R v Panagaris[2022] QCA 192

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  I agree with her Honour Dalton JA.
2. [2]
   DALTON JA:  The appellant originally appealed against conviction and asked for leave to appeal against his sentence.  He abandoned the application in relation to sentence at the hearing.  These reasons deal with his appeal against conviction.
3. [3]
   The appellant was convicted by a jury of one count of rape (digital) and two counts of sexual assault.  All the offending occurred within a relatively short space of time on 22 February 2020.  At that stage the appellant was 48 years of age; the complainant was 19.  The complainant arrived at the waiting area in the Royal Brisbane Hospital Emergency Department in the early hours of the morning.  Her boyfriend had experienced cardiac symptoms after consuming MDMA.  Both the complainant and her boyfriend had arrived by ambulance.  On arrival he was taken to a treatment room and she was asked to wait.  The appellant was in the waiting area, although the evidence did not establish why.  The jury accepted the complainant’s evidence that on two occasions the appellant lured her outside the hospital buildings; on one occasion he sexually assaulted and raped her, and on the other he sexually assaulted her.
4. [4]
   There are four grounds of appeal.  Three assert deficiencies in the trial judge’s summing up as to:  (1) evidence of distressed condition; (2) preliminary complaint evidence, and (3) disreputable conduct evidence.  Lastly, reliance is placed on s 668E(1) of the Criminal Code 1899 (Qld) to say that the jury’s verdicts were unreasonable.  It is convenient to deal with the last ground first.

Unreasonable Verdicts

5. [5]
   The complainant’s evidence was that between around 7.00 pm and 10.00 pm on the night preceding the offending she consumed about five beers before going to a nightclub.  There she consumed two or three vodka red bulls.  After that she had a capsule of MDMA.  Her boyfriend also consumed some MDMA at the nightclub.
6. [6]
   In the circumstances described above, the complainant came to be sitting in the waiting area of the Royal Brisbane Hospital Emergency Department.  The appellant was already there.  As might be expected there are CCTV cameras in the waiting room, and in the walkways leading to the waiting room, so that a great deal of the interaction between the complainant and the appellant was recorded.  Those recordings were before the jury.  They showed that the complainant left the waiting area with the appellant three times, although she could only remember having done so twice.  The complainant’s evidence was that, on both the occasions she could remember, the appellant took her outside to an area where he said, correctly, there were no CCTV cameras.  On the first occasion the complainant said that he sexually assaulted and raped her; on the second that he sexually assaulted her.
7. [7]
   At the beginning of the trial the appellant’s counsel made a brief opening statement to the jury to the effect that they would not be troubled by issues of consent:  the appellant’s case was simply that the physical acts said to constitute the offending did not occur.  In closing submissions counsel for the appellant suggested that the visits outside the waiting area were “for the purposes of drugs” although there was no elaboration on this, and no specific purpose for the visits was suggested to the complainant in cross-examination.  The appellant did not give or call evidence.  It was suggested to the complainant in cross‑examination, and denied by her, that she had made up the allegations of rape and sexual assault to distract attention from her drug use and her boyfriend’s drug use.
8. [8]
   Against that overall description of the case, I turn to the detail of the evidence.
9. [9]
   The complainant gave evidence that after arriving at the hospital she was asked to wait in the waiting room and she did so “in the front seats”, ie., the seats closest to the receptionist.  Then she says the appellant, who was seated behind her row of seats, asked why she was there, and she told him.  The CCTV footage corroborates this, although there is no sound, only vision.
10. [10]
    The complainant said that the appellant told her that his 17 year old daughter had an ankle injury and he was waiting for her, although later he gave a different reason for being at the hospital.  The complainant said she trusted the appellant because he was a father concerned for his daughter.  He asked her to come and sit close to him, and she did so.  Her move to sit beside him is shown in the CCTV footage.  She said that the appellant then began speaking to her repeatedly about drugs and the danger that, if the police found drugs on either her or her boyfriend, she would be taken straight to jail.  The complainant’s evidence was that the appellant kept repeating this over and over again.  At this time she felt highly intoxicated by both alcohol and MDMA.  The effect of the appellant’s repeated concerns about drugs, the police, and jail made her “kind of confused” and “scared and paranoid”.  She was also worried about the medical condition of her boyfriend.
11. [11]
    In the context of the appellant’s repeated warnings about drugs, he asked her to go outside so that he could search her for drugs in case she had any drugs on her.  She accompanied him outside and whilst she was standing he did a “pat search” on her, ostensibly to find drugs.  In the course of this he “went down the front of my shirt.  So on my boobs” and “put his hands down my pants and then put his fingers in my vagina”.
12. [12]
    The complainant said she was “really scared” and froze while this was happening.  She said that “after he finished he looks at me, and he says, ‘we should go back to the hospital and see if [the boyfriend] has any drugs on him’”.  The two then walked back inside the emergency department and she (alone) went to the reception desk to see if her boyfriend was ok.  The CCTV footage corroborates that.
13. [13]
    The complainant said that while she was speaking to the receptionist, the appellant came up and began standing close to her and talking to her and that “I don’t know what he said, but we went back outside for a second time”.  Again the CCTV footage corroborates that.
14. [14]
    The complainant had a patchy recollection of going outside the second time.  She thought they went to a bus stop where the lighting was really dim and then “he basically put his hands all over me again”.  The appellant then leaned in towards her and said, “you are so fucking beautiful.  I just want to fuck you”.  At that point the complainant said that she wanted to go back to the hospital and they did.  The complainant’s recollection was that when they went back to the waiting room a nurse called her over and said that her boyfriend was fine and she could go to see him, but she must stay away from the appellant.  She said that she told a male nurse “briefly” what the appellant had done to her and was taken to a separate room.
15. [15]
    In her evidence, the complainant acknowledged that having seen the CCTV footage, she had left the hospital for a third time with the appellant.  She said that she had no actual memory of that.  Her interaction with a male nurse, and her being taken to a separate area, away from the appellant, are shown on the CCTV footage, but after the third (not second) return to the waiting room.
16. [16]
    The complainant said that at one point the appellant had asked her to get drugs for him.  He said something, “about him stashing $40,000 or something like that away, and I would get it if he could – if I could go to Bundaberg and smuggle drugs over”.
17. [17]
    As to why she went outside with the appellant, the complainant said she was very intoxicated and, “I don’t know what he said.  I think I was just really paranoid about drugs because he was really enforcing that I had drugs on me, and because I was drunk and I had MD in my system I sort of believed that I did, and I was really paranoid that I would get in trouble.”
18. [18]
    In cross-examination the complainant said that she had bought and taken one capsule of MDMA at the nightclub; that it had come in a small clip seal plastic bag, and that she believed she still had that bag on her person at the time she was at the hospital.  She thought she gave it to the appellant during one of his “searches”.
19. [19]
    The complainant was cross-examined as to the extent of her intoxication.  She admitted that she could walk straight without stumbling or needing to be held up.  She said she knew where she was, and she could see and hear everything, but she felt “a little bit out of it”.  She said she felt paranoid about the appellant saying she would go to jail if the police found drugs on her.
20. [20]
    In cross-examination the complainant said that she had never met her boyfriend’s mother before, not even once, and did not know what she looked like.  She later resiled from this and admitted that she had met the mother once before.  She accepted that on the night or early morning with which we are concerned, the mother had yelled at her in the hospital corridor and accused her of supplying her boyfriend with drugs.  This conversation had occurred before she was taken to the waiting area.
21. [21]
    The complainant admitted in cross-examination that when police attended at the hospital that early morning, she told them that she didn’t “do drugs” and that she had not taken any drugs that night.  She admitted that both of those statements were lies and that when she made a formal statement those two lies were reproduced in it.  She acknowledged that she knew to lie in the statement was an offence.  In re-examination she said that she lied to the police about drugs because she feared that they would not believe what she said about the appellant’s behaviour if they believed her to be intoxicated with drugs.
22. [22]
    During cross-examination it was suggested to the complainant that the appellant asked her to supply him with capsules, and that after this request they went outside.  She agreed with this, and agreed that when they went outside she produced an empty small clip seal bag.  She said she did that “to prove that I did have nothing”.
23. [23]
    It was put to the complainant that after she went outside with the appellant the first time, she walked straight back to the reception desk.  She agreed.  Cross-examination proceeded on the implied assumption that she did not complain to the receptionist about what had just happened, and that lack of complaint was inconsistent with something of the nature she alleged having happened.  She explained that she was “still comprehending” or “trying to comprehend” what had happened.  She said she was “struggling to process what happened” and she was still concerned about her boyfriend’s health.
24. [24]
    She agreed with the cross-examiner that the CCTV footage showed her leaving the waiting area with the appellant after she spoke to the receptionist, but said she had no recollection of what happened at that time.  She agreed that she could not explain why she left the waiting room with a man who had just raped her.  Further, she agreed that upon returning to the waiting room with the appellant after their second excursion outside, she sat with him in the waiting room and was not scared of him.  The complainant accepted that this was shown on the CCTV footage and explained, “at that point I’d blocked everything out … and I went numb … and the paranoia kicked in again when he kept talking about drugs.  The whole conversation – whole night was just about drugs.”  The complainant could not explain why she did not go and seek help from the hospital staff.  She denied that it was because she had not been sexually assaulted or raped.  Again she said she was “still processing what was happening – what was going on”.
25. [25]
    In cross-examination the complainant agreed that she went outside with the appellant a third time.  She could not recall exactly why but she said it was because the appellant had said something “revolving around drugs”; she said, “I had no chance to process when someone keeps talking to you and drilling in your head that you have drugs and people are trying to get after you and get you when you’re on MD.”
26. [26]
    It was suggested in cross-examination that the complainant went outside with the appellant because she was very worried about her boyfriend being caught with drugs.  Further, that there was no discussion about “$40,000 or going to Bundaberg or smuggling drugs”.  Lastly, it was suggested to her that she made the complaint about rape and sexual assault, “simply to try and draw attention away from what you feared was going to happen with [her boyfriend] and any subsequent drug investigation”.  The complainant denied all these propositions.
27. [27]
    The CCTV footage is somewhat grainy but does provide fairly good vision of the complainant from the time she entered the waiting room until she was taken out of the waiting room by a male nurse.  It shows that it was the appellant who began talking to the complainant initially, and that this occurred almost immediately after she sat down upon arriving in the waiting room.  It does show the complainant leaving with the appellant three times.  After the two return to the waiting room for the first time it shows that the complainant goes to the reception desk and speaks to the receptionist by herself for some little time before the appellant joins her and they both go outside again.
28. [28]
    The CCTV footage shows that the complainant accompanies the appellant, apparently willingly, at all times.  The general impression to be gained from the CCTV footage is that the complainant does not display fear or upset at any time.  She sits close to the appellant right up until the time she stands up and walks over to a male nurse (nurse Stewart, see below) to complain about the appellant.  At times she appears to lean towards him and at various times her shoulders, arms, knees and lower legs are close to the appellant.  Without any context, the appellant and complainant appear to interact as close friends would.
29. [29]
    In short, there were points to be made for the defence case based on the CCTV footage.  However, that was but one piece of evidence.  The jury did not have the footage without any context.  They knew that the appellant and complainant had never met before.  They knew that the complainant was 19 years old, and they could see from the footage that the appellant was considerably older.  They had the complainant’s unchallenged evidence that she was intoxicated both by alcohol and drugs.  The jury was entitled to think that the footage showed unusual behaviour where two strangers of different ages and genders met for the first time and almost immediately begin a course of behaviour which sees them walk out of the waiting room three times in quick succession, along the corridors and walkways of the hospital, to a point where they are out of CCTV camera shot and then, each time return to the waiting room.  They were entitled to have regard to the complainant’s evidence as to why this occurred.
30. [30]
    Further, the jury was entitled to have regard to the evidence of the other witnesses called by the prosecution.  Nurse Burke was working in the triage area of the emergency department that night.  Her evidence was that she saw the complainant sitting in the waiting room and, “I also saw the defendant come down and come and sit next to her, which I thought was a bit odd”.  Nurse Burke was busy that night, but she “kind of kept an eye on them just to see what was happening”.  She said that after the appellant sat next to the complainant, the complainant became “a little bit uncomfortable” and a “little bit upset”.  She said that as a result she spoke to the complainant and placed her in a smaller waiting room separate from the area where the appellant was.  After she did this the appellant came to her triage desk and asked for the complainant’s mobile phone, not her mobile phone number, but the phone itself.  She refused.
31. [31]
    Nurse Burke was cross-examined about the CCTV footage.  She was not able to point to any particular part of it which supported her claims that the complainant looked uncomfortable and upset.  Nonetheless she did not resile from her evidence-in-chief; if anything, her evidence became more definite in cross-examination.  She said she had a gut feeling that something was not right.  She said she could see that the complainant’s body language was “a little bit closed off” and “being an emergency nurse over five years, I got a gut feeling that something wasn’t right between her and the defendant.  An older man befriending a younger woman – I just got a gut feeling that something wasn’t right.  And that’s when I removed her from the waiting room.”
32. [32]
    The jury was entitled to accept that nurse Burke was able to discern relevant matters as to the complainant’s demeanour that cannot be discerned from the grainy CCTV footage.  They were also entitled to consider nurse Burke’s evidence together with that of nurse Stewart.  He was the male nurse who the complainant “briefly” told of the appellant’s behaviour.  The complainant’s interaction with nurse Stewart is recorded on the CCTV footage and the jury was entitled to have regard to the fact that the complainant sat close to the appellant, in an apparently friendly way, right up until the time she got up, walked across the waiting area and, on her evidence, and nurse Stewart’s evidence, made a complaint to nurse Stewart.
33. [33]
    Nurse Stewart recalled that at the time the complainant complained to him she appeared anxious and uncomfortable.  That was not challenged in cross-examination, but the jury was entitled to think that it did not appear on the CCTV footage that the complainant was anxious and uncomfortable when speaking to nurse Stewart.  A conclusion legitimately available to the jury was that the CCTV footage was of too poor a quality to capture these fine details as to emotion described by nurse Burke and nurse Stewart.
34. [34]
    Nurse Stewart gave a statement to the police that the complainant told him “she had been groped in the waiting room”.  There was some attempt to clarify whether this meant she had been groped while she was in the waiting room, or groped by another patient in the waiting room.  Nurse Stewart adhered to the former meaning, but in the course of his evidence he said that he did not have a recollection anymore, and was simply working from what he had in his police statement.
35. [35]
    The complainant’s father gave evidence that the complainant rang him at 2.23 am on 22 February 2020.  She said she loved him and that she was sorry to have disappointed him and let him down.  He said she went on to say that she had been assaulted by a man who had touched her inappropriately on the breasts and placed his hands under her clothing and touched her vagina.  He was asked how the complainant seemed when speaking to him about these things and he said “I knew something was up as soon as she started speaking.  She sounded petrified, she was very scared, very emotional, cried extensively.”  The complainant’s father was not cross-examined.
36. [36]
    The police were called to the hospital and the jury had vest-cam footage of their interaction with the complainant, beginning at 3.25 am.  The complainant was initially a little teary as she began speaking to police, but she quickly recovered.  She then gave what the jury was entitled to think was a somewhat confused account of the events of the evening and early morning.  She begins by saying that her boyfriend had been brought into hospital after taking MDMA.  She explains that the appellant approached her and told her that if she had any drugs on her she would go straight to jail, and that he had asked her to let him search her and he had walked her outside to a place where he said there were no cameras.  She tells police that he asked her “to do a job” for him to make $40,000 by driving to Bundaberg and getting cocaine.  All of this information about drugs was amongst the first things the complainant told police.  The jury was entitled to think it did not sit well with the defence suggestion that her claims against the appellant were to distract attention from her, and her boyfriend’s, minor drug use.
37. [37]
    The complainant told police that on two occasions when the appellant took her outside to a place where there were no cameras he “felt me up”; put his hands down her pants and her top, and that this involved penetration.  She says that she complained to nurses that she did not want to be in the waiting room with him and asked for their help because the appellant had sexually assaulted her twice.  When police ask her why she went outside with the appellant she says that he told her that if she had MDMA on her she would go straight to jail and “obviously I panicked I was like I don’t have any MD on me and he’s like oh let’s just check and when I don’t have anything and like I was a bit like drunk as well so um and he’s like oh let’s just check let’s just check”.
38. [38]
    The complainant tells police she is not a drug user, that “I’ve only used it [MDMA] occasionally”.  She says that she had only taken alcohol that evening.
39. [39]
    Police ask her whether she wants to “start [the complaint] process now” or whether she wants “some time to think about it”.  She says that she wants to telephone her father.  The police say that they will get some more details from the hospital staff and that if she does decide to make a complaint she can attend any police station convenient for her to do so.  It seems that the complainant rang her father a second time and decided to make a complaint.  This seems to have been communicated to police at the hospital.  An arrangement was made for a medical examination there and then, at the hospital.
40. [40]
    An examination was made of the complainant’s vulval and perianal areas.  There was an admission before the jury that the appellant’s DNA was not located on these swabs.  The admission extended to the information that this did not mean there had been no contact by the appellant; it was possible to have had contact without detectable amounts of DNA being transferred.
41. [41]
    A nurse practitioner from the Royal Brisbane Hospital, nurse Brownly, gave evidence that at about 5.00 am on the relevant morning she took the abovementioned swabs.  She obtained a version of events from the complainant which included the complainant telling her about going outside on two occasions and that on both occasions the appellant penetrated her vagina with his fingers.

Argument as to Unreasonable Verdicts

42. [42]
    Eight arguments were advanced in support of the unreasonable verdict ground.  I deal with each in turn.
43. [43]
    1.  CCTV.  The appellant said that objective evidence of conduct seen on the CCTV footage contradicted the complainant’s evidence; that this went to credit and reliability, and ought to have caused a reasonable doubt.  It was said that the complainant’s observable behaviour did not show signs of distress; her body language was not fearful, and she did not show any signs of paranoia.
44. [44]
    I have already dealt with the substance of this submission at [27] – [33] above.  There were points to be made in favour of the defence case from the CCTV footage.  However, the jury was entitled to view that footage in a context that the complainant was a young, intoxicated girl alone in the waiting room of an emergency department in a large public hospital.  Her boyfriend had collapsed after taking drugs; they had both been taken to hospital in an ambulance, and she was concerned about his health.  She had never previously met the appellant.  He is obviously much older than her.  He approaches her first.  On the footage, they appear to behave like close friends.  They quickly engage in three trips outside the waiting room and outside the range of the hospital’s CCTV cameras.  The jury was entitled to think that, viewed in this context, the CCTV footage showed something distinctly odd.
45. [45]
    The jury was entitled to have regard to the fact that the complainant sits closely beside the appellant right up until the point she walks over to complain about him.  The jury was entitled to accept nurse Stewart’s evidence that the complainant was anxious and uncomfortable at the time she complained to him, even though this is not apparent on the CCTV footage.  The jury was entitled to accept nurse Burke’s evidence that the complainant looked uncomfortable well before she complained to nurse Stewart, even though this is not apparent on the footage.  The CCTV quality was not poor, but it was well short of the quality one normally sees on television.  The jury was entitled to conclude that finer details as to body language and emotion were not captured by the CCTV footage.
46. [46]
    The jury saw and heard the complainant.  They heard her explanations for her behaviour on the night.  There was no challenge to her evidence that she had consumed quite a quantity of alcohol and, in addition, one capsule of MDMA.  It was well within the jury’s province to conclude that her interactions with the appellant could be explained by intoxication, in addition to her youth, and the unfamiliar situation in which she found herself.  The complainant’s evidence of the effects of intoxication on her was tested in cross-examination.  However, that she could walk without support and knew where she was, did not mean that her evidence that she was confused and paranoid could not be accepted.  The jury was entitled to think that there was objective evidence supporting intoxication: her patchy recollection of the events involving the appellant, both to the police on the vest-cam footage, and at trial.
47. [47]
    There was nothing in the CCTV footage which meant that the jury “must, as distinct from might, have entertained a doubt about the appellant’s guilt”.^[1]  As discussed above, it was open to the jury to interpret parts of the CCTV footage unfavourably to the defence case when viewed against the whole of the evidence.
48. [48]
    5 and 6.  Inconsistent behaviour.  Closely associated with this first point, the appellant argues that the jury must have had a reasonable doubt about guilt because there was a lack of any reasonable explanation for the complainant going outside with the appellant in circumstances where she did not know him; she was leaving the safety of the hospital, particularly after the first assault and rape; she continued to associate with the appellant after the first assault and rape, and she did not report the first assault and rape when she returned to the hospital and spoke to the receptionist by herself, or otherwise seek help from the hospital staff.  Criticism was mounted as to her patchy memory of the occasion on which she says the appellant sexually assaulted her, and criticism was made of her explanation about why she went outside to allow the appellant to search her for drugs when she knew she did not have drugs on her, particularly after the first “search”.
49. [49]
    These are all points which could be advanced to the jury in favour of the appellant below, and they were.  The jury was entitled to accept the complainant’s evidence of intoxication and of being confused, paranoid and slow to process what was happening to her as reasons for her behaviour.  The jury was entitled to take into account that there was no evidence of any explanation, except the complainant’s explanation, for going outside with the appellant in unlikely circumstances as impacting negatively on the appellant’s case.  None of the evidence about these matters meant that the jury must have rejected the complainant’s evidence or that the jury must have rejected the complainant’s credit or reliability.  None of them meant that the jury must have had reasonable doubt about the alleged offences.
50. [50]
    2.  Clothing.  The second argument the appellant advanced in respect of this ground was that the complainant’s clothing was inconsistent with the appellant being able to insert his fingers into her vagina.  The evidence at trial, which was not the subject of cross-examination, was that the complainant was wearing stretchy leggings.  There was no proper basis for this argument to be advanced on appeal.
51. [51]
    3.  Lies.  The appellant relied on the fact that the complainant told lies to police about her drug use and lied to cross-examining counsel about whether or not she knew her boyfriend’s mother.  These were dishonest answers given by the complainant.  The jury was entitled to regard them as minor in the scheme of the case as a whole.  Rationally, they did not prevent the jury accepting the complainant’s evidence on matters which established the prosecution case against the appellant.
52. [52]
    4.  Inconsistent Statements.  The fourth point made by the appellant was that the evidence showed the complainant had made inconsistent statements about the offending.  She told nurse Stewart she had been groped in the waiting room, rather than outside, and told nurse Brownly that the appellant had digitally penetrated her vagina on two occasions, not one.
53. [53]
    These inconsistencies were points upon which the defence case could legitimately rely.  They were points which could be considered by the jury, but they were not points which meant that the jury must have a reasonable doubt about the complainant’s evidence of the offending.  The complainant gave an account consistent with her evidence in Court to the police on the early morning of the offending.  She gave an account consistent with her evidence to her father on the early morning of the offending.  Nurse Stewart and nurse Brownly were peripherally involved in the events surrounding the offending; nurse Stewart was male and the complaint to him was brief.  They gave evidence that the complainant complained of sexual assault or assaults by the appellant, it was the detail of the complaints that was different to the complainant’s evidence in Court.  The jury saw and heard all three witnesses.  They were entitled to take the view that even if the complainant had made statements to nurse Stewart and nurse Brownly in the terms she did, the truth was as she told the police, her father, and the Court during her evidence.
54. [54]
    7.  Intoxication.  The seventh point raised by the appellant was that there was no corroborated evidence of the complainant’s “assertions of intoxication”.  Defence counsel below did not challenge the complainant’s evidence about the alcohol and drugs she had consumed on the night.  In cross-examination, he explored with her the effect on her of these substances.  As noted above, the jury was entitled to think that the complainant’s confused account to police was consistent with intoxication.  Even if there was no corroboration of the complainant’s evidence, the jury was entitled to accept the complainant’s evidence about intoxication; there was no evidence to the contrary.  In my view, this point was not arguable in support of this appeal ground.
55. [55]
    8.  DNA.  Nor was the eighth point raised:  the lack of DNA evidence.  The terms of the admission as to the DNA evidence was clear.  It provided no independent assistance to the Crown case, but it did not diminish the remaining evidence in the Crown case.
56. [56]
    The question for this Court is whether or not upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.^[2]  It is only when, “even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, [that this Court] is bound to act and to set aside a verdict based upon that evidence.”^[3]  Although there were points to be made in favour of the appellant on the evidence, the jury obviously rejected them and it was entitled to do so: none of the points raised were such that a jury acting rationally ought to have entertained a reasonable doubt as to proof of guilt.  This ground of appeal must fail.

Direction as to distressed condition

57. [57]
    Three complaints were raised.  They must all fail, I explain why.

(1)  Evidence wrongly left as Evidence of Distressed Condition

58. [58]
    The prosecutor did not open any evidence of distress.  She led evidence of distress from the complainant’s father – see [35] above.  The complainant briefly burst into tears at the beginning of the video footage captured by the police vest-cam, but quickly enough recovered.
59. [59]
    In the absence of the jury, at the conclusion of all the evidence, the trial judge asked counsel whether or not either of them suggested a distressed condition direction was appropriate.  Counsel for the appellant said that it was, because he understood that the Crown relied upon “it” as proof.  The prosecutor confirmed this.  The trial judge confirmed that the evidence came from the complainant’s father, and enquired whether it came from any other source.  The prosecutor answered, “No, your Honour, from her father mostly.  There is her crying when the police initially walk into the room to take a version from her but it’s mostly from her father.”  That was the end of the discussion.  While there is some ambiguity in what the prosecutor says, I think her position was that the only evidence of distressed condition came from the father.
60. [60]
    The prosecutor addressed the jury as follows:

“His Honour will give you directions on what lawyers call ‘complaint evidence’. This evidence does not independently prove anything, it just allows you to compare. So from the complainant’s father, Ryan, he told you that about 2.33 am on 22 February, [the complainant] called him. She said a man had assaulted her, he had touched her breasts and placed his hands under her clothing and touched her vagina. You heard him say that she was distressed, she was crying. You can use this evidence to support that the complainant was raped. I suggest, you can use this evidence to support that the complainant was raped by the defendant.

You also heard from Samuel [Stewart] who was working in the fast track area of the hospital, the complainant disclosed to him that she was groped. You also watched the body camera footage from Officer Cooper. You saw that the complainant was upset when the police initially entered the room, pardon me, and you heard and saw the complainant disclose the offending to him. So that is a body of evidence that can be used to assess [the complainant’s] credit because of consistencies in that evidence may boost her credibility in this case.” (my underlining).

61. [61]
    The prosecutor relied upon evidence of the complainant’s distressed condition when speaking to her father as evidence supporting rape by the appellant.  The complainant’s upset when talking to police is mentioned, but the prosecutor puts it as evidence which can be used to assess credit, not evidence which corroborates proof of rape.
62. [62]
    In his address defence counsel criticised the complainant for not complaining straight away to hospital staff.  He said her first complaint was to nurse Stewart and noted the discrepancy between nurse Stewart’s evidence and the complainant’s evidence.  Defence counsel moved from there to what the complainant said to her father and notes that she did not go into detail other than to say she was touched on the breasts and vagina.  He then noted that the complainant told nurse Brownly there were two episodes of digital penetration and said:

“So that preliminary complaint is simply – and you saw the body‑worn camera footage when the police first spoke to her.  All of that is preliminary complaint.  It’s simply put before you to assist you in making a determination of the credit of the complainant.  It can’t be [used] to prove that an offence occurred … I’d suggest to you that her preliminary complaint starts quite poorly and grows and it certainly does not assist you in bolstering her credibility.  It tends largely to detract from it.”

63. [63]
    In a separate part of his address defence counsel said of the complainant:

“She is distressed, and you’ll be told about distressed condition.  The Crown case is based partly on the distressed condition that she displayed when she spoke with her father.  What’s the first thing she said to her father? ‘I’m sorry I disappointed you.’  You might think that’s more likely to be a reference to drugs, or just as likely to be a reference to drugs as it is to anything else.  It is made well after you saw her on the video in the waiting room and you will recall that she was upset at least at the start of when she was talking to the police officers when she first spoke to the police and it was recorded on the body‑worn camera.  So be very careful about distressed condition, ladies and gentlemen, I would suggest, because there is a whole period of time there where she was completely the opposite of distressed at a time when you’d think she would have been extremely distressed …” (my underlining).

64. [64]
    In summing up the trial judge first dealt with preliminary complaint: what the complainant said to her father; nurse Stewart; the police on the vest-cam recordings, and lastly to nurse Brownly.  In respect of the complaints to nurse Stewart and nurse Brownly, he points out the discrepancies between their evidence of what the complainant said, and the complainant’s evidence.  Then, of all these parts of the evidence, he says:

“Now, the evidence from each of those witnesses and on that tape recording [vest-cam recording] may only be used as it relates to the complainant’s credibility.  Consistency between those accounts and the complainant’s evidence before you is something you may take into account as possibly enhancing the likelihood that her testimony is true.  However, you cannot regard the things said in those out of court statements by the complainant as proof of what actually happened.  In other words, evidence of what was said on those occasions may, depending on the view that you take of it, bolster the complainant’s credit because of consistency, but in and of itself it does not independently prove anything.

Likewise, any inconsistencies between any of those accounts and the complainant’s evidence before you may cause you to have doubts about the complainant’s credibility or reliability.  Now, whether consistencies or inconsistencies, if you find there to be any, impact on the credibility or reliability of the complainant is entirely a matter for yourselves.  Inconsistencies in describing events can be relevant to whether or not evidence about them is truthful and reliable, and the inconsistencies, if you find there to be any, are a matter for you to consider in the course of your deliberations.

But you should remember that just the mere existence of inconsistency does not mean that of necessity you must reject the complainant’s evidence.  Some inconsistency is to be expected, you might think, ladies and gentlemen, because it is natural enough for people who are asked on a number of different occasions to repeat what happened at an earlier time to tell a slightly different version each time.” (my underlining).

65. [65]
    That is, the trial judge left the preliminary complaint to the police officers which was recorded on the vest-cam to the jury as complaint evidence, not as evidence of distressed condition.  He made it clear that the evidence could not be used as proof of what, if anything, happened to the complainant; it could only be used as to credit.  That was the correct way to deal with it in my view.
66. [66]
    Immediately after the above passage the trial judge went onto deal with evidence about distressed condition:

“You also heard from the complainant’s father about one other piece of evidence that I need to direct you in relation to. He was asked about that telephone conversation that he had with his daughter. The question was:

And can you tell me how [the complainant] was acting when she told you these things?---I knew something was up as soon as she started speaking. She sounded petrified.  She was very scared, very emotional, cried extensively.

Now, that evidence of her distress has been placed before you by the Crown because the Prosecutor submits that you can use that evidence in support of the evidence that the complainant was sexually assaulted and raped by the defendant. It is a matter for you, as the sole judges of the facts, whether you accept the evidence relating to the complainant’s distressed condition.

If you do, then you have to ask yourself: was the distressed condition genuine, or was the complainant pretending, or was she putting on the condition of distress, or was there any other explanation for the distressed condition at the time? It is customary for judges to warn juries that you ought to attach little weight to distressed condition, because it can be easily pretended, but if you find that the distress was genuine, then it may be used by you as evidence that supports the complainant’s account.” (my underlining).

67. [67]
    That is, the only evidence left to the jury as evidence of distressed condition which could, in certain circumstances, be used to support the complaint that she was sexually assaulted and raped, was the evidence of distress given by her father.
68. [68]
    I reject the appellant’s argument that there was real concern about what evidence was left to the jury as evidence of distressed condition.  Further, I reject the submission that evidence of distress when talking to police was left to the jury as evidence of distressed condition.  It plainly was not.  To the contrary, it was plainly left as complaint evidence and the jury were warned to use it as only going to credit.  Further, a submission was made that nurse Burke’s observation of the complainant’s emotional state was left as distress evidence; it plainly was not.

(2)  Context or Narrative Direction not given

69. [69]
    The appellant submitted, presumably in the alternative to the point just dealt with, that if the evidence of nurse Burke and nurse Stewart as to their observations of the complainant’s emotional state was not put to the jury as evidence of distressed condition, the Judge ought to have said so, and said that their observations were only as to context or narrative – R v Iongi.^[4]
70. [70]
    There may be cases in which witnesses give evidence of a complainant being distressed and there is some reason (eg., lapse of time between alleged offence and distress) that the jury should not use the evidence as corroboration of the complaint.  In such a case no doubt it will be appropriate to tell the jury so.  Here there was no evidence given by nurse Burke, nurse Stewart, or on the vest-cam footage which could be properly categorised as evidence of distressed condition.  That made it unlikely that the jury would use any of that as evidence of distressed condition, ie., corroborating the complainant.  Further, the primary judge told the jury that so far as the evidence of nurse Stewart and the evidence recorded on the vest-cam footage recorded evidence of preliminary complaint, the jury were to use it as going to credit only.  I think there was a clear differentiation in the direction between this type of evidence and the direction given as to evidence from the complainant’s father about distressed condition.
71. [71]
    The present case is different from the case of Iongi.  There, there was a fairly slight observation of shock which was accepted to amount to evidence of distressed condition contemporary with the conduct alleged, but much more distress in fact (crying, et cetera), when the complainant spoke to her mother some days later.  The trial judge directed the jury that they could use the shocked expression as corroboration, but not the actual distress, some days later, because of the lapse of time.  In Iongi, without the direction, there was a real possibility that the jury might have used the evidence of actual distress at a remote time as evidence of distressed condition (and corroboration) if not properly warned.  I do not think there was a realistic possibility of that occurring in the present case, having regard to the nature of the evidence from nurse Burke, nurse Stewart and the vest-cam footage.  That is, I do not think it is reasonably possible that the jury would have used this evidence to corroborate the truth of the complaint made against the appellant.^[5]  Here, there was no need for a direction such as that given in Iongi.

(3)  Inadequate Direction as to Distress

72. [72]
    It was said that the Judge’s direction as to evidence of distressed condition was inadequate because it did not address the lapse of time until the manifestation of the distress, and did not address the absence of distress which can be seen on the CCTV footage.  An additional submission was made that the Judge should have directed the jury to consider other rational explanations for the complainant’s distress including tiredness; concern about her boyfriend’s health; her earlier interaction with her boyfriend’s mother, and her having used drugs.
73. [73]
    It will be recalled that the complainant’s father was not cross-examined.  Thus, it was not suggested to him that the complainant was not distressed.  It was not suggested to him that the reason for her distress was anything other than the main subject of the conversation between them: the sexual assault on her.
74. [74]
    The central plank of the defence case, evident in cross-examination, and in defence counsel’s address to the jury, was that the best evidence of how the complainant and appellant interacted during the relevant time was the CCTV footage.  As counsel for the DPP submitted in this Court, the appellant’s case to the jury was not simply that the complainant was not distressed on the CCTV footage: it was that for about half an hour she was relaxed and comfortable in the presence of the appellant, accompanying him willingly outside on three occasions; sitting, standing and walking closely beside him, and making no effort to complain to hospital staff of what she later said was going on.  This evidence must have been in the forefront of the jury’s mind by the time of the summing up, so it is difficult to see how the trial judge’s direction to the jury to consider whether or not the complainant’s distressed condition when speaking to her father was genuine or a pretence would not have invited them to consider exactly that evidence.
75. [75]
    In any case, at a later point in the summing up, when the trial judge summarised the defence case to the jury, he said:

“… it was submitted that, when you looked at the video recording of the CCTV footage, that each time the complainant returned inside with the defendant, she appeared to be perfectly comfortable in his company. And it was also submitted that you would not accept her evidence when she said that she had no idea that her boyfriend had taken the drug MD, as she referred to it, that night, when she had done the same thing herself with the same drug.

It was submitted that she was, on her own evidence, an admitted liar, that she had a vague memory, at times being non-existent, and that she demonstrated behaviour inconsistent with her allegations. Any distressed condition may be relevant only to her drug use, and could not sway you insofar as your deliberations are concerned, and that, ultimately, you would have, for this combination of reasons, a reasonable doubt in respect of each of the three charges.” (my underlining).

76. [76]
    Evidence of distressed condition is circumstantial evidence and the purpose of warning the jury about it is to ensure that the jury does not use it irrationally, or use it for a purpose which it cannot logically support.  In the circumstances of this case, it is my opinion that the direction to the jury sufficiently alerted them to the dangers of using the complainant’s distressed condition when speaking to her father without considering whether or not it was genuine; consistent with her prior behaviour, over a substantial period of time, with the appellant, and whether or not it was caused by the sexual assault and rape or by something else.

Summing up as to Preliminary Complaint – Nurse Brownly’s Evidence

77. [77]
    As discussed above, the trial judge spoke to the jury about preliminary complaint evidence and in this regard included what the complainant said to her father, nurse Stewart, the police who recorded their conversation on vest-cam, and nurse Brownly.  Relevantly to nurse Brownly, his direction was as follows:

“You also heard evidence from a number of sources of what the complainant said to some other people, which is what lawyers refer to as a preliminary complaint. …

...

… And then you heard this morning from another nurse, Ms Brownly, who said that the complainant told her that she went outside twice with the defendant and he penetrated her vagina with his fingers both times.”

78. [78]
    Immediately after the last sentence in the quotation above, the judge gave the direction which is set out at [64] above commencing with the words “Now, the evidence from each of those witnesses … may only be used as it relates to the complainant’s credibility. ….”.  The Judge warned the jury to look for consistency or inconsistency between, relevantly here, what nurse Brownly swore was said to her, and the complainant’s evidence.  He warned the jury that inconsistency between, relevantly here, nurse Brownly’s account and the complainant’s account might cause them to have doubts about the complainant’s credibility or reliability.
79. [79]
    Once the jury retired to consider their verdict, both counsel indicated they had nothing arising from the summing up.  Around an hour later they returned to Court in the absence of the jury.  The prosecutor explained that nurse Brownly had been made available for cross-examination so that the defence could lead evidence of a “prior inconsistent statement” of the complainant, viz, two acts of digital penetration.  The prosecutor said that she was seeking a redirection that nurse Brownly’s evidence was not complaint evidence, but her evidence was to be used only as a “prior inconsistent statement”.
80. [80]
    At the outset I will state my view that there was confusion on the part of counsel at this point of the trial and that confusion continued in this appeal on the part of the appellant’s counsel.  It was very much against the appellant’s interests to have nurse Brownly’s statement treated as a prior inconsistent statement, and I cannot think his counsel meant to have her evidence treated in that way.  I think the appellant’s counsel at trial simply wished to have the opportunity to cross-examine nurse Brownly to introduce evidence showing that the complainant had given a different version of the offending to nurse Brownly so that he could tell the jury that this reflected poorly on her credit.  This is all defence counsel did do in his address to the jury; he did not tell the jury that they could use the complainant’s statement to nurse Brownly as truth of its contents because it was a prior inconsistent statement.  I continue to explain what happened at trial before returning to this idea.
81. [81]
    Discussion between counsel and the trial judge in the absence of the jury turned to whether or not nurse Brownly’s evidence was preliminary complaint evidence.  The complaint to nurse Brownly was given after the complainant spoke to police at the hospital (recorded on vest-cam).  It appears that another interaction with police occurred before the conversation with nurse Brownly.  The prosecutor informed the Judge that after the “vest-cam conversation” with police, the complainant spoke to her father (a second conversation) and decided to make a formal complaint.  She then spoke to detectives from the Criminal Investigation Branch; told them she wanted to make a formal complaint, and gave her version of events.  It was after that, that she spoke to nurse Brownly.  The trial judge said:

“So she’s spoken to some investigators, given them some details of her account.  I take it they were to go away, prepare a statement, bring it back to her.  She would proofread it, check it to make sure that it was accurate, make any changes that are required, before ultimately signing it, if she’s satisfied as to its accuracy.”

82. [82]
    The prosecutor agreed that statement was accurate, and defence counsel said nothing to the contrary.
83. [83]
    Section 4A of the Criminal Law (Sexual Offences) Act 1978 (Qld) defines a preliminary complaint as follows:

“preliminary complaint means any complaint other than –

1. (a)
   the complainant’s first formal witness statement to a police officer given in, or in anticipation of, a criminal proceeding in relation to the alleged offence; or

2. (b)
   a complaint made after the complaint mentioned in paragraph (a).

Example –

Soon after the alleged commission of a sexual offence, the complainant discloses the alleged commission of the offence to a parent (complaint 1).  Many years later, the complainant makes a complaint to a secondary school teacher and a school guidance officer (complaints 2 and 3).  The complainant visits the local police station and makes a complaint to the police officer at the front desk (complaint 4).  The complainant subsequently attends an appointment with a police officer and gives a formal witness statement to the police officer in anticipation of a criminal proceeding in relation to the alleged offence (complaint 5).  After a criminal proceeding is begun, the complainant gives a further formal witness statement (complaint 6).

Each of complaints 1 to 4 is a preliminary complaint.  Complaints 5 and 6 are not preliminary complaints.”

84. [84]
    In my opinion the conversation recorded with police on vest-cam does not answer the description in paragraph (a) of the definition of preliminary complaint.  There was no formal witness statement given, and at that stage there was no anticipation of a criminal proceeding in relation to the alleged offence.  Whether the complainant wished to begin the process which would lead to such a criminal proceeding was a decision which, expressly, she had not made.  The factual situation was equivalent to (or indeed lesser than) complaint 4 in the legislative example.  The vest-cam conversation with police was, without objection, put to the jury as a preliminary complaint.
85. [85]
    On the basis of what was said to the trial judge when redirections were sought, there was an argument that there had been a “formal witness statement to a police officer” before the conversation with nurse Brownly, so that nurse Brownly’s evidence was not properly regarded as a preliminary complaint.^[6]  Because there was no evidence about this matter, this Court is at a disadvantage, not knowing what the exact facts were.  In other words, the appellant has not discharged the onus on him to show that nurse Brownly’s evidence was not properly regarded as a preliminary complaint.  Further, it is not part of the appellant’s case that the trial miscarried because nurse Brownly’s evidence was admitted, even though it was not a preliminary complaint.  It was the appellant’s counsel below who made an arrangement with the prosecutor so he could lead nurse Brownly’s evidence.  It was perceived that there was a forensic advantage in telling the jury that the complainant had said something to nurse Brownly as to the detail of the sexual assault upon her which differed from her police statement and her evidence.
86. [86]
    The argument advanced by the appellant’s counsel in this Court was not that nurse Brownly’s evidence should not have been before the jury, but that “a prior inconsistent statement direction” ought to have been given in relation to it.  This argument is quite misconceived.  Whatever was said below as to an arrangement that nurse Brownly be made available so that “a prior inconsistent statement” could be led from her, the arrangement was surely only that the prosecutor would make nurse Brownly available for cross-examination so that defence counsel could lead from her a statement about the alleged sexual offending which was inconsistent with the complainant’s evidence.  It defies belief that defence counsel in fact wished to put a prior inconsistent statement to nurse Brownly, complying with s 18 of the Evidence Act 1977 (Qld) so that, pursuant to s 101 of the Evidence Act, he could use the prior inconsistent statement as evidence of the facts stated in it: namely that the appellant had digitally raped the complainant twice.  To do so would be to introduce evidence of worse offending than had been charged and, possibly in the jury’s mind, to explain what might have happened on the third occasion (unremembered by the complainant) on which the complainant and appellant left the hospital waiting room.
87. [87]
    In his address to the jury, defence counsel said that the complainant:

“… spoke to nurse Brownly who you heard from this morning, who recalled that she said that there were two episodes of digital penetration, but the complainant in her evidence-in-chief said that there was only one.

So that preliminary complaint is simply – and you saw the body‑worn camera footage when the police first spoke to her.  All of that is preliminary complaint.  It’s simply put before you to assist you in making a determination of the credit of the complainant. …”

88. [88]
    That is, defence counsel drew the factual discrepancy between the complaint nurse Brownly said she received and the complainant’s evidence to the attention of the jury, but went no further.  It was plain that defence counsel wished to use the difference between the detail of what the complainant said to nurse Brownly and her evidence to attack her credit.
89. [89]
    There is nothing sensible in this ground of appeal.

Failure to Direct about Discreditable Conduct

90. [90]
    The submissions of the appellant in relation to this ground of appeal relate to the complainant’s evidence that the appellant offered her $40,000 to drive up to Bundaberg to smuggle drugs.  The appellant submitted that “The jury should have been told the use to be made of the evidence, that it wasn’t led for its truth, and that even if they believed it to be true, to not engage in reasoning towards guilt.  The effect of the evidence as left, without directions, was not only prejudicial on its own, but would have led the jury to the inescapable conclusion that the offer was true and the conduct was true.”
91. [91]
    This evidence was led from the complainant in chief and was also in the “vest-cam conversation” with police.  No objection was taken to it.  Defence counsel cross‑examined about it.  In her address to the jury, the prosecutor referred to this as a “strange and very specific detail to remember, if this [the complaint] was made up”.  That is, the prosecutor did not rely upon the evidence as being true, but as something which the jury could use to assess the complainant’s credibility.
92. [92]
    Defence counsel used the evidence for the same purpose, saying:

“Not only is she confused about how many times she went outside, on the second occasion, she doesn’t even know why.  She could not remember any conversation about the second exit.  Ultimately and belatedly, she remembered that on the second occasion, she was apparently offered $40,000 to go to Bundaberg to smuggle drugs. …

So what I’m suggesting to you, ladies and gentlemen, [is] that it raises a serious question about whether or not her belated complaint [of sexual assault and rape] was to draw attention away from her involvement in drugs made in a panic. …”

93. [93]
    The trial judge mentioned the matter when summarising the prosecutor’s submissions.  He said, “It was also submitted that her evidence of the defendant speaking to her as to wanting her to travel to Bundaberg to pick up some drugs for large amounts of money was a detail that you would view as being incapable of fabrication because of its unusual features and has the ring of truth as having been said”. (my underlining).
94. [94]
    The appellant’s counsel submitted that this comment by the Judge “elevated” the evidence “in a manner that could only lead the jury to understand that it was led said to be the truth to have been offered and true in itself”. (sic).  I reject this.  The Judge’s comment makes it perfectly plain that the evidence was not being led for its truth.
95. [95]
    The appellant’s counsel also submitted that the evidence was highly prejudicial and without a warning that they were not to use it as to its truth, the jury was likely to think that not only had the comment been made by the appellant, but that it was a genuine offer, ie., that it was true that he could arrange such a drug supply.  It was said that in circumstances where the complainant said the appellant had spoken to her relentlessly about drugs, a direction against propensity reasoning ought to have been given.
96. [96]
    I think the Crown submission on appeal that a propensity reasoning direction would have done more harm than good to the appellant’s case is correct.  Such a direction would have assumed the truth of the statement that the appellant was able to organise a large drug supply in circumstances where neither counsel put the evidence before the jury as being true.
97. [97]
    It is a separate question whether or not there should have been a warning to the jury that there was no evidence that the appellant was in fact able to organise a large drug supply and that neither counsel relied on his statement as being true.  Such a warning might have been given.  However, in the circumstances of this case, where neither party put the evidence before the jury as being true, I cannot see that any miscarriage of justice resulted from the lack of such a warning.  That is, I cannot see that it was reasonably possible that without such a warning the evidence may have affected the verdict.^[7]  Neither counsel asked for such a warning.  Both counsel relied upon the evidence as supporting their respective cases and there was no suggestion by anyone that the evidence might possibly be true.
98. [98]
    I cannot see any merit in the grounds of appeal advanced by the appellant either individually or collectively.  This appeal must be dismissed.
99. [99]
    FLANAGAN JA:  I agree with Dalton JA.