R v Clancy[2022] QCA 162

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  On 23 September 2021 after a three day trial, the appellant was convicted in the District Court at Brisbane of one count of rape.
2. [2]
   The appellant advances three grounds of appeal:

   1. (a)
      the learned trial judge’s interventions during defence counsel’s cross-examination and closing address occasioned a miscarriage of justice (Ground 1);
   2. (b)
      the summing up lacked balance, thereby occasioning a miscarriage of justice (Ground 2);
   3. (c)
      the learned trial judge did not properly direct the jury about a prior inconsistent statement (Ground 3).

The evidence

3. [3]
   The Crown called four witnesses: the complainant, a friend of the complainant, a preliminary complaint witness and a police officer.  As between the Crown and the appellant seven formal admissions were made pursuant to s 644 of the Criminal Code (Qld) (the Code).  The appellant did not give or call evidence.
4. [4]
   On the day of the rape, the complainant travelled from the Gold Coast to Brisbane in order to celebrate her 19^th birthday.  After having dinner with her father, her cousin and a friend, the complainant attended a concert by herself as she only had one ticket for the event.  She had consumed some alcohol at dinner and at the concert.  An arrangement had been made that she would meet up with her friends after the concert.  The complainant went to the Jolly Roger Bar in Fortitude Valley to wait for her friends.  On arrival she had a shot of tequila as the bar’s birthday special.  There was live music at the venue.  The complainant initially struck up a conversation with a man and informed him that it was her birthday.  This man ordered the complainant another shot and they had one together to celebrate.  After the band finished playing the complainant went to the bar and ordered a drink.  She was approached by the appellant.  She described their initial interaction as follows:

“… I was pretty friendly and just chatting about how I’d come out for my birthday, and I was waiting alone, I was waiting for friends, and just the same thing as I had sort of chatted with the other male about, just being friendly.”

5. [5]
   She described the appellant as being a lot older than her or even her father.  She estimated that he was perhaps older than 40.  When she informed the appellant that it was her birthday, he offered to buy her a drink and enquired what she was drinking.  The complainant replied, “tequila shots”.  The appellant purchased one shot each.  The complainant by this stage described herself as being “very, very drunk”.  She was able to walk and stand but felt “wobbly in her heels”.  She informed the appellant that she had to go to the bathroom and walked off.
6. [6]
   She walked from the bar up onto the elevated stage, past the stage and into the toilet.  The bathroom had two stalls with two separate wooden doors.  She went to the furthest stall which was the female toilet.  As she was closing the door, she was pulling up her skirt in order to go to the bathroom.  As she went to close the door behind her, but as she sat down on the toilet, the door opened again and she was greeted by the appellant.  He closed and locked the door behind him while she was sitting on the toilet.  She thinks she said “hello” to him.  The appellant watched the complainant urinate.  The complainant then stood up, flushed the toilet and pulled her skirt back down.  She went to the sink and commenced to wash her hands.  The appellant then ran his hands up her thighs and hips and pulled her skirt up.  He unzipped his jeans, put his penis inside of her and continued to thrust and have sex with her over the sink of the bathroom for approximately one minute.  The complainant did not say anything to the appellant until he had finished, at which stage she asked “did you just?” and he replied “yes”.  The complainant finished wiping her hands and left the bathroom.
7. [7]
   When she returned to the bar, her friends had arrived and they continued to drink at the bar for another 10 to 20 minutes.  Thereafter they went to another nightclub.  She did not tell any of her friends that night what had happened.  When asked why she had not, the complainant explained “…I wanted to enjoy my birthday…wanting to celebrate that as much as possible, so I thought maybe that would just be a bit weird.”  Approximately one week later the complainant told a male friend that she thought she had been raped and gave details of the rape.  She subsequently spoke to police on 10 February 2020 and provided the skirt that she had worn that night.  Two of the formal admissions made were that:

   1. (a)
      a positive result of semen was located on the skirt and sperm matching the appellant’s was identified; and
   2. (b)
      the appellant had penile/vaginal intercourse with the complainant in the toilets at the Jolly Roger Bar on the day of the rape.
8. [8]
   The complainant was unaware that the appellant followed her to the bathroom.  She did not consent to the appellant putting his penis into her vagina.
9. [9]
   The cross-examination of the complainant and the interventions by the learned trial judge are considered in detail below in relation to Ground 1.  There was, however, evidence given by the complainant in cross-examination relevant to the circumstances of the rape.
10. [10]
    The complainant accepted that at the beginning of the incident she did not say anything to the appellant apart from “hello” which she said in a questioning way.  The complainant also accepted that the appellant did not do anything to physically block her leaving the toilet apart from standing in front of her while she was urinating.  While she was at the sink the appellant, who was behind the complainant, put his hands on her hips or thighs and moved his hands in an upward direction.  The appellant pulled the complainant’s skirt up over her buttocks.  The appellant was pressing his body up against the complainant from behind.  She understood that the appellant was touching her sexually but did not understand why it was happening.  She did not say anything to the appellant explaining that she was too afraid to say anything.  She accepted that she did not tell him to stop, nor did she attempt to push him away.  The appellant was not violent nor did he make any threats.  The complainant could feel that the appellant had put his erect penis inside of her.  She was not aware of the appellant needing to move or push her legs apart in order to achieve penetration.  She knew that the appellant was having sexual intercourse with her and did not say anything.  She did not move her body away from him until he had finished.  The complainant was unaware of the movements of the appellant after she left the bathroom.  She accepted that the initial conversation with the appellant before she went to the bathroom lasted approximately 10 to 15 minutes.
11. [11]
    In relation to the conversation with her male friend one week later, the complainant stated that she volunteered to him the information that she had been raped rather than this information being obtained by her male friend through questioning.
12. [12]
    One of the friends that met the complainant at the Jolly Roger Bar gave evidence that when she saw the complainant, she appeared to be okay but tipsy.  Her friend would not have purchased the complainant more alcohol if she considered she was too drunk.
13. [13]
    The preliminary complaint evidence from her male friend was that the complainant told him she did not have a good time at all on her birthday.  He asked her whether someone had hurt her to which she replied “yes”.  He then asked whether someone had sexually abused her or was she raped to which the complainant replied “yes”.  The complainant told her male friend that a person was buying her shots and drinks all night.  She went to the bathroom and someone followed her in and locked the door behind him and commenced raping the complainant.  She told her male friend that this person “finished inside her” and that she just froze and couldn’t move.
14. [14]
    As is apparent from the evidence set out above and the formal admissions, there was no issue that the appellant had sexual intercourse with the complainant in the toilet, nor was there any issue concerning the surrounding circumstances of the rape.  The only two issues for the jury were, first, whether the appellant had sexual intercourse without the consent of the complainant, and secondly, whether the appellant did not honestly and reasonably believe that the complainant was consenting.  It was for the prosecution to prove each of these matters beyond reasonable doubt.  It is within this context that the grounds of appeal should be considered.

Ground 1

15. [15]
    Ground 1 contends that the judge’s interventions in the cross-examination of the complainant and in defence counsel’s closing address occasioned a miscarriage of justice.
16. [16]
    Excessive interference or involvement by a trial judge in the conduct of a trial may constitute such a departure from the due and orderly processes of a fair trial as to amount to a miscarriage of justice.^[1]
17. [17]
    When an appellant’s contention is that the conduct of the presiding judicial officer has meant that the trial was unfair, the test to be applied is whether the impugned behaviour has created a real danger that the trial was unfair.^[2]
18. [18]
    A critical element of whether a trial is unfair is whether the appellant had a proper opportunity to advance his or her defence to the charges.^[3]  Whether a trial is unfair must be evaluated in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions.^[4]
19. [19]
    In Cook v The Queen,^[5] the Supreme Court of Victoria cited with approval the following observations of Purchas LJ in R v Matthews:^[6]

“To summarise these authorities the following propositions appear to emerge: (1) Whilst a large number of interruptions must put this Court on notice of the possibility of a denial of justice, mere statistics are not of themselves decisive; (2) The critical aspect of the investigation is the quality of the interventions as they relate to the attitude of the judge as might be observed by the jury and the effect that the interventions have either on the orderly, proper and lucid deployment of the case for the defendant by his advocate or upon the efficacy of the attack to be made on the defendant’s behalf upon vital prosecution witnesses by cross-examination administered by his advocate on his behalf; (3) In analysing the overall effect of the interventions, quantity and quality cannot be considered in isolation, but will react the one upon the other; but the question which is proposed ultimately for this Court is ‘might the case for the defendant as presented to the jury of the trial as a whole, including the adducing and testing of evidence, the submissions of counsel and the summing up of the judge, be such that the jury’s verdict might be unsafe?’ In the presence of conditions in which this Court has been alerted in the manner to which we have referred, it appears to us that if there is a possibility of a denial of justice then this Court ought to intervene.”

20. [20]
    Excessive intervention by a trial judge may give rise to unfairness in a number of different ways.  In R v Mawson,^[7] in a passage cited with approval in Cook, the Court gave four examples.  First, the parties’ opportunity of putting their defence fully and fairly to the jury may be impaired.  Secondly, witnesses may be prevented from telling the full account of facts as they understand them to be.  Thirdly, the trial judge might be identified as being with one or other party to the litigation.  Fourthly, the jury might be led to believe from the judge’s intervention that the judge is convinced of the guilt of the accused person or that the defence case is hollow.
21. [21]
    Other examples may be found in the following observations of the English Court of Appeal in R v Sharp,^[8] which were adopted by the Court in Cook:

“When a judge intervenes in the course of examination, or particularly cross-examination, a number of problems can arise depending on the frequency and manner of the interruptions. First the judge may be in danger of seeming to enter the arena in the sense that he may appear partial to one side or the other. This may arise from the hostile tone of questioning or implied criticism of counsel who is conducting the examination or cross-examination, or if the judge is impressed by a witness, perhaps suggesting excuses or explanations for a witness’s conduct which is open to attack by counsel for the opposite party. Quite apart from this, frequent interruptions may so disrupt the thread of cross-examination that counsel’s task may be seriously hampered. In a case of any complexity cross-examination of the principal witnesses is something that calls for careful preparation and planning. It is the most important part of the advocate’s art, because a competent cross-examination is designed to weaken or destroy the opponent’s case and to gain support for the client’s case. But it is easier said than done. If the judge intervenes at a crucial point where the witness is being constrained to make an important admission, it can have an adverse effect on the trial.

In general, when a cross-examination is being conducted by competent counsel a judge should not intervene, save to clarify matters he does not understand or thinks the jury may not understand. If he wishes to ask questions about matters that have not been touched upon it is generally better to wait until the end of the examination or cross-examination. This is no doubt a counsel of perfection and a judge should not be criticised for occasional transgressions; still less can it be said in such cases that there is an irregularity in the conduct of the trial or that the verdict is unsafe or unsatisfactory. But there may come a time, depending on the nature and frequency of the interruptions that a reviewing court is of the opinion that defence counsel was so hampered in the way he properly wished to conduct the cross-examination that the judge’s conduct amounts to a material irregularity.”

22. [22]
    Another concern that may arise from frequent interjections by a trial judge is the risk that the interjections might undermine the credibility of defence counsel in the eyes of the jury and may do so in a way that by inference undermines the credibility of the defence case.  See, for example, Piccolotto v The Queen^[9] and Percival v The Queen.^[10]  In the latter case, the Court observed that it was not the trial judge’s role to comment on counsel’s competence in a way which diminished her credibility, and possibly the credibility of the defence case in the eyes of the jury, as such comments have the obvious potential to unfairly prejudice the appellant.^[11]
23. [23]
    The Court in Cook also adopted the following observations of the New South Wales Court of Criminal Appeal in R v Lars,^[12] suggesting that a trial judge should exercise circumspection before intervening in the examination of witnesses.
24. [24]
    A judge is entitled to intervene in the questioning of a witness, notwithstanding the absence of objection by counsel for the other party, if there is good reason for such intervention.  Among the reasons in which intervention would be appropriate are:^[13]

1. where the question is likely, because of latent or patent ambiguity for other reasons, to illicit an answer which may be misleading;
2. where the form of the question is such that it involves unfairness to the witness;
3. where a question is offensive or otherwise calculated to do no more than unfairly prejudice the witness in the eyes of the jury; and
4. where the asking of the question breaches an earlier ruling.

However, a trial judge should hesitate to intervene merely because the judge is of the view that a question calls for an answer which is irrelevant or otherwise inadmissible.  That is because parties may make use of that evidence for a purpose not readily apparent to the judge or it may otherwise facilitate the smooth running of the trial.^[14]

25. [25]
    The appellant identifies eight interventions by the learned trial judge in the course of defence counsel’s cross-examination of the complainant.  A number of these interventions were appropriate.  For example, when counsel was questioning the complainant as to what she was wearing and how it covered her body, her Honour intervened, requesting the complainant to stand up and demonstrate where her skirt came to compared to the length of a camisole which the complainant was wearing on the night of the rape.  This intervention did nothing more than assist the jury in understanding the evidence being given by the complainant.^[15]  Another example of an appropriate intervention arises from the following exchange:

“MS BAIN:  Well, standing in front of you urinating didn’t physically block you going either side of him to get to the door, did it?…I think it did.

HER HONOUR:  What does that mean?  If he is standing in front you, it didn’t stop you from going around the side of him.  Well, there’s…

MS BAIN:  Well, I am just trying to…

HER HONOUR:  There are two – two propositions there.

MS BAIN:  I’m just trying to understand the dimensions of the toilet: whether someone standing in front of her.

HER HONOUR:  Well, ask that question then we might get a – get an answer to that question.”^[16]

26. [26]
    Her Honour’s intervention simply sought a reframing of counsel’s question to clarify the complainant’s evidence.
27. [27]
    Another intervention arose when counsel sought to cross-examine the complainant as to what she told police.  When the complainant expressed uncertainty as to whether she had told police certain matters, her Honour suggested to counsel that the complainant be given her statement and that it was “a bit unfair to ask her about a statement that was taken a long time ago without showing her”.  The complainant was not shown her statement but in response to questions by both counsel and her Honour, accepted that she had told police that while she was washing her hands the appellant rubbed his hands down her thighs, pressed his body up against hers from behind and lifted her skirt.  This was the evidence that counsel was seeking to elicit from the complainant.  If anything, the learned trial judge’s intervention assisted in this process.
28. [28]
    A further intervention complained of arose in the course of defence counsel’s cross-examination of the complainant in relation to her preliminary complaint as to what she said to her male friend one week after the rape.  Defence counsel suggested to the complainant that she had met her male friend on Tinder and that they had been kissing.  Her Honour intervened, saying “Just be careful you’re not offending against the Act without my lead.”  Her Honour further explained to the defence counsel in the absence of the jury and the complainant:

“But you’ve got to be very careful here that you’re asking her about any proposed sexual action with him because it – otherwise you need my leave…”.

29. [29]
    The appellant submits that the first interruption by the learned trial judge in the presence of the jury suggested that counsel was infringing legislation.  In light of defence counsel’s questions concerning the complainant meeting her male friend on Tinder and kissing him it was not inappropriate for her Honour to intervene as there was an apparent prospect that the cross-examination might have continued in a way which may have been prohibited by the Criminal Law (Sexual Offences) Act 1978 (Qld).  In rape cases, questions regarding a complainant’s general reputation with respect to chastity are prohibited: s 4(1).  Leave can only be granted to ask such questions if the court is satisfied that the evidence has substantial relevance to the facts or is a proper matter for cross-examination as to credit: s 4(3).  If defence counsel was simply attempting to establish whether the complainant volunteered that she had been raped, or was told or influenced to believe that she had been raped by her male friend, there was no need to ask questions about the use of Tinder or how the complainant had been kissing her male friend.
30. [30]
    Before further considering other interruptions to the cross-examination, it is convenient to deal with the two interruptions to defence counsel’s final address.  The two interruptions came at the beginning and near the end of counsel’s address.  Counsel commenced her address by identifying the two issues in the case as whether the complainant consented and whether the appellant believed that the complainant consented.  Her Honour’s interruption was as follows:

“Honestly and reasonably.  It’s not just about belief; it must be an honest and reasonable belief.  So you just put those words in.”^[17]

31. [31]
    The second interruption was in response to counsel addressing the jury in the following terms:

“Your decision is final, when you deliver your verdict that decision is final for Mr Clancy.  It’s no use thinking, later on, looking back on this case, almost as if, as [the complainant] herself did in this case, the taking what was a sexual episode that she regretted happening; that she felt dirty about; that she resented happening, don’t think later on, looking back on this case, wondering what if.  What if this hadn’t happened?  What if I hadn’t considered it in this way?  Maybe he shouldn’t have been convicted.  Because that niggling feeling is too late, and that niggling feeling is reasonable doubt.”

32. [32]
    Her Honour interrupted:

“No, it’s not, I won’t have you say that.  “Niggling doubt” is not the term in law.”^[18]

33. [33]
    Her Honour subsequently instructed the jury that the term “niggling doubt” does not have any place in the criminal law because reasonable doubt is not a niggling doubt.  It is a doubt based on reason.^[19]
34. [34]
    The statements made by defence counsel to the jury in her address did require correction.  They constituted misstatements as to the onus of proof and the operation of s 24 of the Code.  Her Honour’s interventions in the presence of the jury both at the beginning and end of counsel’s address had the potential to create a prejudicial view of counsel which may have reflected adversely on the appellant.  While it would have been preferable for her Honour to have intervened in the absence of the jury or to have corrected counsel’s misstatements of the law in the summing up, given the fundamental nature of the misstatements, it was open for her Honour to correct these errors immediately.
35. [35]
    While the interventions discussed above were either appropriate or permissible, there are two interventions in the course of cross-examination of the complainant that are of significant concern.  Both of the interventions relate to the critical issue of consent.  The relevant cross-examination, with the two interventions italicised, is as follows: ^[20]

“MS BAIN:  And I just want to be clear with you. In the circumstances of what you describe happening in the bathroom that effectively what happened is that you allowed this man to have sex with you.

HER HONOUR:  No, that’s not – that’s not the test for rape, it’s that she consented to sex. Submission is not the same as consent. That’s Sunderland’s case, it’s a recent case from the Court of Appeal.

MS BAIN:  He didn’t say anything to threaten you?---No.

And he certainly wasn’t violent to you?---No.

And you yourself thought that the sex was – in that first few days after the bathroom incident, you thought yourself that the sex was consensual, didn’t you?

HER HONOUR:  Did you ever think that it was consensual?---No. No, I – not at all.

MS BAIN:  Did you say that when you were discussing your evidence with the Crown prosecutor yesterday?---No.

Did you say that you thought that the sex was consensual and that you felt like a slut and that you felt vile about yourself for doing that on your own birthday?---Yes.

Is that what you said to the prosecutor?---Yes.

Didn’t you also say that you had thought originally that the sex was consensual?---No. I don’t think I said that at all.

Well, there’s probably two stages. Did you think originally that the sex had been  consensual?---No, I didn’t.

And did you say that to the prosecutor in your discussions yesterday - - -?---No.

- - - with her about your evidence?---No, I’ve never once thought that this was  consensual. I did express that I felt disgusted with myself that it did happen, that I, like, allowed this to  happen. Sure. But not that it was consensual.

Well, I suggest to you that that was – they were the words that you used, that you thought that the sex was consensual?---I don’t recall saying that at all. I’ve never thought that this was a consensual thing, even when I – after it had happened, I didn’t think that.

HER HONOUR:  Can I just interrupt. Consent’s got a strict legal meaning and it can include submission. It doesn’t have to, but that will be the factual question you’ll be asking  yourselves at the end of the trial and I’ll give you detailed instructions about that.

36. [36]
    By the first intervention, her Honour effectively precluded defence counsel from asking the complainant whether she allowed the appellant to have sex with her.  The reference to R v Sunderland^[21] did not constitute a proper basis for her Honour to prevent the question.  In Sunderland the Court considered section 348 of the Code which defines “consent” for the offence of rape.  The Code was amended by the Criminal Law Amendment Act 2000 (Qld) which made a number of significant changes to the offence of rape.  Section 348 provides:

“348 Meaning of consent

1. (1)
   In this chapter, consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent.
2. (2)
   Without limiting sub-section (1), a person’s consent to an act is not freely and voluntarily given if it is obtained –

1. (a)
   by force; or
2. (b)
   by threat or intimidation; or
3. (c)
   by fear of bodily harm; or
4. (d)
   by exercise of authority; or
5. (e)
   by false and fraudulent representations about the nature or purpose of the act; or
6. (f)
   by a mistaken belief induced by the accused person that the accused person was the person’s sexual partner.”

37. [37]
    In the present case, there is no issue that the complainant had the cognitive capacity to give consent.  Nor did any of the matters in s 348(2), going to the issue of whether consent is freely and voluntary given, arise.
38. [38]
    Section 348, as amended, was considered in R v Winchester.^[22]  Chesterman JA stated:

“The effect of the amendments was to give “consent” a particular statutory definition different to everyday usage.  Prior to the amendment consent to intercourse which was “hesitant, reluctant, grudging or tearful but … consciously permitted” was nevertheless consent which would prevent intercourse being rape. … [A]cquiescence or submission was tantamount to consent.  The 2000 amendments to the Criminal Code requiring that consent be free and voluntary requires consent that is more than acquiescence and is not reluctant or grudging”.^[23]

39. [39]
    Fryberg J noted the importance of the word “given” in the definition of “consent”:

“The most important word in the phrase is ‘given’.  It is arguable that by its very meaning, consent can have no existence unless it is given.  Whether that be so or not, the Code now explicitly requires the giving of consent.  Passive acquiescence or even a desire to participate are not enough.  Consent must be given.  It need not be given verbally, but given it must be.”^[24]

40. [40]
    In R v Makary^[25] Sofronoff P with whom Bond J agreed, considered that the definition of “consent” in section 348 required two elements: ^[26]

“‘Consent’ was thus defined to require two elements.  First, there must in fact be “consent” as a state of mind.  This is also because the opening words for the definition define ‘consent’ tautologically to mean, in the first instance, ‘consent’.  The complainant’s state of mind remains elemental.  Second, consent must also be “given” in the terms required by the section.

The giving of consent is the making of a representation by some means about one’s actual mental state when that mental state consists of a willingness to engage in an act.  Although a representation is usually made by words or actions, in some circumstances, a representation might also be made by remaining silent and doing nothing.  Particularly in the context of sexual relationships, consent might be given in the most subtle ways, or by nuance, evaluated against a pattern of past behaviour.”

41. [41]
    In the present case, her Honour’s reference to Sunderland’s Case for the proposition that submission is not the same as consent is a reference to [44] of the judgment of Sofronoff P with whom Morrison and Mullins JJA agreed:^[27]

“The giving of consent, in the context of a charge of a sexual offence, involves the making of a representation by one person to another, to the effect that the first person agrees to participate in the sexual act that would otherwise be an offence.  Such a representation might be made by words or by actions or by a combination of both.  Sometimes the words or actions cannot be understood apart from the surrounding circumstances.  In cases where the complainant has communicated neither consent nor dissent by words or actions, the inaction cannot be considered in a vacuum.  It too must be considered with all of the relevant circumstances surrounding the sexual act.  The circumstances involve matters both past and present.  So, inaction in the context of prior acts or words might mean that the complainant has previously given consent which remains operative until withdrawn.  This might be established by evidence of relationship or previous interactions between the complainant and accused.  So too, inaction, when taken with the other circumstances, may be a manifestation of unwilling submission rather than consent.  Indeed, continued or sustained inaction for the duration of a sexual act may be a strong indicator of submission rather than consent.  In R v Day Coleridge J said that every consent to an act “involves a submission; but it by no means follows, that a mere submission involves consent”.  In R v Wollaston Kelly CB said that ‘[m]ere submission is not consent.  For there may be submission without consent, and while the feelings are repugnant to the act being done.  Mere submission is totally different from consent’.”

42. [42]
    While it may be accepted that submission is not the same as consent, whether a complainant submits to or allows sexual intercourse is a factor that is both relevant and material to the complainant’s state of mind and whether consent is given.  This is apparent from an analysis of Sunderland.  The issue in that case was whether there was an inconsistency between the jury finding the appellant guilty of rape but not guilty of indecent assault of the same complainant.  Sofronoff P considered that the definition of consent in s 348 applied to inform the elements of assault in s 351 and s 352 in Chapter 32 of the Code.  In relation to the indecent assault count, the evidence was that the complainant made no verbal or physical protest stating that she was “frozen”.^[28]  The complainant gave no overt indication that she was not consenting to being touched beyond what might have been perceived from her “frozen” reaction.^[29]  It is evident from the draft direction proposed by Sofronoff P that a complainant’s own evidence about their state of mind is only one of the pieces of evidence that a jury should consider in coming to a conclusion as to whether consent was freely and voluntarily given.  His Honour noted that a person’s omission to voice a disapproval or an objection can be very relevant to the matter of consent.  While submission does not necessarily mean that there is consent, the surrounding circumstances will be important in deciding whether there is in fact consent or whether there is merely a submission without giving consent.
43. [43]
    This was recognised by the learned trial judge in the present case where in the passage of cross-examination quoted above, her Honour informed the jury that “consent” has a strict legal meaning and “it can include submission”.  Her Honour made similar observations in her directions to the jury where her Honour stated “submission does not necessarily mean that there is consent … the circumstances will be important in deciding whether, here, you are satisfied beyond reasonable doubt that there was no consent or whether the submission was consent or whether it was submission without consent.  So the circumstances will guide you on that”.  These directions were in accordance with the definition of “consent” in s 348 as explained in Winchester, Makary and Sunderland.  Nothing said in those cases however made the question of whether the complainant allowed the appellant to have sexual intercourse with her impermissible.
44. [44]
    Cross-examination of a witness is not confined to questioning about the ultimate issue in the trial.  Counsel was entitled to ask the question.  The question was relevant and permissible for at least three purposes.  First, that fact in itself, once established, would have become part of the evidentiary picture to which defence counsel was entitled to point in support of the defence case that consent was given.  It was a fact material, arguably significantly so, to the ultimate issue of consent.  Secondly, a positive response to that question could also have been a springboard for further questions.
45. [45]
    Thirdly, it was relevant in testing the complainant’s state of mind as to whether the sexual intercourse was consensual.  This was particularly pertinent as the question was asked by counsel in circumstances where she had been informed that the complainant, in a conference with the crown prosecutor the previous day, had stated that she thought the sex was consensual.  One of the formal admissions made before the Crown closed its case was in the following terms:

“The complainant participated in a conference with the Crown Prosecutor on 21 September 2021.  A legal Support Officer employed in the Office of the Director of Public Prosecutions attended that conference and took shorthand notes.  The Legal Support Officer in attendance made the following note; ‘She thought the sex was consensual and thought that she was a slut and felt vile about herself for doing that on her birthday’.”

46. [46]
    Defence counsel was armed with this information while cross-examining the complainant.  In light of this information, defence counsel questioned the complainant as to whether she thought that the sex was consensual.  Before the complainant answered this question, her Honour intervened with the question “did you ever think that it was consensual?” to which the complainant responded “no, no, I – not at all.”  This intervention occurred in the context that defence counsel was cross-examining in relation to a recent prior inconsistent statement.

47. [47]
    When the complainant was asked initially about what she told the crown prosecutor she first denied saying that the sex was consensual.^[30]  Then she twice agreed that she said to the prosecutor that she thought that the sex was consensual and that she felt like a slut and felt vile for doing that on her birthday.^[31]  When it was put to her that she had thought originally that the sex had been consensual, she said that she had never once thought it was consensual and expressed that she felt disgusted that it happened and she allowed it to happen but not that it was consensual.  She said she did not recall saying the words that the sex was consensual and that she had never thought it was consensual.  The effect of this cross-examination and the formal admission concerning the complainant’s statement to the crown prosecutor in conference is further considered in relation to Ground 2.
48. [48]
    The learned trial judge erred in preventing counsel from asking whether the complainant allowed the appellant to have sex with her.  The question was relevant to a critical issue in the trial, namely, consent.  Her Honour’s intervention effectively shut-down any exploration of this critical issue and constitutes a miscarriage of justice.^[32]  The intervention impaired the appellant’s opportunity to put his defence fully and fairly to the jury and precluded the appellant’s counsel from adducing relevant evidence.  To the extent that attention must be given to the effect of the error or irregularity upon the trial,^[33] for the reasons in [44]–[45] above, in the context of a trial in which consent was a central issue, the judge's erroneous intervention was readily capable of having realistically affected the jury's verdict.

Ground 2

49. [49]
    The appellant additionally argues that the summing up lacked balance thereby occasioning a miscarriage of justice.  In McKell v The Queen^[34] the High Court considered the relevant principles in determining whether a summing up is unfair or unbalanced: ^[35]

“A trial judge must sum up for the jury the case presented by each of the prosecution and the accused after each side has addressed the jury.  In Domican v The Queen, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ observed that ‘the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury’.  In carrying out this task, it is no part of the trial judge’s role, to ‘don the mantle of prosecution or defence counsel’.  As Gibbs CJ said in Cleland v The Queen, ‘[i]t is clear in principle that a trial judge, when directing a jury in a criminal trial, must hold an even balance between the cases of the prosecution and the accused’.”

50. [50]
    Their Honours stated: ^[36]

“The circumstance that the trial judge had directed the jury that they were the ‘sole arbiters of the facts’ affords no answer to that concern.  The vice of these remarks is not so much that the jury may have been confused as to their roll as the sole arbiters of the facts, but that the prosecution was being given the advantage of a second address.  As Beech-Jones J correctly observed: ‘[A] recognition that the jury were the trier of facts does not address a complaint about an unbalanced summing up, specifically one that seeks to persuade a jury as to what facts they should find’.”

51. [51]
    Their Honour’s further observed that:

“The issue is whether the trial judge’s comments were apt to create a ‘danger’ or a substantial risk that the jury might actually be persuaded of the appellant’s guilt by comments in favour of the prosecution case made with the authority of the judge.”^[37]

“[A] trial judge’s discretion to comment on the facts should be exercised with circumspection.”^[38]

52. [52]
    In the present case, the learned trial judge directed the jury that they were the sole judges of the facts and were to ignore any view they thought her Honour might have, unless it coincided with their view.  The appellant submits, however, that the lack of balance in the summing up is apparent by how her Honour addressed the rival contentions.  In particular, the contentions of defence counsel were countered by comments by the learned trial judge, particularly in relation to the issue of consent.
53. [53]
    In considering whether her Honour’s directions on this issue were fair and balanced, it is first necessary to consider what was said by the crown prosecutor and defence counsel in their addresses.
54. [54]
    The crown prosecutor addressed as follows:^[39]

“Now, it was suggested that [the complainant] thought following the offence – in the following days, that she thought it was consensual and she did not accept that.  And you heard through an admission that there was a conference.  The Crown prosecutor – where a legal support officer took notes and what was in those notes was that she thought the sex was consensual and thought she was a slut and felt vile about doing that on her birthday.  Now [the complainant] explained her feelings in relation to what – how she felt after this event – the following day…[s]he said:  ‘I did express that I felt disgusted’.  She said:

I did express that I felt disgusted.

But she didn’t accept that she said the word ‘consensual’:

I did express that I felt disgusted with myself that it did happen.  That I allowed this to happen, sure, but not that it was consensual.

Members of the jury, feeling disgusted about what happened to [the complainant] that night does not in any way make this a consensual act.  At no point in her evidence did she waiver and accept that she gave the defendant consent to have sex with her.  Her consistency also supports her reliability.”

55. [55]
    Defence counsel stated in her address:

“You heard the evidence today about the cross-examination from yesterday when I asked [the complainant] about things that she said when the prosecutor and her instructing clerk were asking her questions about her evidence.  She, at one stage, seemed to accept that what she said to the prosecutor was that she thought the conduct was consensual, but – and using – I’m using her words in saying this – but that she felt vile and felt like she was a slut.  But what she told the prosecutor was that she had originally thought that the sex was consensual.  She said:

I did express that I felt disgusted with myself that it did happen; that I, like, allowed this to happen, sure, but not that it was consensual.

And you’ll remember specifically that she denied using that word ‘consensual’, and today it’s admitted by the prosecution that the notes taken of that conference where she discussed her evidence in preparation for the trial was that the very line that I have suggested to her that she said, that she thought the sex was consensual, that is, (the complainant) thought the sex was consensual and, again using her words, thought that she was a slut and felt vile about herself for doing that on her birthday.”

56. [56]
    Her Honour summarised the prosecution’s contention as follows: ^[40]

“The prosecution say the fact that she says that it was consensual relies on what she means by that.  Now, we have even heard one of the lawyers say ‘Did you allow him to do it?’  It’s not the same thing as consensual, but she might have thought it was.  ‘Consent’, in law, has – as you now know, a very definite meaning, but it might not be the meaning lay members of the community give it.  So keep that in mind … [v]ery fairly, the prosecution have made available that note from the clerk where the word ‘consensual’ was used.  There is a duty of disclosure in cases, and that has been abided by, but it really depends on what you think she meant by consensual.”

57. [57]
    Her Honour summarised defence counsel’s contentions on this issue as follows:^[41]

“She reminded you of the conversation with the prosecutor where she said it was consensual – but I would just be careful about that; it is entirely a matter for you, I am not suggesting you go one way or the other, but it is a term that is sometimes used differently in the community than what it is used in courts.”

58. [58]
    From these passages, it is evident that her Honour did not accurately summarise the prosecution’s contention.  In spite of the formal admission as to what was said at the conference, the crown prosecutor in her address submitted that the complainant did not accept that she used the word “consensual” at the conference.  No submission was made by the crown prosecutor as to what the complainant meant by the word “consensual”.  Her Honour’s summary, however, proceeds on the basis that the complainant did use the word “consensual” at the conference with the crown prosecutor but she may have meant something different by the use of the word.  The complainant did not give any evidence about what she meant by consensual, as she ultimately denied having made the statement to the prosecutor that the sex was consensual.  With respect, it was not for the trial judge to offer an explanation for the complainant's statement that was not advanced by the prosecution and of which the complainant gave no evidence.
59. [59]
    In light of the formal admission, and the cross-examination of the complainant, there is a tension in the crown prosecutor submitting to the jury that the complainant did not say the word “consensual” at the conference.  In the respondent’s written submissions, it is asserted that the formal admission did not establish a prior inconsistent statement but merely established the content of the shorthand notes made by an attendee at the conference.  This submission cannot be accepted.  In circumstances where the crown prosecutor continued to act as counsel in the trial, it seems inevitable that the note is to be taken to reflect what the complainant actually said, not merely the understanding of the clerk who took the note.  Moreover, read in the narrow way now contended by the respondent, which was not put by the Crown at trial, it is difficult to see how the admission was probative of anything.  In these circumstances, the admission did not sit comfortably with the prosecution submission that the complainant did not use the word “consensual”.
60. [60]
    Her Honour’s reference to the prosecution “very fairly” making the note available is unduly favourable to the prosecution’s conduct.  The crown prosecutor was duty-bound to disclose the note.  This obligation arises from s 590AB of the Code which identifies the “fundamental obligation of the prosecution to ensure criminal proceedings are conducted fairly with the single aim of determining and establishing truth”.  The crown prosecutor was also bound by the Director’s Guidelines, in particular, Guideline 29[iii] which requires disclosure to the defence of exculpatory information and Guideline 29[iv] which requires disclosure of an inconsistent statement.  This obligation extends to any inconsistencies made in conference.  Where, on the day before trial, the complainant informed the crown prosecutor that she thought the sex was consensual, there was an obligation on the prosecutor, under both the Code and the Director’s Guidelines, to provide that information to the defence.
61. [61]
    Her Honour’s summary of the defence contention was inadequate.  Her Honour did not remind the jury of anything of the substance of what defence counsel had said.  Rather, her Honour merely reminded the jury of the subject matter.  Immediately in doing do, the judge warned the jury “to be careful”, thereby substantially undermining or sidelining what the defence had submitted.  In so observing, it is not overlooked that the judge added the comment that it was entirely a matter for the jury and that the judge was not suggesting which way the jury should go.  Notwithstanding those comments, her Honour’s admonition to the jury to “just be careful” significantly undermined what defence counsel had said.  Further, by reducing the defence contention to what the complainant meant by her use of the word “consensual”, the significance of the formal admission and the complainant’s initial acceptance in cross-examination that she had used that word in the conference were also significantly undermined.
62. [62]
    The complainant's apparent statement to the prosecutor, the day before the trial, that the sex was consensual, was a central plank of the defence case.  The combined effect of the judge's summaries of the competing contentions on this important point compounded the unfairness caused by each of these summaries.  The judge bolstered the prosecution case by advancing an alternative explanation for the complainant's statement that the sex was consensual.  The judge then undermined the defence case in the manner just explained.  The lack of balance in how the rival contentions on the central issue of consent were explained to the jury resulted in a miscarriage of justice.
63. [63]
    There are however further aspects of the summing up that are of concern.  While they do not in themselves constitute a miscarriage of justice, they reinforce the contention that the overall effect of the summing up painted an unbalanced presentation of the defence case.  In directing the jury in relation to the issue of honest and reasonable mistake, her Honour stated:^[42]

“Mere mistake by an accused is not enough; it has to be both honest and reasonable.  An honest belief is one which is genuinely held by him.  A defendant’s belief is reasonable when it is held by the defendant in his particular circumstances on reasonable grounds.  The complainant says she did not consent.  If you accept that you might think the defendant could not honestly and reasonably have believed she was consenting.

However, remember the onus of proof; it is not for the defendant to prove he honestly and reasonably believed she was consenting but for the Prosecution to prove beyond reasonable doubt either he did not honestly believe she was consenting or he did not reasonably believe that.”

64. [64]
    The last sentence of the first paragraph quoted is, at least, capable of being understood by the jury as a comment by the judge on the facts, thereby substantially undermining the other important plank of the defence case.  The words used are not found in the Criminal Benchbook.  The respondent suggested that “you might think the defendant could not honestly and reasonably have believed she was consenting” may have been said in an undertone such as to indicate a hypothetical, rather than an instruction or opinion of the trial judge.  However, the plain words used by the trial judge would leave it open for a juror to potentially regard her Honour’s statement as indicative of how they should reason, or indicative of the trial judge’s own opinion.
65. [65]
    Another passage of concern from the summing up is as follows:

“It was never suggested to her, she was flirting with him when she was talking to him or that she invited to him the bathroom or there was an expectation that he would follow her to the bathroom.  When a barrister has a case to run, they get instructions from their client, and it is an ethical rule that you have to put your instructions to a witness to give the witness an opportunity to answer.  So it would suggest that there were no instructions along those lines, because those questions were not put to her.”

66. [66]
    The Crown in its address had submitted that there was no evidence before the jury of any flirting or any conversation of a sexual nature prior to the complainant and the defendant going into the bathroom.  Rather than simply informing the jury that there was no evidence, her Honour went further and raised the application of the rule in Browne v Dunn.^[43]  The reference to there being no instructions from the appellant appeared to do nothing more than bolster the Crown’s submission that there was no evidence of the complainant flirting with the appellant or that she invited him to the bathroom.  Further, as identified by Kiefel CJ, Keane and Gleeson JJ in Hofer v The Queen^[44] there is a difficulty respecting the application of the rule in Browne v Dunn in criminal proceedings:

“The difficulty respecting the rule and criminal proceedings arises not so much from adherence to it as from the proper course to be followed when it is not observed.  Criminal proceedings are not only adversarial.  In our system of criminal justice, they are also accusatorial in nature, which requires that the Crown prove its case and cannot require an accused to assist in doing so.  The position of an accused person, who bears no onus of proof, cannot be equated with that of a defendant in civil proceedings.”

67. [67]
    Her Honour’s directions in relation to the credibility of the complainant are also of concern: ^[45]

“Right at the heart of the case here is the credibility of [the complainant].  It has not been challenged very much.  I do not think I heard it put to her at any stage.  Except in relation to that comment about consensual, there was not really any – much challenge, and I will come back to that in a moment.”

68. [68]
    This comment by her Honour had the effect of undermining the formal admission and cross-examination of the complainant in relation to that admission.  A statement to the crown prosecutor by the complainant one day before trial that she thought the sex was consensual is not accurately described as a mere “comment about consensual”.
69. [69]
    For these reasons, ground 2 is established.

Ground 3

70. [70]
    As it has been determined that there has been a miscarriage of justice upon a consideration of Grounds 1 and 2 it is unnecessary to consider Ground 3.

Disposition

1. The appeal against conviction should be allowed.
2. The verdict of guilty should be set aside.
3. A retrial should be ordered.