R v Vecchio & Tredrea[2016] QCA 71

SUPREME COURT OF QUEENSLAND

1. FRASER JA:  A District Court jury found the appellants guilty of sexual offences committed on or about 19 July 2013 against the same complainant.  Mr Vecchio was found guilty of rape.  Mr Tredrea was found guilty of rape and indecent assault.  In consequence of the verdict that Tredrea was guilty of rape, no verdict was taken on an alternative charge against him of attempted rape.
2. The trials of the charges against the appellants were heard together.  Most of the evidence in the Crown case was admitted against both appellants, a notable exception being that a video recording of a police interview of each appellant was admitted only against that appellant.  Neither appellant called or gave evidence.
3. The complainant gave evidence to the effect that, whilst she was intoxicated and very ill she briefly emerged from unconsciousness to find herself on Vecchio’s bed with him having sexual intercourse with her without her consent.  In Vecchio’s police interview of 19 September 2013, he volunteered that he had sexual intercourse with the complainant.  He told police that the complainant initiated, expressed her consent to, and was an active and willing participant in, the sexual intercourse.  Other statements in his police interview were capable of being regarded as admissions that the complainant had been very ill.  The issues in Vecchio’s trial were whether the Crown proved beyond reasonable doubt that the complainant did not consent to sexual intercourse and, if so, that Vecchio did not honestly and reasonably believe that the complainant consented.
4. The complainant gave evidence to the effect that she emerged from unconsciousness to find Tredrea putting her hands onto his penis without her consent.  In a recorded police interview on 18 September 2013 Tredrea referred to the complainant voluntarily touching his penis and consenting to sexual conduct.  Other statements in his police interview were capable of being regarded as admissions that the complainant had been ill.  The Crown case that Tredrea raped or attempted to rape the complainant was based upon statements he made about his conduct in the police interview, together with the complainant’s evidence that she did not consent to Tredrea having sexual intercourse with her.  The issues in Tredrea’s trial were whether the Crown proved beyond reasonable doubt that Tredrea placed the complainant’s hand on his penis and penetrated the complainant’s vagina or vulva to any extent (or, if not, whether the Crown proved beyond reasonable doubt that Tredrea attempted to do so); if so, whether the Crown proved beyond reasonable doubt that the complainant did not consent to her hand being placed on Tredrea’s penis and the sexual intercourse (or attempted sexual intercourse); and, if so, whether the Crown proved beyond reasonable doubt that Tredrea did not honestly and reasonably believe that the complainant was consenting to that conduct.
5. Each appellant appeals against conviction.  Each appellant’s notice of appeal against conviction invokes the ground in s 668E(1) of the Criminal Code that the verdict of the jury is unreasonable.  That ground of appeal requires the Court to independently assess the sufficiency and quality of the evidence adduced at the trial and determine whether, upon the whole of the evidence, it was open to the jury to conclude beyond reasonable doubt that the appellant was guilty of the offence with which he was charged.^[1]  Vecchio relies upon a second ground of appeal, that the trial judge’s failure to grant a separate trial to him resulted in a miscarriage of justice.  That ground relies upon the circumstance that Tredrea’s police interview supplied more support for the complainant’s evidence about her intoxication and illness than did Vecchio’s police interview.
6. Before discussing those grounds of appeal I will outline the evidence in the Crown cases against each appellant.

Outline of the evidence

7. The complainant, who was eighteen years old at the time of the alleged offences gave the following evidence.  On the evening of 19 July 2013 she and her mother arrived at the Mango Hill Tavern at 8.00 pm and stayed for a maximum of two hours.  She had a maximum of five glasses of beer.  On a scale of intoxication where one is sober and ten is “incredibly intoxicated”, the complainant was six as at 10 pm.  During the evening she walked to a table where the appellants were sitting with someone she knew.  The complainant could not remember what conversations, if any, she had.  She remembered making eye contact with Vecchio.  She could not remember talking to him or to Tredrea.  She had no physical contact with any of the men.  The complainant recalled that her mother spoke with a group of men with whom the complainant was sitting.  When the complainant’s mother decided to go home she should not drive because she was too intoxicated.  One of the group drove the complainant’s mother’s car with her and the complainant as passengers.  The appellants and another man drove separately to the complainant’s mother’s house.  The drive between the hotel and the house occupied about five minutes.  They were at the house for about five or 10 minutes.  The complainant’s mother stayed there.  The complainant remembered walking outside with the men and getting into a car seat.  She thought that would have been with both appellants and another man.  She remembered being driven in the car.  She did not remember stopping.  (In the complainant’s evidence she often referred to not remembering things.)
8. The complainant’s next memory was of waking up while she was sitting on a bed.  She felt sick, drowsy, dizzy, nauseous and confused.  She thought that she heard Vecchio talking.  Her next memory was of lying down on the bed.  She jolted up, vomited all over herself, and stumbled into a bathroom.  Her next memory was of being “fully naked” in the bathtub in that bathroom.  While she was in the bathroom she heard voices, including a voice with an English accent.  (One of the witnesses, Charlie Terry, spoke with an English accent.)  The complainant vomited a lot.  She thought that she vomited blood.  She called out for help.  She felt that photographs were being taken of her.  She felt that she was in the bathtub for a long time.  The next thing she remembered was waking up with Vecchio on top of her on the bed.  Vecchio was having sex with her.  The complainant felt that she could not do anything at the time “because I was just so out of it, and I felt like I was going in and out of consciousness, and I felt paralysed”.  She did not give Vecchio consent.  She did not know what to do.  She did not say anything.
9. Her next memory was of Tredrea “handling me, handling my hands, putting them on his penis and talking to me”.  She did not remember what he said, “but he was manhandling me like a rag doll, trying to get me to touch him or something…on his penis”.  She could not remember the state of his penis.  Tredrea told her that she was “shit”.  She felt weak and paralysed.  She never agreed to have sex with Vecchio or Tredrea and she did not agree to touch Tredrea’s penis.  The complainant’s next memory was of waking up in the morning.  It was daylight and Vecchio was sleeping in the bed next to her.  All her clothes were on the ground.  Her jacket was disgusting.  There was semen all over it.  The complainant felt “really weak” and “really sick” and wanted to throw up.  She got dressed, went to the bathroom, and saw vomit everywhere.  She stormed back into the room and demanded that Vecchio take her home.  On the drive home the complainant asked Vecchio not to tell anyone; he chuckled and said “Okay”.  When they arrived at her place she left the car and walked into her house.
10. The complainant made disclosures to her then boyfriend, Dean Brookes, her sister, her mother, and her best friend, Kelly Dean.  The complainant’s initial disclosure was by Facebook Messenger to Dean Brookes.  At this time the complainant disclosed to Dean Brookes, that she “got spiked last night”.  The complainant stated: “I’ve been throwing up everything … and blood …”; at the tavern the night before she had “got completely fucked off …”, and she “saw Monty [Culverhouse] last night I remember…”.  Either very late that same evening or very early the following morning the complainant again messaged Dean Brookes saying she needed to talk to him about “something really bad”; she “got taken advantage of last night by these guys”; “you [Dean Brookes] have to understand what state I was in last night everything was like a dream and I was throwing up blood like all night in a bathtub”; “… mum and I were drinking and then mum got too drunk to drive home so he [one of the group of men] drove mum’s car home all I can remember after that is vommitting [sic] in a bathtub”; and “I can’t let her [Mum] know what happened to me last night! ... as much as I wanted to tell her”.
11. In cross-examination by counsel for Vecchio, the complainant agreed that CCTV footage at the tavern showed that she and her mother arrived at about 9.00 pm, the complainant was still there about two hours and 40 minutes later at 11.45 pm, and at that time the complainant was drinking what looked like a bottle of beer.  She recalled telling police that her mother had paid for her drinks.  One of the boys bought her a drink towards the end of the night.  The complainant denied the suggestion that she was friends with the appellants and with others (Ashley Goldin and Charlie Terry) in the group at the tavern.  She agreed that she had referred to them as friends in her statement to police but said she should have used the word “acquaintances”; she did not know all of them and she had not spoken to all of them face to face until that night.  Defence counsel put to the complainant a part of her statement in which she said that she “noticed that some of the boys [she] was friends with were sitting outside in the smokers’ area”; the complainant thought she should have said “acquaintances”.  She recalled telling police that she had met Vecchio online and had only chatted with him online.  She had not remembered that she had actually seen him before, when she was in a car that he was also in which was pulled over by police.  The complainant agreed that she had been at Bruce Cummings’ house (where the alleged offences occurred) twice before that night to visit him and on one of those occasions saw Vecchio there.  The complainant had told police that she had not met Vecchio until she saw him at the tavern.  She had in fact met him at least twice before.  The complainant could not remember her mother talking at the tavern about her breast implants or that Vecchio touched her mother’s breasts.  She denied that she had invited the boys to touch her breasts or that this had happened.  The complainant did not recall sitting on Vecchio’s lap.  The complainant did not recall kissing Vecchio.
12. The complainant denied that she told her mother that she wanted to go back to the boys’ house.  She denied saying that it was okay for her to do that because they were her friends.  She did tell her mother that it would be okay.  The complainant denied that she consumed cannabis at Cummings’ house or that she wanted to go there for that purpose.  She agreed that she had used cannabis before.  She did not remember how many times, but stated that it was not very many.  The complainant did not recall that on the way to the house the car stopped at a service station.  She agreed that Culverhouse was a friend.  She did not remember speaking to him or asking him for a cigarette.  She denied telling anyone that she had met him that night.  The complainant did not recall telling Dean Brookes that she had seen Culverhouse that night.  The complainant agreed that she had told Kelly Dean that her memory was not very good about things after the tavern, that she had woken up naked in the bathtub, that had no idea how she got there, and that she did not know what happened.  The complainant denied that she told Kelly Dean that she thought she had been raped because she felt pain in her genitalia.  The complainant did not feel such pain.
13. The complainant agreed that in her statement to police on 30 August 2013 she had not mentioned that she felt that photographs were being taken of her while she was at Cummings’ house.  She denied that she had invented this to attempt to make things worse for Vecchio.  In her police statement she said that when she was in the bathroom she saw vomit and “what appeared to be blood”.  She did not remember the appellants and Terry leaving Cummings’ house for about two and a half hours, that she went into Vecchio’s bed in the bedroom, or that after about two and a half hours Vecchio got home and went into the same bed.  It was not possible that she said “yes” to a question by Vecchio asking whether she was okay now; that was not possible “because I was out”.  The complainant said that she “did not remember” in response to defence counsel’s suggestions that she and Vecchio started kissing each other; she moved closer to him in the bed; and she touched his penis.  When it was put to the complainant that she said “yes” when Vecchio asked her for sex the complainant answered “not true, since I don’t remember anything”.  She denied that she rubbed her leg and crotch against Vecchio’s leg or that she said “okay” to a question by Vecchio, after sexual intercourse, whether it was okay for Tredrea to come up.  She denied that on the following morning she smoked cannabis supplied by Vecchio.
14. The complainant gave evidence that she demanded that Vecchio drive her home because she did not know where she was, and that as soon she got dressed he did take her home.  When it was put to her that she had been to Cummings’ house before, the complainant agreed and said that she first realised where she was when she went out of the house in the morning.  (It was not put to the complainant that she had been in the bedroom or bathroom before or should have recognised them.)  When she arrived home she did not recall her mother asking whether she had been to sleep and she did not recall saying “yes’; it was possible that occurred.  The complainant said that her mother did not comment upon vomit on her clothes because the complainant went straight upstairs.  She did not tell her mother that she had been vomiting blood because her mother “doesn’t need to know that”.  She did not see a doctor about it.  The complainant put her clothes in the wash.  She did not wash her jacket.  She put it in a bag “for forensics” when she got home in case she decided that she wanted to report these events to the police.  At that time she “wasn’t completely sure if I was going to go through with telling the police or not”.
15. When it was put to the complainant that before giving evidence she had not said that her jacket was covered in semen, she said that a police officer called “Mark” (which was the first name of the investigating officer, Mr Cave) sent the jacket away for forensic testing and told her that it was semen on the jacket.  The complainant agreed that in her statement to police she had referred to her clothes being covered in vomit and she did not mention semen.  She was not sure about that until the jacket was sent away.  She had not heard the expression “a cone” or the expression “conage” at the time of the alleged offences.  She agreed that on 8 September 2013 she sent a text to Kelly Dean referring to wanting to “smoke some conage”, but did not remember that.  Two or three days after the events she invited Ashley Goldin to go to her house to smoke marijuana.  About a week after 19 July 2013 she saw Cummings and Tredrea at the tavern.  She denied that she was happy to be with Tredrea.
16. The complainant agreed that two or three days after 19 July 2013 she invited Ashley Goldin and two other men to her place to smoke marijuana.  She did not recall that one of the three men said that they had heard that she had some fun with the boys the other night.  She denied that it was possible that she had giggled and said “yeah”.  She said that she remembered seeing Cummings at the tavern about a week after 19 July 2013 and that Tredrea was with him.  She denied that she was happy and friendly at that time and said she was not happy at all.
17. In cross-examination by counsel for Tredrea, the complainant denied that on the night of the alleged offences she had been at the service station adjacent to the tavern.  She had no recollection of seeing Monty Culverhouse at the service station or being there at all.  She could not remember whether she had told Dean Brookes that she had seen Culverhouse.  She smelt cannabis at Cummings’ house later in the night.  At that time she was someone who smoked cannabis occasionally.  She said that “at that time I was with Dean, I wouldn’t have done that … I hardly did it … I hardly smoked weed back then … [s]o – plus I – did it with friends I had met.  But I had never done it – I just don’t – I didn’t do it”.  The complainant agreed that she was suggesting in her evidence that her drink was spiked.  She could not identify when it occurred.  She had stopped drinking after she left the tavern.  At that stage she felt “okay” although she was six to seven on a scale of drunkenness.  She did not agree that she was feeling exactly the same by the time she got to her mother’s home.  She then felt a little drunker.  She did not remember much at all after jumping into the car.  She remembered being in it and feeling it moving and turning corners.
18. The complainant denied that it was possible that Tredrea asked her whether she wanted him to “make [her] moan”.  It was not possible because she was sleeping, she did not remember anything, she woke up, she was going in and out of consciousness, and she was not conscious until he started handling her.  She agreed that she had said that Tredrea had said something, but she could not remember what it was.  She denied that it could have been what was being put to her now.  When she was pressed further the complainant said that it could not have happened “because I was unconscious … and … woke up to a man handling me, and then he said ‘you’re shit’ …There was nothing else when I was awake”.
19. In re-examination the complainant said that she had told police that the appellants and Ashley Goldin were her friends because she was “friends on Facebook” with them but that she had never considered them her friends.  She did not rub up against Vecchio or agree to have sex with him.  The complainant said that before 19 July 2013 she had never experienced the absence of memory and paralysis she had described.  About a week after the incident she spoke to Tredrea at the tavern because she was “really mad about what happened, but I don’t remember what I said.  I just wanted to express that I was really upset about what happened”.  When she spoke to Kelly Dean she “explained the night to her just briefly, and I wasn’t sure what to do, and I just told her what happened …” The complainant said of her conversation with Dean Brookes that she “told him exactly what happened … I passed out and I don’t remember anything, like, I was unconscious, and then I briefly remember [Vecchio] having sex with me and [Tredrea] handling me and that they took advantage of me when I was in a really bad state.”  She waited a month before she told police because she was not 100 per cent sure.  She was confused, but then kept getting memories about what happened.  Kelly Dean made it clear to her that what the appellants did was wrong, and it took the complainant “a little bit of time to realise how wrong it actually was, and so [she] reported it.”
20. The complainant’s mother gave evidence that on 19 July 2013 she and the complainant arrived at the tavern after 7.00 pm and stayed for two hours or a little bit more.  She thought she consumed about half a dozen beers.  On a scale of one being sober and 10 being the most intoxicated she could be, by the end of the night she was “[m]aybe four” and the complainant was “[m]aybe five or six”.  She thought that the complainant introduced the appellants to her at about 8 or 9 o’clock and they had a couple more drinks together.  The complainant described the appellants to her as “my friends, I know them”.  The complainant’s mother remembered the complainant sitting on somebody’s lap for a couple of minutes.  That man engaged in “sleazy bantering” and talked about the complainant’s mother’s breasts.  She let him touch her breasts to demonstrate that they were fake.  One of the group drove the complainant’s mother’s car to her home.  The complainant wanted to go with the men.  The complainant asked her to join them.  The complainant left with the men after about five minutes.  The complainant’s mother thought that was at about or after 10.00 pm.  The complainant was behaving as though she had had a couple of drinks, “smiling and happy”, but not staggering.
21. The complainant’s mother next saw the complainant at about 8 or 9 o’clock the next morning.  The complainant started to go straight up to her room.  The complainant’s mother spoke to the complainant, who “put her head down and went to walk up.”  She looked dishevelled.  The complainant’s mother asked her if she had some sleep.  The complainant said that she had and went upstairs.  Weeks later the complainant’s mother and her ex-husband spoke to the complainant.  The complainant said about the night at the tavern that “the guys drugged me … I remember waking up in the bath” and “I was naked, I was vomiting blood, there was blood on me … and I think they had sex with me”.  The complainant’s mother recalled the complainant saying that she felt that her drink was spiked, because she can’t remember anything …” “she felt like … [the appellants] had sex with her …”.
22. In cross-examination by counsel for Vecchio, the complainant’s mother said that at the tavern she drank about half a dozen bottles of beer and the complainant was drinking tap beer.  The complainant’s mother bought all of the complainant’s drinks.  Everyone was having a good time and being friendly.  Some people were flirting with her and the complainant.  The complainant flirted with a number of the boys and sat on Vecchio’s lap.  The complainant’s mother did not recall the complainant inviting the boys to touch her breasts.  The complainant’s mother agreed there were times where she left the smoking area (when the complainant was there with the men) to buy drinks or go to the bathroom.  The complainant’s mother did not recall seeing the complainant kissing Vecchio.  When the complainant left her home “[s]he was drunk but the level of drunkenness was fine.”  When it was put to the complainant’s mother that on the following morning she did not notice anything untoward about the complainant’s appearance apart from looking a little bit dishevelled, the complainant’s mother said that she could barely see the complainant and that the complainant did not give her the chance.  The complainant’s mother stated in her police statement that the complainant said that, “she felt that her drink was spiked because all she remembers is snapshots of things”.  In cross-examination by counsel for Tredrea, the complainant’s mother agreed that the complainant did not tell her mother anything about “the tall one” (Tredrea).
23. Monty Culverhouse gave evidence that in July 2013 he had known the complainant for a couple of months and he also knew the appellants.  On the night of 19 July 2013 at a service station near the tavern he saw the complainant and the appellants arrive by car.  He could not recall who drove the car.  They asked to borrow a lighter.  He was “pretty sure it was a group question …”.  They were at the service station for probably two minutes before they left.  Everyone, including Culverhouse was intoxicated.  The complainant was “pretty intoxicated”.  Culverhouse himself was the most intoxicated of those present.  In cross-examination by counsel for Vecchio, Culverhouse agreed that he was at the service station around “a bit after midnight” or “late”.  He agreed with defence counsel’s suggestion that he recalled the complainant asking him for a cigarette.  When asked whether he talked to her for a while he said “not really”.  When asked whether he talked to her for a little time he said, “Somewhat.  Yes.”  He agreed that he had told the police that the complainant was “drunk but not messy drunk” and agreed that she was “still talking fine”.
24. Dylan Goldin gave evidence that he remembered seeing the complainant at the tavern on 19 July 2013.  He did not know the complainant before then.  He had never spoken to her in his life.  In cross-examination by counsel for Vecchio, Dylan Goldin gave evidence that whilst at the tavern he consumed a few drinks, probably two or three shots of spirits with soft drink.  He was not intoxicated.  He had no recollection of when he arrived at the tavern.  He was there with his brother Ashley, Terry, and Adam Ward.  The complainant and her mother were very flirtatious with all of the boys.  When asked what he meant by this he said that “everyone was chatting … happy … getting along well” and the complainant and her mother were “talking to the boys and the way they were just acting and standing there and all that”; “just showing off what they – their goods, so to speak.”  He did not see the complainant kissing any of the boys.  On the following afternoon he was at the tavern again with Adam Ward, his brother Ashley and Terry.  The complainant came to speak to the group.  When Dylan Goldin was asked whether Tredrea was there, he said, “I think so.  I can’t recall.  I think it was him.  Yes.”  He agreed with a subsequent suggestion in cross-examination that Tredrea was part of the group.  The complainant was behaving normally and “was all right [sic]”.  When asked in re-examination how he knew that he saw the complainant at the tavern on the following night he answered “[b]ecause I just remember being there and just – yeah.  How I know I was there, and she was there.  Yeah … I don’t know.  I just do … I don’t know.  I just do.”
25. Dean Brookes gave evidence that his Facebook exchange with the complainant happened on Sunday evening and Monday morning.  After that he spoke to the complainant by telephone.  She told him that she did not remember much of the night.  She remembered going home with her mother, being at the tavern again, and waking up the next morning vomiting blood, naked in the bathtub.  In cross-examination by counsel for Vecchio, Dean Brookes agreed that in the course of his relationship with the complainant she smoked cannabis quite often, every second day.  He had heard the complainant use the word “cones” quite often but he had never heard her use the word “conage”.
26. Kelly Dean gave evidence of a conversation, the date of which she could not recall, in which the complainant told her that the complainant had been out on the previous week with her mother: “… things had gotten a bit out of hand and she didn’t really remember what had happened that night … she remembers waking up in a different boy’s bed, but she wasn’t – she don’t remember how she got there … she was trying to remember – tell me – how she got there and things … from what she told me – she remembered being blacked out, waking up [in] the bathtub not knowing where she was.  Then she remembers waking up in a … stranger’s bed and she had pains like she’d been raped.  And then she asked a gentleman to take her home, and he did.”  The complainant mentioned the appellants and Cummings.  Kelly Dean said that those were the only names she could recall.  The complainant did not tell her anything specific about either man.  The complainant told her about being at the “tavern beforehand with her mother, drinking with boys”; her mother left with a man and the complainant “stayed or continued drinking.”  They (the complainant and the boys) went back to a man’s house, Kelly Dean did not know whose home it was.  Kelly Dean could not “really remember specifics”.
27. In cross-examination, Kelly Dean denied that the complainant told her that she did not remember what had happened but had just woken up in a bed next to a different guy; Kelly Dean asserted that the complainant said that “she had woken up in a bed, she had also woken up in a bathroom not knowing where she was”, and that she felt that she had been raped due to pain she was feeling in her genitalia.  Kelly Dean told the complainant to go the police.  The complainant said that she did not want to go to the police because she didn’t want to get anyone involved and she wanted to forget about it.  Dean said that in July 2013 the complainant smoked cannabis.  Her memory of this conversation with the complainant was not very good.  She did not recall the complainant using the expression “cones” or “conage”.
28. Charlie Terry gave evidence that at the tavern on 19 July 2013 he spent time with the appellants, Dylan Goldin, Ashley Goldin, the complainant and her mother.  Terry thought that whilst he was at the tavern, possibly until midnight, he drank 10 pints or more.  On a scale where one represented sobriety and ten represented the most intoxicated he had ever been, he was a six or seven by the end of the night.  The complainant probably had a couple of drinks whilst he was at the tavern; she was not drinking as much as him and was “fine”.  He did not answer a question about where on the scale he would place her.  At about midnight he left the tavern and drove to Cummings’ house.  He arrived at the house at 12.30 am.  He was there for 10 minutes.  He saw the appellants and no one else at the house.  He then went to a brothel at Clontarf.  He returned to the house and again saw only the appellants.
29. In cross-examination Terry agreed with a suggestion that the complainant and her mother were being very flirtatious with “the boys”.  The complainant’s mother invited Vecchio and others present to touch her breasts.  He agreed with defence counsel’s suggestions that the complainant then invited the boys to feel her breasts; this was “fun and jokey”, and that people were laughing.  Terry also agreed with suggestions that the complainant sat on the laps of a number of boys, including Vecchio and that Vecchio and the complainant had their arms around each other.  Terry agreed that later in the evening he caught a taxi to Cummings’ house. He recalled going upstairs into the house.  He recalled asking Cummings, Vecchio and Tredrea where the complainant was because he was going to offer her a lift home and did not know where she was.  He did not recall the appellants saying that the complainant was in the bathroom or the bedroom.  He did not recall knocking on the bathroom door and asking the complainant if she wanted a lift home.  He had no recollection of speaking with the complainant.  It was not possible that it happened.  The only area he went into was the living room.  It was his idea that the appellants go to the brothel at Clontarf.  He agreed that he was there for some time.  Terry also agreed with suggestions that he dropped the appellants back at Cummings’ house, he did not go back into the house, and continued onto his home.  His best recollection was that they were all at the brothel for two or three hours.  The sun rose when he left the brothel and when he was on his way home after he had dropped the appellants back at Cummings’ house.  That was after 5.00 am.  In re-examination Terry stated that his memory of these events was “[n]ot the best” and that he did not remember what Cummings and the appellants said when he asked them where the complainant was.
30. Cummings gave evidence that when he used the bathroom of his house on the morning of Saturday 20 July at about 8 or 9 am he did not see any vomit or blood.  He would remember it if it was there.  About a week after the 19 July he was at the tavern with Terry and Tredrea when the complainant came up and spoke to them, and the complainant was quite “flirtatious as normal”.
31. The investigating police officer, Constable Mark Cave, gave evidence.  He obtained CCTV footage from the tavern, including from cameras which showed people coming up to the bars and getting drinks.  He organised the production of an edited video which chronologically followed the complainant and her mother at the tavern.  With limited exceptions, the edited footage in evidence did not include footage of the complainant’s mother or others buying drinks when the complainant is not also shown on the footage.  (I will refer to aspects of that CCTV footage in the course of considering the parties’ arguments.)  Cave had recently sought but was unable to obtain all of the footage from each camera at the tavern for the night of 19 July 2013.  Cave gave evidence that the complainant’s jacket was submitted for forensic testing, including testing for semen and DNA.  What was found was a “complex mixed DNA sequence, so no individual could be separated from the mix of DNA that’s on the jacket”.  Semen was not detected on the swab taken from the jacket.  Cave did not tell the complainant that the forensic laboratory had found semen on the jacket.  According to police records the complainant initially told police that the offence had taken place between 28 July and 7 August 2013.  Footage from the service station near the tavern was not available when Cave investigated the complaint.
32. In the following extracts from the recorded police interviews of each appellant the emphasised statements are amongst those which the trial judge identified as admissions upon which the prosecutor relied against the appellant who made the statement.

Vecchio’s police interview

33. Vecchio said that at the tavern he went outside to the smoking area where two of his friends were talking to the complainant and her mother.  He joined the group.  The complainant’s mother let him and Ashley Goldin touch her breasts.  He and Ashley Goldin also touched the complainant’s breast with her permission, in front of her mother.  (Vecchio subsequently said, “I’m pretty sure she let me touch her breasts there … in front of her … mum also … after her mum let me touch hers …”)  Vecchio said that he bought the complainant, her mother, and himself a beer and they didn’t drink their beer.  He then said that he bought the complainant’s mother and himself a beer, the complainant’s mother didn’t drink hers, and he did not buy the complainant a beer.
34. Ashley Goldin drove them to the house where the complainant and her mother lived.  After going inside and having a conversation, the complainant, who wanted to smoke marijuana, said she wanted to go back with the boys.  She went in the car with the appellants to their [Cummings’] house at Kallangur, where they smoked cannabis together.  (Subsequently Vecchio said that when they were having cones, the complainant had taken her pants off and was sitting on the bed moving her breasts.  He also said that the appellants sat with the complainant having a conversation and smoking a cone for half an hour or forty-five minutes.)  On the way to their house they stopped at a service station.  He was “even pretty sure [the complainant] got out of the car there because has seen a couple of mates sitting up there.  She went to say hello … and come back in the car, something like that.”
35. After the complainant had smoked cannabis, “She’s walked, gone to the bathroom, we said we are going out.  She was doing whatever she was doing in there.  My mate Charlie’s come around, we’ve all gone, me Joshy and Charlie, drove … to the brothel …”  Subsequently, in response to questions whether the complainant had said she felt ill and whether she had said that or just went to the bathroom,  Vecchio said that “[s]he’s run, went into the bathroom”, “Just went to the bathroom”,  “And we were like you right, do you want us to take you home, do you want us to call your mum … trying to help her out … she wouldn’t, wouldn’t answer us and she was carrying on …”.  When asked what the complainant was doing in the bathroom, Vecchio said, “[INDISTINCT] I wouldn’t have an idea”.  When asked whether he went in, he answered “[n]o, nup, she had the door closed … [INDISTINCT] opened it, are you alright? You want us to call your mum or anything and she’s like mmm, no, I’m fine.  Alright then.  I didn’t want to go near her in case she was [INDISTINCT] vomiting or something … and I don’t know if she did or not but yeah …”.  When Vecchio was asked later in the interview what he thought was going on in the bathroom at the time, he responded, “Maybe she is sick and like sitting there and that – that’s why we said do you want us to take you home.  She’s like, no I’m fine”; “… we knocked on the door and she was just sitting there, she doesn’t even answer the door, like she is just like I’m alright …”.  Charlie [Terry] arrived and all of them drove to the brothel and returned to the house after a couple of hours.  Subsequently Vecchio said that Terry was at the house for a while, before they went to the brothel, when “we were just trying to … get her [the complainant] home.”
36. In Vecchio’s first description of what occurred after he arrived back at the house from the brothel he said:

“Come back from there, we would have been out for a couple of hours.  She was, she was out, she was in my bed when I come home.  I had a couple of cones, I went to bed.  And then I woke, I woke back up.”

37. Vecchio immediately added:

“no sorry, I come back home, after the brothel, she’s in the bed, me and her started hooking up, having sex”.

38. Subsequently Vecchio said that when he got into bed with the complainant she started to rub against him.  Vecchio then said that the complainant came over to his side of the bed, so he put his arm around her, they started kissing, and after about five minutes or so they started to have sex.  He said that there was no conversation until the morning.  Vecchio subsequently said that the first thing was that the complainant rolled over, and rubbed up against his leg, they were kissing and he was playing with her, touching her, and she touched his penis a bit, after which they started having sex.  Vecchio then said that the complainant wanted to have sex “and she was like eerr [sic] and we had sex”.  In response to Cave asking what the complainant actually said to him when he asked for sex, Vecchio said that the complainant, “said yes, she was, this is when I asked her to have sex, after she started rubbing her leg.”  Vecchio said that the complainant rubbed her genitals up against his leg.  He demonstrated their respective positions while they had sexual intercourse.  He said that occupied about 20 minutes.
39. In response to questions about alcohol and drugs, Vecchio said that “I wasn’t too drunk … I wasn’t wasted, where I didn’t know what I was doing …” and that he thought the complainant “was in a good mood as well, as far as I could see, she wasn’t, she wasn’t too bad, like she was walking around [INDISTINCT]”.  Vecchio said that after he returned from the brothel, he asked the complainant “you alright now … do you want clean clothes or … anything.  And she was like no I’m fine.”  When Vecchio was later asked why, what made him think that the complainant was fine, he responded that the complainant, “laid in bed and like she come up against me and started kissing me, … I didn’t taste any vomit in her mouth or otherwise I would have stopped kissing her straight away, like that was disgusting … and we were kissing and she was kissing me back …”.
40. Vecchio said that whilst he was having sexual intercourse he was getting phone calls from Tredrea asking whether he would ask the complainant if Tredrea could come up.^[2]  Vecchio said that, “After I was done, I was like [Tredrea] wants to come up and she was like ok.  I left the room, [Tredrea’s] come upstairs and I’ve laid in his bed and waited around …”^[3]  Vecchio subsequently said that as soon as he “finished I was like [Tredrea] keeps ringing me, he wants to come upstairs” and the complainant “just, she just laughed, she’s like ok”.^[4]  After Tredrea came out of the bedroom he (Vecchio) returned to the bedroom and went to sleep with the complainant until the morning.  In the morning, the complainant got up and had a shower, they had a conversation, they shared some marijuana cones, and they played music whilst they were talking.  Vecchio dropped her to her house.  The complainant asked him, and asked him to tell Tredrea, not to tell anybody and he agreed.

Tredrea’s police interview

41. Tredrea said in his police interview that before he went to the tavern he had five or 10 drinks of rum and he probably had four or five more at the tavern.  He recalled being in a group with Vecchio, Terry, Ashley Goldin, the complainant and her mother.  He recalled the complainant’s mother letting them touch her breasts.  He was uncertain about what the complainant and her mother were drinking.  He thought that someone gave the complainant a beer and she drank it.  The complainant’s mother asked for a lift home.  Ashley Goldin drove the complainant and her mother to their home, in the complainant’s mother’s car; the appellants followed.  When they arrived Tredrea stayed outside.  Tredrea volunteered that “we were all pretty drunk and everyone was just, like doing their own thing, yeah just being drunk”, and the complainant asked him and Vecchio to take her back to their home.  When they arrived at the house [Cummings’ house], the complainant “passed out … went to the shower and she started vomiting”.  Tredrea and Vecchio asked if she was all right.  The complainant told them to go away.  The complainant got into the shower, turned it on, and passed out.  Tredrea said that he and Vecchio asked if she wanted a lift home or to ring her mother.  The complainant said she couldn’t move.  The complainant kept passing out every time they tried to get her up.  Tredrea and Vecchio left the complainant with some water and went out.
42. Tredrea said that after they arrived back at his house “we started having bongs … And then, like [the complainant] she’s like passed out and shit.  And then Charlie [Terry] rocked up.  And then that’s when we all went out, like …”.  When asked if the complainant had been vomiting he said “Yeah. … She’s pretty much in, like, just laying [sic] there in the bath naked, we just chucked a towel over her and shit.”  Sometimes she would sit up and turn the tap on over her head.  Tredrea said that “She sat up on the bed and actually vomited in that room.  And then she got up and went in and did all her shit for ages, it was like three hours … And then kept, vomited all the way to the bathroom.”  When Cave returned to that point later in the interview, Tredrea said, “She couldn’t move…When she’s in the bathtub and shit, like, we were trying to get her up and shit, like, and we were saying like we will take, like ring your mum, and she’s like, she can come and get you or we can take you home.  And she – and she – she’s just like.- … cant’ move, can’t move …”.
43. Tredrea said that after they had gone out and come back from the brothel, “It could have been two or three in the morning. … Still passed out… I think she um, like got up and sort of sat down and had a shower and that … She could have just got up and just lay in his bed, hey.  She’s got up and just went straight in his bed, hey… And then yeah, we went out, came back, like, I don’t know how long but yeah after that, we woke her up and shit.  And then she started feeling a bit better I think, I don’t know.  And then she got into Vecchio’s bed, and then I don’t know, whatever happened with her and Vecchio.  And then Vecchio came downstairs to me and he said, told me to go upstairs.  So I went up there um went and laid next to her and I was like, I asked her, like, I was like I want to make you moan or something like that.  And she’s like, yeah do it.”
44. Tredrea said, “And then, like, I didn’t even really fuck her to be honest with ya, like, if my dick did, went in there, I would be surprised to be honest with ya.  It probably would have been but yeah, not for long, yeah.  And then yeah um, I went back to bed.”  When Tredrea was subsequently asked to describe what happened he said that he lay next to the complainant, “just said what I said and then tried to get it in but, it might have gone in a little bit but yeah, like, I was probably like there for fifteen minutes and then just fifteen minutes of shit.  And then I left”.  When Tredrea was asked about penetration, he said that it “could have been, you know but not for, like, no longer than a minute, less than a minute, a half a minute or even that … it’s just she’s a mess … she was a mess … like the smell of vomit and shit like that, she was just dirty.”  Cave subsequently suggested that Tredrea had said that “It was only in for thirty seconds or a minute or whatever”, to which Tredrea responded, ‘Not even that’.  Later in the interview Tredrea said there was no sexual act other than him trying to get his penis into the complainant’s vagina.  He agreed that he might have grabbed the complainant’s breasts.  He said that he did not ejaculate.  Tredrea subsequently said that he was “Like, just trying to get it hard, trying to get it in.  It just wasn’t happening ‘cause she was not turning me on”.  He said “There wouldn’t have been vomit on her” and “the smell of vomit” was coming from “her breath”.
45. In response to a question whether Tredrea thought that the complainant could consent to having sex he responded, “Well, she did to me … in like my eyes she did, like I asked her and she said do it, so in my mind, that’s, that’s, like telling me to do it’.  When Tredrea was asked how he could be sure that the complainant could give informed consent he responded, “… in my eyes, I, I thought it was all good.  I thought she thought it was all good like and yeah … she was all for it … like touching my dick and shit and [INDISTINCT] she touched my body.  And I was just on top of her, like, she’s [INDISTINCT].”  In response to a question whether Tredrea thought that the complainant was thinking straight at the time, he answered, “No, I wasn’t either … none of us were.”
46. Tredrea said that he had not spoken to the complainant before that night.  He referred to a subsequent occasion at the tavern when the complainant “was going on about something and then I said, I asked her and then she said you don’t take advantage of drunk women or some shit.  And I was like … I didn’t reply back to her … I was thinking in my head, like, you were the one that told us, like she wanted to come back to ours …”.  Tredrea repeated that he did not think he replied to the complainant in that conversation.  One of his mates started getting angry because of what the complainant was saying, so Tredrea grabbed him and they left.

Consideration

47. Both appellants argued that their convictions should be set aside as unreasonable because of the poor quality of the evidence in the Crown case, particularly the evidence of the complainant.  They argued that in some important respects the complainant’s evidence was shown to be unreliable, inconsistent with, and contradicted by other compelling evidence.  There were a variety of discrepancies and inconsistencies in the complainant’s evidence and between her evidence and the evidence of other witnesses, including the witnesses who gave evidence of disclosures made by the complainant.  There is no reason to doubt that the jury took those matters into account when assessing the reliability and credibility of the complainant’s account.  In my view, none of the points agitated by the appellants was so clear or of such significance to require the jury to harbour a reasonable doubt about the accuracy or reliability of the critical aspects of the complainant’s evidence.  I will discuss the matters which were emphasised in argument.
48. The appellants argued that unreliability in the complainant’s account of the alleged offences was demonstrated by a conflict between the complainant’s evidence that she had no physical contact with Vecchio at the tavern and the CCTV footage.  They argued that the video showed, consistently with the evidence of Terry, Dylan Goldin, and the complainant’s mother, that the complainant had considerable contact with the appellant and others, including sitting on the appellant’s lap.  However the oral evidence of the suggested contact, which was given two years after the event, lacks convincing detail.  Dylan Goldin’s evidence is vague.  Terry’s evidence that the complainant sat on a number of boys’ laps (which was given by him saying “yeah” to leading questions) is unsupported by the CCTV footage.  The complainant’s mother did not describe the conduct which she thought amounted to the complainant flirting, apart from a reference to her seeing the complainant sitting on Vecchio’s lap.  There was such an event.  The CCTV footage records that it occurred at about 11.35 pm (about five minutes before the group left the tavern), when the complainant and her mother sat in the smoking area outside the building with a group which included the appellants.  In cross examination the complainant initially interpreted the relevant part of the footage as showing that Vecchio “pulled me in”, before agreeing with defence counsel’s suggestion that the CCTV footage showed that the she “moved in close to him and you go up and sit on his lap and Adam puts his arm around you.”  Either interpretation of the CCTV footage is open.  The footage also shows that at one point the complainant stands up and Vecchio appears to pull her back down on to his lap.  She then returned to her chair.  The entire episode occupied less than one minute.
49. The CCTV footage does not show the complainant sitting on the lap of any other person, kissing anyone, or anyone touching the complainant’s breasts.  For most of the evening the complainant is shown with her mother drinking at bars, playing pool, smoking a cigarette in the outside area, and occasionally talking briefly with other people.  The complainant’s activities, so far as they can be discerned on the footage, seem innocuous and (particularly if the complainant was intoxicated when the group was outside near the end of the evening) forgettable.  The jury could reasonably regard the CCTV footage as being consistent with the complainant’s denial that she was “flirting” with the appellants at the tavern and that there was nothing odd about the complainant’s inability to accurately recollect unremarkable contact with the appellants at the tavern.  Whatever view should be taken of the evidence upon these topics, the jury might reasonably have regarded it as being of no real significance in their assessment of the reliability and credibility of the complainant’s evidence of the events at Cummings’ house.
50. The appellants referred to the complainant’s denials that she met Culverhouse at the service station or that she told anyone, including her then boyfriend, that she had done so.  The effect of the complainant’s evidence was that she did not remember stopping at the service station, meeting Culverhouse, speaking to him, or telling her boyfriend that she had met him.  (The complainant’s answer “no” to the question “did you tell anyone the following evening, the Saturday, that you had met Monty that night”^[5] was given in the midst of many statements about her not remembering having met him.)  The jury could reasonably reject as unreliable Culverhouse’s general and varying evidence about the complainant’s suggested conversation at the service station, whilst accepting that the complainant, when she was very intoxicated, might have seen and recognised Culverhouse.  The circumstances that, when the complainant gave evidence two years after the event, she did not recall either the apparently brief stop at the service station or that within a day or two after the event she had briefly mentioned it to her then boyfriend were relevant but not necessarily significant.  That the complainant recalled seeing Culverhouse when she communicated with her boyfriend reveals that she was sufficiently conscious to be aware of that and to  recall it a day or two later.  That did not oblige the jury to doubt that she was so intoxicated as to have had very limited awareness of the car journey.  The jury also must have rejected any hypothesis that the complainant’s initial disclosures and subsequent complaints were motivated by the complainant’s wish to give her then boyfriend an innocent explanation of her presence at the service station, of which he might have been informed by Culverhouse.
51. The appellants argued that the Crown’s cases were undermined by a conflict between the complainant’s evidence and statements that she vomited in the bathroom at Cummings’ house and the evidence of Cummings that on the following morning there were no signs of that in the bathroom.  Cummings gave evidence that he spoke to police about two months after the event.  When he was asked about the time when he used the bathroom on 20 July he said that “it would have been 8:00 or 9:00 in the morning because my ex had to get back to work at 9:30”.  Whatever the jury made of that evidence, the jury might reasonably have concluded that any mess easily could have been washed away before Cummings saw the bathroom.
52. The appellants argued that the complainant’s evidence that she vomited blood was implausible because the complainant did not seek any medical attention or mention it to her mother.  In the complainant’s evidence she said that “it looked like I was throwing up blood, but I was probably – I just remember throwing up a lot…”.  In her earliest complaint, by Facebook to Dean Brookes, the complainant said, “I have been throwing up everything … and blood …”.  The complainant said that she did not tell her mother that she had been vomiting blood because her mother “doesn’t need to know that”.  The evidence of the complainant was consistent with the evidence of the complainant’s mother in painting a picture of the complainant, upon her arrival home after the night at Cummings’ house, seeking to avoid her mother by quickly going up to her room.  In this context, although the complainant agreed that vomiting blood was a very concerning incident, the jury could regard as plausible the complainant’s explanation that she didn’t ask her mother to take her to the doctor because she did not want to tell her mother what had happened the previous night.  (That would also be consistent with the complainant’s explanation for her reluctance to report the appellants to police earlier than she did.)
53. The appellants relied upon the inconsistency between the evidence of Kelly Dean that the complainant told her that she remembered waking up in a stranger’s bed “and she had pains like she had been raped” – which Kelly Dean agreed in cross-examination amounted to the complainant saying “that she felt she had been raped due to pain she was feeling in and on her genitalia” – and the complainant’s evidence that she awoke to find Vecchio having sexual intercourse with her.  The jury might reasonably have preferred the complainant’s evidence on this point, particularly since Kelly Dean’s own evidence suggests that she did not have a good recollection of the details of the complainant’s disclosures made two years earlier.
54. The appellants argued that the complainant’s evidence was undermined by the evidence of Dylan Goldin that on the night following the events of 19 July 2013 the complainant returned to the same tavern and socialised with other people, including Tredrea.  Bearing in mind the vague and uncertain terms of Dylan Goldin’s evidence and his evidence that he had never spoken to the complainant, it would not have been unreasonable for the jury to prefer the complainant’s evidence that this meeting occurred about a week after the incident (rather than the following day) and that she was “really mad about what happened” and “wanted to express that [she] was really upset about what happened”.  ( I note that the respondent did not seek to rely upon Tredrea’s statement to police that he left the tavern without replying to the complainant’s accusation to the effect that he had taken advantage of her when she was drunk: see [46] of these reasons.  It is therefore unnecessary to consider whether that statement was admissible on this point.  I do not take it into account.)
55. The appellants referred to the complainant’s evidence that when she awoke on 20 July she found that her jacket was disgusting and there was semen all over it.  In cross-examination the complainant said that she had told a police officer, “Mark”, who sent the jacket away for forensic analysis and told her that it was semen on the jacket.  In further cross-examination the complainant said that she was not sure that it was semen on the jacket until the jacket was sent away.  Cave gave evidence that the forensic scientist who analysed a swab taken from the complainant’s jacket stated that there was a mixed DNA profile of a partial nature and there was uncertainty as to the number of contributors to that profile; it was not suitable for interpretation for comparison purposes.  The forensic scientist stated that semen was not detected on the swab.  Cave had a conversation with the complainant.  He denied telling her that semen had been found on the jacket.  The jury presumably accepted that the complainant was mistaken in her evidence that there was semen on the jacket and that a police officer had told her that.  The jury evidently did not regard those mistakes as rendering her evidence of the alleged offences unreliable or not credible.  That approach was not unreasonable; the contents of the conversations between the complainant and Cave were not adduced in evidence and the evidence is not of a kind which inevitably reflects adversely upon the complainant’s general credibility or reliability.
56. The appellants argued that the complainant’s delay in complaining made it impossible to obtain meaningful forensic tests to determine what may have been affecting her consciousness on the night of the alleged offences and the CCTV footage from the service station which might have shed light upon the state of the complainant at a time when she claimed to have been under the influence of a drug.  Those points were made in the address to the jury by counsel for Vecchio and repeated to the jury in the trial judge’s reference to that part of his address.  Neither appellant complained about the appropriateness of the directions which the trial judge gave to the jury on this topic.  The jury was not obliged to place substantial weight upon speculation about what might have been revealed by investigations which were not done.
57. The appellants also argued that the claims by the complainant that she lacked memories of important aspects of the events prevented effective cross-examination upon the critical questions whether the complainant consented to the sexual activity with each appellant or whether her conduct with each of them was such that the Crown could not prove beyond reasonable doubt that each appellant did not honestly and reasonably believe that the complainant consented.  The examination-in-chief of the complainant, and especially the extensive and intensive cross-examination of her, provided the jury with ample opportunity to assess the complainant’s credibility and the reliability of her evidence.
58. The prosecutor disclaimed any allegation in the Crown case that the complainant’s drink was spiked.  The appellants submitted that, in those circumstances, unreliability in the complainant’s evidence was demonstrated by her claim that her illness was attributable to her drink being “spiked” whilst she was at the tavern.  In a related argument the appellants submitted that the complainant’s evidence of her lack of cannabis use at about the time of the alleged offences was shown to be unreliable by other evidence, and that the available hypothesis that she was rendered ill by consuming cannabis, rather than by alcohol or by her drink being “spiked”, inevitably created a doubt about her evidence.  The inconsistencies in the evidence about the complainant’s prior use of cannabis deserved consideration by the jury, but they fell well short of requiring the jury to reject the complainant’s evidence that she did not use cannabis at Cummings’ house.  Upon the evidence as a whole the jury could accept both that she became grossly intoxicated as a result of what she consumed at the tavern, and that she honestly believed that her drink was “spiked”.  The jury might reasonably have declined to place much weight upon the various witnesses’ (including the complainant’s) estimates of how much the complainant consumed, particularly where the witnesses had themselves consumed alcohol.  The CCTV footage records the complainant and her mother arriving at the tavern at about 9.00 pm and staying until about 11.40 pm, with the complainant apparently drinking throughout the whole of that period.  It is not possible to be sure from the footage how much the complainant drank.  Just before the complainant left the tavern she was drinking what appears to be a bottle of beer (although, so far as the footage reveals her mother bought her only glasses of beer).  Otherwise the complainant was drinking out of a glass.  The CCTV footage is consistent with the complainant not being noticeably intoxicated until shortly before she left the tavern, when her gait when walking and her posture when standing still differ markedly from what is shown on footage taken earlier in the evening.
59. The evidence of Culverhouse was that all those who visited the service station were intoxicated.  Furthermore, having regard to the evidence that the complainant started to walk out of the tavern at about 11.40 pm and the time occupied by the drives to and stops at the complainant’s mother’s house and the service station, the complainant could not have arrived at Cummings’ house very much earlier than 12.30 am, when Terry said that he arrived.  His evidence, that he was unaware that the complainant was present then (or upon his return after the trip to the brothel, as he said in evidence-in-chief but denied in cross-examination), could be regarded by the jury as supporting a conclusion that, consistently with the complainant’s evidence of her intoxicated and semi-conscious state whilst she was in the car, she was then comatose in the bathroom.  That view also derives some support in the case against Vecchio from admissions in his police interview that the complainant may have been ill in the bathroom (see [35] of these reasons) and it derives some support in the case against Tredrea from his more extensive admissions in his police interview (see [42] – [43] of these reasons).
60. The evidence discussed in the preceding paragraphs is also relevant to a submission made for the appellants to the effect that it was not safe for the jury to treat the complainant’s evidence that she emerged from an unconscious state to discover Vecchio having sexual intercourse with her, or her evidence that she emerged from an unconscious state to discover Tredrea indecently dealing with her, as evidence that she was unconscious before either event rather than as evidence only that she could not remember what she had earlier said and done.  The appellants argued that the prosecution could not exclude a reasonable doubt that the complainant was instead conscious throughout and (although she afterwards forgot this) she consented, or she spoke or behaved in such a way which induced both appellants to honestly and reasonably believe that she consented to the conduct alleged against each of them.  The submission arguably derives some support from the complainant’s evidence of the her own intoxication (which presumably affected her memory) and of her having only very limited memory of events after she left her mother’s house, from some of her evidence (particularly in cross-examination) which equated lack of memory with unconsciousness, and (particularly in relation to the issue under s 24 of the Criminal Code) from her evidence to the effect that she did not (because she could not) actively resist either appellant.
61. Taking these matters and the other challenges to the complainant’s evidence into account, however, the appellants’ submission nevertheless should be rejected.  If, as the jury could reasonably accept, the complainant was extremely ill in the bathroom, and if, as each appellant told police and as Terry said in answer to leading questions in cross examination (although not in evidence in chief), the appellants joined him in his trip to the brothel, it is not implausible that when the appellants arrived back at the house the complainant remained very intoxicated and was by then exhausted and unconscious.
62. In the case against Vecchio, the jury could safely conclude from his vague and varying statements to police about the complainant’s behaviour in remaining in the bathroom and his reactions to it, that, as he appreciated, the complainant was extremely ill at that time.  There was no testimony contradicting the complainant’s evidence.  The video of Vecchio’s police interview allowed the jury to take into account both the content of his statements and the manner in which he made them.  The jury must have rejected Vecchio’s exculpatory statements in his police interview.  That was certainly open to the jury.  Upon the complainant’s evidence it is not implausible that she would have been aroused from her unconscious state by Vecchio having sexual intercourse with her.  The jury could accept the complainant’s evidence and conclude that Vecchio should have appreciated that the complainant’s lack of resistance was explicable by her condition rather than being an indication that she consented.  Having regard to the complainant’s intoxication, illness, and unconsciousness, it was also open to the jury to find that any belief Vecchio held that she freely and voluntarily consented was not a reasonable belief.  It was thus open for the jury to conclude that the prosecution had excluded beyond reasonable doubt any hypothesis that Vecchio honestly and reasonably believed that the complainant had consented to the sexual intercourse with the complainant which Vecchio admitted.
63. The same reasoning is applicable in Tredrea’s case, save that the Crown case against him was stronger, given the degree of the complainant’s intoxication and the seriousness and duration of her illness which he described in his police interview.  In particular, his statements to the effect that the complainant was unconscious shortly after arriving at the house, after she went to the bathroom, and when he returned from the brothel, and his admission that the complainant was not thinking straight.  The jury could reasonably conclude that there was nothing implausible about the complainant’s evidence that she was awoken from unconsciousness by Tredrea “manhandling me like a rag doll, trying to get me to touch him or something … on his penis”, that she lapsed back into unconsciousness immediately after he said the words she attributed to him (which he accepted that he said), and that, after further rest during which the degree of her intoxication presumably diminished, she awoke in the morning.  The jury could accept that evidence and the complainant’s evidence that she did not consent to Tredrea’s sexual conduct, and conclude that, notwithstanding her lack of resistance to that conduct, any belief he held that she consented was not a reasonable belief.

Unreasonable verdict ground of appeal: conclusions

64. There was no complaint by either appellant about the trial judge’s summing up to the jury.  The trial judge summarised the evidence upon which the appellants rely in their appeals and directed the jury that “those things must necessarily be taken into account and critically assessed by you, in the close scrutiny that you give to her evidence, quite apart from and in addition to any other considerations that attracted you out of the submissions of counsel”; and that “you should act on the complainant’s evidence which is critical to the Crown case, only if, after considering it with the necessary care and scrutiny and in the context of all of the other evidence and particularly those aspects of the evidence I have just detailed, you are convinced of its truth and accuracy, beyond reasonable doubt”.  The individual and cumulative effect of the matters raised for the appellants deserved consideration, but there is no reason to think that this properly directed jury did not properly perform that task.  The jury was in a good position to consider the credibility and reliability of the complainant’s evidence, particularly having regard to the extensive and intensive cross-examinations of her, the submissions to the jury by the respondent and the appellants through their counsel at trial, and the trial judge’s careful summing up.  The jury must have accepted that the complainant’s account of the alleged offences was honest and reliable.  That conclusion presumably depended to some degree upon the manner in which the complainant and other witnesses gave evidence.
65. I conclude that the jury’s verdict that Vecchio was guilty of rape was open and not unreasonable upon the whole of the evidence admitted in the Crown case against him.  Similarly, the jury’s verdict that Tredrea was guilty of indecent assault was open and not unreasonable upon the whole of the evidence admitted in the Crown case against him.
66. Tredrea’s rape conviction raises a different issue.  Penetration to some extent was an element of that offence which the Crown was required to prove beyond reasonable doubt.  Tredrea submitted that the evidence of his statements to police was insufficient to prove penetration beyond reasonable doubt, particularly having regard to the reasonable inference that he had no reliable perception of whether or not there was penetration, the complainant’s unawareness of any such penetration despite her being aware of Tredrea causing her to touch him, Tredrea’s consumption of alcohol and cannabis, and the consequent reasonable inference that his penis was not erect.  The respondent submitted that the admissions were sufficient, particularly because of Tredrea’s estimates of the time occupied by the event.
67. The fact that the trial judge ruled that the evidence was sufficient to allow the charge of rape to go before the jury is not a basis for rejecting the statutory ground of appeal that the verdict of the jury is in this respect “unreasonable, or cannot be supported having regard to the evidence.”^[6]  The complainant gave no evidence of penetration by Tredrea even though her evidence was that she had been roused from unconsciousness when Vecchio had sexual intercourse with her and she was subsequently awoken by less intrusive conduct when Tredrea placed her hand on his penis.  The Crown case on this issue was based entirely upon Tredrea’s vague and uncertain statements about what happened at a time when he is said to have been intoxicated and not thinking straight.  The poor quality of that evidence inevitably leaves a reasonable doubt whether penetration occurred.  The manner in which Tredrea made the relevant statements in his police interview could not resolve that doubt.  The rape conviction must be set aside.
68. In the event that the Court reached that conclusion, and if (as I would hold) Tredrea’s other arguments failed, each of the respondent and Tredrea submitted that it would be appropriate to substitute a conviction of attempted rape.  That is appropriate in circumstances in which Tredrea clearly admitted to taking steps designed to put into effect his intention to have vaginal sexual intercourse with the complainant,^[7] and where the jury’s guilty verdicts signify that they were satisfied that the prosecution proved beyond reasonable doubt that the complainant did not consent, and Tredrea did not honestly or reasonably believe that she did consent, to any sexual activity with him.  Section 668F(2) of the Criminal Code provides that, “where an appellant has been convicted of an offence, and the jury could on the indictment have found the appellant guilty of some other offence, and on the finding of the jury it appears to the Court that the jury must have been satisfied of facts which proved the appellant guilty of that other offence, the Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution of the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity.”  The elements of that provision are satisfied.  I would substitute for Tredrea’s conviction of rape a conviction of attempted rape.
69. Tredrea and the respondent have not had the opportunity of addressing the Court upon the appropriate sentence for attempted rape and it is not clear that the Court has the necessary materials to determine the appropriate sentence.  The matter should be remitted to the District Court for the purpose of imposing sentence upon the conviction of attempted rape.

Vecchio’s second ground of appeal: failure to grant a separate trial

70. Shortly after the trial commenced, Vecchio applied for an order for a separate trial.  He argued that the case was not one in which the defendants could properly be joined under s 568(12) of the Criminal Code.  In the course of argument, the trial judge raised questions about the admissibility of evidence concerning Tredrea’s offending in Vecchio’s case.  In that context Vecchio’s counsel acknowledged that questions about the admissibility of Tredrea’s interview in the case against Vecchio could be dealt with by directions.  Counsel for Tredrea also referred to the point, endorsing the trial judge’s and counsel’s discussion concerning the directions to be given about the admissibility of each of the interviews.  The respondent’s counsel stated the Crown’s position as being that there was no prejudice that could not be cured by directions and that the jury would have to be told that each interview was admissible only in relation to each defendant.  In submissions in reply, counsel for Vecchio accepted that the extent to which particular parts of the evidence might be used in the trials of each defendant could be dealt with by directions.  The trial judge ruled that the charges were properly joined on the indictment under s 568(12).
71. Vecchio argued that a miscarriage of justice resulted from the trial judge’s refusal to order a separate trial of the charge against him.  Vecchio described the essence of this ground as being a risk that the content of Tredrea’s police interview would have had the effect of bolstering the complainant’s credibility in the assessment of the jury, which the jury then would have relied upon to reject the account Vecchio gave in his police interview.  The respondent argued that the trial judge’s directions were sufficient to avoid any miscarriage of justice on that account.
72. I accept that the admissions made by Tredrea were more closely aligned with the complainant’s evidence of her intoxication and illness than the admissions made by Vecchio.  Subject to the effect of directions by the trial judge, I also accept that there was a risk that the jury might use the content of Tredrea’s interview in the way described in Vecchio’s submissions to his disadvantage.  The issue is whether, taking into account the directions given by the trial judge, any miscarriage of justice resulted from the appellants’ trials being heard together.
73. It is arguable that the discretion to order separate trials was enlivened on the footing that the Crown case against Vecchio was not strong, it turned upon the credibility of an important witness (the complainant) about whom there were questions of credibility to be agitated, and the evidence which was admissible against Tredrea but not against Vecchio potentially had the effect of bolstering the credibility of the complainant in the case against Vecchio.  In R v Swan^[8] similar considerations led the Court to find that there had been a miscarriage of justice.  It does not follow, however that the trial judge erred in this different case in exercising the discretion to refuse to order a separate trial or that any miscarriage of justice resulted from that refusal.  It is a fundamental assumption in our criminal justice system that juries generally follow directions given by trial judges.^[9]  In Mwamba & Ors v The Queen,^[10] Priest, Beach and Kaye JJA referred to that assumption and observed:

“It would be naive, however, blindly to assume that a jury’s decision-making will always be immune from improper prejudice, or that in every case improper prejudice will be capable of cure by judicial direction. In cases where the effective amelioration of prejudice cannot be achieved by direction, it will be proper to sever an indictment. But accepting that — even in cases involving the joint commission of offences — there will be cases in which it is appropriate to order separate trials of co-accused, for example, where the evidence admissible against each of the accused is impossible (or, at the least, extremely difficult) to disentangle, and where the evidence admissible against one accused is highly prejudicial to the other; and further acknowledging that there will be cases in which the attendant prejudice is such that it may cause a jury to disregard the directions of a trial judge, in our view this is not such a case. In joint trials of co-accused it frequently occurs that the admissions against interest of one — whether in or out of court — have the potential to prejudice the case of another or others. That fact alone can neither justify a separate trial, nor lead to the conclusion that a substantial miscarriage of justice has been occasioned by there having been a joint trial. As we earlier observed, it is only where the relevant prejudice is incapable of effective nullification by direction that the conclusion might be reached that there has been a substantial miscarriage of justice.”

74. Immediately after Tredrea’s police interview was played to the jury, the trial judge directed the jury that: the two defendants were on trial at the same time, each defendant was entitled to have his case decided solely on the evidence against him and some of the evidence in the case could not be considered against both defendants; in particular the recording of the interview of Tredrea could be considered only in the case against him; it was only admissible in his trial; and it was inadmissible in the trial of the defendant Vecchio.  The trial judge then referred to the interview of Vecchio which was about to be played and directed the jury that it was admissible only in Vecchio’s case and could not be used in Tredrea’s trial.
75. In summing up to the jury the trial judge gave the following directions:

“…Although the defendants are being tried together, you must give the cases against and for each of them separate consideration.  Separately consider the evidence admitted in relation to each defendant.  As I have already explained to you, and I will later elaborate as to how you may use this evidence in each case, the recorded interview with each defendant is only admitted in the trial of that defendant.  That is, and depending on what you take of a particular interview, and/or particular parts of what a particular defendant told the police, such assertions may only be used to the extent that they relevantly tell against or for that defendant.

To be clear about it, it is not permissible to use anything said by one defendant as proof of or as tending to prove any fact or for that matter in any way when considering the case of the other defendant.  Also, in respect of each charge, each defendant is entitled to have the case decided on the evidence and on the law that applies to him and as relates to the particular charge.  And so you must return separate verdicts in respect of each defendant.  And separate verdicts on each charge.  Of course, as the evidence is different in the separate cases, and in respect of the different offences, your verdicts need not be the same whether in respect of the charges or the defendants.

Now one reason to just exemplify the directions that I have just given you, one reason why something said in the interview with the police by one defendant can’t be used in the case of the other defendant is, of course, it’s not given in the same way that the evidence of a witness is given here in the courtroom.  And it means that the counsel for the other defendant has no opportunity to take issue or challenge or cross-examine about what that defendant said to the police.  Now, I simply mention that to exemplify an underlying reason why the evidence is only admitted for or against the particular defendant and must so be considered by you.”

76. The trial judge went on to identify the particular admissions in Vecchio’s interview upon which the prosecution relied in his case and, separately, the particular admissions in Tredrea’s interview upon which the prosecutor relied, “remembering this is only evidence in his case”.
77. The risk that the jury would use Tredrea’s admissions to bolster the complainant’s credit or otherwise against Vecchio was guarded against by those directions, particularly by the direction I have emphasised.
78. It would unduly erode the strong policy reasons which favour joint trials in cases of the present kind if it were too readily assumed that a jury was unwilling or incapable of following a trial judge’s directions.  Even so, I accept that in some such cases of this general nature it might prove difficult – in particular cases it might even be unrealistic – for a jury to disregard admissions by one defendant which bolster a critical witness’s credibility in a case against another defendant.  But I do not accept that it was too difficult for the jury in this case.  The trial judge’s directions comprehended the relevant risk.  They were readily comprehensible, emphatic and repeated.  Those directions were strengthened by the compelling explanation of the unfairness involved in not following them.  It should be assumed that the jury complied with those directions, with the result that no miscarriage of justice resulted from the appellants’ trials being heard together.

Proposed orders

1. Appeal No 140/2015 is dismissed.
2. In Appeal No 142/2015:

(a)The conviction of rape (count 2 on the indictment) is set aside and instead a conviction of attempted rape (count 2 on the indictment) is entered.

(b)Remit the matter to the District Court of Queensland for sentence upon the conviction of attempted rape.

79. PHILIP McMURDO JA:  I agree with the reasons for judgment of Fraser JA and the orders proposed by him.
80. I wish to add some comments about a submission made for the appellants, which was that the complainant’s evidence was unpersuasive because there were large gaps in her memory of relevant events.  The submission suggested that this affected the proof of the prosecution case in two ways.
81. The first was that a witness who could remember so little about relevant events and circumstances was necessarily unreliable and not to be believed.  The second was that the limited memory of the complainant made it difficult for her evidence to be tested and thereby fairly and reliably assessed by the jury.  I accept that in each way, the gaps in her memory made the complainant’s evidence less persuasive than had she been able to provide a fuller and consistent account.
82. But as to the first point, it does not follow that her evidence was so unreliable that the jury could not accept it in its critical respects.  When considered with other evidence as to her intoxication, the fact that she had large gaps in her memory was not at all unlikely.  Nor was it so unlikely that she would remember the events which she related and not other things.
83. As to the second matter, it is correct, as the appellant submitted, that events which preceded those complained of were relevant, in particular, to whether the complainant had provided a basis for an honest and reasonable mistake about consent.  Her lack of memory made it more difficult to negative consent.  But as Fraser JA has explained, that was able to be negatived by the evidence which the complainant did give.
84. JACKSON J:  The comprehensive statement of the facts and grounds of appeal given by Fraser JA relieves me of the need to set them out further.  I agree with his Honour’s conclusions and reasons and also with the added reasons of Philip McMurdo JA.  I would add some brief further discussion of my own reasoning.
85. The critical differences between the complainant’s account and the account given by each of the defendants when interviewed by police formed the framework against which the jury had to determine whether the prosecution had proved to the required standard that the appellants had raped or, in the case of the Tredrea, attempted to rape the complainant.
86. In a practical sense, the ultimate facts in contest in both cases were, first, the question of consent and, second, whether the appellant acted under an honest and reasonable but mistaken belief that the complainant had consented to the acts otherwise constituting the offence.  An additional question in Tredrea’s case was whether he had sufficiently penetrated the complainant to have committed the offence of rape as opposed to attempted rape.  Because of the proximity in time of the alleged offences and the similarity of the ultimate facts in contest, it is possible to discuss them collectively, even though the offences were quite separate.
87. The questions of consent were in narrow compass.  The complainant did not say that she had positively refused and her refusals were ignored.  Her account was that she was so intoxicated as to be insensible to each of the appellants’ advances.  In effect, it was that she was drifting in and out of consciousness.  In each case, the jury had to consider whether the complainant had not consented to have intercourse (and in Tredrea’s case to the indecent assault of placing her hand on his penis) and from there whether the appellant could have believed on reasonable grounds that the complainant had consented.
88. As Fraser JA’s reasons show, most of the witness evidence and the arguments at the trial were directed to events that had occurred earlier in the night and to what happened in the days and weeks that followed.  Most of that evidence and argument was relevant to the ultimate questions of consent and mistake, but some of it served to distract attention from those questions as well.
89. On the complainant’s account, she became heavily intoxicated while travelling in a car from her house on the journey that ended at the house in Kallangur.  Her theory was that earlier in the evening one of her drinks consumed at the tavern must have been spiked.  But there was no evidence to support that theory and the prosecution did not rely upon it.
90. It is important that, on the appellants’ cases, the complainant did become heavily intoxicated, although that was later in the evening than the complainant said it occurred.  The difference between her account and their cases centred upon how that may have occurred, not upon whether she did, in fact, become heavily intoxicated.  Their accounts to the police when interviewed were that the complainant consumed cannabis with them after they arrived at their house.  The complainant sought to distance herself from that possible explanation of her intoxication in cross-examination.
91. This difference may have reflected upon the complainant’s credibility.  The point was explored in cross-examination at the trial by counsel for the appellants.  But apart from that, it was not of great moment in analysing the facts upon which the jury had to decide their verdicts of guilt, which turned on the ultimate facts as to consent or mistake.
92. The accounts of each of the appellants to the police when interviewed may be analysed from the point at which the complainant went into the (upstairs) bathroom before the alleged rapes.  The common ground was that the complainant was so affected and unwell that she went into the bathroom and was physically sick there, including that she was vomiting.
93. The complainant’s account of what occurred when she went into the bathroom was much more detailed than that simple statement.  The appellants’ counsel at trial challenged the complainant’s account of the extent of her illness while in the bathroom as a point going to her credibility.  They focussed on the unlikelihood that the complainant had vomited blood as she said had occurred.
94. But that particular focus again may serve to distract.  A fact of real importance was whether the complainant was so intoxicated that she did not consent to intercourse or assault, and apparently so intoxicated, that neither of the appellants could have believed on reasonable grounds that she had consented.  The common ground on the evidence was that she went into the bathroom and was sick, whether or not that sickness specifically involved vomiting blood.  Each of the appellants told police when interviewed that she was so ill that they offered to drive her home.  No-one suggested that the complainant’s illness had a cause other than intoxication, whatever the source of the intoxication.
95. From that starting point, the points of common ground and difference between the evidence of the complainant and the accounts given by the appellants to police are relatively straightforward.  The complainant’s evidence left significant gaps in the evidence as to what happened to her – in each case, any further details emerged from the relevant appellant’s explanation to police when interviewed.
96. First, it was common ground that by some means or other the complainant moved or was moved from the bathroom into Vecchio’s bedroom and into his bed.  Second, it was common ground that Vecchio had intercourse with the complainant in his bed.  Third, it was largely common ground that at some point not long after Vecchio had intercourse with the complainant, Tredrea also had attempted to have intercourse with her in the same bed.
97. The critical differences between the complainant’s account and the appellants’ accounts during police interviews were that each of the appellants said that the complainant has consented to him having intercourse with her.  The effect of her evidence was that she was still heavily intoxicated, drifting in and out of consciousness, and gave no such consent.
98. There were difficulties confronting the jury in making their assessments of what happened in each case as a matter of fact.  Was the complainant to be assessed as a credible witness?  If she was generally credible, was her account so affected by her intoxicated state that it could not be relied on as evidence satisfying them beyond reasonable doubt that she did not consent, and that the appellant did not have an honest and reasonable but mistaken belief that she did consent?
99. Ultimately, these were factual questions for the jury, properly instructed as to the law, to consider.  Neither of the appellants complained that the jury were not properly instructed.  Their grounds of appeal were limited to the proposition that the evidence could not satisfy the standard of proof required, so that the verdicts constituted a miscarriage of justice.
100. In my view, it was open to the jury in each case to consider that, notwithstanding some real questions about the reliability of aspects of the complainant’s evidence or the cause of her intoxication, the prosecution had proved beyond reasonable doubt that the complainant was so intoxicated that she did not consent and that the appellant did not believe on reasonable grounds that she had consented to intercourse (and in Tredrea’s case to the indecent assault).
101. For those added reasons, I agree with the conclusions of Fraser JA and McMurdo JA and with the orders that Fraser JA proposes.