebody”.  He then rolled back over and went to sleep.  He thought he must have been awake for no longer than 15 or 20 seconds.
56. Mr Pratt was asked if he noticed any “movement in the bed” where the appellant and the other person were.  He replied that there was “a little bit, but nothing much – maybe just like an arm movement”.  He said that both persons were “fully covered” by the bedclothes.  Mr Pratt was also asked about a conversation that occurred after the three men checked out of the hotel that morning.  They were in a motor vehicle, with Mr Pratt driving.  He agreed that, during the trip, there was a discussion between Mr Foster and the appellant about “something that had happened with the girl that was in bed with him”. He gathered that the appellant had been accused of “touching” the complainant.  The appellant described that accusation as “bullshit”, but added, “I may have tried to spoon her”.  Mr Foster was not asked about this conversation when he gave evidence.

The medical examination

57. After the complainant spoke with police on 5 January 2013, she was examined late in the afternoon of that day by Dr Jacobs of the Clinical Forensic Medicine Unit on the Gold Coast.  Dr Jacobs gave evidence of having obtained a history from the complainant during which she said that, when she was put into bed at the Surfers Paradise hotel room, she was fully clothed.  She said that “her next memory [was] of waking up with a penis in her vagina and a male touching her with his hands over her dress and bra.”  She said that the man “put his hands over and inside her underpants”, although she was not certain if she was penetrated digitally.  She told Dr Jacobs that her girlfriend and a man came into the room, that her girlfriend took the bedclothes off the complainant and said, “What is your friend doing to my friend?” and “Get him off her”.
58. On examination, Dr Jacobs could not detect any injury to the complainant’s external genitalia.  Her evidence was to the effect that the absence of any visual injury could not exclude the possibility of non-consensual penetration.  A speculum examination could not be performed because of involuntary contractions of the musculature surrounding the vaginal opening.  Because of this, although some swabs were obtained, Dr Jacobs was unable to take any samples from the complainant’s cervix.  When Mr Pippia from the QPS DNA Analysis Unit was called as a witness, he confirmed that a DNA reference sample had been supplied by the complainant as well as the appellant.  He examined the swabs taken by Dr Jacobs as well as underwear that had been obtained from the complainant.  No seminal fluid or DNA, other than that of the complainant, was detected on any of the swabs or the underwear.

The appellant’s record of interview

59. The appellant was not interviewed by police until 14 February 2013, over five weeks after the relevant events.  The appellant said he had been drinking heavily prior to the alleged offence.  He denied having any sexual contact with the complainant who was very drunk.  The appellant said that, after the complainant was helped into the shower, he went out on to the balcony to smoke a cigarette.  He then returned to the room and “crashed” in the bed that was not occupied by Mr Pratt.  The appellant said that he “passed out” but later awoke because he needed to go to the toilet.  When he got up he saw the door to the room open.  He walked outside and saw Mr Foster, Ms Picard and the complainant talking, but he did not speak with them and nor could he hear what they were saying.  He said that he returned to bed, fell asleep and did not wake until approximately 10.00 am that morning, at which time he noticed that Mr Foster and Mr Pratt were still asleep.
60. The appellant said that both Mr Foster and Ms Picard helped the complainant into the shower.  He maintained that they were still in the bathroom together when he went to bed, and that there was no one else in that bed when he did so.
61. Excerpts from the versions provided to police by the complainant, Ms Picard and Mr Foster were put to the appellant during the record of interview.  Of particular relevance to the grounds of appeal, the appellant was asked whether he could recall Ms Picard and Mr Foster entering the room from the balcony and challenging him when he was in bed with the complainant.  The appellant said that he had no recollection of that having occurred.  He was also asked whether he recalled Mr Foster returning from the hallway and asking him if he had “done anything to that girl”, to which the appellant replied, “I don’t remember anything”.  Shortly afterwards, the following exchange between one of the interviewing police officers and the appellant occurred:

“Q.[Mr Foster] said he had a discussion with you later about what this girl alleged happened inside the room. Do you remember anything about having a discussion with him about what she said happened in the room?

A.No not at all.

Q.Even the next day?

A.Even the next day like I didn’t speak to him the next day at, at all because I was [indistinct] basically just passed out or just lazing around the house for the next couple o’ days.”

62. The appellant maintained that he was in bed by himself and that “no one else was in [bed with him] at all” but, later in the interview when he was asked whether there was anything in his “version” that he would like to change and was told that the police had “doctors involved, … scientific officers, … scenes of crime [photographs] and everything”, the appellant said:

“[S]he maybe was in bed with me I’m not sure. … I’m not totally a hundred per cent sure she was.”

63. To a similar effect was the answer to the following question asked by one of the police officers:

“Is there … any reason that you can think of that Police would located [sic] your D-N-A on the drunk girl or inside the drunk girl?”

The appellant replied:

“I, I have no idea. I, I don’t know really at all, really. If there was I’d be, I’d be shocked, I’ll be in shock myself [indistinct] okay … what happened then, just. If there was anything like [indistinct] are found and stuff like that well I, I’m sorry for that really if that did happen I’m sorry and I wish I could, if I did do that I wish I can take it back then. Wish I can just take it back just, if that did happen I just wish I can just take it back and just didn’t end up going out at all and just stayed home.”

64. It should be said that no objection was taken to the inclusion of this line of questioning in the interview that was placed before the jury, and no point was taken about it on appeal.  It was clearly impermissible questioning because it carried with it the implication that there existed medical and scientific evidence which incriminated the appellant and, further, that his genetic material had been located inside or on the complainant when neither was the case.^[14]  It can only be presumed that, regardless of this apparent misrepresentation of the evidence gathered in support of the charge, the appellant’s counsel at trial (who was not the counsel who appeared on the hearing of this appeal) made a deliberate forensic choice not to object to the question because the answers were considered to be helpful to the defence case.

The summing up and addresses of counsel

65. The prosecution case closed late on the third day of trial.  At that time, the appellant elected to neither give nor call any evidence.

Directions discussed

66. In the absence of the jury, the trial judge then discussed with counsel the directions to be given to the jury in the summing up.  When the topic of the alleged lies was reached, the prosecutor initially sought a direction to the effect that the lies he contended had been told by the appellant in his record of interview went to the jury’s assessment of the appellant’s credit.  However, when the trial judge expressed the view that the alleged lies were capable of being used by the jury as evidence of a consciousness of guilt, the prosecutor asked for time to consider the point.  The next morning, the prosecutor adopted the trial judge’s view and then attempted to identify the alleged lies that the prosecution submitted were capable of probative use, during the course of which, the trial judge observed:

“Well, it seems to me these are the lies that are raised: … that he went to bed before the complainant, that he didn’t know or had no awareness of her being in the bed with him at any time, that … he had no memory of any conversation with his friends about the matter, either that he didn’t speak to them or that he had no memory. And I expect [the prosecution] argument from those lies is that he was seeking – in relation to the conversation with his friends, is – that the version he was giving – he knew that the version that he was giving to the police was inconsistent with what he’d said to his friends, which indicated an awareness of what was happening – awareness of some activity in the bed.

…

So those are the three … that go to the Edwards^[15] direction.”

67. The prosecutor then appeared to agree that those observations were correct.  The appellant’s counsel objected to the identified lies being used by the jury as evidence of guilt, but conceded that they went to an assessment of the appellant’s credit and could be used for that purpose.  In support of his objection, the appellant’s counsel pointed to the concession the appellant made during his interview to the effect that the complainant may have been in bed with him, and argued that the appellant was in a panicked and confused state when interviewed and that the interview itself had taken place several weeks after the relevant events.  So far as the last of the three categories of lies identified by her Honour was concerned, it was submitted that the jury could not be satisfied that the appellant had told a deliberate untruth because of his intoxicated state.  The trial judge disagreed.  Of relevance is the following exchange:

“MR GEEVES: With respect to the final lie as raised, again, certainly, all of the lies told go to his credit. I don’t cavil with that. But the fact that he has no memory of the conversation that he has with Foster when Foster comes in and wakes him up in bed and asks him whether anything went on ---

HER HONOUR: Well, one might think there’s a possibility that he didn’t remember that because he was so drunk, sleepy.

MR GEEVES: Yes.

HER HONOUR: But it’s a bit harder to accept that he has no memory of a conversation about an accusation like this the next day. As he said to the police, this is a serious accusation that could obviously have an impact on his whole life. But his claim is – and it goes further than saying I don’t have any memory of it. He says, “I didn’t even speak to him the next day”, which is even more absurd.

MR GEEVES: Well, taking up your Honour’s point, the interview with police was conducted some five weeks after the ---

HER HONOUR: I understand all those things.

MR GEEVES: Yes.

HER HONOUR: And they’re matters of argument. But the question at this point is whether this part of the evidence is capable of establishing a consciousness of guilt. And the things that you’re raising so far as arguments that you might put to a jury as to why the test might not be satisfied, but that doesn’t mean it doesn’t meet the threshold test for evidence that is capable of amounting to such a lie.”

68. On the previous day, the trial judge had also asked the appellant’s counsel whether “mistaken consent” was “an issue in this trial”, to which he replied, “It’s not the way it’s been litigated”.  However, it was correctly pointed out by her Honour that the way in which the trial had been conducted was not determinative of the question whether the jury should be given a direction on the matter.^[16]  The trial judge referred to the evidence given by Mr Foster regarding what the appellant said to him after the incident, that is to say, that the complainant had “reached over and grabbed his arm and draped it over the top of her”.  Although her Honour acknowledged that any such defence would be “pretty tenuous”, she considered that the defence should be left to the jury “out of caution”.
69. There was no discussion, on either day, about any need to direct the jury regarding a possible defence under s 23 of the Criminal Code (Qld).

The addresses of counsel

70. The prosecutor did not address the jury regarding any possible defences.  Instead, he focussed on the consistency of the account the complainant had given in evidence and the feature that it was supported in a number of important respects by the evidence of other witnesses, most notably Ms Picard, Mr Foster, Ms Bera and Dr Jacobs.  A substantial portion of the prosecutor’s address was devoted to what were submitted to be lies told by the appellant in his record of interview.  Ultimately, the submission was made that the jury could use the three categories of lies identified by the trial judge as evidence of a “consciousness of guilt”.
71. When defence counsel addressed the jury, he did not dispute that the complainant had been in bed with the appellant.  Rather, he submitted that the complainant’s account that sexual intercourse had taken place was neither credible nor reliable and, accordingly, could not be accepted by the jury beyond reasonable doubt.  Various features of her evidence when compared to other evidence in the case were highlighted to reinforce that submission.  These included the evidence Ms Picard and Mr Foster gave as to the observations they made of both the complainant and the appellant after coming in from the balcony.  It was submitted that those observations were consistent with the conclusion that “nothing was happening” because they were both asleep.
72. That was, indeed, the unvarying theme of the defence address – that there had been no sexual contact between the appellant and the complainant – and no submission was made that the jury should consider the existence of any defences under ss 23 or 24 of the Criminal Code (Qld).  So far as the record of interview was concerned, the appellant’s counsel submitted that he should be regarded as someone who was “young and unsophisticated”, as well as panicked, frightened and overwhelmed.  The jury were invited to consider his responses in that light.

The summing up

73. The trial judge directed the jury on the elements of the offence in the following terms:

“These are the things that you must be satisfied of beyond a reasonable doubt. The first element is that the accused penetrated [the complainant’s] vagina by putting something inside it. She believed it was a penis, but whether it was his penis or his finger or another object, you have to be satisfied that he put something inside her vagina. That there was penetration. The second element that must be proved is that this was a willed act, that it didn’t happen - it wasn’t done in his sleep, but that it was a willed act. The third thing that must be proved is that [the complainant] did not consent. So the third element is that penetration was done without her consent. Finally, the fourth element that must be proved is that the penetration was without any reasonable mistake about her consent. That is, that the accused did not make a reasonable mistake that she was consenting. That is the fourth element.” (emphasis added)

74. Her Honour then expanded on each element.
75. So far as the second element was concerned – a willed act – the following directions were given:

“The second element refers to the willed act. The act of penetration must be the result of a willed act by the accused. That means that he made a choice, that he consciously chose to use his penis to penetrate [the complainant]. That is the requirement of the second element. It doesn’t matter whether or not he knew who she was, but you must be satisfied beyond a reasonable doubt that he penetrated her body deliberately. It would not be a willed act if that happened while he was sleeping.

The defence case is that nothing happened between these people, but the accused gave some answers to the police which you might think seem to suggest that if he did do anything, it must have been while he was asleep. Your interpretation of his answers is entirely for you, but you must consider his answers along with the other evidence and you cannot convict unless you’re satisfied that the penetration was a willed act.

The accused told the police – you will remember his answer that nothing happened while he was awake. He said he went to bed alone and nothing happened while he was awake. Then at the very end of the interview when the police were taking him through the fact that they had other evidence and they would be looking for DNA evidence and so on, he was asked again:

Did you do it?

And he said:

I'm not –

Did it happen?

And he said:

I’m not sure it did happen.

So you must consider in relation to this third element, is it possible – the second element – let’s see how I phrase this – yes – you have to consider this question: is it possible – is it reasonably possible that the accused effected penetration in his sleep? To do that you have to identify what circumstances have been proved. Consider the [complainant’s] account, consider what the accused told the police, consider what he told his friends afterwards, if anything. What evidence do you accept? What is the effect of those proven facts? Don’t look at the facts in isolation. Put them altogether. Look at the combined force of those circumstances. Before you could find this was a willed act, you must be satisfied that the only reasonable conclusion, the only reasonable interpretation of those combined circumstances is that the accused was awake at the time and that he made a conscious decision to put his penis inside, or his finger inside, [the complainant]. You cannot convict him if there is a reasonable possibility that he was asleep.

If you find [the complainant] reliable, consider the layers of activity that she described, because she said that she went to bed fully clothed. She said that her dress had been pulled up and her pants had been pulled down and then when people came into the room, the person readjusted her clothes under the covers, put them back the way they were. Earlier in – before the people came into the room, she had tried to push the hands away and the person had restrained her arms. It is a matter for you, but if you are satisfied that those things happened, as [the complainant] said, you might find that they are too complex to be explained away by something that happened in a sleep.

You might also think – if you accept the evidence of Mr Foster and Mr Pratt, the accused’s friends about what the accused said to them – you might think that his statements to them afterwards indicated that he was conscious of what he did in the bed, whatever it was. Because their evidence – although he denied committing any offence – the evidence of those friends is that the accused gave an actual account of something happening in the bed. He didn't say to them:

I was asleep or I can’t remember what happened.

He talked about, for example, snuggling against the complainant and so on.

While acts done in sleep cannot be an offence, acts done under intoxication are a different matter. People are responsible for their drunken acts. We know the accused had been drinking. He said he was still pretty smashed – that was the term he used – when he got home. You have had the opportunity to see him on some of that footage and you can watch it again in the jury room. There is evidence from the accused’s friends that he was affected by alcohol. [Mr] Pratt’s evidence was that the accused was highly intoxicated after the pub crawl. Mr Pratt went home earlier than the others, but he said after the pub crawl he would describe all three of them as highly intoxicated. [Mr] Foster said by the time they got to that last club, SinCity at the end, all three of them were about a seven out of 10 drunk, according to him.

Intoxication doesn't relieve a person of responsibility for committing a crime. It might impair someone’s ability to make good decisions. It might affect judgment. People may do things when they are drunk that they wouldn't do when they were sober, but that is not a defence. A drunken decision to penetrate [the complainant] would still be a willed act. Intoxication may help you then when you are considering the state of the accused’s memory about what happened that evening. It may offer some explanation for the accused’s conduct, but it does not entitle him to an acquittal.”

76. The trial judge then moved to a consideration of the third element – consent – during which her Honour observed that the “primary issue in this trial – the way it has been litigated – has been whether there was penetration at all.”  It was noted that the complainant’s “clear evidence is that she did not consent” and that the appellant had “not claimed that she did consent to have sex with him.”
77. The trial judge’s directions concerning the fourth element – mistake – were as follows:

“The Crown must prove that the accused did not have an honest and reasonable belief that [the complainant] was consenting – that he did not have an honest and reasonable belief that she was consenting. So for this element you must be satisfied that he was not reasonably mistaken about her consent. He doesn’t have to prove that he was mistaken. You must acquit him unless you are satisfied beyond a reasonable doubt that he was not reasonably mistaken.

A reasonable mistake – or a reasonable belief is one that is both honestly held, the actual genuine belief of the person, and also which is reasonable. It has to be both honest and reasonable. So this element about an honest and reasonable belief about consent – that the accused did not have an honest and reasonable belief about consent, can be proved in two ways: either, by proof that he did not actually believe that the complainant was consenting or by proof that it was unreasonable in the circumstances for the accused to believe that the complainant was consenting. Even if he did believe it, it was unreasonable for him – it would be unreasonable for him to hold that belief. In either of those two cases, the fourth element of honest, reasonable belief about consent would be proved.

What is a reasonable belief will depend upon the circumstances. You must examine the circumstances from the perspective of the accused, the circumstances that he found himself in, with the knowledge that he had. The question is what is a reasonable belief for a person standing in the accused’s shoes at that particular time. Look at it from the position of a person who is sober. It is not what an intoxicated person might think, but the question is what is reasonable for a sober person to believe from the circumstances known to the accused. Take into account the nature of the relationship between these people, what interaction, if any, there was between – leading up to the penetration and the circumstances in which it came about.

The accused did not claim that the accused – that [the complainant] was consenting. When Mr Geeves, the defence counsel, was cross-examining the complainant, he never suggested to her that she had done anything that might look like consent to the accused. So there is no evidence capable of supporting a belief about consent other than something that the accused is alleged to have said the next day. This is from the evidence of Mr Pratt - no, sorry, the night before. That night when Mr Foster asked him whether he had done it. Mr Foster’s evidence is that the accused [s]aid no, but he said that he had snuggled and put the girl’s – and the girl had put the accused’s arm around her. So that is what he, Mr Foster, recalled him saying. You will remember that five weeks later when the police spoke to the accused he claimed to have no memory of any conversation with Mr Foster and to have no memory of any interaction with the girl in the bed at all.

Again, what you make of all of this is a matter for you, but you might find in the circumstances where these two people barely knew each other, where, according to the accused, the complainant had been smashed and where the preponderance of evidence is that she had been sleeping in the bed before the accused got into it – you might conclude that it would be unreasonable for the accused to believe that she was consenting to sex, simply by putting her arm over him. Even if that had happened, even if she did pull his arm across, you might be satisfied – it is open to you to be satisfied that it was not reasonable in all the circumstances for the accused to think that this was consent to sex. If you were satisfied of that, then the last element would be proved.”

78. The trial judge then provided the jury with a summary of the evidence in the case, during the course of which her Honour observed that it “seems clear that the [appellant] was in bed with [the complainant] at some point”.  Her Honour continued:

“While the accused himself didn’t admit that he was in bed with her, you might have thought that Mr Geeves essentially conceded that that was the weight of the evidence. The other witnesses spoke of the complainant being put in that bed to recover and that sometime after that, the accused left them. It follows from that, because he was found there later, that he got into that bed with her while the others were out on the balcony.

He was found very close behind [the complainant] with the blankets covering both of them. That evidence, of course, comes from, not just the complainant, but from [Ms Picard] and [Mr] Foster. The witnesses were not challenged about that aspect of their evidence. It wasn't disputed by the defence counsel. Because the trial is adversarial, evidence that hasn't been challenged or contradicted can be taken as being accepted by the defence.”

79. Later in the summing up, the trial judge turned to the issue of the alleged lies.  Her Honour gave these directions:

“So, the Crown says the accused told a lot of lies. Lies told by an accused person only normally go to the credibility of the accused, to his trustworthiness in terms of the version that he has given. The general rule is if you find that the accused has told lies then you should disregard what he says about those things that are lies. If the lies are really significant or bold you might find him too unreliable to place any weight on any part of his version at all unless it is corroborated by other evidence.

But lies that just show that the accused is unreliable do not go to his guilt. They don’t advance the prosecution case. For that you need to look to the other evidence, and if you don’t believe the accused or if you find that he has been unreliable, ignore what he said and on focus on the other evidence [sic]. What does that other evidence prove, if anything?

There is an exception to that general rule about the way you treat lies by the accused. The exception is where, in a certain kind of case, a lie may actually be evidence of guilt. It may actually strengthen the Crown case. The kind of lie that meets – the kind of lie that meets that test then is a lie that is capable of showing the accused had a guilty mind; that shows that he is conscious of his own guilt. [The prosecutor] argued that the accused’s whole version was a lie. And generally, as I said, if you find that the accused has been dishonest that’s something that only goes to his credit and you would disregard what he said.

But there are three types of answers that the accused gave to the police that are capable of showing that he had a guilty mind. I’ll identify those three types of answers that fall into that category and then I’ll set out for you the test to determine whether they do reveal a guilty mind.

The three types of answers that you may consider for this test are these: the account that he got into an empty bed. That’s the first one. Statements that he got into an empty bed or answers that were to that effect. His statements that he had no awareness of the girl being in the bed. That’s the second kind of answer. And the third group of answers are those to the effect that he never spoke to his two friends about these allegations or he has no memory of speaking to his friends about it. That’s the third set of answers.

Whether any of those claims by the accused show an awareness of his guilt of the rape, as I said, will depend upon whether the three conditions are met. This is the test. These are the three conditions that must be satisfied: firstly, you must be satisfied beyond a reasonable doubt that the accused told a deliberate untruth, a deliberate untruth. It is not enough that it was just not true, you must be satisfied that he deliberately misled the police. Often when somebody has said something untrue it isn’t possible to say that that person has been dishonest, has been deliberately misleading. A person may be confused or he may have just forgotten. This first condition is that you must be satisfied that this was a lie by the accused and not a mistake.

The second condition for this test is that you must be satisfied beyond a reasonable doubt that the lie was connected to the offence. The lie was connected to the offence. And that means you must satisfied of two things: firstly, that the lie was about a circumstance or an event connected with the offence; and secondly, having regard to those circumstances or events connected to the offence, the lie must reveal a knowledge of the offence or at least some aspect of the offence. The lie must reveal a knowledge of some aspect of the rape.

The third condition is that you must be satisfied beyond a reasonable doubt that the lie was told because the accused knew that he had raped the complainant. You must be satisfied that he told the lie because he knew that he had raped the complainant and because he knew that giving a truthful answer would implicate him in the rape. So you must be satisfied beyond a reasonable doubt that he lied because he was aware that the truth would implicate him.

People sometimes lie for innocent reasons, for example, in a panic or to escape an unjust accusation. You need to be satisfied that the accused didn’t lie for some innocent reason. You must be satisfied that he tried to mislead the police because he knew the truth would implicate him in the rape.

Now, if you find that the accused told – if you find in respect of a particular lie, any of those three groups of lies, or alleged lies, that it was, in fact, a lie but it failed the test then you couldn’t use it to strengthen the Crown case. It would simply be a matter that tells against the accused’s reliability. You need all three to use it as positive evidence.

The accused’s account to the police was that he went to bed before the others had come out of the bathroom and that he crashed. He said he was asleep; he went to sleep; he didn’t know what happened during the room. That was his quote:

I don’t know what happened during the room.

He said he had no memory of anything else that night except waking for the toilet and seeing the girls outside the unit in the hall. By the time he’d gone up to go to the toilet he noticed that the girls were outside of the apartment and in the hall outside. This would have to be when they were leaving. He denied any conversation with Mr Foster that night or the next day.

The Crown argues that those things are demonstrable lies. That all of the other witnesses identify that it was the complainant who got into an empty bed. Mr Foster, talked about having a drink and a smoke with the accused, and a talk about who was hooking up with – about hooking up with [Ms Picard] while [Ms Picard] was attending to the complainant. It was after that, according to Mr Foster, that the accused said he was going to bed. Remember [Ms Picard’s] evidence was that after she’d put the complainant to bed the accused was sitting on the end of the bed and he told her that she should go outside to [Mr Foster]. Both Mr Foster and Ms Picard, you might think, indicated in their evidence that the accused was around at the end of the night while the complainant was still in the bed. That’s a matter for you.

In relation to this question of the conversations with his friends, Mr Foster’s evidence, you’ll remember, was that after the complaint had been made in the hallway the accused had asked him what was going on. He, Mr Foster, told the accused – asked him if he had sex, the accused said no and then said when he jumped into bed with her he had snuggled behind her and she grabbed him on the arm. Mr Pratt said the next day when they were all in the car and Foster again asked the accused about it, the accused said it was bullshit and that he may have tried to spoon the girl.

The Crown argues that those conversations – the evidence of those conversations from the accused’s friends show that the accused was aware of the girl being in the bed; he was aware of the things that he did; of things that he’d done while they were in the bed. And that the relevance of that conversation with those men is this: while the accused was denying to them that he had done anything wrong he gave his friends a positive version. He was conveying to his friends a denial of the allegations because he was indicating that he knew what happened; he was denying it on the basis that he knew that it was not true, that he knew what happened. And the Crown argues that that version to his friends is very different to what he told the police, namely, that he was out of it the whole time he was in the bed. [The prosecutor’s] argument is that while a drunk person might have a memory lapse you would be satisfied that that was not the explanation here because this is not a case where the accused went back to bed and forgot about everything. The next day he repeated the positive version in the car when both of his friends were present.

The Crown’s argument is that it’s just not credible that he could forget those conversations especially the later one after he’d woken up the next day. That the Crown argument is that he would not forget a conversation about a serious allegation that had happened only five weeks earlier; that the accused deliberately misled the police; that it was not just a mistake. Ten times he told the police that he got into bed while the girl and the others were in the bathroom. He gave a firm denial of any sexual activity until the very end when the police told him about other evidence that they had of him being in the bed; of the girl being in the bed with him. And it was only then that he said:

Maybe she was in the bed with me, I’m not sure.

The Crown argues that it is clear from what he told his friends that he knew all along that she had been in the bed with him.

The Crown argues that the lies, those lies, were closely connected to the rape. The allegation was that he had raped the girl in the bed as she slept. The Crown’s argument is that he denied any awareness of her being in the bed because he knew that the truth, the real truth, would implicate him in the rape; that it would identify him as the rapist; he lied to cover his guilt. He refused to admit the conversations with his friends because he knew that would expose him in the offence, by revealing that he was with the girl in the bed and he had been awake and he had been conscious of her.

You remember that the police told the accused towards the end of the interview, that they had gathered other evidence against him that was contrary to some of the things that he had said, especially about being in the bed. And they asked him whether he wanted to explain. He told the police that he had been in shock after the police came to his cabin with the rape allegations. He said he had been worried that he might go to jail, lose his girlfriend and his career. You remember that the officer told him that this was a serious charge and had offered him another opportunity to fully explain his position. You can listen to the interview again for yourselves. You might think that his ultimate answer to the police then was that he didn’t know.

Mr Geeves’ submission was that this was a man who was overwhelmed. He was young; he had been frightened by such serious allegations and that in the circumstances you couldn’t conclude anything more than the fact that he panicked for reasons not related to his guilt. That didn’t show a guilty mind, just confusion and fear not related to guilt. All right. Well, those are matters for you to work through.”

80. During a break in the summing up to allow the jury to take refreshments, the prosecutor asked the trial judge to revisit the directions given regarding lies.  Her Honour was asked for it to be “made clear to the jury” that they needed to be satisfied with respect to each of the three preconditions to use in the case of any one of the three alleged lies that had been identified.
81. When the jury returned, the following was said:

“HER HONOUR: Ladies and gentlemen, I have to fix up something I said to you earlier in case there’s some confusion. When I was talking to you about the three types of answers that are capable of meeting the test for a guilty mind I told you that the test was a three-pronged test to be applied. I want to make it clear before you could use any one of those three types of answers, one of those three sets of lies, against the accused to strengthen the case against him you would have to be satisfied that all three conditions in that test were satisfied for that particular set of lies. Is that understood?

SPEAKER: Yeah.

HER HONOUR: I may have, at one stage, inadvertently spoke of the three things and there was a risk that I confused you that you only needed to be satisfied of something less than three conditions, but that is not so in respect of any lie. It has to be all three to meet that test.”

82. The trial judge then completed the summing up and the jury retired.  Neither counsel sought any redirections.  The jury returned with their verdict about 30 minutes later.

The grounds of appeal

83. Four grounds of appeal were advanced in written argument on behalf of the appellant, although one was not pressed in oral argument at the hearing.  The grounds were:
    1. That the trial judge erred in directing the jury that “they could use lies alleged against the appellant as evidence of consciousness of guilt” (Ground 1);
    2. That, in all of the circumstances, the conviction was unsafe and unsatisfactory (Ground 2);
    3. That the trial judge erred in misdirecting the jury on s 24 of the Criminal Code (Qld) (Ground 3); and
    4. That the trial judge erred by directing the jury in relation to s 23(1)(a) of the Criminal Code (Qld) (Ground 4).
84. I deal with each in turn.

Ground 1 – Lies

85. As just discussed, the trial judge directed the jury that the following categories of alleged lies in the appellant’s police record of interview were capable of probative use:
    1. that he “got into an empty bed”;
    2. that he “had no awareness” of the complainant being in the bed with him; and
    3. that he “never spoke to his two friends about [the] allegations”, or had no memory of having done so.

The jury was directed that, if satisfied in accordance with the test explained to them by her Honour, such evidence might “strengthen the Crown case.”

86. Although, in the court below, objection was taken to all three categories of answers being left to the jury as lies capable of demonstrating a consciousness of guilt, on the hearing of the appeal, counsel for the appellant accepted that the first category was “capable of being found by the jury to have been a deliberate lie told because the truth would implicate the appellant in the commission of the offence”.^[17]  However, it was argued that the second and third categories were not capable of being used by the jury in that way.  At best, it was submitted, those categories were only capable of going to credit.
87. Further as to the second category, it was contended that the appellant’s lack of recollection of the complainant’s versions and his denial that any sexual activity had taken place could not be “used to create a ‘lie’ … that he was not aware that there was a woman in the bed”.^[18]  Reliance was placed on what was said by Hunt CJ at CL in R v Zheng^[19] about what his Honour found to be the erroneous adoption of circular reasoning by the trial judge in that case.  In relation to the third category, it was submitted that the appellant’s lack of recollection of the account given by Mr Foster when it was read to him by police during the interview “[could not] be transformed into a lie” and “certainly not a lie with the significance relied on by the prosecution” in the court below.^[20]  In support of that submission, it was pointed out that the appellant had been drinking heavily on the night in question and that “a claim in an interview some five weeks later that he had no recollection of the conversation simply cannot be dressed up in any way as a lie.”^[21]  It was submitted that, even if untrue, “it should not have been left [to the jury] as a lie potentially demonstrating a consciousness of the guilt of the crime charged.”^[22]
88. The other complaint made on behalf of the appellant in support of this ground was that the trial judge failed to identify with precision the specific statements from the appellant’s record of interview which were lies capable of establishing a consciousness of guilt.  It was submitted that the directions to the jury on this point were “general in nature” and that “greater precision of the statements of the appellant should have been given”.^[23]
89. For the Crown, it was submitted that each category of lie was “relevant to the same central issue”, that is, “that the appellant was lying about being aware he was in bed with the complainant”.^[24]  It was argued that the second and third categories did no more than add to the first category of alleged lies.  It was therefore contended that each category was capable of probative use by the jury.  As to the complaint that the trial judge failed to isolate for the jury the specific statements that were relied on as lies capable of demonstrating guilt, the Crown submitted that the alleged “lies were restated and repeated numerous times throughout the interview with police”^[25] and that to specifically identify each would have given them undue prominence.  For this reason, it was argued that the approach taken by the trial judge was appropriate.^[26]
90. The appellant’s argument in relation to the second category of lies was founded on the premise that, if the jury accepted the evidence of the complainant, then the offence would have been proved subject only to a consideration of whether any defences raised on the evidence had been negatived beyond reasonable doubt.  As such, it was argued, the only way in which the jury could determine whether the answers given by the appellant in his record of interview to the effect that he had no awareness of the complainant being in bed with him were deliberately untrue was by reference to the complainant’s evidence.  In those evidentiary circumstances, it was submitted that the appellant’s answers could not be used as probative lies, for the reasons discussed in Zheng.^[27]
91. In Zheng, the appellant was charged with supplying a commercial quantity of heroin.  The prosecution case was that, whilst the appellant was in a car park, he received a plastic bag containing the heroin from another man and then placed it into the boot of his car.  This was supported by evidence from police officers who had made observations to that effect.  In an unsworn statement, the appellant said that he had been cleaning cars in the car park and that he had a brief conversation with another man, but denied receiving anything from that man.  At trial, the Crown contended that, if the jury accepted the evidence of the police officers, then they would be satisfied that the appellant had told lies in his unsworn statement and, further, would be “entitled to take that into account and add it to the rest of the Crown case”.^[28]  The trial judge agreed, and the Crown case went to the jury on that basis.  However, the NSW Court of Criminal Appeal held that the Crown’s contentions at trial should have been rejected because the only logical way in which the jury could have been satisfied that the appellant was lying was if they accepted as true the evidence of the police witnesses who observed his conduct.  Hunt CJ at CL (with whom Smart and Studdert JJ agreed) said:

“Once the jury had reached that conclusion concerning the appellant’s conduct, there was nothing further which the Crown had to establish relating to that particular conduct of the appellant. For the jury to be invited to conclude that the appellant’s lies concerning his conduct in the car park was available as evidencing a consciousness of guilt, which could then in turn be taken into account in some way in determining whether the appellant had in fact conducted himself in that way is a wholly circular argument.

In other words, the appellant’s lies as to what he did in the car park could not logically be established without first reasoning that the appellant had in fact done in the car park what the Crown’s witnesses said that he did, where their evidence was the only evidence that he so conducted himself.”^[29]

92. In R v O'Brien,^[30] Pincus JA, with whom McMurdo P and Muir J agreed, referred to Zheng with approval.^[31]  Otherwise, the principle to be derived from Zheng, and variously described as “circular” or “bootstraps” reasoning, has found acceptance in a number of subsequent decisions.^[32]  In Nestorov v The Queen,^[33] it was expressed in these terms:

“[If] the telling of a lie by an accused is relied upon, not merely to strengthen the prosecution case, but as corroboration of some other evidence, the untruthfulness of the relevant statement must be established otherwise than through the evidence of the witness whose evidence is to be corroborated. In other words, if a witness required to be corroborated is believed in preference to the accused and this alone establishes the lie on the part of the accused, reliance upon the lie for corroboration would amount to the witness corroborating himself. That is a contradiction in terms. A lie about the extent of the accused's observation or recollection of certain events is a matter that goes to his credit and nothing else.”^[34]

93. Although the correctness of the principle cannot be doubted, the premise advanced for its application in this case is flawed.  None of the categories of lies identified by the trial judge were advanced as corroboration of the complainant’s account; they were relied on to “strengthen” the Crown case taken as a whole.  Further, the submission that, to determine whether the appellant’s answers in his record of interview to the effect that he had no awareness of the complainant being in bed with him were untrue, the jury only had the complainant’s evidence to go by is wrong.  In addition to the evidence of the complainant, the jury had before them the evidence of Ms Picard, Mr Pratt and Mr Foster regarding the observations each made of the appellant when he was in bed with the complainant.  More critically, though, Mr Foster gave evidence of the conversations he had with the appellant after the complainant and Ms Picard left the hotel room including, if accepted by the jury, that the appellant had admitted that he had “snuggled up” behind the complainant in bed.  Further, and in the same vein, was the conversation between the appellant and Mr Foster later that day which Mr Pratt said he overheard when driving the appellant and Mr Foster from the hotel.  Again, if accepted by the jury, during that conversation the appellant told Mr Foster that he may have “tried to spoon” the complainant.
94. Turning then to the third category of lies, the position is somewhat different.  It will be recalled that, prior to the addresses of counsel, the trial judge discussed with counsel which of the alleged lies should be the subject of a direction in accordance with Edwards v The Queen.^[35]  During the course of that discussion, her Honour appeared to accept that a distinction could be drawn between the conversations that were alleged to have taken place between Mr Foster and the appellant after Ms Picard and the complainant left the hotel room, and the conversation alleged to have taken place between the same two men in the car driven by Mr Pratt later that day.^[36]  Her Honour remarked with respect to the conversations in the hotel room that “one might think there’s a possibility that [the appellant] didn’t remember that because he was so drunk, sleepy”, but said that “it’s a bit harder to accept that he has no memory” of the conversation in the car.  Furthermore, her Honour characterised the appellant’s statement to the effect that he did not speak to Mr Foster “the next day” as “even more absurd”.
95. As it happened, the evidence of the conversations alleged between Mr Foster and the appellant in the hotel room as well as the conversation alleged between them in the car were expressly referred to in the summing-up.  The question whether, by reason of this evidence, the appellant’s answers to police (to the effect that he had not spoken to his two friends about the allegations or had no memory of having done so) might have been deliberately untrue and, therefore, revealing of a guilty mind, was then left to the jury for their assessment.
96. In my respectful view, the jury should not have been invited to consider the third category of alleged lies for probative use.  To be capable of use by the jury in that way, the alleged lies needed to be deliberate, material to the case, and explicable only on the basis that the truth would implicate the accused.  Thus, in Edwards, the plurality said:

“[Not] every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him: Eade v The King (1924) 34 CLR 154 at 158. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from a realization or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that 'if he tells the truth, the truth will convict him': R v Tripodi [1961] VR 186 at 193.

…

A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (ie it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. See M v R (Unreported, Court of Criminal Appeal of South Australia, King CJ, Mohr and Bollen JJ, 18 August 1993) at 4 – 5.”^[37]

97. Here, the evidence disclosed that the appellant had consumed a significant quantity of alcohol throughout the evening and, on one view of the evidence at least, had to be awoken by Mr Foster before the hotel room conversations allegedly took place.  On those facts, the trial judge appeared to accept that it was possible the appellant might have no genuine memory of the alleged conversations when interviewed some five weeks later but, regardless of that reservation, the conversations were still left with the jury as a possible source of evidence to contradict the appellant’s answers to police.  As to the alleged conversation in the car, it was never put in those terms by the interviewing police.^[38]  Rather, the appellant was told that Mr Foster “said he had a discussion with you later about what this girl alleged happened inside the room.”  The appellant was then asked whether he remembered “anything about having a discussion with [Mr Foster] about what [the complainant] said happened in the room”.  The appellant replied in the negative.  The police officer then asked, “Even the next day?” In response, the appellant said that he didn’t speak to Mr Foster the next day and that he was “just passed out or just lazing around the house”.  Nothing more specific was put to the appellant.  It was certainly not put to the appellant that the conversation allegedly occurred in a car being driven by Mr Pratt.  Nor was it put that the conversation had taken place later on the same day as the events with which the jury was concerned as opposed to, as had been wrongly put, on the next day.  Indeed, what was put to the appellant in the interview was something the police attributed to Mr Foster and, even then, in very general terms.  Mr Foster was not asked about it when he gave evidence at trial.  The only evidence of the conversation in the car came from Mr Pratt who said that he overheard it whilst he was driving.  Lastly, the jury were directed that this “group of answers are those to the effect that [the appellant] never spoke to his two friends about [the] allegations or … [had] no memory of speaking to his friends about it”, but there was no evidence that the appellant spoke with anyone other than Mr Foster about the allegations.
98. In these circumstances, I fail to see how the appellant’s answers to the police officer’s questions that he did not remember any discussions with Mr Foster some five weeks later could properly be regarded as admissions against interest or that it could safely be concluded by the jury that the only explanation for his answers was that the appellant “knew that the truth would implicate him in the offence.”^[39]  It was entirely plausible that the appellant did not remember the conversations with Mr Foster because of his heavy drinking and the passage of time.  The alleged lies in this category should not have been left to the jury as potentially incriminating to the appellant; at best for the prosecution, they were only capable of being used by the jury in the assessment of his credit.  This ground of appeal, so far as it concerns the third category of lies, should be upheld.
99. The remaining argument advanced on behalf of the appellant in support of this ground rested on the proposition that the trial judge was obliged to isolate for the jury each of the specific statements from the appellant’s record of interview which was relied on as a lie capable of demonstrating a consciousness of guilt.  Such a proposition must be rejected.  Although a trial judge is obliged to identify all such lies with precision, that does not mean that a verbatim account of each statement on the part of the accused person which is said to constitute such a lie must be given to the jury.  Indeed, doing so would, as the Crown submitted, carry with it the risk that the alleged lies are given undue prominence.  It is sufficient if the jury is given a summary account of the alleged lie or lies in terms sufficient to ensure that the jury is properly informed about what is relied on by the Crown.  That is what occurred here.

Ground 2 – Unsafe and unsatisfactory

100. By this ground, it was asserted that the jury’s verdict was unsafe and unsatisfactory.  In order to succeed on such a ground, the appellant must demonstrate that, on the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.^[40]
101. Be that as it may, the ground was not actively pursued on the hearing of the appeal, although counsel for the appellant had no formal instructions to abandon it.  He frankly acknowledged that there was “very little, if anything, in”^[41] the ground but otherwise adopted the submissions made in the appellant’s original outline of argument, the gist of which was an argument to the effect that the jury “may have had a doubt about the reliability of the complainant due to her extreme intoxication, experience of ‘blackouts’ and her account to Ms Picard that she ‘felt a pain in her [bottom]’ as opposed to feeling a pain in her vagina.”  However, even then, the outline contained the concession that it was “open for the jury to convict the appellant”.^[42]
102. That concession was correctly made.  There was ample evidence on which it was open for the jury to convict the appellant, not the least of which was the evidence of the complainant which the jury must be taken to have accepted beyond reasonable doubt.  The complainant’s account was also supported in different respects by the evidence of Ms Picard, Mr Foster, Mr Pratt and Ms Bera.  Counsel for the appellant was right not to pursue this ground on the hearing of the appeal.

Ground 3 – Section 24 – Mistake

103. As touched on earlier, the feature that the appellant’s counsel in the court below chose not to ask for a direction on s 24 of the Criminal Code (Qld) did not relieve the trial judge from the responsibility of directing the jury as to any excuse or defence that fairly arose on the evidence.  As the President observed in R v Cook,^[43] trial judges “must be particularly astute in determining whether s 24 is raised in cases where, as here, there is evidence that the complainant was intoxicated or asleep at the time of the sexual assault”.^[44]
104. However, when directing the jury regarding the possible defence under s 23 of the Criminal Code (Qld), the trial judge dealt with the issue of the appellant’s intoxication.  Her Honour referred to evidence from those who observed the appellant on the evening to the effect that he was “highly intoxicated after the pub crawl”.  Her Honour directed the jury that “people are responsible for their drunken acts”, that “intoxication doesn’t relieve a person of responsibility for committing a crime” and that “people may do things when they are drunk that they wouldn’t do when they were sober, but that is not a defence.”  Her Honour then directed the jury that a “drunken decision to penetrate [the complainant] would still be a willed act” and that “[intoxication] may offer some explanation for the accused’s conduct, but it does not entitle him to an acquittal.”
105. The trial judge then moved to a consideration of the possible defence under s 24 of the Criminal Code (Qld).  After informing the jury that the Crown must prove that the accused did not have an honest and reasonable belief that the complainant was consenting, her Honour directed the jury in more detail concerning what may constitute a “reasonable belief”.  Her Honour told the jury that this will “depend upon the circumstances” and that the jury should consider those circumstances “from the position of a person who is sober.”  Her Honour said, “It is not what an intoxicated person might think, but the question is what is reasonable for a sober person to believe from the circumstances known to the accused”.
106. The problem with these directions is that the trial judge failed to direct the jury that the appellant’s state of intoxication was relevant to the jury’s consideration whether he had an honest belief that the complainant was consenting.^[45]  This problem was further compounded by the feature that the trial judge had in unequivocal terms told the jury that the appellant’s intoxication was quite irrelevant to the question of criminal responsibility, albeit in connection with the discussion concerning s 23.  In the result, it cannot be assumed that the jury gave proper consideration to the existence of the possible defence under s 24 or, more accurately, came to a properly reasoned conclusion that such a defence had been excluded by the Crown beyond reasonable doubt.  As in R v O'Loughlin, the “jury may have been confused about how intoxication was to be taken into account, if at all, in considering mistake. … The appellant was entitled to have the jury properly directed in relation to the role of intoxication in the operation of the exculpating circumstance of mistake.  The direction given was inaccurate in part, confused and potentially misleading.  It had a distinct potential to confuse and distract the jury.”^[46]
107. It is important to keep in mind that the prosecution case was that the appellant’s account in his record of interview should be rejected in its entirety.  Further, the trial judge remarked to the jury that “the preponderance of evidence is that [the complainant] had been sleeping in the bed before the accused got in” and that his counsel had “essentially conceded that that was the weight of the evidence.”  If the jury agreed with those remarks and, further, were satisfied beyond reasonable doubt that the complainant had been penetrated by the appellant without her consent, the only real question left for their consideration was whether the Crown had negatived the possible defence under s 24.
108. It is true that there was no request for redirections on this point, but the failure of defence counsel at trial to do so has less significance where the error in question consists of a misdirection on a question of law.^[47]  It is no answer to say, as the Crown have submitted, that it is “unlikely that [a defence under s 24] would have troubled the jury significantly”.  Clearly, the trial judge considered that the defence was raised sufficiently by the evidence to leave it to the jury.  Once that point is reached, the directions to the jury must be correctly put.  Here they were not.
109. This ground of appeal should be upheld.

Ground 4 – Section 23 – Accident

110. Under this ground of appeal, it was contended that the trial judge was wrong to leave a possible defence under s 23 of the Criminal Code (Qld) to the jury.  In support of that ground, it was argued that the evidence referred to by the trial judge did not raise such a defence and that the directions which were given were prejudicial to the appellant’s case at trial.  It was submitted that, if s 23 was to be left to the jury, the trial judge should have referred to the evidence from Ms Picard and Mr Foster that the appellant appeared to be asleep.  Her Honour’s directions on s 23, it was further submitted, conveyed the impression to the jury that this was another false claim on the part of the appellant.
111. I am not persuaded that there is any substance in this ground of appeal.  The defence was left to the jury because of some of the answers the appellant gave to the police during his record of interview.  The evidence that the appellant appeared asleep at the time was also relevant.  The appellant’s answers were to the effect that there had been no sexual contact between the complainant and himself while he was awake but that, otherwise, he was unsure whether something had happened between them.  The possibility that the appellant may have unwittingly penetrated the complainant whilst he was sleeping would be difficult for any jury to accept but, given the appellant’s answers in his interview, it is understandable why the trial judge considered it necessary to direct the jury regarding s 23.  Having said that, though, it would have been preferable for the trial judge to have raised the prospect of the giving of such a direction with counsel before the commencement of the summing up.  Despite that, there is nothing about the directions that were given which were prejudicial to the appellant’s case at trial.  The trial judge was not obliged to refer to every aspect of the relevant evidence.  If anything, the giving of the directions would have worked to the appellant’s advantage.

Conclusion

112. For these reasons, I have concluded that the jury should not have been directed that the third category of alleged lies identified by the trial judge was capable of probative use and, further, that the directions given to the jury regarding the possible application of s 24 of the Criminal Code (Qld) were deficient.  Although the Crown case was strong, the appellant was entitled to a fair trial, according to law.  Given the existence of these errors, it cannot be said that this occurred.  The appeal must be allowed, the guilty verdict set aside and a retrial ordered.