R v Han[2022] QCA 199

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Flanagan J.
2. [2]
   DALTON JA:  I agree with the orders proposed by Flanagan J and with his reasons.
3. [3]
   FLANAGAN J:  After an eight day jury trial before Rackemann DCJ, the appellant was convicted of one count of rape (count 2) and three counts of unlawful and indecent assault (counts 1, 3 and 4).
4. [4]
   The appellant advances three grounds of appeal:

   1. (a)
      the verdict of the jury was unreasonable in all of the circumstances (Ground 1);
   2. (b)
      there was a miscarriage of justice because the learned trial judge failed to adequately direct the jury about the use that could be made of a pretext call (Ground 2);
   3. (c)
      there was a miscarriage of justice because of the material inaccuracies in the interpretation of the appellant’s evidence at trial (Ground 3).

Ground 1

5. [5]
   The issue raised by Ground 1 is whether this Court, as an appellate Court, is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence pursuant to section 668E(1) of the Criminal Code (Qld).  On the authority of M v The Queen,^[1] this involves a determination as to “whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the [appellant] was guilty”.^[2]
6. [6]
   In Pell v The Queen (2020) 268 CLR 123 at 145, [39], the High Court observed:

“The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable.  The court examines the record to see whether, notwithstanding that assessment either by reason of inconsistencies, discrepancies, or other inadequacy, or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.”

7. [7]
   Ground 1 is primarily advanced in relation to count 4 which concerns the conduct of the appellant touching the complainant’s buttocks twice.  The appellant submits it was not open to the jury, acting rationally, to be satisfied beyond reasonable doubt that the complainant’s account was both credible and reliable.  This is because her account was inconsistent with both CCTV footage and the DNA evidence.  Moreover, this independent evidence was consistent with the appellant’s account.  These inconsistencies in the evidence should, according to the appellant, lead this Court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted.^[3]  In light of these inconsistencies, the appellant submits that the jury should have entertained reasonable doubt in relation to count 4.  This doubt should have in turn affected the jury’s assessment of the credibility and reliability of the complainant’s evidence in relation to counts 1 to 3.

   1. (a)
      The complainant’s evidence
8. [8]
   As at the date of the offending, Friday 18 October 2019, the complainant was 20 years of age.  The appellant was 29 years old and married.  He is a Chinese national.  The complainant was working as an assistant nurse at an aged care home at Sandgate, where the appellant worked as a registered nurse.  He was the complainant’s supervisor.  The complainant would report to the appellant on any change in the behaviour of a resident or if a resident required to see a registered nurse.  The complainant commenced working at the aged care home in 2017 and she would see the appellant at work approximately once a week.
9. [9]
   The complainant travelled to and from work by train.  The train station was around a 30 minute walk from the aged care home.
10. [10]
    The complainant only associated with the appellant during working hours.
11. [11]
    On 18 October 2019, the complainant was working a 7.00 am to 3.00 pm shift.  At the end of her shift she went to the staff room to obtain her bag and saw the appellant washing his hands.  The appellant enquired as to how the complainant was getting home.  When she replied that she was catching the train, the appellant offered her a lift to the train station.  On arrival, the appellant pulled his vehicle into the two minute drop off zone.  The appellant was asking the complainant a number of questions, including what she liked to do in her spare time.  The appellant suggested since they were talking they should go to the carpark.  He exited the train station and drove into the carpark.  He told the complainant that he did not have many Australian friends and he wanted to know more about Australia.
12. [12]
    The complainant missed her train which arrived at 3.31 pm.  The appellant suggested that as the complainant had missed her train they should drive somewhere else to talk as they had their work uniforms on.  The complainant’s next train was due to arrive in 30 minutes time.  Before the complainant could respond, the appellant commenced reversing out the carpark.  He drove to the waterfront on Flinders Parade which was about 5 minutes away.  Having parked the vehicle, the appellant commenced to ask the complainant what she described as “inappropriate questions”.  These included whether the complainant had a boyfriend to which she replied “no”.  The appellant told her that when he arrived in Australia he did not understand what the term “friends with benefits” meant.  He asked the complainant to explain this term to him.  She explained that it is having sex with someone who is only a friend.  The appellant asked the complainant whether she wanted to be his friend with benefits to which the complainant replied “no”.  She told the appellant that she did not see him like that.  He asked if they could be friends to which she replied they could be friends but not friends with benefits.  The appellant asked her when was the last time she had sex and whether she masturbated.  This made the complainant feel “really uncomfortable”.  The appellant told her that he really liked her and wanted to kiss her.  He asked “can I have a kiss?” to which the complainant replied “no”.  The appellant then said “Come on:  just one kiss” to which the complainant replied “No.  I don’t see you like that.  And I actually do like someone.  I am interested in someone else”.  The appellant then asked again for a kiss to which the complainant responded “no”.
13. [13]
    The appellant then grabbed the complainant’s neck with his right hand and pulled her into him.  He kissed the complainant with an open mouth using his tongue and also biting the complainant’s bottom lip.  The complainant was in shock and said “No.  Can you stop?  I don’t see you like that.”  The appellant replied “I can’t help myself.  You’re just too sexy.”
14. [14]
    While the appellant was kissing the complainant with an open mouth, he put his hand on her vagina on the outside of her pants.  This conduct with his hand constitutes count 1.
15. [15]
    The appellant then unzipped the complainant’s pants and “ripped them down really fast”.  The appellant put his fingers into the complainant’s vagina and rubbed them back and forth.  At one stage, the complainant stated that the appellant “didn’t penetrate me, but he rubbed around that area of the opening of my vagina”.  This evidence was clarified later in her examination-in-chief where the complainant stated that the appellant used his fingers to rub around the lips of her vagina and her clitoris for “only a few seconds” while she “froze”.  The complainant told the appellant to stop and that she did not see him that way.  This conduct constitutes the rape count, which is count 2.
16. [16]
    The appellant then unbuttoned the top of the complainant’s shirt.  He lifted her bra up and started cupping her left breast.  He placed the complainant’s breast in his mouth and commenced sucking it.  The complainant quickly pulled her shirt down.  She said “there’s people around”.  The appellant replied “it’s okay” and asked if she wanted to go somewhere for “a quick fuck”.  The complainant replied “No.  Can you please take me to the train station.”  The conduct of the appellant sucking the complainant’s breast constitutes count 3.
17. [17]
    The appellant agreed to drive the complainant back to the train station.  He wanted to have the complainant’s phone number so he gave her his number and asked her to ring his phone.  The complainant complied with this request but did not want the appellant to have her phone number.  The complainant explained that in any event she would block him.  At this point the complainant believed that she would not be returning to her workplace.  At the train station the appellant stopped at the two minute drop off zone.  The appellant said “let’s do it again sometime” to which the complainant responded “no”.
18. [18]
    The complainant’s evidence as to what occurred after she had said “no” is as follows:

“And then after you said, “No,” what happened next?---I reached down to get my wallet from my bag to get my Go Card out, and he put his hand down my pants but in the backside.

And when you say, “He put his hand down your pants,” on, “the backside”- - -?---Yep.

- - - what do you mean by that?---He slid his hand beneath my underwear and grabbed my butt.

And how long did he do that for?---One second – not even.

And when he did that, what did you do?---I told him he couldn’t, “do that.”  I said, “No. Stop. You can’t do that” – something like that.

And what did he say?---I don’t remember. Sorry.

No.  That’s okay.  Now, after he did that, what happened after?---I got out of the car.  So I opened the car door and he did it again.  He put his hand down my pants again on the backside and just – he just, kind of, touched it.  He didn’t grab it; he just touched it.  But it was beneath my underwear.  And I said, “Stop,” and he said, “Okay, baby. Bye.  I love you.”

And when he said that to you, what happened after that?---I remember something else.  I’m sorry.

What was that?  Sorry?---I remember, right before I got out of the car - - -

Yes.  So what do you remember right before you got out of the car?---He asked for a kiss because we were saying goodbye.

And when he asked for a kiss when you were saying goodbye, what happened?---“No.”  I said, “No.”

And after he – so you said that he asked for a kiss, you said, “No”?---Yes.

And then what happened after you said, “No”?---He said, “Can we hug instead?”

And once he said, “Can we hug instead,”what happened after that?---I gave him a hug.  I didn’t want to, but I just did because I was so close to getting out of the car, so I leant across, then gave him a quick hug.

And when you said that you gave him a hug, where abouts – were you still in the car?---Yes, I was - - -

And how did you give him a hug?---Just across the car, probably one-handed – one –one arm, as well as I could have in – being in the car.

And he was in the driver’s seat still?---Yes.

And once you gave him that hug, one-handed, as you describe it, what happened after that?---That’s when he – when I was getting out the car and he put his hand down my pants again.

And once he put his hand down your pants again, how did he do that?---It was when I was standing up.  So I was getting out of the car – stepping out.  I had my back to him, and he just put his hand down my pants.  He slid it between – about my underwear and my butt on my backside, and he just touched it.

And when you say, “backside,” what do you mean by, “backside”?---My butt.”^[4]

19. [19]
    The conduct of the appellant touching the complainant’s buttocks twice constitutes count 4.
20. [20]
    The cross-examination of the complainant proceeded on the basis that the appellant engaged in the conduct constituting counts 1 and 3.  The conduct was however, qualified by the suggestion that the complainant had encouraged this conduct by kissing the appellant, touching him on the outside of his pants around the groin area, rubbing his nipple on the outside of his shirt and the complainant undoing her bra and exposing her left breast.  Each of these suggestions was rejected by the complainant.
21. [21]
    As to count 2, it was suggested to the complainant that it was she rather than the appellant who unzipped or unbuttoned her pants.  It was further suggested that it was the complainant who was touching herself rather than the appellant.  These suggestions were also rejected by the complainant.
22. [22]
    The complainant was cross-examined in relation to count 4 by reference to CCTV footage.  It is a common ground between the appellant and the respondent that the CCTV footage established a time period, accepted by the complainant, for the offending.  The complainant and the appellant first arrived at the train station at 3.17 pm and exited the carpark at 3.39 pm.  The appellant’s car then returned to the train station at 4.41 pm, with the complainant leaving the vehicle at 4:42:02 pm.  The CCTV footage includes footage of the front of the appellant’s car upon return to the train station at 4.41 pm.  This footage, which is relevant to count 4, was played at the hearing of the appeal.  An accurate description of the CCTV footage as agreed between the appellant and the respondent is as follows:

“While the footage is in greyscale and far from clear, it shows:

1. (a)
   the (appellant’s) car pulled over at the bus stop between a pedestrian crossing (at 4:38:08 pm);
2. (b)
   a movement from the passenger side towards the driver’s side, and then, around 2 – 3 seconds later, a movement back (at 4:39:03pm);
3. (c)
   A second movement (consistent with a hug) from the passenger side to the driver’s side (at 4:41:52);
4. (d)
   an arm movement from the driver’s side over the top of the seat to the passenger side immediately following the hug (at 4:41:58);
5. (e)
   the complainant exiting the (appellant’s) vehicle (4:42:02 pm).”^[5]

23. [23]
    In cross-examination the complainant accepted that she made no mention of giving the appellant a hug in her initial police statement made on 21 October 2019.  She explained that she had forgotten about the hug but recalled it later.  As to the movement from the passenger side towards the driver’s side followed by a movement back, the complainant denied that the footage depicted her placing her head on the appellant’s left shoulder.  At 4:41:07 pm the CCTV footage shows the indicator on the appellant’s car being activated.  The complainant accepted that she made a movement to pick up her bag.  She denied saying to the appellant that she would give him a hug.  She accepted, however, that she did give him a hug.  It was suggested to the complainant that while they were hugging the appellant moved his left hand up and down her back and his left hand touched the inside waist belt area on the inside back of her pants.  The complainant did not accept this suggestion.  The complainant accepted that when she was out of the car, the CCTV footage did not show the appellant’s hand down her pants at that stage.  While accepting that it could not be seen on the footage, the complainant insisted that it had happened.
24. [24]
    In re-examination, the complainant clarified the two occasions when the appellant touched her buttocks:

“Can you clarify what happened when he touched your bottom?...The first time or the second time?

Both times?...He – I went down to grab my bag.  This was at the train station the second time.  I went down to grab my bag and I pulled out my wallet for my Go Card.  And he slid his hand beneath my underwear on my backside.  And I – I said, ‘No.  We can’t – you can’t do that’.  And then he – I was getting out of the car, as I opened the door to step out of the car, he did it again.  And he touched my backside with his hand.  And I said, ‘No’.  And he said, ‘Okay.  Bye, baby.  I love you’.  And that’s when I walked out of the car.

And that last occasion – that’s as – as you’re leaving the car?...Yes.  I opened the door.

But you hadn’t physically gotten out of the car completely?...That’s correct.”  (RB 330 line 44 – RB 331 line 3).

(b) The preliminary complaint evidence

25. [25]
    There were five preliminary complaint witnesses called by the Crown.  The first was Ms F who was a work colleague of the complainant.  The CCTV footage showed the complainant exiting the appellant’s vehicle at 4:42:02 pm.  The complainant’s initial disclosure to Ms F was at around 5.04 pm, after the complainant had boarded the train at Sandgate.  The complainant sent a Facebook message stating that the appellant gave her a lift to the station and kissed her with an open tongue, having grabbed her neck and pulled her in.  After the kiss the appellant told the complainant that she was “so sexy” and asked whether she wanted to go somewhere for “a quick fuck”.  When Ms F suggested that the complainant should not have let the appellant kiss her, she replied “it happened so quick”.  Ms F asked the complainant how long it was until she arrived home.  She wanted to FaceTime but thought that would be “weird” while the complainant was on the train.  The complainant informed Ms F that she would go to Northgate and wait for the next train.  Ms F and the complainant then had a phone call while the complainant was on the platform of the Northgate station.  The complainant did not add any further detail to what was contained in her previous Facebook messages to Ms F.  In cross-examination the complainant was shown CCTV footage of her phone call to Ms F at the Northgate train station platform.  This footage shows that there were moments when the complainant was smiling or laughing.  In cross-examination the complainant rejected the suggestion that she was smiling or laughing because it was all “a big joke”.  The complainant explained that she may have laughed in response to Ms F saying “outrageous things” about the appellant.
26. [26]
    Either on the following Saturday or Sunday, but after the complainant had spoken to police, the complainant exchanged further messages with Ms F which included details of the conduct constituting counts 2 and 3.
27. [27]
    After the complainant travelled by train from Northgate to Narangba, she was picked up by her step-father.  He asked her what was wrong.  She replied that she needed to speak to him and her mother who was still at work.  At 5.46 pm the complainant messaged her friend Mr N stating that she really had to talk to him but didn’t know whether she should be calling him prior to speaking to her parents.  She messaged Mr N that “Basically, I think I almost was raped I’m still in shock”.  She referred to thinking of quitting her job and that a staff member had tried to rape her.  She referred to the staff member as unbuttoning her pants and trying to touch her “down there”.  The message continued:

“He grabbed my neck and pulled me to him lifted up my shirt and grabbed my boob he kissed he as well all in the space of like 10 seconds it was so quick…and he did all that and I said no and he said sorry but I can’t help myself let’s go somewhere for a quick fuck”.

28. [28]
    When her mother arrived home from work the complainant spoke to both her step-father and her mother.  She told them:

“He offered me a lift to the train station, and he – he put his hands down my pants, and he kissed me.  And I him what he told me, which is, ‘he wanted to go somewhere to have sex, and he asked about friends with benefits, and if we could be that’”.

29. [29]
    Both her step-father and mother observed that the complainant was crying uncontrollably.  The step-father’s evidence was that the complainant stated that the appellant was asking her about friends with benefits as he did not understand what that term meant.  The complainant explained it to him.  The appellant then pulled the complainant in for a kiss and unbuttoned her pants and put his hands down her pants “all the way down”.  The appellant unbuttoned her top and put his hand underneath her bra.  The whole time the complainant was saying “no” and asking the appellant to stop because she did not see him in that way.
30. [30]
    The mother’s evidence was that the complainant told them that the appellant put his tongue in her mouth.  He then unbuttoned her pants, put his hands down her pants and rubbed her vagina.  The complainant stated that she pushed the appellant away.  He unbuttoned her shirt and touched her breast.  The appellant told the complainant that she was “cute” and that he wanted “a quick fuck”.  The mother recalled the complainant giving details relevant to count 4:

“I – when she got back to the train station – that when she was trying to get out of the car, he put his hand down her back of her pants, right down her backside while she was getting out of the car.”^[6]

31. [31]
    In the course of their conversation with the complainant, her parents insisted that the police be called.  The complainant reluctantly agreed to this course.  The police arrive at 10.10 pm at the complainant’s house.  A further preliminary complaint was made to Constable Brooke.  This was recorded on his body worn camera.  The footage was tendered and a transcript was provided to the jury to assist in following the footage.  The complainant provided detail in relation to each of the four counts as follows:

“CON BROOKE:  Okay.  And can you, um, explain to me what happened?

COMPLAINANT:  Yeah.  At first, he, um, pulled me in to kiss me, um.  As he kissed me, he, um, felt my vagina through my pants.  I –

CON BROOKE:  Just on the outside?

COMPLAINANT:  On the outside.

CON BROOKE:  Yep.

COMPLAINANT:  And I pulled away.  And then that’s, that, I said, stop.  And then he say, why.  And that’s when he unbuttoned the button and, and, and unzipped my pants.  And ah, went through my underwear and he was feeling me.  And he was rubbing.  And then, and then I, I just zipped it back up.  And I said, stop.  I think he said, but I just wanna feel.  It’s okay, we’re just friends, benefits.  It’s okay, alright, we’re just having fun.  And then, he um, felt up my shirt, and he pulled my bra up.  And he grabbed my left breast.  He was feeling it.  And then, ah, he pulled me closer and he started sucking on it.  And I said, stop.  And I kinda just pulled my shirt back down.  And, um, he’s [INDISTINCT] um, shh.  [INDISTINCT].  There was a car parked beside us, and there was people in it.  I was like, can you please stop.  Like, what are you doing, there’s people there.  And he said, yeah, you’re right, let’s go somewhere else.  And I said, no.  And he said, let’s tr-, he said, I wanna have sex with you.  I, I can’t control myself.  L-, I-, let’s find somewhere for a quick fuck.  Ah, that’s he said.

CON BROOKE:  Yep.

COMPLAINANT:  Um, he said [INDISTINCT] I really can’t control myself.  Um, [INDISTINCT] I really can’t control myself.  Um.  [INDISTINCT].  Ah, eventually he agreed and he, I said, can you take me back to the train station?  He said, we can do this another time.  Yeah.  And, as I was getting out the car at the train station, he um, put his hand through my pants again, but on my backside and through my underwear, and grabbed me there as I was getting out of the car.

CON BROOKE:  Okay.  Um.  Now when he was touching you like that, did he put his fingers or anything like that inside you?

COMPLAINANT:  Not inside, no.

CON BROOKE:  Okay.

COMPLAINANT:  Couldn’t because I was still sitting in the car.”^[7]

3. (c)
   The DNA evidence

32. [32]
    On the evening of 18 October 2019 after the complainant had been interviewed by police, swabs were taken of her body and clothing for DNA analysis.  The Crown called a DNA expert, Mr Pippia.  The appellant accepts, with one qualification, the summary of the DNA evidence provided by the respondent:

1. “i.
   The appellant’s saliva was located on the complainant’s left breast;

1. ii.
   Only the complaint’s DNA was located on a tape-lift of the ‘interior front’ of her underwear;

1. iii.
   The DNA of three contributors was located on the ‘exterior front and back’ of the complainant’s underwear.  The appellant’s DNA was excluded as being one of the contributors;

1. iv.
   The DNA of two contributors was located on the ‘interior back’ of the complainant’s underwear.  The appellant’s DNA was excluded as being one of the contributors;

1. v.
   The DNA of three contributors was located on the interior of the complainant’s shirt.  That mixed profile was approximately seven times more likely to have occurred if the appellant had contributed his DNA to it than if he had not;

1. vi.
   The DNA of the three contributors was located on the ‘front exterior of the complainant’s shirt below the lowest button’.  That mixed profile was approximately 410 times more likely to have occurred if the appellant had contributed his DNA to it than if he had not;

1. vii.
   Saliva and DNA was located in the left cup of the complainant’s bra.  That mixed profile was approximately 14 times more likely to have occurred if the appellant had contributed his DNA to it than if he had not;

1. viii.
   The DNA of the three contributors was located on a tape lift from the ‘exterior’ of the complainant’s bra.  That mixed profile was approximately 14 times more likely to have occurred if the appellant had contributed his DNA to it than if he had not;

1. ix.
   The DNA of three contributors was located on a tape lift from the ‘front right interior’ of the complainant’s bra.  That mixed profile was approximately three times more likely to have occurred if the appellant had not contributed his DNA to it than if he had;

1. x.
   The DNA of three contributors was located on a tape lift from the ‘interior back waistband and crotch’ of the complainant’s pants.  That mixed profile was approximately 220 times more likely to have occurred if the appellant had contributed his DNA to it than if he had not.”^[8]

33. [33]
    The appellant’s qualification is in relation to the tape lift from the “back waistband and crotch” of the complainant’s pants.  A photograph of the interior back waistband and crotch area of the complainant’s pants was tendered at trial.  Only a single DNA sample was taken from the interior back waistband and crotch area of the complainant’s pants.  The qualification is that it is not clear from the evidence as to whether the single DNA sample was taken from the interior back waistband, the crotch of the complainant’s pants or from both.

    4. (d)
       Medical evidence
34. [34]
    Dr Mahoney gave evidence of the sexual assault examination conducted on the complainant.  The relevance of Dr Mahoney’s evidence was that he explained the vulva anatomy, with reference to the location of the clitoris and vaginal lips, and confirmed that “if a body part or object has touched the clitoris area [it] is correct to say that the vulva has been penetrated”.^[9]

(e) The pretext call

On 21 October 2018, which was three days after the offending, the complainant had a pretext call with the appellant.  The Court has listened to the pretext call which is approximately 22 minutes long.  At the hearing of the appeal, by consent the respondent filed an affidavit of Kristy Do, sworn 27 May 2022, exhibiting the transcript of the pretext call.

35. [35]
    The pretext call was actually initiated by the appellant.  He had texted the complainant the day after the offending enquiring how she was.  He rang the complainant on the Sunday.  In that phone call, the complainant asked the appellant to ring again the next day.
36. [36]
    Early in the pretext call, the appellant agrees that he gave the complainant a lift to the train station and that he said they could be friends with benefits.  After speaking about friends with benefits, the complainant refers to the appellant touching her and putting his hands down her pants.  The complainant also refers to saying to the appellant that she only saw him as a friend.  In this context, the complainant asked the appellant whether he had been wanting to do that for a while to which he replies “No, no”.  He agrees with the complainant that she told him that she only saw him as a friend.
37. [37]
    The complainant refers to the appellant kissing her and touching her “inappropriately”.  The appellant asks the complainant whether he offended her, stating “…did I offend you?  I mean if I’m, if, if that’s it I’m, I’m sorry if I mean”.
38. [38]
    The complainant reiterates that she only sees the appellant as a friend and nothing else to which the appellant replies that he does not want to place pressure on the complainant to be his girlfriend.  The complainant asks whether the appellant still wants her to be his girlfriend to which he replies:

“…it’s up to you.  I mean, like, I, I wa-, originally, I want to, to take you as my girlfriend”.

39. [39]
    The following exchange then occurs:

“COMPLAINANT:  I told you that in the car. Like, when you asked me first, I told you that I'd, and then you just, oh, can we be friends with benefits? And I said, oh, no. And it, like, I didn't really want to give you that idea, of friends with benefits. Like, I didn't want to. I said no, and you, you were like, oh, [INDISTINCT], and then you asked me to, like, kiss you and stuff. And you just kissed me.

APPELLANT:  Yeah--

COMPLAINANT:  And you, you touched me. Down there.

APPELLANT:  Oh, s-, yeah, I, I--

COMPLAINANT:  And then--

APPELLANT:  Couldn't helps.

COMPLAINANT:  What, sorry?

APPELLANT:  Um, I was like, couldn't helps. Um, but I really like you, you know? So.

COMPLAINANT:  What do you mean you couldn't help?

APPELLANT:  So, are you, are you, are you, like a, not happy with me?”

40. [40]
    Further into the call the following exchange occurs:

“COMPLAINANT:  You know how, like, after you touched me. And I said no, like, stop. And then you, you started, like, touching my boob and stuff, and I said stop. And you stopped. And then, like, because there was people outside, or whatever, and I said no. Um, then you wanted to, like, go have sex somewhere. You said, let's go have sex. Let's find somewhere to stay.

APPELLANT:  Oh, sorry. I, I don't to push you, an-, you know, yeah, anyway. So, I, I want to, I want you to be happy, like a you said. You, i-, ah, I know as friend, we can do whatever we want. You kn-, I think, yeah, we did that. So.

COMPLAINANT:  Okay.

APPELLANT:  Yeah, so. I didn't really want to, like, hurt you, and, and, yeah anyway~ I just, I said, I, I wh-, I wi-, f-, originally, I want you to be my girlfriend. But you said no. I said, oh, oh at least can be like best friends.

COMPLAINANT:  Mmhmm--

APPELLANT:  So, and, um, I ask a you, um, you know, to be best friends. You know what I mean? I've been, I've been keep asking you, oh can we--

COMPLAINANT:  Yeah, and I said yeah--

APPELLANT:  You know--

COMPLAINANT:  I don't mind being friends. But you said--

APPELLANT:  Yeah--

COMPLAINANT:  You couldn't help yourself. And then you started to touch me in-, like, went down my pants. And you say you couldn't help yourself. And I said, no, I don't see you like that. But you, like, still did it. You know?

APPELLANT:  Oh, ah, okay, I'm, I'm so sorry. I won't do that again, okay? Is that okay?

COMPLAINANT:  Okay. I just, yeah--

APPELLANT:  Or what do you want me to.”

41. [41]
    The exchange continues:

“COMPLAINANT:  Just because I did say no. And then, like, I did, I did say that I only saw you as a friend. You know? And then you like, like you know what I'm saying--

APPELLANT: Oh, I feel--

COMPLAINANT: And you said, that's okay we can be friends. But you c-, I, like, you couldn't help yourself, and you still did it. And then you asked me if, like, we co-, I could go somewhere with you to have sex. But we, obviously we didn't. You just dropped me off at the train station, that was all good. I just wanted to know, like, was that your plan all along, kind of thing? When you wanted to drop me off at the train station. Did--

APPELLANT: No--

COMPLAINANT: You plan--

APPELLANT: No--

COMPLAINANT: To do that?

APPELLANT: No. No, I--

COMPLAINANT: [INDISTINCT]--

APPELLANT: Didn't even know you need a lift. You know, long time ago? So, I just—”.

42. [42]
    A little later in the call, the appellant refers to the complainant refusing to be his girlfriend and a discussion ensues about friends with benefits:

“COMPLAINANT:  [INDISTINCT], I told you that. Like, friends don't touch, you know? But you still, like, you're saying you couldn't help yourself. And I said no, I don't see you like you that. But you still.

APPELLANT:  So, after you said no to be in the girlfriend. I--

COMPLAINANT:  Yeah--

APPELLANT:  I ask to, like, at-, can we, like, ah, friends with benefits.

[COMPLAINANT]:  Yeah.

APPELLANT:  Yeah, yeah, s--

COMPLAINANT:  So, you want--

APPELLANT:  So--

COMPLAINANT:  You still want that, or?

APPELLANT:  Well, I, ah, no, I, I respect your choice. You know? I only asking, yeah, yeah, if you--…

COMPLAINANT:  That I don't want to be friends with benefits. And then you still touched me when I said no. And then, y-, I just, and then it's finished. And then, I don't want you to still think that you can still touch me, even when I say no to being friends with benefits. And then saying no to touching. Like I just, I don't want it to be, you know? Like, friends don't do that--

APPELLANT:  Yeah.

COMPLAINANT:  Like, I'm okay with friends, but just not that.

APPELLANT:  Sure, sure, sure. Okay. Yeah, yeah, yeah.

COMPLAINANT:   Yeah--

APPELLANT:  I just respect your choice, yeah, yeah, yeah-

COMPLAINANT:  Thank you. Okay.

APPELLANT:  Yeah, no, no, all good. I just.

COMPLAINANT:  Thanks, [name of appellant].

APPELLANT:  No, all good. Um, yeah, as long as you're happy, you know.

COMPLAINANT:  Mmhmm.

APPELLANT:  I, ah, yeah, yeah. That's all good.

COMPLAINANT:  Okay--

APPELLANT:  So, I don't want to hurt you, or anything-

COMPLAINANT:  I know, ah, okay--

APPELLANT:  I, I want, yeah, so. I thought you, you know, you accept me, like. But a-, but apparently you, you didn't. You, when, like, until now you told me this.

COMPLAINANT:  Well I said I didn't see you like that, remember?  And--

APPELLANT: Oh, okay.

COMPLAINANT:  Yeah, and like I'm not--

APPELLANT:  So--

COMPLAINANT:  Interested in [INDISTINCT]--

APPELLANT:  Now I know. Yeah.

COMPLAINANT:  Remember, I still said I'm--

APPELLANT:  So--

COMPLAINANT:  Interested in someone else. I didn't want to give you the wrong idea, but we could still be friends.

APPELLANT:  Yeah, yeah, okay. Yeah, yeah, I see. I see now, I re-, I see everything now, yeah.

COMPLAINANT:  Okay.

APPELLANT:  Yeah. Sorry about that, I mean.”

43. [43]
    Later in the call the appellant says:

“APPELLANT:  Oh, dear. Ah, you, you, you really s-, scared, I s-, had, I don't know, I ju-, just. Y-, you make realised, oh, make me to be realise like, oh, that's the, I did something wrong. I thought that that, wha-, everything went okay, like.

COMPLAINANT:  You thought it was okay--

APPELLANT:  You know we, we talked about everything and we, yeah. We did everything like, I thought we were okay, and--

COMPLAINANT:  Mm, yeah--

APPELLANT:  Sorry, I didn't realise you were, you were just really not happy with that.”

44. [44]
    Even after these exchanges the appellant asks the complainant:

“APPELLANT: So, I can't, I can't see you, I can't take you out then?”

45. [45]
    The appellant states that he still wants to take the complainant out, not as a girlfriend but as “an ordinary friend” and further that he “won’t do that again”.  He explains that “touching” the appellant was “part of liking” her and suggests that they first become “good friends” and then they “can go further, if, if we both…mutually understand, or said okay, or accept…”.
46. [46]
    When the complainant repeats that she said “no”, the appellant responds “…you’re turning me off completely”.  A little later in the call the appellant suggests that they “won’t go further without any, like, ah, mutual accepting, or mutual thinking, oh, we both said okay.”

(f) The appellant’s evidence

47. [47]
    The appellant gave evidence through two different Court appointed interpreters.
48. [48]
    According to the appellant, it was the complainant who suggested that they park in the carpark.  He left the engine running with the air conditioning on as it was a very hot day.  The complainant told the appellant that she was single but had already had three boyfriends since breaking up with her previous boyfriend who lived in Sydney.  The appellant had noticed a train go past and asked the complainant whether that was her train.  She replied that she had missed her train and that the next one was at 4.00 pm.  The appellant suggested that they drive to a “cool place, maybe the beach” so that the appellant could keep talking.  Upon arrival at the beachside, the appellant turned the engine off and wound down his window.  The complainant received a text on her phone from her father.  She told the appellant “don’t worry, I told my father that I extend my hours.  I’m not a baby”.
49. [49]
    The complainant, in speaking about her second boyfriend referred to the relationship as being one of friends with benefits.  The appellant asked what that term meant.  After explaining the meaning of the term to the appellant, the complainant asked him “do you like me?”.  According to the appellant, the complainant was smiling and using a “suggestive” tone.  The appellant then asked the complainant whether she liked him, to which she responded “yes”, and thereafter placed her head on his shoulder and held his hand.  The complainant then asked “what do you want to get from me” from which the appellant understood as meaning that the complainant wished to kiss him.  The appellant “double checked” with the complainant whether they could kiss.  Initially the complainant answered “probably”.  The appellant asked “are you sure?”, to which the complainant responded “yes”.  They then kissed.  The complainant then placed her hand on the appellant’s breast and also on the crotch area of his pants.  He also touched the complainant’s breast and her vagina area on the outside of her clothing.  The appellant ceased to kiss the complainant because he saw some people walking towards the vehicle.  The complainant however continued to kiss his left ear and neck.  The complainant said “now you’ve turned me on”.  As she said this, she began touching her vagina, on the outside of her clothes, and was “masturbating herself up and down”.  The appellant said “I’ll help you” and put his hand in that area and was helping the complainant masturbate.  The complainant still had her pants on.  She undid the buttons of her shirt and exposed her bra.  She pointed towards her breast and crotch and said “my boyfriend did everything on me”.  The appellant asked her if he could kiss her breast to which she responded “yes”.  He kissed her left breast and used his tongue to lick her nipple.  While he was kissing her breast, the complainant must have undone her pants because when he looked down her zip and buttons were undone.  He denied that he ever put his hand inside the complainant’s underwear.
50. [50]
    The complainant also touched the appellant’s crotch area asking “did I turn you on?”, to which he replied “yeah, yeah, yeah”.  The appellant then asked the complainant whether he could drive her home.  The complainant started to look inside her bag for a condom before stating “fuck, I didn’t bring it today”.  The complainant asked the appellant whether he masturbated to which he replied “no”.  The complainant told the appellant that she masturbated every day.  She then enquired whether the appellant watched pornography to which he replied “no”.
51. [51]
    The appellant continued to ask the complainant whether she needed him to drop her home to which the complainant responded “bring me to your home”.  By this the appellant believed that the complainant wished to have sexual intercourse with him.  The appellant did not ask the complainant to have sex with him.  He explained to the complainant that he could not take her to his place as his wife was at home.  The complainant asked the appellant to drop her at the railway station.  He asked her for her mobile number.  The complainant obtained her mobile phone from her bag and asked the appellant for his mobile phone number which she then dialled.
52. [52]
    As the appellant was reversing the vehicle, the complainant asked him whether he would tell other people about having “an Australian lover” to which he replied “no”.  He then asked the complainant whether she would tell her friends that she had “an Asian man” to which she replied “no”.
53. [53]
    When back at the station, the appellant asked the complainant whether she would be his girlfriend to which she responded “no, because you don’t love me”, but she put her head on his shoulder.  She also said “no” to being friends with benefits.  She did however hug the appellant before she got out of the car and with his left hand he rubbed up and down her back.  His hand touched the “brim” or “waist” area of her pants.
54. [54]
    In cross-examination the appellant confirmed that it was the complainant rather than him who turned the conversation to one of a sexual nature.  He denied that he kissed the complainant without her consent stating that it was mutual.  He accepted that while kissing he rubbed the vaginal area of the complainant with his fingers over her pants.  He denied that he unzipped the complainant’s pants and put his hand underneath her underwear rubbing her clitoris.  As to the conduct constituting count 4, the complainant denied that he ever put his hands down the back of her pants grabbing her buttocks beneath her underwear.  As to the sexual contact that occurred on the day, the appellant stated that the complainant consented to all of it and never said no.
55. [55]
    The appellant was cross-examined in relation to the pretext call.  He rejected the suggestion that he rang the complainant because he was concerned that she did not consent to what had happened.  He explained that when he responded “yeah” he was not accepting that the complainant had not consented.  He explained “…that’s not the case.  When she gave me the call, I thought we had a special relationship.  And when she gave me the call, she had things mixed up.  So what I’m trying to say is that she did mention some things that actually happened.  But she also added her explanation in the conversation, so I do not know what that means.  I do not know what’s going on with her.”  (ARB volume 2, page 552, T6 – 68 – line 12).
56. [56]
    When excerpts of the pretext call were played to the appellant which included his words “I was like, couldn’t help, but I really like you, you know, so”.  He explained that:

“So she claimed that I touched her pants, so I answered ‘I couldn’t help’.  I was referring [to] the time – and the period when we were kissing.  I was referring to ‘I couldn’t help touching you, because at that time, we were kissing.  We were holding together’.”

57. [57]
    The appellant apologised to the complainant in the pretext call because she seemed unhappy.  He did not know why, because on the Friday, she had given the impression that she wanted to have sex with him, so he thought she might regret doing the things she did with him, and he wanted her to be happy, so they could maintain their relationship.  According to the appellant, at no time did the complainant ever say “no” while they were in the vehicle.

(g) Consideration of Ground 1

58. [58]
    In relation to count 4, the complainant in her evidence set out at [18] and [24] above, identified two incidents of the appellant touching her bottom.  The first was when she reached down to obtain her wallet from her bag to get her Go Card and the second occasion was when she “got out of the car”.  The Crown case was conducted on the basis that the jury was required to find that both instances occurred before they could convict the appellant of count 4.  The appellant’s submissions in relation to ground 1 relates to the second incident.  The appellant submits that as a matter of common sense the only way that someone in the driver’s seat could put their hand down the complainant’s pants would be to lean over, reaching across the gap between the seats.  While the CCTV footage is “greyscale, grainy and imperfect”, it does capture movements from one side of the car to the other.  This is because each time an object (a body part) moves from one side of the car to the other above dashboard height, the gap between the seats becomes obscure.  The appellant therefore submits:

“On (either of) the complainant’s accounts, she was either completely out of, or at least almost out of, the passenger side of the car when the appellant put his hands “right down” her pants.  In those circumstances, it is reasonable to expect that, if her account is accurate, the CCTV footage would capture at least some movement from the driver’s side to the passenger’s side.”^[10]

59. [59]
    Neither the CCTV footage nor the DNA evidence required the jury, acting rationally, to have entertained a reasonable doubt as to the appellant’s guilt in relation to count 4.  This evidence did not constitute an immutable evidential obstruction to a finding of guilt, primarily because it was not necessarily inconsistent with the complainant’s account.
60. [60]
    The second occasion of touching occurred after the complainant had given the appellant a hug.  The complainant initially described this as occurring when she “got out of the car”.  She immediately clarified this evidence as follows:  “So I opened the car door and he did it again”.  The complainant further explained that the hug occurred when the appellant was in the driver’s seat and she was still in the car.  It was after the hug “when (she) was getting out of the car” that the appellant again put his hand down her pants.  She described it as occurring “when (she) was standing up” and she was “getting out of the car – stepping out”.  The complainant described having her back to the appellant when the second incident occurred.
61. [61]
    While the complainant refers to “getting out of the car”, she also refers to the second incident occurring when she opened the car door.  It was therefore not clear from her evidence-in-chief whether when the second incident occurred she was still seated in the passenger seat.  This aspect was however clarified by the complainant in re-examination as set out at [24] above.  The effect of this evidence was that the second incident occurred as the complainant was opening the car door but prior to her alighting from the car.  This version does not require observable movement by the appellant from the driver’s side to the passenger’s side.
62. [62]
    The appellant submits however, that the fact that there is no such movement on the CCTV footage raises a doubt as to the complainant’s account that is not dispelled by her evidence given in re-examination.  In particular, the appellant submits that the complainant’s evidence in re-examination:

    1. (a)
       is inconsistent with what she told her mother;
    2. (b)
       was elicited by leading questions;
    3. (c)
       was given after the complainant had been cross-examined about the absence of any movement and had been shown the CCTV footage.^[11]
63. [63]
    This submission cannot be accepted.  First, the complainant in evidence-in-chief referred to the second incident occurring when she opened the car door.  This evidence is consistent with the evidence given by the complainant in re-examination that the second incident occurred “as I opened the door to step out of the car”.  This evidence is not necessarily inconsistent with what the complainant told her mother by way of preliminary complaint.  This preliminary complaint evidence may only be used as it relates to the complainant’s credibility.  It is not proof of what actually happened.  The relevant evidence is set out at [30] above.  The complainant told her mother that the incident occurred “when she was trying to get out of the car” and that the appellant put his hand “right down her backside while she was getting out of the car”.  Further, this was not the only preliminary complaint given by the complainant in relation to count 4.  Her preliminary complaint to Constable Brooke is set out at [31] above.  The complainant stated that as she was getting out of the car, the appellant “put his hand through my pants again, but on my backside and through my underwear, and grabbed me there as I was getting out of the car”.  Constable Brooke asked the complainant whether, while this was happening, the appellant put his fingers inside her to which the complainant replied “couldn’t because I was still sitting in the car”.  This preliminary complaint evidence is consistent with the complainant’s evidence given in re-examination.
64. [64]
    Thirdly, the substance of the complainant’s evidence in re-examination was not elicited by a leading question.  The question was as follows:

“Can you clarify what happened when he touched your bottom?---The first time or the second time?

Both times?...”

In circumstances where the complainant had given evidence-in-chief as to the two incidents of the appellant touching her bottom and being cross-examined in relation to those two incidents, the question asked in re-examination was not a leading question.  The follow up question “But you hadn’t physically gotten out of the car completely?” was a leading question.  It was not however objected to and it was not the question that elicited the substance of the complainant’s evidence in re-examination.

65. [65]
    Fourthly, the giving of this evidence by the complainant in re-examination after she had been cross-examined as to the absence of any movement and had been shown the CCTV footage does not make this evidence unreliable.  The complainant, both in her evidence-in-chief and in her preliminary complaint evidence to her mother and Constable Brooke referred to the second touching as occurring either after she had opened the car door or was trying to get out of the car or while still sitting in the passenger seat.  Having already given these versions, it cannot be accepted that the complainant tailored her evidence in re-examination in light of having been shown the CCTV footage in cross-examination.
66. [66]
    As already observed, the Court has viewed the CCTV footage.  The appellant submits that in spite of the limited scope of the footage “It would be speculating to suggest that the (appellant) could have remained still and reached his arm all the way across to the passenger side where (the complainant) was stepping out of the car, below dashboard height, such that the movement would not be captured.”^[12]
67. [67]
    The CCTV footage does not capture any movement below shoulder height.  If the complainant was still seated in the passenger seat, albeit with her back to the appellant, the CCTV footage would not necessarily show any movement on the part of the appellant in putting his hand down the back of the complainant’s pants.  The CCTV is of a poor quality.  As correctly identified by the respondent “the footage is from a distance, grainy and affected by glare in some instances and shadowing in others”.  As summarised at [22] above, some movement is detectable.  Those include a movement (consistent with a hug) from the passenger side to the driver’s side at 4:41:52 pm and an arm movement from the driver’s side over the top of the seat to the passenger side immediately following the hug at 4:41:48 pm with the complainant exiting the vehicle at 4:42:02 pm.
68. [68]
    The limited quality of the CCTV footage when considered in light of the whole of the complainant’s evidence, does not give rise to such an inconsistency as to effect the credibility or reliability of the complainant’s account.
69. [69]
    As to the DNA evidence, Mr Holt KC who appeared with Mr Liddle for the appellant, made two concessions.  First, that the DNA evidence in itself would be insufficient to support Ground 1 and secondly that trace DNA is hard to interpret.  The appellant, for the purposes of establishing Ground 1, relies on a combination of both the CCTV footage and the DNA evidence.  The appellant submits that the DNA evidence was consistent with the appellant’s evidence and inconsistent with the complainant’s account.  First, no DNA of the appellant was found inside the complainant’s underwear, either front or back.  Relevant to count 4, the only place where DNA was found was on a swab which did not distinguish between the “interior back waistband and crotch” of the complainant’s pants.  This, according to the appellant, is consistent with his account of what had occurred, namely that he patted her back when giving her a hug, touching the “brim” or “waist” area of her pants.^[13]
70. [70]
    The difficulty with reliance on the DNA evidence in the way suggested by the appellant not only in relation to count 4 but also the three other counts is that Mr Pippia, the DNA expert, explained that the inability to obtain a DNA profile from a touch surface does not necessarily mean that the person has not made contact with that surface.  The absence of the appellant’s DNA did not therefore mean that contact had not occurred as there were many variables to assess.  As correctly submitted by the respondent, the evidence was sufficient to demonstrate that the appellant’s DNA may not have been deposited, may have been eradicated, was deposited but not located, or it was located but incapable of identification.^[14]
71. [71]
    Neither the CCTV footage nor that footage in combination with the DNA evidence renders the verdict in relation to count 4 unreasonable.  On the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of count 4.  It follows that the jury’s assessment of the credibility and reliability of the complainant’s evidence in relation to counts 1 to 3 would not have been affected nor does the equivocal nature of the DNA evidence render the verdicts in relation to counts 1, 2 and 3 otherwise unreasonable.
72. [72]
    Ground 1 fails.

Ground 2

73. [73]
    The relevant parts of the pretext call are set out at [36] to [46] above.  The learned trial judge gave the following direction in relation to the pretext call:

“Another bit of evidence that you have been given is the pretext call, and the Crown relies upon the pretext call and, in particular, parts of the pretext call as amounting, in effect, to an admission or admissions made by the defendant, particularly that part where he says sorry.  Now, you obviously can consider that evidence.  But before you take any part of it as being an admission to anything, you need to first of all, as the defence barrister said, read it in context.  You have got to be satisfied that the statement was made.  Well, you have got the recording to listen to.  So you have got to be satisfied as to what he has said.  You have to – and you can replay it.  That is no problems.

You have got to then to be satisfied as to what he was admitting to, that, in fact, his answers were an admission.  When he says, ‘I’m sorry’, you have got to know what he was saying he was sorry for.  The defence makes mention that his responses are responses to sort of bundled up statements.  You have got to be satisfied that you can properly interpret what it is that he was responding to and what his words related to and that they were, in fact, admissions to something, being an admission in relation to the – an offence or offences with which he has been charged or an omission to some aspect of them.

And, thirdly, you need to be satisfied that they were true admissions, that is, that they were – that is, that he was making those admissions because he realised that he was guilty rather than, for example, as the defence was suggesting, rather than because he was happy to say anything to keep the complainant happy and to make her happy because he was still hoping to make her – he was still trying to mend fences with her to make – or to – he was still trying to ingratiate himself to her – because he was hoping to still make her his secret lover.  So those out-of-court statements, that transcript – sorry, they are not transcripts – the recording you have regard to.  You can have regard to anything there that you think is an admission, but you need to consider those sorts of questions first.”

74. [74]
    Prior to giving this direction, the learned trial judge sought submissions from defence counsel.  His Honour indicated his view that a variation of the out-of-court confessional statements direction contained in the Queensland Supreme and District Courts Criminal Benchbook Number 36 covered the pretext call.  Defence counsel asked for “a strong warning” on the basis that the defence contention was that the appellant made no admission in the course of the pretext call.  Defence counsel specifically asked his Honour to highlight to the jury in the direction that they should not isolate particular answers but should consider the context for the whole of the pretext call.  Defence counsel’s submission in this respect was incorporated into the direction with his Honour instructing the jury that before they could take any part of the pretext call as constituting an admission to anything, they needed to read it in context.  Other aspects of the proposed direction were discussed.  In light of this discussion, it is unsurprising that defence counsel did not seek any re-direction.  The failure to do so in itself does not relieve this Court from determining whether any inadequacy in the direction constitutes a miscarriage of justice.
75. [75]
    The appellant submits that the direction was inadequate in three respects:

    1. (a)
       a direction was required as to the exculpatory parts of the call;
    2. (b)
       the jury should have been directed that the complainant’s statements, which the appellant did not accept them, had no evidential value;
    3. (c)
       the learned trial judge should have given directions which identified the particular aspects of the pretext conversations which were relied upon by the Crown as constituting an admission of guilt of any of the counts.

The appellant further submits these failures individually and collectively constitute a miscarriage of justice.

76. [76]
    As a general observation, it is important to place these three alleged inadequacies into context.  There is no Benchbook direction relating specifically to pretext calls.  In R v Ali [2017] QCA 300 at [62] Philippides JA stated that “the standard direction” is “to the effect that, in order to rely on the evidence of a pretext call, the jury need to be satisfied that the appellant’s answers relied upon as indicating guilt were true”.  As observed by Sofronoff P in R v Sunderland (2020) 5 QR 261 at [55]: “...the examples given in the Supreme and District Court Benchbook, [are] a guideline.  There is no ‘magical formula or incantation’ that can be invoked in every case to satisfy the burden that the law places upon a trial judge to give appropriate and adequate directions.  Each summing up must be tailor-made to fit the requirements of the case at hand.”
77. [77]
    In R v Nash [2022] QCA 84 at [29] Martin SJA (with whom Bowskill CJ and Sofronoff P agreed) considered whether any direction is required where the Crown does not rely on the evidence as constituting a confession.  His Honour referred to the decision of Douglas J in R v Booth & Combarngo [2018] QCA 74 at [58] that:

“There may be differing views as to whether a trial judge should give such direction in the case of statements against interest as opposed to a full confession.  Such a direction has been described as ‘conventional’ or ‘standard’ in Victoria for cases where the Crown relies in part on statements, made by way of admission or confession, to support its case’.  Much will depend on the circumstances, however, as Burns makes clear.”

78. [78]
    In R v Booth & Combarngo Douglas J dealt with the decision of the High Court in Burns v The Queen (1975) 132 CLR 258:

“The leading decision of the High Court about the use of confessional statements, Burns v The Queen discussed some of the relevant issues in this area in these terms:

“It is clear and elementary law that once a confessional statement has been admitted into evidence, its weight and probative value are matters for the jury.  It is for the jury to determine whether the alleged confession was made and whether it was true in whole or in part.  Unless the jury are satisfied that so much of a confession as tends to show the guilt of the accused was true, they cannot treat it as proof of guilt.  However, a confessional statement may be only one piece of evidence against the accused and the jury are entitled to consider all the relevant evidence together in deciding upon their verdict.  The nature of the direction necessary to be given properly to instruct the jury as to the use of evidence of an alleged confession must depend on all the circumstances of the case.  ‘There is no rule of law or of practice which requires the Judge to caution the jury against acting on such evidence or which prescribes any measure of the comment which it is his duty to make upon it’ (Ross v The King)”.

79. [79]
    In considering the adequacy of the direction in the present case, it is therefore necessary to have regard to how the pretext call was used at trial in the context of the relevant issues.
80. [80]
    In her opening, the Crown prosecutor only referred to the fact that the jury would hear in the course of evidence a recorded telephone conversation conducted on 21 October 2019 between the appellant and the complainant.  Defence counsel in his opening only briefly referred to the pretext call stating that the appellant would give an explanation in relation to it.  The recording of the pretext call was tendered as exhibit 7 and played during the complainant’s evidence-in-chief.  The only relevant questions asked in evidence-in-chief confirmed that the complainant participated in a recorded pretext telephone conversation with the appellant.  Although the complainant was cross-examined over three days, she was only briefly questioned about the pretext call.  The complainant accepted that in the course of the pretext call, she was trying to get the appellant to admit to everything that he had done.  She also accepted that she gave little detail in the course of the call in relation to count 2:

“I didn’t give that amount of detail over the phone.  I was very nervous, and I wanted him to admit to what he did to me without knowing that I had gone to the police.  If he knew that I’d gone to the police, I knew he would’ve lied because he did it to me even when I said, “No”.  So I didn’t go through every single thing that he did.  I summed it up, kind of, and I wanted him to say, “Yes.  I did this even though you said ‘No’”.  And I achieved that in that call, I believe.”

81. [81]
    The appellant’s evidence in relation to the pretext call is set out at [55] to [57] above.
82. [82]
    Both defence counsel and the Crown prosecutor focussed more heavily on the pretext call in their closing addresses.
83. [83]
    The pretext call was addressed in detail by defence counsel.  He made the following preliminary observation in relation to the pretext call:

“…nor is there any admission by the defendant to having committed these offences, I would suggest, despite the prosecutor’s attempts to suggest that he had in that pretext call.  I will say more about that pretext call a little later but let me just say this at the early point.  You cannot just cherry pick the odd response in a 10 to 15 minute phone call where one participant is rolling up three or four propositions to an unsuspecting sod on the other end of the line who is unaware that he is being recorded and clearly still has ambitions to getting her to agree to be his secret mistress, his friend with benefits, so he is going to agree to just about anything she rolls up in a hackneyed version of what happened three days earlier when clearly, on his version, she was very agreeable and enthusiastic about the prospects.”

84. [84]
    Defence counsel told the jury that they should listen to the recording as a whole which made clear that the appellant was trying to placate the complainant and was “almost sycophantic” with the aim of maintaining the complainant as his “secret mistress”.
85. [85]
    Defence counsel specifically referred to that part of the pretext call where the appellant said to the complainant “I thought you accept me.  We kissed and went further”.  By reference to this passage and other passages, defence counsel submitted to the jury that the appellant was clearly not accepting that the complainant did not consent to his actions.  Defence counsel referred to that part of the pretext call where the complainant stated “I got you to stop after you, like, touched my boob” and the appellant’s response “you turn me off”.  Defence counsel submitted that “clearly, in his mind…she had been a willing participant in all of the sexual activity.”
86. [86]
    Defence counsel reminded the jury that the appellant agreed that he had both kissed the complainant and performed the acts constituting counts 1 and 3, namely putting his hand on her vagina on the outside of her pants and sucking the complainant’s breast.  These acts, according to defence counsel, were consensual.  The appellant denied outright the conduct constituting counts 2 and 4 on the basis that the conduct did not occur at all.  In this context, defence counsel argued that “this pretext call does far more damage to [the complainant’s] account than it does to [the appellant’s] version because [the complainant] only explicitly referred to the conduct which [the appellant] admits occurred, rather than the penetration”.  He submitted that as the complainant was in control of the phone call, why did she only mention certain acts which did not include penetration or the grabbing of her buttocks.  Defence counsel rhetorically asked the jury “if she knows the importance of getting an admission and has all that time to prepare for the call, why no mention of the most serious aspects of the allegation?”  The answer given by counsel was that “She knew that she had made those things up and so she knew he would never admit those things had occurred”.  Defence counsel therefore argued that the pretext call, far from being adverse to the appellant, was very much adverse to the complainant’s account of events.
87. [87]
    The Crown prosecutor commenced her address by playing an extract from the pretext call, part of which is set out at [40] above, which includes the appellant saying “I’m so sorry.  I won’t do that again…”.  She submitted to the jury:

“That was his first response to [the complainant].  He said ‘I am sorry.  I won’t do that again.  Okay.  Is that okay?’.  This is what her co-worker told her after he raped and sexually assaulted her.  This is what her supervisor, her boss, her colleague, this is what he said: ‘I’m sorry, I’m so sorry.  I won’t do that again.  Okay.  Is that okay?’

88. [88]
    The Crown prosecutor returned to the pretext call near the end of her address:

“He maintained throughout the whole evidence-in-chief and cross-examination that the contact was consensual and he maintained that he did not find her cute.  But, again, it doesn’t really sit right when you hear the pretext call…The Crown says that his answers of responding, yeah, the fact that he said he couldn’t help himself and that he apologised after she put to him what had happened, the fact that she did not consent or go to support the case against him that sexual offending occurred and that he was apologising for his behaviour all pointing to his guilt.  It’s a matter for you as to how much weight you place on this statement, but the Crown urges you to do so.  His answer was not immediately, no, that it did not happen, and, no you – you consented.  It was:  I’m sorry I couldn’t help myself…It seems absurd that a timid young girl who did not know her boss would come onto her, would talk to him about boyfriends, about previous sexual interactions and even about her boss’s sexual interactions, even about him pleasuring himself.  That she was the one that was touching herself and asking him to touch her and that was all consensual.  His response to the call does not marry up with a person who says that the complainant…was the one that had started and instigated this whole sexual contact.”

89. [89]
    The learned trial judge summarised these rival contentions for the jury.  First, the Defence contention:

“He suggested that the pretext call tells – says more about the credibility of the complainant’s case than his client’s position.  He says that you should view the excerpts relied upon by the Crown in context and against the background that his client was seeking to placate the complainant because he still wanted to have her as his secret mistress, which might mean that he is a bad husband.  That does not mean he is a rapist.

He says that on the other hand, the complainant was the one that had planned this conversation in order to – with the police in order to trap the defendant into making admissions, but she did not put the worst of the allegations.  She only put the things that he says she knew he would agree to, being the things that he says were consensual.  She did not mention the contact with the genitalia underneath the underpants or the contact with the buttocks or the like.”

90. [90]
    His Honour summarised the Crown’s submissions as follows:

“The Crown, for their part, started by reminding you of the pretext call and particularly the part where the defendant says he is sorry; he will not do that again.  The prosecutor reminded you that the defendant was a supervisor of the complainant and says that he used his trust – the trust that the complainant had in him in order to take an opportunity to assault her and rape her but that she told her friend soon after as well as family and police and that you would regard her as a credible and reliable witness.”

91. [91]
    The direction was therefore given in the context where there was no issue that the appellant engaged in the conduct constituting counts 1 and 3.  The issues in relation to these two counts were whether the Crown established beyond reasonable doubt that the complainant did not consent to this conduct and that the appellant did not honestly and reasonably believe that the complainant was consenting.  The issue in relation to counts 2 and 4 was whether the relevant conduct occurred at all.
92. [92]
    In the pretext call, the complainant did not raise with the appellant the conduct constituting count 4 and only referred twice to the appellant putting his hand down her pants and starting to touch her.  The first reference was in the context of enquiring of the appellant whether he had been “wanting to do that for a while” to which he replied “No, no”.
93. [93]
    The Crown did not rely on the pretext call as constituting a confession.  Nor did the Crown specifically identify to which issue the pretext call was relevant.  There was no dispute at trial that the appellant had a sexual interest in the complainant and that some sexual activity (counts 1 and 3) had occurred.  The primary issues to which the pretext call were relevant were consent and honest and reasonable belief.  Additionally, the Defence made it relevant to the jury’s assessment of the credibility and reliability of the complainant.

    1. (a)
       A direction was required as to the exculpatory parts of the call.
94. [94]
    The relevant responses of the appellant said to be exculpatory are set out at [42] above.  They include statements to the effect that the appellant thought the complainant accepted him and that “everything went ok” and that he did not realise the complainant was not happy.  The appellant submits that the learned trial judge should have directed the jury that:

    1. (a)
       the appellant gave answers which the jury might view as indicating his innocence;
    2. (b)
       the jury was entitled to have regard to those answers; and
    3. (c)
       the jury needed to assess whether the answers relied upon by the Crown were admissions, taking into account the whole of the call, including those exculpatory statements.^[15]
95. [95]
    The appellant further submits that it was critical that the jury be told that those exculpatory statements could be relied upon by them as evidence as they were part of an evidentiary foundation for an honest belief in consent.^[16]
96. [96]
    There are a number of difficulties with these submissions.  First, in directing the jury that before they could treat anything as an admission they needed to read it in context, His Honour specifically referred to the submission of defence counsel.  As set out in [82] above, counsel dealt extensively with the pretext call including the statements of the appellant which are said to exculpatory.  The submission made by defence counsel was that the appellant was “protesting his innocence” and was “not accepting” what the complainant was saying.  Defence counsel further submitted that the jury should not cherry pick one particular answer but should consider the entire pretext call in context.  Defence counsel relied on the appellant’s statement “you turn me off” as constituting something that would not be said by the appellant unless the complainant was “a willing participant in all of the sexual activity he claims had occurred”.  In summarising the rival contentions, his Honour referred to the defence relying on the pretext call as saying more about the credibility of the complainant than the appellant.  His Honour, by incorporating the submissions of defence counsel into the direction and specifically requiring the jury to consider the pretext call in context sufficiently drew to the attention of the jury the appellant’s exculpatory statements.
97. [97]
    Secondly, had a direction been sought in the terms now suggested by the appellant, it was likely that the Crown would have sought a direction consistent with the decision of the High Court in Nguyen v The Queen (2020) 269 CLR 299 per Kiefel CJ, Bell, Gageler, Keane and Gordon JJ at [24]:

“Howsoever mixed statements come to be admitted into evidence they are invariably subject to a direction to the jury that they may give less weight to exculpatory assertions than to admissions and that it is for them to decide what weight is to be given to a particular statement.  The rationale for the direction is that exculpatory statements are not statements made against interest, are not made on oath and are not subject to cross-examination.”

98. [98]
    The respondent submits that even if the contended direction ought to have been given, it is understandable why no direction was sought as to do so would have emphasised the inculpatory portions of the call and likely attracted a direction in accordance with Nguyen.  The appellant submits however, that while such a direction may have been sought, it would not necessarily have been given.  This is because the law in relation to the requirement of such a direction is not settled.  The appellant referred to the decision of Thomas J in R v Cox [1986] 2 Qd R 55 at 61 – 64.  His Honour referred to the general proposition that where a self-serving statement by the accused is put in by the prosecution, the jury may attach such weight to it as they think fit.  By reference to the decision of the High Court in Allied Interstate (Qld) Pty Ltd v Barnes (1968) 118 CLR 581, Thomas J accepted that the self-serving part of a mixed statement may be used as evidence of the truth thereof.  The appellant also referred to the observations of Edelman J in Nguyen at [59] that exculpatory statements may be entitled to be used as evidence of their truth in circumstances where it might be difficult or impossible to separate them from the admissions or where they qualify or modify the admissions.  While this may be accepted, there was in my view, a proper basis for a forensic decision by defence counsel not to seek the directions contended by the appellant.  This is particularly so in circumstances where the exculpatory statements of the appellant in the pretext call were used in defence counsel’s address to undermine the credibility and reliability of the complainant.

12. (b)
    The jury should have been directed that the complainant’s statements, where the appellant did not accept them, had no evidential value.

98. [99]
    The appellant identifies statements made by the complainant in the course of the pretext call to which he did not respond.  An example of such an exchange is set out at [41] above.  The appellant submits that the jury should have been directed in accordance with Barca v The Queen (1975) 133 CLR 82 at 106 – 107 where Gibbs, Stephen and Mason JJ observed: “…In any case, where evidence is admitted of statements made in the presence of an accused, it is in general desirable that the judge should explain to the jury that they can only use the statements as evidence of the truth of what was stated if they are satisfied that the accused has by his speech, silence or conduct admitted their truth.”  The appellant identifies a risk that the jury may have reasoned along the lines that: “the complainant would not have made those allegations to him and risk being contradicted on a recorded phone call, if they were not true.”^[17]

1. [100]
   In light of how the trial was conducted and in particular how the pretext call was utilised by both the Crown and Defence, there was no risk that the jury may have reasoned in this way.  The statements of the complainant made in the course of the pretext call, including her repetition of allegations that did not specify the conduct constituting counts 2 and 4 were relied on by the Defence to undermine the credibility and reliability of the complainant.  What the jury made of the whole of the pretext call when considered in context, including the occasions when the appellant did not respond, were matters for the jury.  The jury was directed to consider everything said in assessing the quality of any admission.  There was never a suggestion that the jury could reason that just because the appellant failed to respond to the complainant’s allegation that the appellant was, in some way, agreeing to her allegation.

12. (c)
    The trial judge should have given directions which identified the particular aspects of the pretext conversations which were relied upon by the Crown as constituting an admission of guilt of any of the counts.

101. [101]
     By reference to the decision of this Court in R v ON [2009] QCA 62, the appellant submits that the learned trial judge was required to precisely identify what allegations were the subject of admissions in the pretext call.  A failure to do so led to a risk that the jury may have regarded the evidence in some unspecified way as indicative of guilt.  The asserted inadequacy in the direction arises from the exchange between the complainant and the appellant in the course of the pretext call set out at [41].  In that exchange, the complainant stated that the appellant started to touch her and “went down my pants”.  The appellant responded by apologising and saying that he would not do that again.  The appellant submits that it is not clear as to whether the Crown was using the response as constituting an admission either to count 1 or count 2.  The appellant further emphasises that it was this exchange which was played at the commencement of the Crown prosecutor’s closing address.  In these circumstances the appellant submits that the learned trial judge failed to identify what the allegation related to.  The appellant refers to that part of the direction which reads:

“[T]he Crown relies upon the pretext call and, in particular, parts of the pretext call as mounting, in effect, to an admission or admissions made by the defendant, particularly that part where he says sorry”.

102. [102]
     As a general proposition whether a trial judge is required to give a direction which precisely identifies which allegations are the subject of admissions will depend on the issues at trial and the use made of any pretext call by the Crown and the Defence.  In R v ON the offender had been convicted on a number of counts including one of indecent treatment, six of rape and one of maintaining an unlawful relationship in respect of his step-daughter commencing when she was 13 years of age.  The relevant pretext call is set out by Holmes JA at [28] to [36].  In the course of the pretext call, the complainant did not suggest to the offender that he had sex with her while she was underage or that any sex was non-consensual.  The recording of the call contained denials on the part of the appellant, although as observed by her Honour, “their impact was diminished by the appellant’s apparent realisation that he might be taped”.  The impugned direction was as follows:

“In that tape, (the complainant) clearly accused the defendant of sexual misconduct towards her.  Nowhere in that conversation did he admit her allegations but neither, as I understand it, did he deny them.

You may think that he appeared to be somewhat suspicious of her motive for ringing him because he asked her on more than one occasion if she was recording the conversation.  You will make of this evidence what you will.  The prosecution argues that his responses, when accused of sexual misconduct towards (the complainant), show that he had a consciousness of guilt.  It is argued that if he maintained that he had not committed any sexual offences towards (the complainant), he would have made his position clear.”

103. [103]
     Holmes JA considered the direction to be inadequate:

“…it was incumbent on the learned judge to tell the jury that they should act on those responses only if satisfied that they amounted to acceptance of the truth of what was asserted.  That in turn, of course, required identification of precisely what allegations were the subject of admissions.”^[18]

104. [104]
     Her Honour’s conclusion that the direction was inadequate was in the context of the complainant not putting to the appellant that he had sex with her while she was underage or that any sex was non-consensual.  This is to be contrasted with the present case where the issues were whether the complainant consented to the admitted sexual conduct and whether other sexual conduct occurred at all.  On the Crown’s case, the complainant did not consent to any of the sexual conduct.  It follows that where the appellant apologised, that could only be related to sexual conduct as there was no other conduct for which he could apologise.
105. [105]
     In R v Caulfield [2012] QCA 204, the offender was convicted of one count of common assault and two counts of indecent assault on a 16 year old student.  The complainant gave evidence that the day after the offences were committed, after the appellant’s wife had gone to work, he came to her bedroom and said to her “I’m sorry it never should have happened”.  The appellant subsequently telephoned the complainant’s mother and said “I just had to ring and apologise for what I’ve done”.  The appellant over and over continued to say to the complainant’s mother “I’m sorry, I’m sorry”.  The offender argued that admissions against interest were admissible only if “capable of being found to be an unambiguous and unequivocal apology for an admission to” the subject offending.^[19]  The offender’s submission relied on observations of McMurdo P in R v PV; Ex parte Attorney-General (Qld) [2005] 2 Qd R 325 at 329.  Muir JA (with whom de Jersey CJ and White JA agreed) stated at [18] that:

“R v PV is not authority for the proposition that an alleged admission is not admissible unless it is unambiguous and unequivocal in its terms.  If words spoken by an accused are reasonably capable of being construed as an admission by the accused, they are admissible.  It is for the jury to determine whether or not the words amount to an admission and what weight, if any, the admission should be given.  …There is ample authority supporting the proposition that it is for the jury to determine whether a statement, whether oral or written, viewed as a whole and in context constitutes an admission.”

106. [106]
     While Muir JA’s statement concerns the admissibility of such evidence, the reasoning applies with equal force to a consideration of the adequacy of a direction in relation to an out-of-court admission.
107. [107]
     In R v BCQ [2013] QCA 388, the offender was convicted of multiple counts of sexual misconduct against the complainant child who was the appellant’s step-grandchild.  The complainant relied upon a pretext call in which the appellant apologised for his conduct when the complainant was a “little girl”.  The appellant gave evidence that this related to consensual conduct when the complainant was an adult.  The pretext call was relied upon by the Crown as evidence supportive of the complainant’s account.  The jury were directed that it was a question for them to determine “what that telephone conversation means and whether it provides support for the complainant’s account”.  Boddice J (with whom Holmes JA agreed) considered at [98] that the direction was inadequate:

“A specific direction as to the use to be made of any admissions contained in the pretext call was also essential in the particular circumstances as any admission was not to the specific conduct.  At best, it constituted an admission of sexual interest in the complainant when she was a child.  There was a need for the jury to be specifically directed that that admission was only capable of supporting the complainant’s evidence if the jury was satisfied beyond reasonable doubt it constituted an admission the appellant had sexually interfered with the complainant when she was a child.”

108. [108]
     In the present case, the respondent submits that the whole of the pretext call was an admission or statement against interest or at least made up of a number of statements against interest.  As such, the pretext call could not be compartmentalised in any useful way to connect particular statements of the appellant to a particular offence or to a particular feature upon which the Crown relied, for example, the appellant’s sexual interest in the complainant.
109. [109]
     The direction was, in my view, in the particular circumstances of the present case, adequate.  The learned trial judge instructed the jury that before they could treat any part of what was said by the appellant as constituting an admission, they were required to read any statement in context.  Further, the jury had to be satisfied as to what the appellant was admitting to and that in fact his answers were an admission.  The jury were directed that when the appellant said “sorry” they had to know what he was saying sorry for.  Given the “bundled up” statements made by the complainant, the jury were also instructed that they had to be satisfied that they could properly interpret what the appellant was responding to and whether those responses were in fact admissions to an offence or offences with which he had been charged.  The jury were also instructed that they had to be satisfied that they were true admissions, that is, that the appellant was making those admissions because he realised he was guilty rather than for other purposes which the Defence had suggested.
110. [110]
     These directions were given in circumstances where defence counsel repeatedly submitted to the jury that they had to read the pretext call in context and were not to cherry pick particular parts.  Further, the direction was given in circumstances where defence counsel had submitted to the jury that the pretext call, far from being adverse to the appellant, undermined the credibility and reliability of the complainant.  The statements made in the pretext call therefore needed to be considered in full, not only as to what was said, but how it was said.  On numerous occasions, the complainant told the appellant that he did things to her without her consent.  The appellant’s responses were however coloured by his attempts to placate the complainant hoping that she would become his “secret mistress”.  In those circumstances, not only would it have been practically difficult to constrain the statements to a particular count, it may also have been to the detriment of the accused.  As observed by Philippides JA in R v Ali [2017] QCA 300, [64]:

“The features of the recorded conversation said to be admissions did not require detailed identification.  Were the trial judge to have specifically identified the passages relied upon as admissions, there was a real danger that it may have operated to reinforce those passages to the detriment of the appellant”.

111. [111]
     Ground 2 fails.

Ground 3

112. [112]
     The appellant gave evidence through two interpreters at trial.  A second interpreter was required because the first interpreter became unavailable due to the length of the trial.  The process for the questioning of the appellant was that counsel would ask the question in English which was then translated by the interpreter into Mandarin for the appellant.  The appellant answered in Mandarin which was then translated by the interpreter into English.  As is evident from the pretext call recording, the appellant had a workable grasp of the English language.  Prior to 18 October 2019 he had been residing in Australia for nine years and had been employed at the aged care home for approximately fifteen months.  The appellant spoke English at work and had also completed a nursing course at university which was conducted in English.  The appellant’s proficiency in English was explained by the learned trial judge to the jury as follows:

“[The appellant] has a reasonable proficiency in the English language, but it was decided as a matter of caution to provide the interpreter to make sure that he understands everything that’s going on in the courtroom in his primary language”.^[20]

113. [113]
     Both the appellant and the respondent accept that the right to use an interpreter for the purpose of giving evidence is an essential incident of a fair trial.^[21]
114. [114]
     The first interpreter was replaced on the sixth day of trial.  The appellant was in evidence-in-chief and the narrative had reached the arrival of the complainant and appellant at the waterfront on Flinders Parade.  Shortly after the second interpreter commenced defence counsel raised with the trial judge in the absence of the jury concerns about the capacity of the interpreter to accurately interpret.  Defence counsel was instructed by a Mandarin speaking solicitor, who had picked up that the interpreter had misinterpreted the appellant’s answer which referred to the complainant “undoing her buttons outside” which was misinterpreted as “undo her buttons of the outside jacket”.  This misinterpretation was corrected by the trial judge in the presence of the jury.^[22]
115. [115]
     Shortly before the luncheon adjournment on the sixth day, defence counsel again raised with the trial judge concerns as to the accuracy of the interpretation.  The relevant evidence concerned the extent of the conversation between the complainant and the appellant in relation to the complainant’s boyfriend in Sydney.  This misinterpretation was also clarified by the trial judge.^[23]
116. [116]
     This misinterpretation resulted in defence counsel making an application for an adjournment to allow the appointment of a different interpreter.  The application was dismissed by his Honour on the following basis: 

     1. (a)
        the Crown only had another half an hour to go in cross-examination of the appellant;
     2. (b)
        the interpreter appeared to have accurately interpreted the bulk of the evidence;
     3. (c)
        there were two safeguards in place which allowed for the detection of errors as they happened.  The first was that the appellant had a reasonable command of the English language and secondly defence counsel’s instructing solicitor was not only fluent in Mandarin but was also a qualified interpreter.
117. [117]
     There is no challenge on appeal to his Honour’s refusal of the adjournment application.  Ground 3 proceeds on the basis of new evidence following the completion of the trial.  Jing Gao is an accredited interpreter and translator with the National Accreditation Authority for Translators and Interpreters.  Gao conducted an independent translation of the audio recording of the appellant’s evidence.  Gao has affirmed an affidavit in which it is stated that having reviewed the audio recording and transcripts a report was prepared which identifies the inconsistencies and inaccuracies with the translation at trial at first instance.  On 18 May 2022 the appellant filed an application to adduce this evidence together with Gao’s affidavit.  The Court received Gao’s affidavit but reserved the question of whether the evidence should be adduced.  The respondent does not take issue with the accuracy of Gao’s report and expressly accepts that the second interpreter made a number of errors as identified by Gao.  The report was only able to be compiled by a review of the audio recordings and transcripts.  The evidence constituted by Gao’s affidavit is “new” rather than “fresh” evidence as it was technically available at trial: De La Espriella-Velasco v The Queen (2006) 31 WAR 291, [119].  The application for leave to adduce the evidence of Gao in the form of the affidavit should be granted.
118. [118]
     Gao’s report is referred to as “Attachment B”.  It identifies approximately 43 interpretation errors, three in relation to the first interpreter and the balance in relation to the second interpreter.  These errors in interpretation were described by Mr Holt KC as ranging “from mundane and irrelevant” through to two specific errors which are submitted to be material in the defence narrative which when considered individually and in light of the other errors resulted in a miscarriage of justice.
119. [119]
     The first material error identified by the appellant is the following exchange in the course of his evidence-in-chief:

“MR MENOLOTTO:  Did she ever put her hands inside her pants?

INTERPRETER:  No.

MR MENOLOTTO:  Did you – okay.  Did you ever put your pants inside her underwear? 

INTERPRETER:  Your pants.

HIS HONOUR:  Sorry, your.

MR MENOLOTTO:  Your – sorry – hands.  Thanks, your Honour.  Did you ever put your hands inside her underwear?

INTERPRETER:  No.

MR MENOLOTTO:  Did she ever put her hands inside her underwear?

INTERPRETER:  I didn’t notice.”

120. [120]
     The interpreter’s error is identified in Attachment B, page 4 the last two entries and the top entry of page 5:

“Error:  ‘Did she ever put her hands inside her pants?’  Is mistranslated as ‘Did she ever put her hands inside your pants?’ 

Error:  ‘not put inside my pants’ is mistranslated as ‘No’.”^[24]

Gao also identifies that the appellant said in Mandarin to the interpreter “because you said “put inside my pants”, but this question is whether her hands are put in her pants.”

121. [121]
     The second error is the complete omission by the interpreter of the following evidence of the appellant:

“I didn’t know why she was acting weird when I called her on Monday and asked me lots of strange questions.”

122. [122]
     This omission occurred in the context of the appellant being cross-examined as to why he apologised to the complainant in the course of the pretext call:

“MS NICOLA:  Thank you.  …I suggest to you that you apologised to [the complainant] because you knew that she did not consent to what you did to her at the waterfront, and the train station.

INTERPRETER:  So I apologised to [the complainant] because I – from what I hear in that conversation, I – it seemed – it appeared to me that she was unhappy, so I did not know why, but she – on Friday, she gave me the impression that she wanted to have sex with me, and she also mentioned that I went down my pants in the conversation, so I thought she might regret doing things like this with me, because I still want to maintain the relationship with [the complainant].  So I want her to be happy so that she can maintain the relationship with me.”^[25]

123. [123]
     As to the first error, the appellant submits that the effect of the misinterpretation was that an important part of the defence narrative was omitted, namely that it was the complainant who had her hand inside her pants but over underwear.  The appellant further submits that there was a real possibility that, through the fault of the interpreter, the jury considered that the appellant had changed his evidence from his account previously given to his counsel.  Reasoning in this way would have borne adversely upon the jury’s assessment of his credit.^[26]
124. [124]
     The second error is submitted to be material because it concerned how the appellant felt about the pretext call.  It was not evidence otherwise before the jury and gave insight into how he felt about being met with allegations that he said were false.  While it is not possible to say whether the evidence would have had an impact on the jury’s assessment of the appellant’s credit, the appellant submits that it could have.^[27]
125. [125]
     In my view, it cannot be accepted that either of these errors, either taken together and in the context of the other errors identified in Attachment B resulted in any real unfairness to the appellant constituting a miscarriage of justice.^[28]
126. [126]
     Determining whether a particular irregularity such as an error in interpretation, is material or not “…requires consideration of the irregularity; the relevance of the irregularity to the issues before the jury; whether the material arising from the irregularity was prejudicial; and the extent of the prejudice”.^[29]
127. [127]
     As to the first interpretation error concerning the complainant putting her hands inside her pants which was mistranslated as the complainant putting her hands inside the appellant’s pants, this event, in terms of the defence narrative, occurred after the appellant had engaged in the conduct constituted by counts 1 and 3.  The appellant’s evidence^[30] was that after he had stopped licking the complainant’s breast, he noticed that the zip and the buttons of her pants had been opened.  Defence counsel had opened this part of the defence narrative in the following terms:

“Now, he says that he doesn’t know when but after he stopped the sucking on the nipple, he had noticed that the front of her pants was unbuttoned and unzipped.  He says he didn’t do that, and that she was rubbing her private area with her hands, and again, saying to him, ‘You turn me on, Frank’ and saying ‘Do I turn you on?’.”^[31]

128. [128]
     The opening did not expressly make it clear whether the complainant’s hand was inside her pants but outside her underwear.  This is also how defence counsel cross-examined the complainant in suggesting that the complainant unbuttoned and unzipped her pants and was rubbing her private area with her hands.  It was not expressly suggested to the complainant that she had her hand in her pants.^[32]  Importantly, in her address to the jury, the Crown prosecutor did not submit that the appellant’s credit was impugned because of any discrepancy between his evidence and defence counsel’s opening nor was the appellant cross-examined concerning any such discrepancy.
129. [129]
     When the defence narrative is considered as a whole, this aspect of the complainant putting her hand in her pants is not sufficiently material as to create any unfairness.  This is because it was only one small aspect of the defence narrative that the complainant was a willing participant in the conduct.  The appellant’s evidence was that it was the complainant who initiated the kiss and touched the crotch area of the appellant’s pants, telling him that he had turned her on.  It was the complainant who indicated that she wished to have her breast licked and was subsequently annoyed that she did not have a condom in her bag.  It was the complainant, according to the appellant, who asked him whether he masturbated and watched pornography.  In cross-examination the appellant confirmed that it was the complainant rather than him who turned the conversation to one of a sexual nature.  He specifically denied unzipping the complainant’s pants and putting his hand underneath her underwear rubbing her clitoris.  All these aspects of the appellant’s evidence were put to the complainant in cross-examination.  Her evidence was that it was the appellant who unbuttoned her pants and engaged in the conduct constituting count two.  The jury, by their verdicts, accepted the complainant as credible and reliable and must have rejected the appellant’s evidence that the complainant was a willing participant and that she initiated much of the sexual conduct.
130. [130]
     As to the second interpretation error, as outlined at [55] to [57] above, the appellant was extensively cross-examined in relation to the pretext call.  The materiality of the admission of the appellant’s evidence that he believed the complainant was acting “weird” and asking a lot of strange questions is considerably lessened by the fact the that the jury had the advantage of listening to the whole of the pretext call.  The jury were therefore able to assess the nature of the appellant’s responses in the pretext call both by reference to his evidence and the recording of the pretext call itself.
131. [131]
     Ground 3 fails.

Disposition

1. (i)
   The appellant be granted leave to adduce the affidavit of Gao, filed 18 May 2022;
2. (ii)
   The appeal is dismissed.