R v Rose[2021] QCA 262

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  The appellant was convicted in the District Court after trial before a jury on one count of rape that was committed on 10 November 2018.  He appealed against the conviction on the following grounds:

   1. (a)
      the verdict is unsafe and unreasonable having regard to the whole of the evidence, particularly the credibility and reliability of the complainant;
   2. (b)
      the learned trial judge erred in law by failing to direct the jury in accordance with s 21A(8) of the Evidence Act 1977 (Qld) (the Act);
   3. (c)
      a miscarriage of justice occurred by reason of the directions given as to how the jury should approach the evidence contained in the appellant’s text messages and pretext phone call with the complainant.
2. [2]
   At the conclusion of the hearing of the appeal on 15 November 2021, the court allowed the appeal, set aside the conviction and ordered a retrial.  These are our reasons for joining in the orders of the court.
3. [3]
   There were two issues at the trial that were the focus of the evidence and the arguments put to the jury.  The first issue was whether the prosecution had proved beyond reasonable doubt that the complainant had not given her consent to sexual intercourse with the appellant.  If the jury were satisfied beyond reasonable doubt on the first issue, the second issue was whether the prosecution could exclude beyond reasonable doubt that the appellant had an honest and reasonable, but mistaken, belief that the complainant had given her consent to having sexual intercourse with him.  In other words, the prosecution had to prove beyond reasonable doubt that the appellant did not honestly and reasonably believe that the complainant had given her consent.  The appellant also advanced the contention at trial that the complainant was so intoxicated on the evening in question that she did not have a reliable memory and that she was “rewriting history” to justify to herself and others that she would never have consented to have intercourse with the appellant.

Summary of the relevant evidence

4. [4]
   On Friday 9 November 2018 the complainant and C (who was one of the complainant’s female friends from the backpackers’ hostel where they were staying) arrived at a bar sometime between 11.30 pm and 11.45 pm.  They met up with ER who was another female friend from the hostel.  At one stage, the complainant was chatting to the appellant and got his phone number, as he said he could help her get a job.  The complainant was drinking alcohol and spoke to the appellant’s friend Ethan.  She took a photo of the appellant and Ethan.  They continued to socialise at the bar until it closed at about 2 am.  The appellant’s group invited the complainant and her friends back to their unit.  That offer was accepted and the two groups walked back and continued to drink alcohol at the unit.  Not long after arriving, the complainant, C and ER with some of the appellant’s group went for a swim in the pool.  The complainant was “really drunk by this point”.  While in the pool, she kissed Ethan.  After up to 45 minutes in the pool, C and ER decided to get out and leave, but the complainant stayed at the unit.
5. [5]
   After a conversation with C and ER when they were leaving, the complainant’s evidence in chief included the following.
6. [6]
   The complainant’s next memory was waking up to the appellant on top of her, kissing her cheek, touching her breasts, and with his penis in her vagina.  She shouted “Get off.  Get off”.  He got off her immediately.  She was on a double bed in a bedroom.  She did not have a memory of what had happened immediately prior to the memory of what happened on her waking up.  The complainant got dressed immediately.  She thought she went into shock, because she did not recall what happened exactly in what order for her to get back to the hostel.  She went out into the corridor and there were lots of male voices saying they needed to check out of their unit and that she had to leave.  She got into a utility with two men and they dropped her back to the backpackers’ hostel where she was staying.  She did not remember any conversation with the men in the utility.  She thought she wanted to pretend it did not happen.
7. [7]
   The complainant had a sleep, showered, and had lunch with friends, including C and EV, before she went on a road trip with them that had previously been planned for a night away.
8. [8]
   At lunch, the complainant said someone had inappropriately touched her, but she did not talk anymore about it.  They had only been friends for about a week or so and she did not know them that well.
9. [9]
   The complainant had a text message exchange with the appellant, commencing at 4.12 pm on 10 November 2018 in which the complainant asked “What the fuck were you doing this morning”.  The response from the appellant was “Yeah nah I’m so sorry” and “that was fucked”.
10. [10]
    On 10 November 2018 at 6.07 pm, the complainant sent a text message to a male friend J in which she said that she needed to talk to him when she got back and that she “got raped last night”.  One of the texts to J said:

“Me and the girls fell asleep at this party and I woke up with some kid inside me and I shouted and his friends drove me home.”

The complainant explained in her evidence that the message to J was not true when she said it was she and the girls who fell asleep at the party, as she did not want to seem like a complete idiot for putting herself in that position.

11. [11]
    The complainant cannot recall exactly where they were when she told EV that what happened the previous night was she must have passed out and when she woke up in the morning, there was someone raping her.  The complainant believed EV was also present when the complainant told C the same thing.
12. [12]
    When the complainant returned the next day, she was visited by J in the afternoon.  After talking to J, the complainant reported the rape to the police.
13. [13]
    At the request of the police, the complainant sent another text to the appellant at 4.33 pm on 11 November 2018 in which she asked a question about whether the appellant used protection and the appellant responded at 7.21 pm on the same day that he had not and texted “Wasn’t thinking”.
14. [14]
    The complainant made a pretext phone call to the appellant at 7.30 pm on 11 November 2018.  The appellant admitted, in effect, to having sexual intercourse with the complainant, but asserted that he thought she was awake, because she was “talking a bit” and “making noises and talking to [him]”.  The complainant asserted to the appellant that his friends drove her back to her friends.  He corrected her by informing her that he was the one who drove her back.
15. [15]
    At no time did the complainant consent to having sex with the appellant.
16. [16]
    The complainant’s cross-examination included the following.  At no point would she have ever consented to having sex with the appellant.  She had not put in her police statement that she had a conversation with C and ER before they left her at the unit.  She had no memory of going to bed at the unit.  When she woke up to the appellant having sex with her, it was daylight.  She lied to J about the girls and her falling asleep at the unit, because she was embarrassed for being there alone.  After the appellant got off her, he left the room and she stayed and got changed because her dress was on the floor.  She did not know whether the appellant’s friends came into the room.  She was not aware of his friends coming into the room and making apologies for the appellant. J was the first person that the complainant told about the sex occurring with the appellant when she texted him that she was raped.  She could not remember verbatim what she told EV and C.  When she saw J on the Sunday, she may have omitted the detail that she was the only girl there when it happened.  She could not remember exactly what she told J, but she told him exactly what had happened.  She could not remember saying that some of the appellant’s friends entered the room.
17. [17]
    The following exchange took place in cross-examination of the complainant:

“The – see, if I was to suggest that that’s, in fact, what happened, is that you woke up and that there was some talking between you?---You can suggest that but I don’t – I can’t say if it did or didn’t happen.

And I’d suggest that there was some kissing and hugging between you?---No. I wouldn’t have – not to the best of my knowledge. No.

And that, that led to sexual intercourse between you?---I would have remembered having sex with someone. I woke up and someone was having sex with me.

That – that you were consenting to that, I’d suggest?---No.

And he spoke to you of talking and making noises as if you were enjoying it. I’d suggest that, in fact, happened?---Absolutely not.

Well, absolutely not or you don’t remember?---I was asleep, maybe unconscious and I came to with somebody above me. There’s no way I would have been making moaning noises or talking to him.

That – see, I’d suggest that you didn’t tell him to get off you; that never happened?---That’s incorrect.

That you didn’t push him?---That’s – I told him to get off because I wanted him to get off.

That you didn’t yell out?---I – because he got off.”

18. [18]
    When the appellant’s counsel at trial then put to the complainant that she did not remember what happened in that bedroom, the complainant agreed that she did not remember what happened, but then stated “as soon as I woke up and there was someone having sex with me, I knew exactly what was happening then, and that’s when I left”.
19. [19]
    Preliminary complaint evidence was given by C, EV and J.
20. [20]
    C gave evidence about the conversation she had at the hostel with the complainant on 10 November 2018 about the night before:

“I asked if she’d had a nice time, and she, sort of, she was sort of brushing my questions off. She said – I think she said that she, just, went to sleep after we left, and I mentioned that one of the boys had touched my chest, and she said, ‘Yeah, one of them – one of them touched me as well’.”

21. [21]
    C also gave evidence that in the presence of C and EV in the cabin in which they were staying on their overnight trip away on 10 November 2018, the complainant was crying and in response to C’s inquiry about what was wrong, the complainant said that when she woke up, one of the boys was having sex with her on the couch.  In cross-examination C expanded on what she had been told by the complainant in this conversation:

“She told me that she – she woke up and someone was having sex with her, and then she just immediately screamed and some of the other boys came into the room and then she said they were very apologetic, very kind, very nice to her, and offered to drive her home straight away, back to the – the backpackers.”

22. [22]
    EV’s evidence was as follows.  As EV was getting the car ready with the others for the road trip on 10 November 2018, she noticed that the complainant was quiet and not engaging like she normally did and during the car trip the complainant said that “she woke up to being touched by a boy”.  The conversation did not continue at that time.  After they arrived at their destination, EV asked the complainant what happened and the complainant said that she woke up to him having sex with her.  When C was in the cabin later in the evening with EV and the complainant, the complainant told C the same thing.
23. [23]
    J gave evidence of the conversation he had with the complainant on 11 November 2018, when she explained that she had been out on the Friday night with two girls from the hostel, they met a group of lads and they went back to the lads’ accommodation.  J’s evidence of what the complainant told him continued:

“So as the night proceeded, she said she got quite drunk to the point where she blacked out, and then when she did wake up – she didn’t say when, but I assume it’s the next morning or sometime early in the morning – he was having sex with her. So she said she was surprised, obviously, because she just woke up; she didn’t know this was happening. And she was a bit weak, so she kind of said, like ‘stop it’, but she couldn’t really push him away because she’d just woken up. So she was weak and he carried on, and then she found a bit more strength and she was like – told him, like ‘stop it’ and kind of pushed him away, and at that point he stopped. She said that his friends came in the room because – because she was, at that point, kind of shouting at him to stop; the friends had heard, and they’d come in the room. And the friends kind of appeased her and calmed her down, and were like, ‘Oh, sorry. Can we offer you a lift home’, and that kind of thing.”

24. [24]
    The appellant provided the police with a list of his friends who were at the unit at the relevant time.  Four of the men who had been in the appellant’s group staying at the unit where the incident occurred gave evidence.  The investigating officer was unsuccessful in obtaining a statement from another man who had been at the unit.
25. [25]
    Ethan recalled leaving the bar at around 2.30 pm or 3 pm on 10 November 2018 with the appellant, another four men and the two girls who they met at the bar.  The two girls and all the boys went for a swim in the pool at the unit.  The complainant was in her underwear for the swim.  Ethan and the complainant talked to each other while they were in the pool.  When the complainant tried to kiss him, he was trying to defuse the situation.  The complainant was quite intoxicated.  After 30 to 40 minutes, everyone started leaving the pool.  The complainant went back upstairs to the unit and had a drink and after about half an hour went into one of the bedrooms.  Ethan went into the same bedroom three or four times.  On the first occasion, the appellant, another man and the complainant were in the room socialising and drinking.  There were other people walking in and out of the room as well.  Ethan left the unit at around 6.30 am and went into the bedroom to say goodbye to the appellant.  The appellant was in the room with the complainant.
26. [26]
    Jacob who was also staying at the unit gave the following evidence.  He returned to the unit after being at the bar with the appellant, but stayed upstairs while others went for a swim.  When the complainant returned to the unit after the swim, she was looking for a towel and Jacob got her a blanket.  She was “pretty intoxicated” which was the same as everyone else.  Jacob was in one of the bedrooms, when the complainant came in and lay on the bed.  There were a few of the mates in there talking.  The complainant went to sleep covered by the blanket.  Jacob was being picked up for work between 5 am and 6 am and was collecting his speakers and chargers.  He was looking in the bedroom for one of the speakers and saw the appellant was also on the bed with the complainant.  Jacob woke up the appellant to help him find his speaker.  The appellant got out of the bed to do so.
27. [27]
    Tobias was another friend of the appellant who gave evidence as follows.  He recalled that three girls came back to the unit with the group of men who had been at the bar.  He went for a swim at the pool.  He was intoxicated, but he remembered the three girls being in the pool.  They went up to the unit after the swim.  He did not see the complainant go into the room where he subsequently saw her asleep on the bed under the blanket.  There was about an hour and a half between the return from the pool and when Tobias saw the girl asleep in the bedroom.  He went into the bedroom multiple times.  On one of the occasions, he saw the appellant also asleep on the bed on top of the covers.  The last time he saw the complainant was when they were walking downstairs to the car.  She was perfectly fine and had asked the appellant and him, if they could drop her into town which they did.  In cross-examination, Tobias stated that at no point did he hear the complainant yelling out.
28. [28]
    The fourth man from the unit to give evidence was Jake.  Jake recalled returning to the unit after being at the bar and there were two girls there when he arrived, one of whom was the complainant.  He did see one of the girls sleeping in one of the bedrooms on the bed under the blankets and the appellant was passed out on the other side of the bed.
29. [29]
    Dr Griffiths who is the forensic medical officer who examined the complainant on 11 November 2018 was cross-examined by the appellant’s counsel at trial as to the effects of intoxication on a person becoming disinhibited and lacking critical judgment.  Dr Griffiths accepted that there was a form of anterograde amnesia that could result from intoxication and involved loss of memory of the events subsequent to drinking.   Dr Griffiths also accepted that critical judgment and making decisions that were socially acceptable could be impaired above a blood alcohol concentration of 0.15 with the possibility of having no memory of the bad decisions the next day.  Dr Griffith acknowledged in re-examination that he could not answer the questions about the effect of alcohol on memory with any accuracy, as he had not been given any information about the complainant’s blood alcohol level.
30. [30]
    The appellant did not give or call evidence.
31. [31]
    It is convenient to deal with the grounds in the order of (b), (c) and (a).

Directions pursuant to s 21A(8) of the Act

32. [32]
    In the absence of the jury on the first day of the trial, the trial judge made an order declaring the complainant to be a special witness with the special measures that a screen was to be put in front of the appellant pursuant to paragraph (a) of s 21A(2) of the Act and that a support person approved by the court be present while the complainant was giving evidence, in order to provide emotional support to her pursuant to paragraph (d) of s 21A(2).  The complainant was the first witness on the second day of trial.  Before she came into court to give evidence, the trial judge explained three things to the jury as follows:

“The complainant’s to give evidence in a closed court, so all people other than those that are specifically allowed are excluded from the court. Secondly, you’ll see that there’s a screen placed between the witness box here and where the defendant can sit; after she’s come in, I’ll get him moved to the far end of the box. And there’s also a support person called [name of support person], and then [indistinct] assessed [indistinct] she knows – [name of support person] knows nothing about the case, she’s really just there as an emotional support. All of the procedures are common in matters of this sort.

Indeed, it’s inevitable that it’s a closed court, and the fact that those routine measures are put in place shouldn’t affect the way you assess the evidence; you just assess the evidence on the basis of what she’s said and your own assessment of them, and those routine measures are irrelevant to that assessment.”

33. [33]
    Section 21A(8) of the Act provides:

“If evidence is given or presented, or to be given or presented, in a proceeding on indictment under an order or direction under subsection (2)(a) to (e) or section 21AAA(2), the judge presiding at the proceeding must instruct the jury that—

1. (a)
   they should not draw any inference as to the defendant’s guilt from the order or direction; and

2. (b)
   the probative value of the evidence is not increased or decreased because of the order or direction; and

3. (c)
   the evidence is not to be given any greater or lesser weight because of the order or direction.”

34. [34]
    Apart from the trial judge’s explanation set out above given to the jury immediately before the complainant’s evidence commenced, no further direction referable specifically to the requirements of s 21A(8) was given at any point during the trial, including the summing up.  No further direction than the trial judge’s explanation set out above was sought by either counsel.
35. [35]
    There is no issue between the parties that any failure to comply with a mandatory requirement for the giving of a direction under s 21A(8) of the Act is an error of law.  Where the parties differ in their submissions is whether there was substantial compliance with s 21A(8) of the Act which prevented a conclusion that there was a failure to comply with s 21A(8).
36. [36]
    Mr Hunter of Queen’s Counsel who appeared with Mr Hynes of counsel for the appellant accepts that the trial judge’s direction to the jury before the complainant gave her evidence went to the point of establishing that the measures were routine and should not impact on the way the evidence was assessed and that meant the factors in paragraphs (b) and (c) of s 21A(8) were, in substance, addressed.  The appellant submits, however, that the trial judge’s direction did not engage with the factor set out in paragraph (a) of s 21A(8) which required a direction to the jury that they should not draw any inference as to the appellant’s guilt from the arrangements made for the complainant to give evidence.  The appellant submits that, in circumstances where there was a screen put in place and the trial judge went to the extent of moving the appellant to “the far end of the box”, the specific direction pursuant to s 21A(8)(a) was particularly important.  (It would have been apparent to the jury that the special arrangement of the screen was directly related to the sight line from the witness box to the dock.)  The appellant submits that the special arrangement of the screen gave rise to a real risk of pre-judgment adverse to the appellant.
37. [37]
    In addition to the trial judge’s direction to the jury before the complainant gave her evidence, Mr Nardone of counsel on behalf of the respondent relies on the trial judge’s opening comments to the jury after they were empanelled:

“You must reach your decision about the facts only on the basis of the evidence.  You must ignore all other considerations.  Emotion has no part to play.  You must ignore any feelings of sympathy or prejudice, whether it’s sympathy for or prejudice against the defendant or in respect of the complainant or any of the witnesses.  You’ll make your decision based solely on the evidence.”

The respondent therefore submits that the substance of the mandatory directions in each of the paragraphs of s 21A(8) was given.

38. [38]
    Pursuant to s 51 of the Jury Act 1995 (Qld) a trial judge must ensure that after empanelment the jury is informed in appropriate detail of the charge contained in the indictment and of the jury’s duty on the trial.  It may not be uncommon for a trial judge after the jury’s empanelment to rehearse in the opening comments some of the directions the trial judge anticipates will be given during the trial and in the summing up, but any requisite directions should also be given at the appropriate point in the trial or in the summing up.
39. [39]
    As the trial judge’s opening comments were made to the jury freshly empanelled in the absence of any context other than the arraignment and the empanelment, those general opening comments that warned the jury generally against acting on sympathy or prejudice did not satisfy the mandatory requirement of s 21A(8)(a) of the Act that the jury be directed they should not draw any inference as to the appellant’s guilt from the special arrangements of the screen and the presence of a support person when the complainant gave evidence.  The mandatory direction should have been given immediately prior to the commencement of the complainant’s evidence, when the jury could see that those special arrangements had been, or were about to be, implemented.
40. [40]
    The requirement of s 21A(8)(a) for the mandatory direction was to ensure the fairness of the trial, when the special arrangements may have raised a question in the minds of the jurors, as to why for the complainant (and no other witness in this case) the support person, and particularly, the screen were required:  see R v Michael (2008) 181 A Crim R 490 at [37].  The trial judge’s reference to such measures being a common practice did not address sufficiently the risk of the jury’s drawing an adverse inference against the appellant from such steps being implemented.
41. [41]
    The trial judge had also given the usual direction in general terms in the summing up to the effect that the jury should dismiss all feelings of sympathy or prejudice, whether it was sympathy for, or prejudice against, the appellant or the complainant or anybody else involved in the trial, and that the jury must approach their duty dispassionately, deciding the facts upon the whole of the evidence.  That general direction was also not sufficient to address the impermissible method of reasoning to which s 21A(8)(a) is specifically directed.
42. [42]
    The appellant has shown that there was an error in law in the failure of the trial judge to direct the jury in accordance with s 21A(8)(a) of the Act.  It is therefore necessary to consider whether the respondent can show that no substantial miscarriage of justice occurred as a result.  It is convenient to deal with that question after considering ground (c).

Directions on appellant’s text messages and the pretext call

43. [43]
    Although ground (c) is based on both the appellant’s text messages and the pretext call, the appellant’s arguments at trial were sourced primarily in the pretext call.  I will therefore concentrate on the pretext call in dealing with this ground.
44. [44]
    During the pretext call, the complainant asked the appellant to walk her through what happened the previous night.  He responded by apologising and said he thought that she was awake and that he was not someone who would do that sort of thing.  He then said:

“No you fell asleep and I was trying to wake you up and then you did wake up and you were talking a bit and you rolled over and then I was, it’s like, I don’t know, you were awake and you were, I didn’t think you were sleeping ’cause you were like making noises and talking to me and I’m, like I’m so sorry I--.”

45. [45]
    During the course of the pretext call, the complainant put the allegation of rape to the appellant:

“[COMPLAINANT]: But you raped me man. You fucking raped me.

ROSE: I didn't.

[COMPLAINANT]: What do you mean you didn't?

ROSE: I'm sorry, I thought like I, I thought you were awake, I promise. I didn't fucking.

[COMPLAINANT]: What do you mean you thought I was awake?

ROSE: You were talking and you were making noises and you were.

[COMPLAINANT]: No I bloody wasn’t. The first thing I remember was waking up and saying get off me, get off.

ROSE: Are you [INDISTINCT] oh, I don’t remember it like that but I'm sorry if that's what you remember. I'm actually really sorry.

[COMPLAINANT]: Okay.

ROSE: That's not how I remember it, I'm serious.

[COMPLAINANT]: How do you remember it then?

ROSE: I'm just telling, I did tell how I remember it. I woke you up and then we just started and then you were making noises and stuff.

[COMPLAINANT]: What noises was I making--

ROSE: [INDISTINCT]. You were moaning and stuff, it seemed like you were liking it, that's why I--

[COMPLAINANT]: Seriously

ROSE: Kept going, I promise, I. Hey?”

46. [46]
    It is of note that, in the pretext call, the appellant did not say what the complainant actually said, or the effect of what she said, to him, when he said she was “talking” or describe any of her actions directed towards him that made him believe she was consenting to sexual intercourse with him.
47. [47]
    During the summing up, the trial judge read out most of the transcript of the pretext call and then gave the following directions:

“And that was the conversation. So that evidence is critically important. It was a conversation between the two of them soon after the event. Bear in mind that she knew it was being recorded and he did not. And it is a matter for you to consider whether you conclude the Crown has proven beyond reasonable doubt that the [appellant] did not honestly and reasonably believe [the complainant] was consenting and then given that consent. If you conclude [the complainant] may have been moaning and Mr Rose – as Mr Rose said, that that may have constituted her giving her consent, or is there another explanation for those noises, for example, drunkenness or sleepiness or even if it indicates some level of sexual arousal, does it indicate consent or might those noises have been involuntary.

The fact that the [appellant] has given his version of events via the text and the pretext call, does not, of course, mean that he has – he incurs any onus of proving any of the matters. I remind you he is not obliged to give evidence. He does not – he did not give evidence and he cannot call any [adverse] – inference against him because the onus is on the Crown to prove the elements of the offence beyond a reasonable doubt.”

48. [48]
    When considering what directions were required in the summing up, the trial judge had indicated to counsel that he proposed giving a direction to the jury along the lines of that proposed by Brennan J in Liberato v The Queen (1985) 159 CLR 507 at 515.  This indication came after the appellant’s trial counsel had requested a Liberato direction and the prosecutor had referred the trial judge specifically to Direction No 26 in the Supreme and District Courts Criminal Directions Benchbook (Defendant Giving Evidence) which can be modified for a Liberato direction where a defendant’s account is not given in sworn evidence, but given in another way, such as the pretext call in this matter.
49. [49]
    The Liberato direction is commonly given in cases described as “word against word” where a complainant and a defendant give evidence, and it is important to ensure that the jury understand that the giving of evidence by a defendant does not alter the prosecution’s onus of proof.  As Brennan J observed in Liberato at 515:

“The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.”

50. [50]
    The issue in De Silva v The Queen (2019) 268 CLR 57 was whether a Liberato direction was required.  The offender in De Silva was charged with two counts of digital rape.  He did not give evidence, but participated in a record of interview in which he denied committing either act of digital penetration.  He was acquitted of one count and convicted of the other.  No Liberato direction was given at the trial.  Ultimately, the majority of the High Court held (at [36]) that the trial did not miscarry by reason of the omission of a Liberato direction.  It was noted (at [31] and [36]) that the jury were given repeated, correct directions as to the onus and standard of proof during the summing up which made clear the necessity that the jury had to be satisfied beyond reasonable doubt of the complainant’s reliability and credibility.
51. [51]
    The majority judgment of Kiefel CJ and Bell, Gageler and Gordon JJ noted (at [11]) that a Liberato direction may be appropriate in circumstances other than where there is conflicting sworn evidence and stated:

“If the trial judge perceives that there is a real risk that the jury will reason that the accused’s answers in his or her record of interview can only give rise to a reasonable doubt if they believe them, or that a preference for the evidence of the complainant over the accused’s account in a record of interview suffices to establish guilt, a Liberato direction should be given.  Where the risk of reasoning to guilt in either of these ways is present, whether the accused’s version is on oath or in the form of answers given in a record of interview, the Liberato direction is necessary to avoid a perceptible risk of miscarriage of justice.”  (footnote omitted).

52. [52]
    As the complainant asserted she was not awake to consent to sexual intercourse with the appellant, this was a “word against word” case to the extent there was a conflict between the evidence of the complainant that she woke up to the appellant’s having sex with her and the appellant’s statements in the pretext call that the complainant was awake, before the sexual intercourse commenced.
53. [53]
    In considering the first issue of whether the prosecution proved beyond reasonable doubt that the complainant did not give her consent to sexual intercourse, because she was asleep at the time in the circumstances in which the complainant came to be sleeping on a bed in the unit occupied by the appellant and his friends, there were three possibilities for the jury to consider, as a result of the appellant’s account in the pretext call.  The trial judge’s directions covered adequately the first possibility that, if the jury thought the appellant’s account as to the complainant being awake and had given her consent to sexual intercourse was credible and reliable, their verdict would be not guilty and the third possibility that, if the jury thought the appellant’s account on this aspect should not be accepted, they should set it aside and go back to the rest of the evidence and ask themselves whether the prosecution had proved lack of consent beyond reasonable doubt.  The trial judge’s directions did not explain to the jury the second possibility that they may have considered that the appellant’s assertions in the pretext call that the complainant was awake were not convincing, but they may have left the jury in a state of reasonable doubt as to what the true position was, so that they could not be satisfied beyond reasonable doubt that the prosecution had proved lack of consent which would result in a verdict of not guilty.
54. [54]
    If it were necessary for the jury to consider the second issue of whether the prosecution had proved beyond reasonable doubt that the appellant did not honestly and reasonably believe that the complainant had given him her consent to sexual intercourse with him, the trial judge’s directions did not traverse for the jury the possibilities left open by the pretext call, even if the jury found the appellant’s account as to his honest and reasonable belief the complainant was consenting to sexual intercourse with him was not convincing.  The prosecution could exclude the defence of honest and reasonable, but mistaken, belief the complainant was giving her consent, if it could prove beyond reasonable doubt either that the appellant did not honestly believe the complainant was consenting or that the honest belief the appellant held was not reasonable.  On either aspect, the jury should have been directed that they could not be satisfied beyond reasonable doubt, if the appellant’s account in the pretext call, though not convincing, left the jury in a state of reasonable doubt as to what the true position was.
55. [55]
    Unlike De Silva, where the issue in respect of digital penetration was whether it had occurred or not, the issues in the appellant’s trial were more complicated, because if the prosecution proved lack of consent beyond reasonable doubt, the prosecution also had to exclude the defence of honest and reasonable, but mistaken, belief as to consent beyond reasonable doubt. In the circumstances of this case, the failure to give a Liberato direction on the basis of the appellant’s assertions in the pretext call meant the jury were not properly instructed on how they could use the appellant’s account, even if they considered the appellant’s assertions in the pretext call were not convincing.  Without a Liberato direction, there was a real risk that in respect of each of the two issues that were the focus of the jury’s deliberations, they would reason that, if they rejected the appellant’s assertions in the pretext call, that would enable the prosecution to succeed on that issue beyond reasonable doubt.
56. [56]
    The appellant’s trial counsel in his address to the jury had anticipated the Liberato direction by canvassing the position if the jury did not accept all the appellant’s account in the pretext call and they were left in a state of doubt as to what happened or could not decide one way or the other and making the submission to the jury they should then find him not guilty, because the burden of proof was beyond reasonable doubt.  When the trial judge summarised the appellant’s trial counsel’s arguments, his Honour did not refer to this argument that was based on the Liberato direction.  The trial judge did not give his imprimatur to the argument by giving a Liberato direction appropriate to the evidence in the pretext call.  It is inexplicable as to why neither the prosecutor nor the appellant’s counsel at trial sought a redirection from the trial judge, when no direction based on Liberato was given in the summing up.  There was no forensic advantage to the appellant in his counsel not doing so.  The failure to give the direction that had been appropriately foreshadowed by the trial judge with counsel resulted in a miscarriage of justice and ground (c) is established.

Whether there was no substantial miscarriage of justice

57. [57]
    The application of the proviso pursuant to s 668E(1A) of the Criminal Code (Qld) had to be considered on the basis that both grounds (b) and (c) were decided in favour of the appellant a result of the omissions.
58. [58]
    It will be apparent from the above analysis of each of grounds (b) and (c), that ground (c) was much more significant for the fairness of the trial than ground (b).  The combination of the omissions of appropriate directions required to address the matters the subject of grounds (b) and (c) means that the respondent cannot discharge the onus it bears to show that there was no substantial miscarriage of justice to the appellant as a result of these omissions.

Unreasonable verdict

59. [59]
    Even though the appeal must be allowed, because of grounds (b) and (c), it was still necessary to consider ground (a), because if the appellant had been able to succeed on that ground, an acquittal should have been entered rather than the ordering of a retrial.
60. [60]
    The appellant’s approach to the unreasonable verdict ground is to highlight the issues with the complainant’s memory, largely due to intoxication, and to assert that it was impossible for the jury to conclude that she was both honest and reliable.  The appellant also relies on substantial inconsistencies between the complainant’s evidence and her preliminary complaints to others.  Explanations were given by the complainant in her evidence for many of the inconsistencies and discrepancies in relation to the events peripheral to her waking up with the appellant on top of her and the various accounts given by her of the incident to her friends.  The assessment of the inconsistencies and discrepancies in the complainant’s evidence and the explanations for them are quintessentially jury questions.  It cannot be said that they are matters which necessarily preclude a jury from accepting that the complainant was credible and reliable as to being asleep at the time the sexual intercourse took place, so that there was no consent given to the appellant for that sexual intercourse.
61. [61]
    As the resolution of the two issues in the trial depended on the jury’s assessment of the credibility and reliability of the complainant, their assessment of the appellant’s assertions in the pretext call and the use (if any) to be made of the pretext call, it is not possible on this appeal to conclude that it was not open to a jury properly directed in accordance with s 21A(8) of the Act and properly instructed on the assessment, and the use which may be made, of the appellant’s assertions in his texts and the pretext call to find that the appellant was guilty of the offence beyond reasonable doubt.
62. [62]
    As the appellant did not succeed on ground (a), it was appropriate to order a retrial.