R v Ali[2017] QCA 300

SUPREME COURT OF QUEENSLAND

1. SOFRONOFF P:  I agree with the reasons of Philippides JA and with the order her Honour proposes.
2. PHILIPPIDES JA:  The appellant was charged with two counts of rape of the complainant, rape by digital penetration (count 1) and rape by penile penetration (count 2).  On 28 October 2016, following a trial, the appellant was convicted on count 2 and acquitted on count 1.
3. The appellant’s amended Notice of Appeal raised the following grounds for setting aside the verdict on count 2:
   1. The verdict on count 2 was inconsistent with the verdict on count 1.
   2. The verdict on count 2 was unreasonable or cannot be supported on the evidence.
   3. The admission of evidence of the pretext telephone call between the appellant and the complainant resulted in a miscarriage of justice.
   4. The trial judge erred in failing to direct the jury in accordance with the principle in R v Markuleski^[1] and, as a result, a miscarriage of justice has occurred.
   5. The trial judge erred in failing to direct the jury to have regard to the complainant’s use of cannabis as part of the direction given in accordance with Bromley v The Queen^[2] and, as a result, a miscarriage of justice has occurred.
   6. The trial judge erred in failing to direct the jury adequately as to the specific weaknesses in the complainant’s evidence in the course of warning the jury about the danger of acting on the complainant’s evidence and, as a result, a miscarriage of justice has occurred.
   7. The trial judge erred in failing to direct the jury adequately as to the permissible use of the evidence of the pretext call and, as a result, a miscarriage of justice has occurred.

Complainant’s evidence

4. The complainant gave evidence that she first met the appellant on 14 February 2012, at a nightclub where she had gone with her flatmates, Benjamin Jones and Nicole Gillard.  At the time, she was 23 years of age.  She commenced a sexual relationship with the appellant and he would regularly stay at her unit at Woolloongabba.^[3]  She occupied one bedroom of the unit and her flatmates occupied the other.  The appellant went to New South Wales for a month returning at the end of March 2012 and the relationship continued.  The appellant described the relationship as “always [involving] arguments about previous relationships”.^[4]

5. The complainant’s evidence was that, on the evening of 11 or 12 April 2012, the appellant came home drunk at 9.00 or 10.00 pm and kept drinking.^[5]  The appellant became “agitated” because she asked him where he had been.  They had an argument about the complainant’s previous sexual relationships.^[6]  The appellant took a swig of wine and spat it in her face.  The complainant said she had had enough.  She grabbed the appellant’s bags out of her room, packed up his things and put his bags on the porch.^[7]  The appellant told her “get those bags off the porch, you bitch, it’s raining”.  The complainant brought the bags back into the kitchen and asked the appellant to leave, which he refused to do.  The appellant said he had nowhere to go.  The complainant sought an apology from the appellant for spitting at her.  At that point, the appellant grabbed the complainant by the wrist, which scared her as she was recovering from a broken wrist.  The complainant said the appellant then pushed her and threatened her, saying “I can kill you right now.  Do you want to die, bitch?”  This scared the complainant.  They were by that time in her bedroom.  The appellant then left the bedroom briefly.^[8]
6. The complainant went to lie down on her bed, with her back to the door.  The appellant returned and the argument continued.  The appellant said he had nowhere to go and asked if he could stay the night.  The complainant told him that he could sleep on the couch in the lounge room but not in her bed.  The complainant said that after a period, the appellant returned to her bedroom and that “he just lay down next to me and completely ignored what I’d asked him to do”.  The appellant was still “talking at her” and the complainant told him to “shut up” and to “fuck off”.  The appellant then brought his left arm underneath the complainant’s neck and grabbed her jaw.^[9]  He said, “Don’t you ever disrespect me again.  Don’t you ever tell me to fuck off again”.^[10]  This was said in a vicious and threatening manner.  The complainant said “fuck off” while the appellant was holding her jaw.  The appellant then punched the complainant in the jaw with his right hand, “not that hard, but hard enough to scare” her.  The complainant said her “response” was to lie “frozen” as she was scared and did not know what to do.  The appellant came closer and then put his right hand down her pants into her underwear and put one of his fingers inside her vagina for “a few seconds, maybe 5 or 10 seconds”.^[11]  This was the act particularised as constituting count 1.
7. The appellant then grabbed her right hand and put it on his boxer shorts after which he got up.  He said, “I can’t even get a hard-on anymore”.  The complainant told him to “fuck off” and get out of the unit, saying “you just put your finger in my pussy.  You’re not doing that” and an argument continued “for hours”.^[12]  Eventually, the complainant “gave up” and laid down on her bed.  The appellant laid next to her.  The complainant said that the appellant would not leave her alone and she “was scared of him because he’d punch (sic) [her] in the face” and she “didn’t know what to do” and so she “just lay there”.^[13]
8. The next morning, after the appellant left the unit, the complainant “hung out with Ben”.  She did not disclose to him what had occurred the previous evening.
9. On the night of 14 April 2012, the appellant returned to the unit at about 9.00 or 10.00 pm, drunk again.  The complainant’s flatmates were present.^[14]  The complainant kept telling the appellant “no, you can’t come in this house any more” but she eventually let him in.^[15]  The complainant and her flatmates had a meal together during which time the appellant was “just walking around and swearing”.  After eating, the complainant fell asleep on the couch.  She said she was woken up by the appellant slapping her left cheek.  He was angry and they argued.^[16]  The appellant moved into the complainant’s bedroom and was sitting on the complainant’s bed.  The complainant was talking to him from the doorway of her bedroom.  Ms Gillard came out from the other bedroom at one stage and the complainant told her “it was okay” and then shut her bedroom door.^[17]
10. The argument continued, loud enough for her to be heard.  The complainant tired of the argument and went to bed facing the wall away from the appellant.  The complainant said that the appellant then grabbed her in the same way he had previously, placing his left arm underneath her and grabbing her face.  The complainant said she “sort of turned back over onto [her] back” and that the appellant “went over the top of [her] a bit” still holding her face.  He put his hand over her mouth and nose.^[18]  The complainant said she yelled out the word “Ben” because she started to get scared and she “knew what happened a few nights before”.  The complainant said the appellant threatened to break Mr Jones’ neck and slit the complainant’s throat.  She was scared the appellant would hurt her.  He was lying on his side, up against the complainant.  The appellant then pulled his hand away from the complainant’s mouth, got up and said “let’s have sex.”^[19]
11. The complainant was crying.  The appellant then pulled her pyjama shorts and underpants down, grabbed her legs and tried to put his penis in her vagina but was unable to do so because she was tensing up.  He then grabbed lubricant, which was under the bedside table, and smeared it onto her vagina and his penis.  The complainant said she then shook her head and repeatedly said no and to stop and then pushed him away.  The appellant penetrated the complainant with his penis, having grabbed her shoulders and pinned her down on the bed while he was on top of her.  The complainant felt the appellant ejaculate.^[20]  The act of penile penetration was particularised as count 2.
12. The appellant left to smoke a cigarette outside.  He returned to the bedroom and “kept talking” at the complainant.  The complainant said she “froze” and “was too scared to do anything”.  She eventually fell asleep in the bed at about 4.00 or 5.00 am.  The appellant also slept in the bed.  The next morning, the complainant had to go to a christening.  The appellant asked her what was wrong and the complainant referred to “what [the appellant] did last night” and the appellant made a joke and laughed.^[21]
13. The complainant said that she had consensual intercourse with the appellant after 14 April.^[22]  She referred to returning from the christening on 15 April and that the appellant had run a bath for her, lit candles^[23] and asked her to get in the bath and then “tried to have sex” but she was stiff and scared.^[24]  The complainant said that she had sex “two or three times” over the next few days and that she was “trying to see if what happened just was normal”.  She was “trying to figure out if [she] was normal and if [she] could have sex again without being scared of [the appellant]”.^[25]  The complainant said that the last time she had sex with the appellant was in the botanical gardens and that “it felt so wrong”.^[26]  The complainant said that, after 18 April 2012, she never went out with the appellant.^[27]
14. The complainant accepted in cross-examination that she did not tell Dr Stubbs that she had been raped by the appellant when she saw him for a consultation on 16 April 2012.  She explained that was because the appellant was also present in the room with her.^[28]  The complainant was questioned about a report she made to Dr Stubbs in October 2011 of “a paranormal experience” when she felt like she was being sexually molested.  The complainant said that she subsequently found out that what she experienced is called sleep paralysis.  At the time she was also dealing with her grandmother’s death.^[29]  The complainant was also questioned about “hearing voices”, which she denied.  She was questioned about saying she woke up “with a handprint on her stomach”.  She accepted that had happened but said that she realised that it had been caused by lying on her stomach.  The complainant was questioned about whether she had told her doctor on 26 October that her experiences were real and not part of psychosis or her bipolar disorder.  The complainant stated that she had been diagnosed with bipolar and depression but maintained she did not have psychosis at that stage.^[30]
15. The complainant accepted in cross-examination that she was involved in a physical altercation with a man on 4 May 2014 at a McDonalds and was verbally abusive, including calling him a rapist.  The complainant explained that the man had spat at her and that had triggered a reaction which she accepted was not logical.^[31]

Preliminary complaint evidence

16. The complainant first disclosed that non-consensual sexual activity had occurred between her and the appellant on 18 April 2012 when speaking to her flatmates.  The evidence of Ms Gillard and Mr Jones was led as preliminary complaint evidence.
17. Ms Gillard gave evidence of an argument between the complainant and the appellant on the night of 11 April 2012.  She recalled that the complainant asked the appellant to leave.^[32]  She also recalled another occasion a few nights later, when Mr Jones was also at home.  She had gone to bed and heard the complainant and the appellant arguing in the complainant’s bedroom and remembered hearing what sounded like a loud “yelp” by a female voice.^[33]
18. Ms Gillard gave evidence about a conversation, after she came back from work, with the complainant on 18 April 2012.  The complainant told her that on the night of “the first big argument” after things had “smoothed over” she and the appellant went to her bedroom and that the appellant had slid his hands inside of her pants and penetrated her with his fingers and that she had said “No” to that.  Ms Gillard also said that the complainant told her that, on the night she had heard the yelp, the appellant had put his hands over her mouth, pushed her onto the bed and then started to have sex with her.  She recounted that the complainant told her the appellant had said something about “having sex like one of her previous partners”.^[34]
19. Mr Jones gave evidence of an occasion late one night, when Ms Gillard was with him in the unit, when they were woken by noises coming from the complainant’s room.  He had heard hushed voices and described hearing arguing and “complaining sounds” from the complainant.^[35]  He also gave evidence of a conversation in the middle or end of April with the complainant when they were in the kitchen of the unit.  He brought up the argument and the complainant was teary and indicated that there had been a “forced sexual situation”.  He and Ms Gillard accompanied the complainant when she went to the police on 24 April 2012.^[36]

Admissions as to medical records

20. A number of formal admissions were made as to the contents of various medical file notes made upon consultations the complainant had for mental health issues on 21 April 2009, 17 February 2011, 26 October 2011, 16 April 2012, 10 October 2012, 8 November 2012, 19 December 2012 and 25 April 2013.

Dr Stubbs

21. Dr Stubbs gave evidence about the complainant’s visits to see him concerning mental health issues from April 2009.  He gave evidence of a consultation with the complainant on 16 April 2012.  The complainant was accompanied by the appellant, who the complainant referred to as her boyfriend.  Dr Stubbs said that they had discussed the complainant’s medication.  He said that the appellant also attended the consultation and that towards the end of it he had a chat with him.  Dr Stubbs gave the appellant advice about how to deal with the complainant when she became upset.  He told the appellant that he should let her express herself, let her get it off her chest and not to argue with her.^[37]

The appellant’s evidence

22. The appellant gave evidence denying that he engaged in any non-consensual sexual contact with the complainant on any occasion.
23. The appellant was in his early 40s when he met the complainant in February 2012 and formed a relationship with her.  He gave evidence that, on 12 April 2012, he had an argument with the complainant concerning a telephone call she had received from a man the previous day.  The appellant later apologised for having started the argument.  The complainant accepted his apology and they had consensual “make up” sex.  The appellant said that they argued a lot and most of the time they had make up sex and that night was no different.  The appellant denied ever spitting at the complainant or threatening her.^[38]
24. The appellant continued to stay with the complainant in her unit between 12 and 14 April 2012.  The appellant said that on the evening of 14 April, he and the complainant attended a bar.  He saw the complainant dancing provocatively with one of his friends.^[39]  The appellant was angry and upset.  He spoke to the complainant about it after they left the bar and an argument developed which continued when they returned to the unit.  Ms Gillard and Mr Jones were present in the unit when they returned.  The appellant said at one point, when he was in the complainant’s bedroom, the complainant pushed the appellant with her hands and the appellant pushed the complainant with his chest causing her to fall onto the bed.  The appellant remained in the same bedroom that evening but denied any further physical contact between them.  He specifically denied having any sexual intercourse with the complainant on 14 April 2012.^[40]
25. The appellant gave evidence that the following day the complainant went to a christening and on her return that evening he apologised to her for his behaviour.  He had run her a bath with candles and oils.  She asked him to join her in the bath and they had consensual sexual intercourse.^[41]
26. The appellant said that on 16 April 2012, at the complainant’s request, he accompanied the complainant to Mount Tamborine to see Dr Stubbs.  The appellant said that Dr Stubbs told him that when the complainant was aggressive, he should just agree with what she said, be sure she took her medicine and kept away from marijuana.^[42]
27. The appellant said he moved out of the complainant’s unit on 18 or 19 April 2012 and that the last time he saw her was on 20 April 2012.  The complainant telephoned him and said she wanted to meet with him in the city.  They met at a restaurant and then went to a hotel to listen to live music.  At the hotel, the complainant made negative comments about a woman paying him attention.  Soon after, they left the hotel and went to the botanical gardens where they had consensual sexual intercourse.^[43]
28. The appellant’s evidence was that, on 24 April 2012, he received three telephone calls from the complainant.  In the first call, the complainant was in tears telling him that she had had a breakdown and that she dreamt that she had been raped by a demon and was going to harm herself.^[44]  The appellant received a further telephone call from the complainant (the pretext call) when he was at a nightclub.  The appellant said he was not able to hear all of what was said by the complainant during this call.^[45]  He said that he gave the responses he did to the complainant because he thought he was following Dr Stubbs’ advice “not to disagree with her, go her way and just try to calm her down”.^[46]  The appellant said that the reason why he asked to meet up with the complainant during that conversation was that he was worried for her wellbeing.  There was a further brief call from the complainant who told him that she could not meet up with him because she had been advised by a friend not to.

The pretext call

29. The prosecution contended at trial that some of the appellant’s responses to the complainant’s request for an apology during the pretext call were capable of supporting the complainant’s evidence.^[47]  The prosecution did not contend that any other evidence in the case was capable of independently supporting the complainant’s evidence.  The following is an extract of some of the exchanges during the pretext call:

“[Complainant]: Yeah, but it, like, you know, you know what you did to me.  Like, [INDISTINCT].

[Appellant]: I, I do apologise for this …—

…

[Complainant]: You held me down.

[Appellant]: I know.

…

[Complainant]: About when you, when you said to me, is this how he fucked you? And you fucked me and you knew I didn’t want to have sex?

[Appellant]: Yes.

…

[Complainant]: You held me down and you fucking punched me.

[Appellant]: … I made a mistake and I regret it.  I’ll regret it for the rest of my life.  We all make mistakes.  And I did make a mistake with you and I, as I said in my message—

…

[Complainant]: Don’t you realise what you did though?  Like, you, you kn-, you, you, you know, you know that you, like, you held me down and you had sex with me and you said, is this how he fucked you?  Is this how he fucked you?

[Appellant]: I know.  I know.  I know.  What, are, are, are you home?

…

[Complainant]: You’re gonna apologise for putting your dick in me when I didn’t want you to and I was crying?

[Appellant]: Yes.  Yes.

[Complainant]: So you admit you did that?

[Appellant]: Yes for all of that.  Not for all of, you know, just, it’s just, I’m, I’m, I’m, I’m really sorry ‘cause I didn’t, I didn’t, I didn’t realise that you didn’t want it and I’m really sorry.

[Complainant]: You didn’t realise I didn’t want it--

[Appellant]: [INDISTINCT].

[Complainant]: When I was crying and shaking my head?

[Appellant]: I didn’t, I didn’t saw you cry.  I’m sorry.  I was, I was, I was, I was drunk and I’m really sorry and I apologise … for putting you through that.  I’m really, really sorry—

…

[Complainant]: Say, say what you did to me.  Then I’ll forgive you.

[Appellant]: Yeah, but I don’t fucking remember what I fucking did to you.  That’s what I’m saying.  I’m really sorry.  You are the one thinking that I did that, but I don’t, I don’t, I don’t, I don’t see why.  I don’t, I don’t remember.  I don t—

…

[Complainant]: You said, is this how he fucked you? Is this how he fucked you?  Is this how--

[Appellant]: Yes.

[Complainant]: P-N-G?

[Appellant]: I remember th-, I, I remember that, babe.  Can you just fucking stop doing this? Can you please just jump in your car and come, please? I wanna see you.  I wanna talk to you.  …

…

[Complainant]: You, y-, you, you raped me.  Like, that’s basically, it’s what it is.  It’s not.

[Appellant]: This is, this is, this what, but I don’t, I don’t, I don’t fucking remember doing that.  That’s what I’m saying.  I’m fucking, I feel like I’m a fucking awful human being

…

[Complainant]: That’s what you said.  Is this how he fucked you?  Is this how he fucked you?  Is this how P-N-G fucked you? Tell me.  Tell me.  Tell me.

[Appellant]: … I know what he’s talking about, but I don’t fucking remember.  I was fucking drunk and I know that [INDISTINCT]—

…

[Appellant]: Babe, I’m fucking sorry and I apologise.  I just wanna say I’m fucking sorry.  I’m sorry for whatever I have done to you.  I’m sorry for whatever I have done that’s brought up some of your bad memories and [INDISTINCT] behaviour, you know, that makes you think of it.  I’m really sorry and I do apologise.

…

[Complainant]: But you remember saying that you would kill Ben, right?  And you said you’d slit my throat?  You remember saying-

[Appellant]: But it was--

[Complainant]: That?

[Appellant]: It was, it was, it was, it was in a um, ah, something.  Babe, I don’t want to talk about this.  If you really wanna talk to me, as you said, I am ready to come anywhere you want to come.  You just—

…

[Complainant]: Why can’t you admit it to me?  Like, why is it so hard for you to admit it to me?

[Appellant]: Because I wanna, don’t want to fucking state what I did, what I have, what I have done.  And I wanna see you to show you the [INDISTINCT] my facial expression and then you can see that I’m really fucking sorry for what I have done.  You can’t see it on the fucking phone how I am, you know, how I regret what I have done.

…

[Complainant]: Now to admit what you did to me and apologise, please?

[Appellant]: I am, I’ve alre-, I’ve already said it.  I’ve already sent you messages.  I said, like, I’m sorry for what I put you through.  Have you read my last message—

…

[Appellant]: I apologise deeply from my hear (sic).

[Complainant]: You apologise for being aggressive with me?

[Appellant]: I am a-, okay, I apologise for being aggressive with you.  I apologise for being, like, a dickhead with you.  I apologise for, like, you know, treating someone that [INDISTINCT] me, for what I did to you.”

Grounds of Appeal

The verdict on count 2 was unreasonable or cannot be supported on the evidence (ground 2)

30. The respondent’s written submissions as to ground 1 (inconsistent verdicts) were combined with those concerning ground 2 were expressed as a particular of ground 2.  However, I will address these grounds separately as they involve different considerations.

Principles concerning the ground alleging the verdict was unreasonable

31. High Court authorities provide the following guidance as to the correct approach in respect of a complaint that the verdict was unreasonable or cannot be supported by the evidence:
    3. The question which an appellate court must ask itself is whether it considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the defendant was guilty.^[48]
    4. In most cases, a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.  In such a case of doubt, it is only where a jury’s advantage in seeing and hearing the evidence can explain the difference in conclusion as to guilt that the appellate court may conclude that no miscarriage of justice occurred.^[49]
    5. However, if the evidence contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the Court is bound to act and to set aside a verdict based upon that evidence.^[50]
    6. This Court must, therefore, undertake “its own independent assessment of the evidence, both as to its sufficiency and its quality”^[51] and determine “whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less, it would be dangerous in all the circumstances to allow the verdict of guilty to stand’”.^[52]
    7. In doing so, this Court as an appellate court must always be mindful of the primacy of the jury in criminal trials.^[53]

Consideration of the appellant’s submissions

32. The evidence as to the commission of the offences necessarily relied upon an acceptance of the honesty and reliability of the complainant as to the conduct constituting the offence in count 2.  While the evidence of her housemates was able to be seen as confirming some aspects of the complainant’s account of the surrounding circumstances of the events during which the alleged offending occurred, it was essentially relied upon as complaint evidence.
33. In contending that the verdict should be set aside as unreasonable, the appellant’s counsel referred to uncontested evidence that the complainant suffered from mental illness (bipolar disorder and depression).^[54]  It was submitted that she was a person prone to delusional thinking and, in that regard, reliance was placed on Dr Stubbs’ notes of 26 October 2011 that the complainant described “a paranormal experience one night like fucking a demon” and had woken up “with a handprint on her stomach”, which she believed to be real and not part of her mental illness.^[55]  Reliance was also placed on further admission that Dr Stubbs’ notes reported that the complainant “believes in spirits” and thinks she “can enter different dimensions”.  These issues concerning the complainant’s mental health and the attendant doubts as to her reliability were highlighted by defence counsel and were also dealt with in the summing up.  The trial judge drew attention to the risks of relying on the complainant’s evidence in conformity with the Bromley direction and warned the jury to assess her evidence carefully and of the danger in convicting in the absence of evidence which supported her.  In particular, the trial judge drew the jury’s attention to the complainant’s “longstanding history of mental illness that predisposes her to delusions” and, in warning the jury to approach her evidence “with special care”, highlighted matters which might tend to undermine confidence in her evidence,^[56] including the “risk that her evidence might be the result of delusion rather than based in reality”.
34. A further matter raised as affecting the complainant’s reliability was the evidence of drug use by the complainant.  It was for the jury to take into account the evidence as to drug use, including the contents of the notes admitted into evidence that recorded that the complainant smoked cannabis since “age 15” because “it helped [her] relax” and that “over the past 2‑3 years has been smoking approx.  10‑20 cones per day”.^[57]  (The further contention that the trial judge erred in failing to direct as to the risk “that her heavy cannabis use further rendered her evidence potentially unreliable”, was the subject of ground 5.  It has no substance and is dealt with below.)
35. In the context of arguing that the verdict was unreasonable, submissions were made concerning the trial judge’s redirection as to the difference between corroborative evidence and supporting evidence.  The contention was that the direction had the effect of highlighting the significance of the appellant’s answers in the pretext call as potentially providing support for the complainant’s evidence, without adequately identifying which parts of his answers could be used for that purpose and the limits upon the use that could be made of those answers.  (This complaint is of no merit and is the subject of ground 7, which is dealt with below.)  Additionally, it was argued, as a matter going to the unreasonableness of the verdict, that the evidence of the pretext call was of slight probative value, at best, because the appellant’s apparent concurrence with the complainant’s statements and his apologies were not clearly referable to an acknowledgement of guilt to a charged offence.  Further, it was said that, even if parts of the appellant’s statements could be interpreted as referable to an occasion of sexual intercourse between them, the overall tenor of the appellant’s statements during the pretext call was that, at worst for him, he was under an honest and reasonable but mistaken belief that the complainant was consenting to sexual intercourse on such occasion.  (This complaint is the subject of ground 3 and is addressed below.  It also has no merit.)
36. A number of specific features of the complainant’s evidence were identified in the appellant’s written  submissions as tending to show that it was improbable that her evidence about the charged acts was true, or of such a nature that they ought to have caused the jury to doubt the truthfulness and reliability of her evidence generally.  In that regard, it was submitted that the complainant, on her own admission, had consensual sexual intercourse with the appellant on two or three occasions after the alleged rapes and that, notwithstanding the complaint of non-consensual digital penetration, the appellant continued to stay in the unit on the evening of 14 April and to be alone with the complainant in her bedroom.  Those matters were the subject of cross-examination and  the complainant gave evidence as to the circumstances surrounding the appellant’s continued presence in the unit and gave an explanation as to why she had consensual intercourse after the alleged rapes.  It was for the jury to assess that evidence in the context of the nature of the relationship and the facts as they found them.  The fact that the complainant did admit to further sexual intercourse with the appellant may have been capable of enhancing her credibility.
37. It was also submitted that it was improbable that the complainant would have permitted the appellant to accompany her to the appointment with Dr Stubbs two days after having been raped by him.  That matter and the fact that the complainant made no complaint to Dr Stubbs (although that may well have been seen by the jury in the context that the appellant remained present during the consultation) were all matters within the jury’s province to consider.  Those matters were forensic issues to be dealt with by defence counsel in his address to the jury, as were:

• the complainant’s falsely telling the investigating officers that she was not seeing any health professional at the time of the alleged offences,^[58] although  she was a long term patient of Dr Stubbs;
• the appellant’s contention of an absence of evidence from the complainant’s flatmates in support of the complainant’s allegations about the events that were the subject of count 2;
• the absence of evidence of observable injury to the complainant following either offence and of medical examination of the complainant proximate to the alleged offences; and
• the contention that the complainant demonstrated a propensity to falsely complain of rape against others, relying on the altercation with a man on 4 May 2014.

38. The matters raised in the appellant’s submissions demonstrated that, while there were reasons to scrutinise the credibility and reliability of the complainant’s evidence carefully, the evidence in this case was such that the jury could reasonably have acted upon it to convict the appellant on count 2.  I am satisfied on the basis of my own independent assessment of the evidence, including the pretext call, that it was open to the jury to be satisfied to the requisite standard that the appellant was guilty of count 2.
39. I should add that the appellant sought to rely on the trial judge’s sentencing remarks as another factor demonstrating the unreasonableness of the verdict.  Under r 94(2) of the Criminal Practice Rules 1999 (Qld), a trial judge may give a written report as to the case generally or a point in the appellant’s case.  Reference was made in this case, however, to indications in the sentencing remarks that the sentencing judge was not satisfied that the events of that night of the rape the subject of count 2 were “all” as the complainant described, in particular, concerning the threats the complainant alleged were made against her and her housemate, and the aggression and degradation the complainant alleged occurred after the rape.  The appellant’s submission as to the relevance of such remarks entirely misconceives the role of an appellate court when the verdict is challenged as unreasonable.  The opinion expressed by the trial judge in the sentencing remarks was based on her observations of the complainant’s evidence, consistent with the verdict of the jury.  The task of this Court in considering whether a verdict is unreasonable is to make its own independent assessment of the whole of the evidence both as to its quality and sufficiency.  In the circumstances of this case, therefore, the opinion of the trial judge did not assist in the determination of these grounds.

The verdict on count 2 was inconsistent with the verdict on count 1 (ground 1)

Applicable principles concerning inconsistent verdicts

40. The issue of whether the verdict on count 2 was unsafe and unsatisfactory on the basis of inconsistency with the acquittal on count 1 raises the question of whether, given the jury’s verdict of not guilty on count 1, it was open to the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt of the guilt of the appellant on count 2.^[59]
41. Where alleged inconsistency arises in the jury verdicts upon different counts affecting an accused, the test is one of “logic and reasonableness”; that is, whether the party alleging inconsistency has satisfied the Court that the verdicts cannot stand together because “no reasonable jury, who had applied their mind properly to the facts in the case could have arrived” at them.^[60]  However, respect for the jury’s function results in a reluctance in appellate courts accepting a submission that verdicts are inconsistent in the relevant sense, so that:^[61]

“...  if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted.  If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.”

42. An appellate court must have regard to whether verdicts indicate that the jury “simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt”.^[62]  Alternatively, the appellate court may conclude that the jury took a merciful view of the facts on one count – a function which has always been open to a jury.^[63]  It is only where the inconsistency rises to the point that the appellate court considers intervention is necessary to prevent a possible injustice that the relevant conviction will be set aside.^[64]  While it is impossible to state hard and fast rules, the following provide examples of relevant inconsistency;^[65] where the different verdicts returned by the jury are an affront to logic and common sense which is unacceptable, and strongly suggests a compromise in the performance of the jury’s duty, or which suggests confusion in the minds of the jury, or a misunderstanding of their function, or uncertainty about the legal difference between specific offences, or a lack of clarity in the instruction on the applicable law.  In that regard, as Jerrard JA stated in R v CX,^[66] referring to Osland v The Queen:^[67]

“Verdicts of guilty and of acquittal will show the required inconsistency where a verdict of acquittal necessarily demonstrates that the jury did not accept evidence which they had to accept before they could bring in the verdict or verdicts of guilty which they did; or when it follows that when acquitting on a particular count, the jury must have accepted evidence that required them to acquit on a count or counts on which they convicted the defendant.”

Appellant’s submissions

43. The appellant argued that the doubt entertained by the jury on count 1 ought to have given rise to a reasonable doubt as to the appellant’s guilt on count 2.  In advancing that submission, it was contended that the prosecutor at trial accepted that the quality of the complainant’s evidence relating to both counts was not materially different.^[68]  The different verdicts could not be said to be reconcilable by reason of the application of s 24 of the Criminal Code to the different counts.  It was argued that the complainant’s not telling the appellant “No” before the act the subject of count 1, in contrast to her evidence in relation to count 2, could not provide a point of relevant distinction.  It was argued that the jury “must have rejected the complainant’s evidence that the act in count 1 occurred in the way that she described, or at all, or at least entertained a reasonable doubt as to whether the appellant assaulted her in the way that she alleged immediately preceding the act of digital penetration”.  The appellant’s argument was that, had the jury accepted the complainant’s evidence about the offence alleged in count 1, in particular, his alleged use of violence to her, the prosecution would necessarily have excluded beyond reasonable doubt that the appellant held an honest and reasonable but mistaken belief that she was consenting.  The verdicts were, therefore, inconsistent and could not be reconciled in a rational and logical way.^[69]

Consideration

44. This was a case where the appellant gave evidence and denied the offending.  The appellant’s account was that, following an argument, he and the complainant had sexual intercourse on 12 April (the occasion alleged by the complainant as count 1) involving consensual penile penetration.  In relation to the events on 14 April, the appellant categorically denied that any sexual activity took place at all.  It follows that, on the appellant’s account, there was no room for mistake of fact in relation to count 2.
45. The nature and sufficiency of the complainant’s evidence as to the two counts was highlighted by the trial judge when directing in relation to the issue of consent, who directed that^[70] “[the complainant] says on the first occasion she froze and on the second occasion she said, ‘No, no, no.  Please stop’”.  The nature of the allegation in relation to the digital rape charge was, therefore, quite different from the evidence of the complainant as to clear demonstrations of a lack of consent concerning the penile rape.^[71]  Contrary to the appellant’s submissions, this was likely to have been seen by the jury as a highly relevant feature of the respective allegations, particularly the issue of mistake of fact.
46. There were, in the present case, differences in the evidence concerning the two counts which could logically have led the jury to acquit on count 1 without that acquittal necessarily implying a conclusion detrimental to the credibility or reliability of the complainant’s evidence on count 2.
47. Further, as to count 1, the complainant’s evidence was that having been hit by the appellant just before the incident, she became scared and “froze” and did not express lack of consent by any overt act or express words.  Her evidence as to count 2, however, was that she did expressly communicate her lack of consent.
48. A further point of difference between the two counts arose with respect to the defence case.  As to count 1, the defence case was that the sexual contact was consensual.  The complainant’s evidence that she did not say anything but “froze” may have given the jury cause to doubt that the element of lack of consent had been established or that s 24 had been excluded.  As to count 2, the defence case was that there was no sexual intercourse on 16 April 2012.
49. Additionally, as the respondent submitted, the jury might reasonably have found support for the credibility of the complainant in relation to the allegation of non-consensual penile rape in exchanges in the pretext call such as the complainant’s statement “And you fucked me and you knew I didn’t want to have sex?” to which the appellant replied, “Yes”;^[72] and her further statement:^[73]

“Don’t you realise what you did though?  Like, you, you kn-, you, you, you know, you know that you, like, you held me down and you had sex with me and you said, is this how he fucked you? Is this how he fucked you?-- I know.  I know.  I know…”

50. That additional support was lacking in relation to count 1.  In relation to count 1, the complainant’s evidence was that, in the context of them arguing, the appellant grabbed her by the jaw and punched her in the jaw which caused her to “freeze” and “just lay there”.^[74]  She gave evidence that he then came closer to her, grabbed her and put his hand down her shorts and then inserted a finger into her vagina.^[75]  He then took her hand and put it on his boxer shorts and said, “I can’t even get a hard-on any more”.  He then got up and left the room.  The complainant remained in a frozen state on the bed.  As the respondent submitted, in assessing the nature of that allegation, within the context of the events and the relationship as it existed, the jury might reasonably have concluded that the offence of rape was not made out.
51. The differing verdicts on counts 1 and 2 can be reasonably explained by the matters to which I have referred.  It does not follow from the verdicts that the jury must have rejected the complainant’s evidence on count 1.  In the absence of supporting evidence, the jury may have been unable to be satisfied to the requisite standard of the commission of the offence, or that, in the circumstances alleged in count 1, the appellant was not mistaken about consent.

Error in the admission of evidence of the pretext call (ground 3)

Appellant’s submissions

52. The appellant contended that the admission of the evidence of the pretext call resulted in a miscarriage of justice.  It was submitted that the failure to object to its admission could not be attributed to any perceived tactical advantage and notwithstanding the lack of objection, the evidence ought to have been excluded in the exercise of the Court’s discretion on the basis that the evidence was of little probative value and of substantial prejudicial effect.
53. The lack of probative value was said to be illustrated by the complainant’s failure to identify the occasion of sexual contact to which any apology offered by the appellant was referable.  It could not be safely inferred that the appellant understood that the occasion of sexual activity referred to by the complainant was, in fact, the occasion charged in count 2.  Moreover, the appellant and the complainant had engaged in sexual intercourse on multiple occasions during their relationship, both before and after the evening on which the complainant alleges that the offence charged in count 2 occurred.  It was submitted that, even if the appellant’s responses were seen to be referable to a particular occasion of sexual activity, they were likely to be referable to sexual intercourse that the appellant testified occurred on 20 April in the botanical gardens, which was consensual activity.  In the circumstances, it was submitted that the appellant’s responses were of no probative value in establishing an admission of non-consensual intercourse with the complainant on 14 April 2012 in respect of count 2.
54. Furthermore, parts of the appellant’s responses to the complainant’s statements were susceptible to multiple interpretations.  The appellant testified that his apologies were referable to the arguments that had occurred between them, including bringing up her past relationships.^[76]  Some of his responses to the complainant’s requests from him for an apology may also be reasonably interpreted as the appellant expressing regret to her that he had sexual intercourse (at an unspecified time) with the complainant without his knowing at the time that she was not consenting.^[77]  The appellant’s responses to the complainant’s statements were also reasonably open to the interpretation that he was attempting to placate the complainant, who he knew suffered from a psychological disturbance.  The appellant’s testimony at trial was that he relied upon the advice given to him by Dr Stubbs at the consultation on 16 April 2012, which he attended with the complainant.  The appellant understood Dr Stubbs to mean that agreeing with the complainant was the best way to manage the complainant’s mental condition.^[78]
55. The meaning to be attributed to the appellant’s responses in the pretext call was insufficiently clear to use the appellant’s responses to prove his guilt in relation to either charged offence.  It was reasonably open, it was said, to interpret the appellant’s apologies and conciliatory statements during the call as part of an attempt to placate the complainant following her earlier telephone call to him that day in which he said she spoke of demons.  This was consistent with the appellant adhering to what he understood to be the advice given to him by Dr Stubbs.  It was also open to conclude that the appellant’s apologies were initially offered without his listening to the details of what the complainant was saying and that only later in the conversation, when he appreciated she was referring to non-consensual sexual activity occurring, that he corrected the complainant by saying that if she was not consenting, he was not aware of it.

Consideration

56. There was no error in the admission of the pretext call at trial.  The words spoken by the appellant in the context of the pretext call were admissible, in relation to count 2, as they were reasonably capable of being construed as an admission by the accused to count 2.  As the respondent submitted, that this was not a case where there was any allegation of uncharged acts of a sexual nature to which the appellant’s apology could attach.  Nor was there any allegation of generalised sexual offending or of potentially prejudicial evidence of sexual interest.  The complainant’s evidence concerned two specific occasions of sexual misconduct by the appellant.  The pretext call contained specific statements and comments which were capable of being understood as references to forced penile penetration and capable of being construed as an admission to penile rape alleged in count 2.  Examples of such comments were the appellant’s acknowledgement “I know” in response to the complainant’s statement at the commencement of the call, “you know what you did to me … you held me … you held me down”.^[79]  Likewise was the appellant’s affirmative reply to the complainant’s comment, “Do you have nightmares … About when you, when you said to me, is this how he fucked you?  And you fucked me and you knew I didn’t want to have sex?”^[80]  Additionally, when the complainant also asserted, “Don’t you realise what you did though?  You … you held me down and you had sex with me and you said, ‘is this how he fucked you?  Is this how he fucked you?’”  The appellant replied, “I know.  I know.  I know”.^[81]  Furthermore, in reply to the complainant’s statement, “I don’t deserve to have a penis in me when I don’t want it in me”, the appellant replied, “Of course you don’t … I’m fucking sorry … I can’t sleep.  I have fucking nightmares”.^[82] These were not matters that required any specific identification.  Rather, they were matters which would ordinarily be the subject of counsel’s addresses to the jury.
57. The crux of the appellant’s contention that the pretext call was not admissible because of a possibility of an innocent explanation for the appellant’s statements is misconceived.  That possibility did not render the pretext call irrelevant, and therefore inadmissible, as was explained by Heydon J in BBH v The Queen:^[83]

“In assessing questions of relevance in relation to admissibility, it is not for judges to speculate about possible constructions of the evidence which are adverse to the interests of the tendering party.

Hence factors which might affect the weight of the evidence given in chief, perhaps preventing it from in the end proving beyond reasonable doubt the fact which it is tendered to prove, are not relevant to admissibility.”

58. In accordance with the principles explained in R v Caulfield,^[84] it was then for the jury to determine whether or not the words, in fact, amounted to an admission and what weight, if any, to give them.
59. It was for the jury to consider whether, as the respondent argued, the appellant’s responses in the pretext call constituted admissions in relation to the offending the subject of count 2 or whether the responses were to be understood, as the appellant argued, as his following the advice of Dr Stubbs^[85] or to be understood in other ways put forward by the respondent.  The issue of the weight to be given to the appellant’s comments in the pretext call was for the jury to determine.  No miscarriage of justice resulted from the admitting into evidence of the pretext call.

Error as to the directions concerning the permissible use of the pretext call (ground 7)

Appellant’s submissions

60. A related complaint made concerning the pretext call was that the trial judge failed to give adequate directions concerning the permissible use of the pretext call evidence.  In particular, the trial judge failed to instruct the jury as to the standard of proof to which the jury were required to be satisfied before treating the appellant’s statements as an admission to count 2, being proof beyond reasonable doubt as identified in IE^[86] and R v BCQ.^[87]  It was also submitted that, as was the case in IE, the jury in the present case was to decide whether comments in the pretext call amounted to an admission to the charged offences, but without specifying how the appellant’s statements could constitute evidence supporting the complainant’s evidence as to count 2.  Specifically, it was said that there was a real risk, in the present case, that the jury may have treated some of the appellant’s statements as admissions of guilt to the charged offence in count 2 when such statements were not capable of amounting to an admission to count 2.  It was argued that, without the trial judge specifically identifying to the jury the parts of the pretext call which were capable of supporting the complainant’s evidence, it was impossible to know whether or not the jury placed reliance on statements by the appellant in the pretext call which were not reasonably capable of supporting the complainant’s evidence in relation to the charged offence in count 2.  The redirection given did not alert the jury to the need to be satisfied beyond reasonable doubt that the appellant’s responses amounted to an admission to the offence charged in count 2.

Consideration

61. It may be the case that the directions might have identified the statements relied on as admissions in relation to count 2 as opposed to count 1.  However, as the respondent submitted, the jury, in any event, acquitted the appellant of count 1 following redirections in relation to the relevance of evidence supporting the complainant.  That verdict was consistent with the jury appreciating the relevance of the evidence of the pretext call to count 2 without the need for further directions.
62. The trial judge gave the standard direction to the effect that, in order to rely on the evidence of pretext call, the jury needed to be satisfied that the appellant’s answers relied upon as indicating guilt were true.  The pretext call evidence in the circumstances of this case did not require a direction on the standard of proof before it could be used by the jury.  Importantly, as the respondent argued, there being no uncharged acts of non‑consensual sex to which the appellant’s apology in the pretext call could attach, the present case was materially different from IE, R v BBQ^[88] and BCQ^[89] where a danger existed that an admission could not have been understood by the jury as admissions of general sexual interest or uncharged acts which in turn provided support for specific offences.  The principles derived from those cases are of no assistance to the appellant in the circumstances of this case.
63. The contention that the trial judge’s failure to identify for the jury the passages from the pretext call that were capable of amounting to admissions as to count 2 and possible different interpretations of the appellant’s responses resulted in a miscarriage of justice must be rejected.  The relevance of the contents of the conversation between the complainant and the appellant on 24 April 2012 were apparent.  The appellant’s contention regarding the innocent explanation for the words used by the appellant in the telephone call was explained to the jury in the context of the relevance of this evidence and revisited in the redirections.^[90]
64. The features of the recorded conversation said to be admissions did not require detailed identification.  Were the trial judge to have specifically identified the passages relied upon as admissions, there was a real danger that it may be have operated to reinforce those passages to the detriment of the appellant.
65. No miscarriage of justice resulted from a failure to provide directions as to the use of the pretext call as contended for.

Error in failing to direct the jury in accordance with the principle in Markuleski (ground 4)

Appellant’s submissions

66. The appellant argued that the circumstances of this case required a Markuleski direction, that is, a direction to the effect that a reasonable doubt about the complainant’s evidence on one count ought to be taken into account in assessing her evidence on the other count.  Referring to R v LR,^[91] it submitted that the quality of the complainant’s evidence was essentially the same as regards both counts.  There existed a real possibility in the present case that the jury did not appreciate that a doubt entertained in relation to count 1, about the reliability and credibility of the complainant’s evidence, ought to have been taken into account in the assessment of whether a doubt existed about the complainant’s evidence concerning count 2.  It was argued that such misunderstanding may explain the different verdicts and that the faithful application of a Markuleski direction by the jury upon the appellant’s acquittal on count 1 would inevitably have led the jury to have entertained a reasonable doubt about the complainant’s truthfulness and reliability in relation to count 2.

Consideration

67. The trial judge did express a preliminary view that a Markuleski direction would be appropriate (a view with which the crown prosecutor took no issue).  However, defence counsel did not argue for such a direction and, after further discussion, the trial judge stated that a direction would be given limited to a “separate consideration of the charges” direction, rather than additionally giving a Markuleski direction.  Both counsel agreed to that course^[92] as sufficient to focus the jury’s attention on the need to analyse the evidence in relation to each count closely and consider any doubts they might have in relation to each count.  Furthermore, the trial judge directed the jury both that they must consider each charge separately^[93] and that they must evaluate the evidence relating to each particular charge and return separate verdicts for each charge.^[94]  The jury were also given a Bromley direction.  There was no challenge to the sufficiency of those directions by defence counsel at trial.
68. I accept the submission of the respondent that, in the circumstances of this case and given that defence counsel was alerted to the possibility of a Markuleski direction but chose not to ask for one, the failure to give the direction in this case did not result in a miscarriage of justice.  While it might be desirable in particular cases to give the jury a Markuleski direction, it is not a requirement of the law that such a direction must be given in every case.^[95]  Each case is to be considered in terms of the risk of unfairness that a Markuleski direction is designed to address.  As identified in R v Ford:^[96]

“… the risk of unfairness which creates the occasion for the giving of the direction is the risk that the accused will be denied the chance of acquittal on all counts if, given the state of the evidence, such a result ought reasonably to follow if the jury were to reject as unreliable any part of the complainant’s account of what happened.

…

It is the risk of this particular kind of unfairness to the accused which requires a trial judge to refer ‘to the effect upon the assessment of the credibility of the complainant if the jury finds itself unable to accept the complainant’s evidence with respect to any count.’ The purpose of such a reference is to ensure fairness to the accused ‘in a word against word case’ by supplementing the traditional direction that the jury should consider the evidence, as well as the question of guilt, separately in relation to each count.”

69. This was not a case where the evidence about each of the charged offences was the same.  As already discussed, the jury could logically and reasonably have acquitted the appellant of count 1 without necessarily having rejected the credibility of the complainant.  This ground of appeal also fails.

Error in failing to direct the jury to have regard to the complainant’s use of cannabis as part of the direction given in accordance with Bromley (ground 5)

Appellant’s submissions

70. The appellant submitted that the direction given to the jury concerning the reliability of the complainant’s evidence did not identify her heavy cannabis use as a matter which further attenuated the reliability of her evidence.  It was contended, relying on R v DAN,^[97] that the admission by the prosecution that the complainant had told a health professional about her previous heavy use of cannabis required the trial judge to warn the jury of the danger of basing a conviction on the complainant’s evidence, given that such drug use, in combination with her mental illness, may have affected her ability to give reliable evidence.

Consideration as to directions on cannabis use

71. The need for a warning having the imprimatur of judicial authority arises only in situations where the Court has an appreciation of a risk which lay jurors may lack.^[98]  DAN^[99] is not authority for the proposition that a judicial warning must be given to a jury as to relying on the evidence of an admitted drug user.
72. The complainant gave evidence and was cross-examined as to her use of cannabis.^[100]  Dr Stubbs’ note dated 10 October 2012, the contents of which were admitted, contained a reference to the complainant smoking cannabis since she was 15 years of age because it helped her to relax and that, over the past two to three years, she had been smoking 10 to 20 cones per day.  In her evidence, the complainant agreed that she said she smoked cannabis, but she did not recall reporting smoking 10 to 20 cones per day and denied that she in fact smoked that quantity, stating she did not have enough money to be able to smoke that much cannabis.^[101]  Even accepting that the complainant may have downplayed her cannabis use, there was no direct evidence in this case linking her consumption of cannabis with the events on the days in question.  Nor was there any expert evidence as to the effect that a consumption in the quantities reported in the psychologist’s notes might have had on the complainant and her capacity to give reliable evidence of the relevant events.
73. A direction of the nature now described as necessary to avoid a miscarriage of justice was not sought by the experienced defence counsel nor was it required in the circumstances of this case.  This ground also fails.

Error in failing adequately to direct the jury as to the specific weaknesses in the complainant’s evidence in the course of warning the jury about the danger of acting on the complainant’s evidence (ground 6)

Appellant’s submissions

74. It was submitted that the warning that was given by the trial judge to the jury about the danger of convicting was insufficient in that it only identified the complainant’s mental illness and delusional thinking as potentially attenuating her reliability.  It was submitted that the direction ought to have also specifically brought to the jury’s attention three other weaknesses in the complainant’s evidence.  These were said to be: firstly, that the complainant, on her own admission, had engaged in consensual sexual activity on two or three occasions between 14 and 18 April 2012 with the appellant after the alleged rapes; secondly, the complainant’s untruthfulness to the investigating officer during the investigation about her existing mental health treatment by a health professional; and thirdly, the inadequacy in the investigation due to the absence of evidence of text messages sent by the complainant to the appellant between 14 and 24 April 2012 (which may have shed light on the complainant’s attitude towards the appellant between and after the alleged rapes).
75. The appellant argued that, although defence counsel did not specifically seek such a direction, there could not have been any sound tactical reason for not asking one.  It was said that the failure of the trial judge to alert the jury to those specific weaknesses “meant that the jury would not have properly appreciated the force of those weaknesses by having them identified as weaknesses by the trial judge with the full weight of her Honour’s office”.

Conclusion as to directions given

76. As a general proposition, the law requires a warning to be given whenever a warning is necessary to avoid a perceptible risk of a miscarriage of justice arising from the circumstances of the case.^[102]  The need for a warning arises only where there is a risk which might be apparent in the experience of the Court but which may not be apparent to the jury.^[103]
77. It can well be understood why an experienced defence counsel did not submit for the direction now contended for.  As the respondent argued, the first and second matters concerned features of the complainant’s evidence referred to as requiring the need for a Robinson type direction would have been obvious to a lay jury.  These concerned no more than the usual array of matters relevant to a complainant’s credibility that are to be considered by the jury in assessing the evidence and of a kind typically detailed in arguments in addresses by counsel.  They were not of such a nature as to have warranted a specific reference in any warning given by the trial judge.  The third matter was also one for address by defence counsel.  I agree with the respondent’s submissions that there was no miscarriage of justice as a result of a failure to give such a direction.  There is no substance in this ground.

Order

78. None of the grounds of appeal having been made out, I would dismiss the appeal.
79. ATKINSON J:  I agree with the order proposed by Philippides JA and with her Honour’s reasons.