R v Behrendorff[2022] QCA 227

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA:  As Boddice J has recorded, this Court made orders disposing of the present appeal on 7 June 2022, by majority.  I was the dissentient.
2. [2]
   I record first that I agree with Boddice J for the reasons expressed by his Honour that ground 1 must fail.  My dissent was founded on my reaching a different view in relation to ground 2.
3. [3]
   Ground 2 of the appellant’s amended notice of appeal was that the trial miscarried in that evidence was placed before the jury that was not known to the parties.^[1]  For reasons which follow, I concluded that that ground must fail because I was not persuaded to make the finding that evidence was placed before the jury that was not known to the parties.
4. [4]
   The trial took place on 30 and 31 August and 1 September 2021.
5. [5]
   On 31 August 2021, counsel for the defendant called for the recording of a triple-zero call made on the evening of the events in question (namely 11 August 2018) and asked that it be played to the jury.^[2]  There followed a brief discussion in the absence of the jury.  In response to a question from the trial judge, counsel for the defendant revealed that her purpose in having the recording played was to seek to establish some form of prior inconsistent statement by the complainant.^[3]  As there was no dispute as to the authenticity of the recording, counsel for the Crown advised the trial judge that he could not oppose that course and proposed that he would tender the computer disc containing the recording without insisting on any formal proof.^[4]
6. [6]
   Arrangements were made for the digital file on the disc to be played in Court and, once the jury returned, that occurred.^[5]  Counsel for the defendant then proceeded to cross-examine the complainant about the events which occurred on the evening in question and by reference to what the recording might be thought to have revealed.^[6]
7. [7]
   The disc which had been played was not tendered immediately.  A few minutes after it had been played, whilst in the process of marking a photograph for identification, the trial judge asked about the recording that had been played and counsel for the Crown stated that he would “tender the triple O recording”.  The trial judge responded that he would “mark the CD that has the triple zero recording as exhibit 1”.^[7]  The transcript then records “Exhibit #1 admitted and marked”.  That all occurred in the presence of the jury.
8. [8]
   The next mention of exhibit 1 occurred later on 31 August 2021.  The case for the Crown closed just before lunch; the defendant was called upon; and his counsel answered that he intended to give evidence.^[8]  Counsel for the defendant then opened the case and once that had concluded the jury retired for lunch.  Just after lunch and before the jury was recalled, the following exchange occurred:^[9]

“HIS HONOUR: The only other thing I wanted to raise was this. In due course, we need to deal with exhibit 1, because it occurs to me that the disc that I’ve marked as exhibit 1 contains more than just the Triple O call, doesn’t it? I mean, that there were a number of files on the disc, and we saw the bailiff start to open something that was – and we stopped that. I suspect it’s what’s been referred to by the police officer as the ambulance officer’s report.

MR BRAITHWAITE: Yes.

HIS HONOUR: That’s not in evidence.

MR BRAITHWAITE: No, it’s not. That was tendered in the first - - -

HIS HONOUR: Why don’t - - -

MR BRAITHWAITE: - - - trial.

HIS HONOUR: But why don’t we have a disc that just has the Triple O call on it?

MR BRAITHWAITE: Perfectly sensible idea, and I can arrange that to transpire. Perhaps if I get the return of exhibit 1 and I can just simply copy that across onto a USB in due course before the jury retire.

HIS HONOUR: Well, do you need it, though, Ms Bernardin?

MS BERNARDIN: No, your Honour. I don’t need it further.

HIS HONOUR: The Triple O call. Do you need to refer to it?

MS BERNARDIN: No, your Honour. I do not.

HIS HONOUR: All right. Do you have objection to that being returned to the prosecutor - - -

MS BERNARDIN: Absolutely not, no.

HIS HONOUR: All right. Well, that’s what we’ll do, Mr – yes. We’ll return what’s marked as the – the disc that’s marked to you, and perhaps we’ll get that back in due course.

MR BRAITHWAITE: Yes.

HIS HONOUR: And I’ll leave that with the record, and we’ll re-mark the disc that just has the Triple O call as exhibit 1.

EXHIBIT #1 ADMITTED AND MARKED

MR BRAITHWAITE: I’ll organise that to be done, perhaps, at the close of business today.

HIS HONOUR: As long as we’ve got it by tomorrow morning.

MR BRAITHWAITE: Before, yes.”

9. [9]
   I would infer from the foregoing that it must have become clear to his Honour and to the parties at the time arrangements were made to play the triple-zero call to the jury that the computer disc containing the digital file which was the recording of the call, also contained other digital files.  Those other files were not opened before the jury.  The trial judge proposed, and the parties accepted, that a computer disc be produced by the Crown which would contain only the digital file containing the recording of the triple-zero call.  The evident joint expectation of the trial judge and of the parties was that the new disc would be substituted for the old disc and the new disc would be marked as exhibit 1.  To facilitate that course, the old disc (which had already been marked as exhibit 1) was returned to counsel for the Crown.
10. [10]
    The evidence in the trial concluded on the afternoon of 31 August 2021.
11. [11]
    The next reference to exhibit 1 occurred on the morning of 1 September 2021 and before counsels’ addresses occurred.  In the absence of the jury the following exchange occurred:^[10]

“MR BRAITHWAITE: A couple of matters. I have that extracted triple-O recording that was exhibit 1 - - -

HIS HONOUR: Yes. We've got to deal with that.

MR BRAITHWAITE: - - - to deal with.

HIS HONOUR: Yes.

MR BRAITHWAITE: Can I hand up a disc simply containing the triple zero recording, which will now become exhibit 1.

HIS HONOUR: Yes.

MR BRAITHWAITE: And then hand back the disc which contained the triple-O recording and the QAS notes.

HIS HONOUR: Yes. All right. Which we'd- - -

MR BRAITHWAITE: Just to go on the file.

HIS HONOUR: Yes. Yes.”

12. [12]
    Obviously, the joint expectation to which I have already referred was fulfilled by counsel for the Crown handing back to the Court two computer discs.  The first was a new computer disc to become exhibit 1, which contained only the triple-zero recording.  The second was the old computer disc, which had already been marked exhibit 1, but which contained the recording and other digital files described as “the QAS notes”, the intention being that the old disc would “just go on the file”.  It must have been plain to the judge, his associate, and to the parties that the only computer disc which was to be regarded as exhibit 1 in the trial was the new disc just handed up by counsel for the Crown, because it contained only the digital recording of the triple-zero call.
13. [13]
    Some other matters, presently irrelevant, were then discussed with counsel and the jury returned at 10.23 am.  They were then addressed by counsel for the defendant until 10.53 am.  During the course of her closing address, counsel for the defendant drew the jury’s attention to alleged inconsistencies between the evidence of the complainant and the information revealed by the triple-zero recording.^[11]  She later made further brief reference to the “triple 0 recording which you will have with you in the jury room”.^[12]  Counsel for the Crown conducted his closing address between 10.53 am and 11.41 am.  Amongst many other submissions, he too made brief reference to “the triple 0 phone call” which was exhibit 1 and invited the jury to have a listen to that and to form the view that it sounded like the defendant was severely intoxicated when talking to the operator.^[13]
14. [14]
    The trial judge’s summing up occurred between 12.02 pm and 1.05 pm, at which time the jury retired to consider their verdicts.  Amongst other things, the trial judge made the following references to the evidence which was contained in exhibit 1.
15. [15]
    First:

“The evidence is what the witnesses said from the witness box and the things which have been received as exhibits, in particular the photographs. And, of course, you have the recording of the triple O call which will be with you in the jury room. and you will have facilities to replay that if you wish to.”^[14]

16. [16]
    Second:

“If you have heard or read or otherwise learned anything about this case outside this courtroom, you must exclude that information from your consideration, as I have already explained to you. In other words, you must have regard only to the testimony and the exhibits put before you, including the admissions that were made in this courtroom since the trial began. As I have explained to you, you must ensure that no external influence plays a part in your deliberations.”^[15]

17. [17]
    Third:

“There is the evidence in relation to the triple O call and what you would make of that, particularly hearing it was the defendant who was dealing with the ambulance officer, although the complainant maintained that she had made the call. It is common ground, as I understand it, that it was her telephone that was being used and her own evidence, in cross-examination, where she conceded that she had said that she had slipped and fell, although the actual recording has the defendant recorded as saying that.”^[16]

18. [18]
    Fourth:

“As to the defendant’s evidence, for him, you were urged to come to a view that he presented as candid and giving his genuine recollection as to what had occurred, that his evidence is consistent with what you have by way of the triple O call”.^[17]

19. [19]
    Fifth:

“You are asked to have regard to the triple O call, whether he sounds severely intoxicated. You may need to take into account the way he tended to speak in the witness box and the way he tended to, perhaps, be difficult to understand at times. Again, that is a comment by me. It is a matter for you as to what you take into account there, but generally, to take into account what is suggested by the prosecutor to be a sense of aggression in his voice, particularly as he is directing the complainant, who can be heard faintly in the background at times, as to what to do.”^[18]

20. [20]
    The appeal record contained no indication that the jury asked any questions of the trial judge.  The jury returned with verdicts at 4.10 pm.
21. [21]
    The appeal record contained the exhibit list prepared by the trial judge’s associate.  It listed 17 exhibits.  The first 13 were all recorded as having been tendered on 31 August 2021.  The final four were all recorded as having been tendered on 2 September 2021.  From that date and from their descriptions it is plain that they were documents tendered during the course of the hearing regarding sentence.  The first 13 entries were obviously the exhibits which were admitted into evidence during the trial.
22. [22]
    One of the ordinary duties of a trial judge and of his or her associate is to ensure that exhibits are marked and retained safely and then, in the ordinary course,^[19] to ensure that they are placed before the jury.  As is the usual case, the appeal record contained no direct evidence that all or any of the exhibits recorded on the exhibit list were in fact placed before the jury, yet, of course and absent evidence to the contrary, this Court would presume that that must have occurred.
23. [23]
    That is but an ordinary example of the presumption of regularity in operation.  As was observed in Broom’s A selection of legal maxims (10^th ed, Sweet & Maxwell, 1939):

“… where acts are of an official nature, or require the concurrence of official persons, a presumption arises in favour of their due execution.  In these cases the ordinary rule is, omnia praesumuntur rite et solenniter esse acta donec probetur in contrarium – everything is presumed to be rightly and duly performed until the contrary is shown.”

24. [24]
    Of particular interest to the issue under present consideration is that the exhibit list identified that exhibit 1 was a “Disk containing Triple 0 audio recording from call on 12/8/2018” and that it had been tendered by the prosecution on 31 August 2021.  Absent evidence to the contrary, and particularly noting that the events I have described at [11] and [12] above occurred only 3 hours before the jury retired to consider their verdicts (and the associate would have collated the exhibits and ensured that the bailiff provided them to the jury), the appropriate presumption would be that only one disc was given to the jury and that it was the disc which contained only the triple-zero audio recording, the other disc having merely been retained to go on the file.
25. [25]
    The appellant sought to persuade this Court that evidence was placed before the jury that was not known to the parties.  The evidence which the appellant suggested was placed before the jury was the “QAS notes” to which counsel for the prosecution referred in the passage of the transcript extracted at [11] above.  QAS is an acronym for Queensland Ambulance Service.  The evidence upon which the appellant relied to justify that conclusion was as follows.
26. [26]
    First, that which could be gleaned from the appeal record, including the transcript of events on the third day of the trial.  I have recorded the relevant material at [4] to [24] above.
27. [27]
    Second, counsel for the appellant had in preparation for the appeal attended at the Court of Appeal registry to check what the exhibits were and what was actually provided to the jury.  She informed the Court that she found two discs, both marked exhibit 1, both dated 31 August 2021 and marked with the same indictment number, and that both had been placed upon the Court file in an envelope numbered “4”.  One disc had the Queensland Ambulance notes on it and one did not.
28. [28]
    Third, photographs of the front and back of two computer discs.^[20]  The photographs reveal:

    1. (a)
       One disc contained in a computer disc paper sleeve with a transparent plastic window through which can be seen a disc marked on the front in handwriting “Triple ‘0’ Recording”.  On the back of the envelope a sticker had been placed identifying the name of the trial judge; the name and matter number of the proceeding; the date 31 August 2021; the exhibit number 1; and the initials of the associate.  It is convenient to refer to this disc as “the new disc”.
    2. (b)
       A second disc contained in a hard transparent plastic computer disc sleeve, through which can be seen a Queensland Police Service computer disc.  The disc had handwritten markings on it identifying an occurrence number and that it was a copy.  It bore the handwritten date 12 August 2018 and the handwritten words “Triple ‘O’ recording + QAS notes”.  It is convenient to refer to this disc as “the old disc”.
29. [29]
    Fourth, the documents which were contained on the old disc – which I would infer were intended to be covered by the description “QAS notes”, namely:

    1. (a)
       a document headed “Incident Detail Report”; and
    2. (b)
       a document headed “QAS – electronic Ambulance Report Form”.
30. [30]
    Counsel for the appellant also invited the Court to inspect the Court file.  That inspection reveals that both discs were contained on the file in a red envelope labelled “4”, together with all the other exhibits.  They were marked consistently with what was apparent from the photographs referred to above.  The initials on the exhibit stickers were consistent with the signature of the associate.  The new disc contained only an audio file.  The old disc contained the audio file and the two documents referred to in the previous paragraph.
31. [31]
    Based on the additional evidence and having regard to my inspection of the Court file, I would make these findings:

    1. (a)
       The old disc was the disc which was initially admitted and marked as exhibit 1.  It was the disc which was the subject of the extract from the transcript recorded at [8] above and which contained “more than just the Triple O call” as the trial judge observed.  It was handed back to counsel on 31 August 2021 and returned by counsel on the morning of 1 September 2021 “Just to go on the file”, as was explained in the extract from the transcript recorded at [11] above.  The marking which had been placed on the old disc when it was initially admitted was not removed from the old disc after it was received.  Nor was it struck through to reflect the events which occurred on the morning of 1 September 2021.
    2. (b)
       The new disc was the disc which was prepared by counsel for the Crown and provided to the Court to “become exhibit 1”, as recorded in the extract from the transcript recorded at [11] above.  I would infer that the exhibit marking was placed on the new disc after it was received on 1 September 2021, but with the same date as had been placed on the previous disc because the new disc was received as a replacement for the old disc.  The new disc contained only the recording of the triple-zero call.
    3. (c)
       It was the joint expectation of the trial judge and the parties that it was the new disc which was exhibit 1 and the old disc would merely be retained on the file.
32. [32]
    There is no evidence which supports a finding that both discs were placed before the jury.  Nor is there evidence which supports a finding that the old disc but not the new disc was placed before the jury.  Given the exchange which had occurred on the morning of 1 September 2021, and given the way each disc had been marked (I refer here to the old disc being marked as “Triple ‘O’ Recording + QAS notes” and the new disc being marked as “Triple ‘0’ Recording”), it would have required an egregious error for either of those two events to have occurred. The only evidence which suggests the possibility that the joint expectation of the trial judge and the parties might not have been met is the fact that months after the trial both discs were found in the red envelope labelled “4”, together with the other exhibits and the exhibit marking on the old disc had not been removed or struck through.  I do not find that evidence to amount to evidence to the contrary of the conclusion which I would reach consequent upon making the presumption of regularity.
33. [33]
    It was argued by the appellant that there was a possibility that the disc containing the two QAS documents (namely the old disc) had been placed before the jury.  The existence of such a possibility would not make good appeal ground 2.  It was for the appellant to prove that some act or omission occurred at the trial and that the act or omission which had occurred occasioned a miscarriage of justice: cf TKWJ v The Queen (2002) 212 CLR 124 per Gaudron J at [30] and Nudd v The Queen (2006) 80 ALJR 614 per Gleeson CJ at [8].  To overturn this verdict and to order a new trial, this Court must find that there was a miscarriage of justice, not that there was a possibility that an act or omission occurred, which, if it had occurred, would have occasioned a miscarriage of justice.  Unless this Court could be persuaded that the old disc went to the jury either in lieu of or in addition to the new disc, there would be no basis for a finding that there was a miscarriage of justice.  Unless this Court was so persuaded, the evidence that the exhibit marking on the old disc had not been removed or struck through went nowhere.
34. [34]
    I was not so persuaded.  It followed that, in my view, appeal ground 2 must fail.

35. [35]
    BODDICE J:  On 7 June 2022 this Court ordered, by a majority, that the appeal against conviction be allowed, that the verdicts of guilty of each of the counts 8, 9 and 10 be set aside and that there be a new trial in respect of counts 8, 9 and 10.
36. [36]
    These are my reasons for joining in those orders.

Background

37. [37]
    On 30 August 2021, the appellant pleaded not guilty to eight counts of rape, one count of strangulation in a domestic setting and one count of assault occasioning bodily harm.  All offences were alleged to be domestic violence offences.
38. [38]
    On 1 September 2021, a jury found the appellant guilty of one count of rape (count 9) and guilty of the counts of strangulation in a domestic setting (count 8) and assault occasioning bodily harm (count 10).  The jury found the appellant not guilty of the remaining six counts of rape (counts 1-6 inclusive), having earlier found the appellant not guilty of a count of rape (count 7), following a direction from the trial judge that there was no evidence before the jury on which they could find the appellant guilty of that count.
39. [39]
    On 2 September 2021, the appellant was sentenced to six years and six months imprisonment in respect of the count of rape and lesser concurrent terms of imprisonment in respect of the other counts.
40. [40]
    The appellant appeals his convictions.  He relies on two grounds.  The first ground is that the jury verdicts are unreasonable.  The second ground is that the trial miscarried in that evidence was placed before the jury that was not known to the parties.

Background

41. [41]
    The appellant was born in 1975.  He was aged 43 at the time of the offences.
42. [42]
    The offences related to the same female complainant.
43. [43]
    The offences of which the appellant was convicted were all committed on 11 August 2018.  The counts of which the appellant was acquitted were alleged to have been committed by the appellant on three separate occasions between November 2016 and January 2018.

Evidence

Complainant

44. [44]
    The complainant first met the appellant in October 2016.  Shortly thereafter they commenced a relationship, including a sexual relationship.  They did not, however, live permanently together.  The complainant estimated she would attend the appellant’s residence two to three times a week.
45. [45]
    The complainant said that on a Friday evening in December 2016, she drove to the appellant’s residence where she made dinner, although she ate alone.  After consuming almost a bottle of wine, the complainant went to bed.  She had earlier had consensual sexual relations with the appellant.
46. [46]
    The complainant said after she had undressed and hopped into bed, she felt a hand on her shoulder. It awoke her from “a deep sleep”.  The appellant pulled her back flat and lay on top of her.  He was naked.  He forced his penis inside her vagina (Count 1).  She did not consent to that act.  The complainant asked the appellant to get off her and what he thought he was doing.  The appellant replied, “I just wanted to see if you knew who was fucking you. Don’t ever fall asleep”.
47. [47]
    The complainant said she did not leave the residence that night.  The appellant had told her she was not going anywhere before having a shower.  She remained in bed.  She pretended to sleep until the morning and then left the residence.  The appellant came and laid on the bed with his clothes on after he showered that night.
48. [48]
    The complainant said she was telephoned by the appellant later that morning.  He told her to “get my ass back there”.  The complainant told the appellant that what he did to her last night was rape, to which the appellant replied, “That’s not fucking rape. I can have you whenever I want to have you”.  The appellant asked her to come over to her residence.  She said no.
49. [49]
    The complainant said she remained in a relationship with the appellant thereafter.  She was “so scared”.  In March 2017, on either a Friday or Saturday night, she went to the appellant’s residence.  The complainant said she was really nervous.  After having dinner and drinking together, the complainant told the appellant she wanted to go to bed.  The complainant estimated she had consumed nearly a bottle of white wine.  She had also taken two Valium tablets.  She went to bed at about midnight.
50. [50]
    The complainant undressed, hopped into bed and fell asleep.  She estimates she slept for a long time before awakening to find the appellant on top of her with his penis inside her vagina (Count 2).  The appellant was thrusting his penis.  She thought that was what woke her up.  She did not consent to that act.  She was yelling “Get off me. Get off me”.  The appellant at one stage said, “Why aren’t you coming? Who are you fucking?”.  The complainant said she was lying on her back with her arms crossed over above her head.  The appellant was holding both her wrists with one hand.
51. [51]
    After the appellant ejaculated, he went and had a shower.  The appellant also told the complainant to shower.  The complainant then laid down on the bed and pretended to be asleep.  The complainant left at about 5.00 am or 5.30 am the next morning, after the appellant had fallen asleep.
52. [52]
    The complainant said that following that incident, the appellant asked her to come back.  She said no.  Ultimately, she did get back together with him, although there was a passage of time between breaking up and resuming the relationship.  The complainant said she resumed the relationship after the appellant told her it would never happen again.
53. [53]
    The complainant said, in May 2017, after having attended the appellant’s residence and consuming alcohol with him, she was again awoken by the appellant on top of her with his penis inside her vagina (Count 3).  She did not consent to that act.  At that point, the complainant was lying on her back.  The appellant had his hand on her shoulder and was thrusting back and forth.  The complainant yelled out “Get off me. Not this again”.  The appellant did not reply but a little later said, “Why aren’t you coming? Who are you fucking?”.  The complainant described her arms as being again up behind her head “like he was the last time”.
54. [54]
    The complainant said after the appellant ejaculated, he had a shower.  The complainant also showered before returning to bed.  The complainant lay in the bed until the appellant fell asleep.  She left the residence, around dawn.
55. [55]
    The complainant said on 8 January 2018, she attended the appellant’s residence.  They were meant to attend a function together at the local bowls club.  When she arrived, the appellant was not there.  She spoke to him by telephone.  He indicated he did not want her to go to the function.  The complainant said she was not going to argue.  She remained at the residence and cooked dinner before going to bed at around 9.00 pm.  On that occasion she consumed a couple of glasses of wine but did not have any Valium tablets.
56. [56]
    The complainant said she dozed off before waking up to the appellant walking into the bedroom.  He was pacing up and down.  He had hold of the complainant’s mobile telephone.  The appellant hit her on the side of the face with the mobile telephone.  He then threw it against the wall.  The appellant said, “Have you been texting your boyfriend?”.  The appellant mentioned the name of her ex-boyfriend.  The appellant then smashed the complainant’s laptop before kicking her in the side of the face with his boot and ground the sole of his foot into the side of her face.
57. [57]
    The complainant said she was sitting on the side of the bed at that point.  She told the appellant she was going to go.  As she attempted to dress, the appellant pushed her back onto the bed.  The appellant said, “Have you ever been fucked up the arse?”.  The complainant said no, and the appellant replied, “I’m going to have your arse”.  The appellant pinned down the complainant’s shoulders, grabbed her legs and pushed them right back so that his face came close to her face.  The complainant said she could not move but bit the appellant on the nose.
58. [58]
    The complainant said consensual sexual intercourse between herself and the appellant in the past had not included anal sexual intercourse.  However, after she bit the appellant’s nose, the appellant grabbed a gold vibrator and put it into her anus (Count 4).  The vibrator was usually kept in the side drawer table beside the bed.  The complainant had previously used that vibrator.
59. [59]
    The complainant said when the appellant pushed the vibrator into her anus, he pressed a setting and said, “Do you like that?”, before pressing another setting and asking, “Is it that one you like?” and then a further setting, “Or is it that that you like?”.  The vibrator remained in that position for approximately five minutes.  At no stage did she consent to that act.  The complainant said the appellant took the vibrator out of her anus and put his penis in her anus (Count 5).  That did not last for long.  The complainant was fighting with him.  The appellant then flipped her over onto the bed and had vaginal sex (Count 6).^[21]
60. [60]
    The complainant said that before the appellant put the vibrator in her anus, he had turned onto her stomach.  She remained in that position when the appellant inserted his penis in her anus.  The appellant flipped her onto her back before inserting his penis into her vagina.  She did not consent to any of those acts.  The complainant said she was screaming to stop and calling for someone to help her and call the police.  It was very painful.
61. [61]
    The complainant said after the appellant had penetrated her vagina with his penis, she grabbed the appellant’s belt from the bed and threw it around his neck, dragging him with it to the floor.  At that point, the appellant hit the door.  The appellant then grabbed a knife and stretched out the bottom of her top.  He said something like, “You’re not going anywhere” before pulling the knife up towards her face.
62. [62]
    The complainant said the knife came from the side of the bed.  It was a knife with a sheathe hanging at the side of the bed.  The blade was approximately 12cm long and silver in colour.  The handle was brown.  The complainant said as the appellant stretched her shirt, he called her a “fucking cunt” and said, “I’ll get you for this”.
63. [63]
    The complainant said she pushed the appellant into the main bedroom door.  The appellant then threw her into the side of the chest freezer in the spare bedroom, right beside the main bedroom.  The complainant said as she was lying on the floor beside the chest freezer, the appellant was standing up with the knife in his hand.  The complainant saw there were fishing rods in the room with hooks on them.  She pushed the appellant “really hard” into the hooks.  The appellant was hooked on the fishing rods and could not move.  The complainant then took the knife from the appellant and put it behind the microwave.
64. [64]
    The complainant said thereafter the appellant pushed her against the kitchen bench.  He pulled her nose and was prodding the complainant.  She bit him on the finger, making it bleed.  The appellant again called her a “fucking cunt” before going to shower.  The appellant told her to shower.  The complainant went into the bathroom and closed the door.  It was early morning but still dark.  The complainant remained in the bathroom until she could hear the appellant snoring.  She texted a girlfriend to pick her up.  The girlfriend arranged for the girlfriend’s mother to pick up the complainant.
65. [65]
    The complainant said after that day, she told the appellant she did not want to see him anymore.  At one point she said she would report it to the police.  The appellant replied, “All it would take would be one phone call”.  The appellant did not give any further detail or context to that statement.  The complainant said for approximately the next seven months, she did not see the appellant.  They did communicate by text and telephone calls.  At one stage, the complainant saw the appellant during the day.  She was too scared to go over to his residence at the night-time.  The complainant did accept there were “sleepovers” in that seven-month gap.  They were consensual.  The complainant made no complaint about those occasions.
66. [66]
    The complainant said on 11 August 2018, she spoke to the appellant by telephone.  It was a Saturday.  The complainant asked the appellant to pick her up from the local tavern.  By that stage, the appellant had moved to Brighton.  The complainant had attended that new address prior to 11 August 2018.  She had also stayed at that address.  There was no one else living there.
67. [67]
    The complainant said when they returned to the appellant’s residence, they had some drinks and the appellant made dinner.  The complainant estimated she consumed a bottle of wine.  The appellant had a gin and tonic.  He was also drinking rum and coke.  During the night, they both had shots of tequila.
68. [68]
    The complainant told the appellant she was going to bed.  He asked her to stay up, but she said she could not as she was picking up her eldest son from the airport the next morning.  The appellant responded, “It was time I fucked those kids off”.
69. [69]
    The complainant went to bed at around 9 or 9.30 at night.  She woke during the night and went to the toilet.  As she was returning to bed, the appellant said, “Have a shot of tequila”.  The complainant drank the tequila before returning back to bed.
70. [70]
    The complainant was awoken by the appellant pulling her hair.  He picked her up by the hair, raising her off the bed.  The appellant started slapping her across the face before punching her in the side of the head.  The appellant wanted the complainant to “suck his cock”.  The complainant said no.  The appellant then punched her in the left side of the head with a closed hand.  At that stage, the appellant was naked.
71. [71]
    The complainant said she blacked out.  When she resumed consciousness, the appellant was on top of her.  She was lying flat on her back.  The appellant’s penis was in her vagina.  The appellant was squeezing her breasts so hard it was hurting on both sides.  The complainant started kicking.  At that point, the appellant put both hands against her throat, strangling her (Count 8).  The complainant said she could not breathe.  She thought the appellant was going to kill her.
72. [72]
    The complainant said she ended up losing consciousness.  When she woke up, she was at the end of the bed.  Her legs were hanging over the end of the bed on the left-hand side.  She was positioned on her back.  The complainant started kicked out.  The appellant’s penis was inside her vagina (Count 9).
73. [73]
    At that point, the appellant grabbed her right leg.  He pushed it towards her causing a crunching sound.  The complainant said it was excruciating.  She realised the appellant had dislocated her knee.  The complainant said she told the appellant she needed to go to the toilet.  At that point, the appellant grabbed her leg and popped it back.  He then went to have a shower.
74. [74]
    The complainant noticed blood on the floor.  Her head was bleeding on the left temple.  The complainant said she could not walk without holding on to the wall.  She held onto the wall until she reached the kitchen, stopping at the microwave.  She then walked down the stairs to the toilet.  There was blood coming out of her head.  She tried to clean it up with some toilet paper.
75. [75]
    The complainant said when she returned, the shower was still going.  She went back into the bedroom.  At that point, the appellant came in with a bucket of water and threw it over her saying, “Fucking clean yourself up”.  He then left the room.  The complainant took her mobile phone out of the handbag and dialled 000.  When she heard the appellant coming back, she put the phone back in her bag.  At that point, the appellant pushed her back and threw the bucket of water between her legs and said, “Clean your fucking self up”.  He again left the room.
76. [76]
    The complainant said she remembered at one point the appellant punching her but did not remember anything after that until she saw the ambulance come to the house.
77. [77]
    The complainant said she had a black eye; required stitches to her forehead; had bruising all over her body including strangulation marks on her neck; had a dislocated knee; a broken tooth; lots of hair loss and bruising to her wrist; bruising to her left tricep; and bruising to her breasts.  The complainant was shown a series of photographs of those various injuries.  She said they were occasioned by the appellant.
78. [78]
    The complainant was also shown a photograph of a bedhead.  The complainant said she bit down on the bedhead when the appellant put his penis into her anus.  The complainant identified a photograph of a mark on that bedhead.  She also identified an area where the knife would hang beside the bed as well as photographs of blood located in the toilet area and a photograph of the vibrator on the bedside drawer used by the appellant.
79. [79]
    In cross-examination, the complainant accepted that when she spoke to police at the hospital, she told police she had not been sexually assaulted.  The complainant said she was scared and just wanted to go home.  The complainant accepted police had offered her the opportunity to participate in a sexual assault investigation kit.  She did not want to proceed with that investigation.  She denied she knew the examination would assist police in their investigations in finding DNA and semen.  The complainant accepted she also told police that the last time that anything sexual had happened was on the Tuesday night.  The complainant accepted that statement was not true.
80. [80]
    The complainant accepted that at the hospital she told police the appellant initially pulled her up by the throat and had then held her wrists; that when the appellant was on top of her holding her hands down, he was not trying to have intercourse with the complainant and that subsequently, the appellant had tried to turn her over on her stomach because he wanted to have anal sex.  She accepted that her evidence was that on no occasion on 11 August 2018 did they have anal sex.
81. [81]
    The complainant accepted that when she spoke to police at the hospital she said she had been punched twice in the head and that the appellant had been trying to rip off her pants.  She accepted she subsequently told police she was not wearing pants and that she was only wearing knickers and that the appellant did not get them off.  The complainant said what she told police on that occasion was not correct.  The complainant said it appeared she was talking about two separate incidents.
82. [82]
    The complainant accepted that what she told police at the hospital was not accurate.  The complainant said at that time she did not want to say anything.  She was scared and wanted to go home.  She did not tell police everything at that time.
83. [83]
    The complainant accepted that, whilst at hospital, she also spoke to police about an incident when the appellant had strangled her.  Whilst she had referred to that as occurring in February 2018, it was in fact the January 2018 incident.  The complainant accepted that, in describing the January 2018, she told police that after the appellant had inserted his penis into her vagina, he had a drink before coming back and putting his boot in her face.  The complainant said the appellant had put his boot into her face earlier on that night.  She agreed she told police the appellant had another drink before stomping on her head again.
84. [84]
    The complainant agreed that at the hospital she had made a complaint of rape on 8 January 2018 but did not tell police about any rape on 11 August 2018.  The complainant also accepted that at the hospital she made a complaint about events on 11 August 2018 but said there was no sexual assault.
85. [85]
    The complainant accepted that on 14 August 2018, she provided a formal statement to police.  She read that statement before signing it.  She accepted that in that statement she said that in the January 2018 incident, the appellant had hit her with her phone before throwing her phone and laptop at the wall.  She agreed she had not told police about those events at the hospital.  The complainant also agreed that at the hospital she did not tell police about the appellant using a knife to cut her top.  She did record that in her formal statement to police.  The complainant accepted that no cut top was found when police searched the residence some months later.  The complainant said the appellant would have disposed of it.
86. [86]
    The complainant accepted that in her formal statement to police she said that after the appellant inserted his penis into her vagina, she put the appellant’s belt around his neck to throw him off the bed.  She did not tell police about using the belt whilst at the hospital.  She agreed that in the formal statement she told police that after she had used the belt to push him off the bed, the appellant reinserted his penis into her vagina.  She did not tell police at the hospital that the appellant had inserted his penis into her vagina twice.  She also agreed she had not said in Court that the appellant had inserted his penis into her vagina twice on 8 January 2018.  She also agreed that she told police that after the second incident of vaginal sex, she pushed the appellant into some fishing rods in the spare room, whilst he still had the knife in his hand.  At the hospital she had told police the appellant had stomped on her with his boot and that thereafter she had ended up falling asleep.
87. [87]
    The complainant accepted that in her first statement to police on 14 August 2018 she did not make any allegations about any incident in December 2016 or March 2017 or May 2017.  The complainant also accepted that when she provided a second statement to police on 31 October 2018, she did not make any allegations about anything happening in December 2016, or March 2017, or May 2017.  The complainant only told the police “everything after the original court case”.
88. [88]
    The complainant accepted that in her second formal statement to police in October 2018, she told police that in the incident on 11 August 2018, the appellant had twisted and dislocated her leg.  The complainant accepted she had not told police prior to that statement that the appellant had dislocated her leg.  She also did not tell hospital staff.  The complainant said the police officer had to help her walk.  She agreed that was the first time she had said she needed assistance from the police to walk.
89. [89]
    The complainant accepted that in the statement she gave to police on 14 August 2018, she mentioned other injuries she had received but did not mention any injury to her leg.  She also accepted she did not seek any attention to her leg whilst at the hospital.  She denied she had embellished her story.  The complainant denied she had attended the appellant’s house the day after the January 2018 incident to retrieve her car.  The complainant said she returned a week and a half later and was limping at that time.  The complainant accepted that she drove the car out of the driveway.
90. [90]
    The complainant accepted that in Court in February 2020, she said, in relation to the January 2018 incident, that the appellant was angry that she had gone to the bowls club and had kicked her in the left-hand side of her face with his boot.  She accepted her evidence now was that before being kicked with the boot, the appellant had thrown and broken her telephone.  The complainant accepted they were two very different versions.  She accepted she had given different versions to the police at the hospital and in Court in October 2020.  The complainant said the events happened, she had just “got it out of order”.^[22]
91. [91]
    The complainant accepted that in October 2020, she had given evidence that when the appellant pushed her legs back and she bit his nose, she had grabbed him by the hair.  She accepted that in her evidence in Court on this occasion, did not say anything about grabbing the appellant’s hair during the 8 January 2018 incident.  The complainant accepted that constituted two different versions.
92. [92]
    The complainant accepted that when she gave evidence in February 2020, she did not give evidence that after the 8 January 2018 incident, the appellant had a shower.  The complainant accepted that was different to her evidence in Court that after that incident the appellant had a shower before falling asleep.  The complainant accepted she had given three different versions of the incident in January 2018.
93. [93]
    The complainant accepted that in evidence in February 2020, she had said that when the appellant picked her up from the tavern on 11 August 2018, they had talked about bruises across the top of the appellant’s legs.  The complainant had assumed the appellant had had sex on the table with another woman.  The complainant said she asked him because she had been receiving text messages.  The appellant always denied it.
94. [94]
    The complainant accepted that in respect of the 11 August 2018 incident, she told police at the hospital the appellant had pulled her by the hair and by the throat.  However, in evidence in February 2020, she said the appellant had pulled her hair, hit her across the face and punched her in the head before pressing down on her throat, strangling her as she was coming to from the punch.  The complainant accepted that was a different version.  The complainant accepted she had also said in her first statement to police in respect of that incident that as she was regaining consciousness, the appellant said to her, “Why aren’t you coming. Who are you fucking?”, at which time she realised he was having vaginal intercourse with the complainant.  The complainant accepted that was also a different version.
95. [95]
    The complainant accepted she had given evidence in February 2020 that she had told the 000 operator she had slipped and fell but had denied the appellant called the ambulance.  The complainant said she dialled the ambulance, not the appellant.  He returned to the bedroom when she was on the telephone.  The complainant accepted the 000 call recorded the appellant talking but said he used her telephone after taking it off her.  The complainant accepted she was uncooperative with the appellant at that time.  The complainant did not want him near her after what “he did to me”.^[23]
96. [96]
    The complainant accepted that in a statement given to police on 23 May 2020, she, for the first time, complained of being raped in December 2016, March 2017 and May 2017.  She agreed she had not told anyone about those three incidents before that statement.  She accepted she first raised those incidents in Court in February 2020.  She accepted that in evidence in February 2020, she said she had told Detective Josh Cislowski about five rapes.  She accepted that in her statement of 23 May 2020, she said, “There have been a further three occasions in which Keith Behrendorff has raped me, which I have not previously disclosed to the police”.  She accepted that statement was inconsistent with her evidence that she had previously told the police officer.
97. [97]
    The complainant accepted that when she gave evidence in October 2020, she did not give any evidence about kicking out at the appellant during the December 2016 incident.  She also had not given evidence in this proceeding that she had kicked out at the appellant during the instance of vaginal intercourse in December 2016.
98. [98]
    The complainant accepted that in her statement to police on 23 May 2020, she said she had picked the appellant up from a hotel prior to the incident in March 2017.  However, in Court in October 2020, and in this proceeding, she had given evidence she had driven to the appellant’s house.  She accepted those versions were different but said she had picked him up on one of the occasions in March or May.  The complainant said some things were clear and some things were not as clear.  The complainant accepted that in her previous statements she had said she had gone to the appellant’s house prior to the May 2017 incident.  On no occasion previously had she suggested she had picked up the appellant from a hotel prior to that incident.
99. [99]
    The complainant accepted that in her statement on 23 May 2020, she said, in relation to the March 2017 incident, that after about 20 minutes of vaginal penetration she was able to push the appellant away with her feet causing him to withdraw.  The complainant accepted she did not say anything about using her feet when she gave evidence in October 2020.  She also accepted she did not give evidence of using her feet to push him away in Court.
100. [100]
     The complainant accepted she told police at the hospital on 12 August 2018 that she had consumed two bottles of wine on the evening of 11 August 2018.  The complainant said she only opened one bottle of wine that night.  She accepted those versions were inconsistent.  The complainant accepted she was intoxicated on the night of 11 August 2018.
101. [101]
     The complainant accepted she had given evidence that after the last act of penetration on 11 August 2018, the appellant had filled three buckets of water and thrown them over her while she was on the bed.  She said that incident was very clear.  She accepted she had told police at the hospital that the appellant had used an orange bucket but when she had given evidence in Court in February 2020, she had described it as a white small industrial bucket.  She denied the appellant had used a green bucket.  The complainant accepted that the end of the bed would have been quite wet.
102. [102]
     The complainant denied she had falsely made those claims to explain why there would be no DNA evidence on the bed.  She also denied that was why she declined a rape kit at the hospital.  The complainant said she was scared and wanted to go home.  She agreed that although she said she was scared of the appellant and that was the reason she did not tell police about the incident on 11 August 2018, she had told police about the incident on 8 January 2018, which contained allegations of acts of penile sex, anal sex and anal sex with an object.
103. [103]
     The complainant said that when she went to the toilet on the occasion her knee was dislocated, there was blood everywhere on the floor, from her head.  She denied she tripped over on a ledge as she walked into the toilet, hitting her head.  She accepted there was blood on the floor of the toilet in front of the toilet.  She accepted that her evidence was that she sustained the injury to her head in the bedroom but that the majority of the blood was in the toilet area.  The complainant said there was blood in the bedroom.  She accepted there were no pools of blood on the bed.  When asked why there was blood pooling a distance away from the toilet, the complainant said she might have been leaning forwards.  She otherwise could not explain that blood.^[24]
104. [104]
     The complainant accepted that she first gave evidence of going to the toilet when she came to Court in February 2020.  She had been shown photographs by the prosecutor in a conference prior to giving evidence on that occasion.  Those photographs showed blood on the floor of the toilet.  She was told DNA testing had revealed that was her blood.  The complainant denied that was why she gave the evidence in Court on February 2020.
105. [105]
     The complainant accepted that the allegations she had made against the appellant were “incredibly serious”.  She also accepted she had progressively expanded on her initial version to police at the hospital and in the subsequent years.  The complainant accepted that her relationship with the appellant was off and on prior to 11 August 2018.  In the month before the final incident, she was not seeing the appellant often.  She denied she was jealous of the appellant’s relationship with his ex-partner.  She accepted she had sent a text message on 29 July 2018 which said, “I do get jealous, but I trust you. Please be good”.
106. [106]
     The complainant agrees she had sent a text message to the appellant on 6 July 2018 stating, “Love the drama. You’re a bitch, Keith”, and on the following day, “You’re a disgrace to call yourself a man, bitch”, and later the same day, “I’m leaving the hotel now in a cab to yours to have it out with the both of you”.  That was a reference to the appellant’s relationship with his ex-partner.
107. [107]
     The complainant accepted the next text message sent to the appellant was, “Unlock the door, then”, and later, “Will you open the door, or will you hide?”, after which she text, “I thought so. Weak as piss”.  The complainant accepted those messages created a different story to her being scared of the appellant.  The complainant said she was angry and had every right to be angry as she was being lied to by the appellant.  The complainant accepted she was making threats to come to the appellant’s house which did not sound like she was scared of the appellant.
108. [108]
     The complainant accepted that on 7 July 2018, she had sent text messages to the appellant stating, “I can be there in 20 minutes”, and two minutes later, “Game 1. I win. You lose. I knew that would be a no. HAA HAA”, followed by one minute later, “Well, do you want me to come over”, to which the appellant replied, “To have a go at me?”.  She replied, “Game 2. I win. You lose again”.
109. [109]
     The complainant accepted that one minute later she sent a text to the appellant, “Do you want me to come over”, to which the appellant replied, “You told me to fuck off, cunt. I’m hurting. I just want happiness”, to which she replied, “Game 3. You blew it. I’m glad it was with her. I win again. So she is still there… Thank you both.”  One minute later the complainant accepted the appellant sent a text, “Come over, then”, to which she had replied, “Game 4. I win. Too late. Enjoy the piss on your pillow.”  The complainant accepted they were examples of how she would torment the appellant but said the appellant used to torment her too.
110. [110]
     The complainant accepted she had given evidence that at that stage she was too scared to see the appellant in the night time but agreed she had gone with the appellant to Bribie Island in late July 2018 for a night away.  She had also sent a text message on 13 July 2018 thanking the appellant for a lovely night and that she went to his house on 17 July 2018, having sent a text message, “See you tonight”.  The complainant said there were times when she was scared of the appellant.  The complainant accepted that on 10 August 2018, she sent a text message to the appellant saying, “I am happy.  I am happy with you in my life, but all I want is you to be happy with just me”.
111. [111]
     The complainant accepted that during their relationship, the appellant would buy her items, including alcohol.  He would also pay for dinners or ingredients to make dinner.  She accepted she sent a text message on 27 July 2018 thanking him for wine, cigarettes and dinner.  She also accepted that the appellant let her use his house to run her beauty therapist appointments.  The appellant also bought her a car just prior to 11 August 2018.  She agreed the appellant financially supported her.
112. [112]
     The complainant accepted that she had given evidence that during these events, she was screaming out very loudly asking people to call the police.  She agreed no one called the police and no one came to the house.  She agreed the house was on a residential street with neighbours close by and that these events often occurred in the middle of the night or early morning when it would have been quiet.
113. [113]
     The complainant accepted that when she went to the appellant’s house on 11 August 2018, she was going to “watch movies, hang out and have sex”.^[25]  She denied that the only sexual activity that night was the appellant performing oral sex on her.  She denied she was angry because she thought the appellant was seeing other women.  She accepted she gave evidence in Court in October 2020 to the effect that she asked the appellant about seeing somebody else.  The complainant said the appellant said no.  The complainant denied that she was physically aggressive and assaulted the appellant on the night of 11 August 2018.  She denied that some of the marks on her body were as a result of the appellant having to defend himself.  She accepted that at the hospital on 12 August 2018, the nursing staff told her that her bruises looked old.  She denied that the appellant had medical conditions which made it highly unlikely he would have been able to engage in these physical acts.  She also denied the medication made him sexually impotent.  She denied that was why she refused to undertake a rape kit at the hospital.

Other

114. [114]
     Joshua Cislowski was tasked to investigate the complainant’s complaints on 12 August 2018.  He first became aware of the complainant making further allegations of rape in February 2020.  He had never had a conversation with the complainant before February 2020 in which she alleged five rapes instead of two.  At no stage during his conversations with the complainant when she gave a formal statement in August 2018, was he made aware of her having a sore leg.  He did not recall ever physically helping her to walk.
115. [115]
     At the conclusion of the Crown case, admissions were made as to the taking of DNA swabs on 12 August 2018 and a test for blood on 14 August 2018 which revealed DNA that matched a single contributor, being the complainant, and that the appellant’s DNA was not found.

Appellant

116. [116]
     The appellant gave evidence that he had stopped working in 2014 due to a back injury.  He had a bone disease which affected his ability to move, including the ability to have intercourse and sex.  He could not do that if he had been drinking because of his medication.  It slowed down his sex drive and although he was still able to have sex, it was very difficult.
117. [117]
     The appellant denied he had ever raped the complainant.  He said that on the evening of 8 January 2018, he had walked to the bowls club and had a few drinks.  When he arrived home, his mother and the complainant were at the residence.  He did not have any disagreement with the complainant that night and he did not use a knife to cut her shirt.  The knife hanging by the bed had been given to him by his father before he died in 2012.  It was important to him.
118. [118]
     The appellant said that on 11 August 2018, he went to the tavern in the afternoon.  He was picked up by the complainant.  Before arriving back at the residence, he purchased two bottles of white wine and a bottle of tequila.  He and the complainant had a few drinks and he cooked dinner.  The complainant was drinking wine.  Later that night, the appellant performed oral sex on the complainant at her request.  After they had another drink, he again performed oral sex on the complainant.  They then went outside, and the complainant consumed the second bottle of wine.
119. [119]
     At that point, the complainant started to “get a bit narky”^[26] about the appellant’s ex-girlfriend.  The complainant grabbed the appellant by his hair.  He pushed the complainant away with his two hands.  The appellant said the complainant went out the back of the house and down the bottom stairs.  The appellant heard a crash.  When the complainant came back into the room, she had red on her face.  The appellant sat the complainant on the edge of the bed and obtained some water from the bathroom in a green bucket.  He used a flannelette shirt to stop the bleeding.
120. [120]
     The appellant said he could not find his own phone but used the complainant’s phone to call 000 whilst he was on the edge of the bed trying to stop the bleeding.  He denied throwing any buckets of water over the complainant.
121. [121]
     The appellant said that at that time, his residence was attached to his mother’s house.  She was located but metres away from his residence.  There was also a neighbour’s house right next door.
122. [122]
     The appellant said that the gold object in the drawer on his side table was a torch.  He had owned it for years.  He had never used that torch to penetrate the complainant’s anus.  On no occasion did he strike the complainant in the head or strangle her.
123. [123]
     In cross-examination, the appellant accepted there was, in the same drawer, a gold vibrator.  He did not accept that when he spoke to 000 on 11 August 2018, he was heavily intoxicated.  He denied that the complainant telephone 000.  He denied that the ball of hair in the bin bag was the complainant’s hair; it was his hair.  He said the bruises depicted in photographs occurred when the complainant fell down and tripped in the bathroom.  He did not cause those bruises.  He did not cause the cut to her eye.  That occurred when the complainant fell and hit the toilet.
124. [124]
     The appellant said any mark to her neck occurred when the appellant pushed her away when she had hold of his hair.  He accepted his hands were in contact with her chest, not around her neck.  He did not know how the complainant had received bruising around her neck.  He denied the bed was soaking wet.  Only a corner was a bit wet from where he had had the bucket of water trying to clean up the complainant’s eye.  He accepted that when he previously gave evidence, he did not mention that his medical conditions made it difficult for him to move.  He denied he had simply made up the restriction of movement.  He accepted that sexual intercourse was possible in that he could obtain an erection but said it was difficult for him to do so.

Appellant’s submissions

125. [125]
     The appellant submitted that the verdicts of guilty on counts 8, 9 and 10 were unreasonable because there were solid obstacles to conviction consistent with innocence which were not rationally overcome, notwithstanding evidence of bruises or lacerations on the complainant shortly after those events.  Further, there were substantial discrepancies and inconsistencies in the complainants account, proving that she was neither credible nor reliable.  Those inconsistencies included fanciful claims about water being thrown over her and invented claims about a dislocated knee.  The state of the evidence concerning the bruises was also unsatisfactory.  These discrepancies and inconsistencies were particularly important in a case where the jury acquitted of many counts, all of which were dependent upon an acceptance of the complainant’s reliability and credibility.  There was also doubt as to the element of a domestic relationship for a finding of guilty of count 8.
126. [126]
     The appellant further submitted that there was a miscarriage of justice as a consequence of the jury having access to inadmissible evidence, without the knowledge of the parties.  Two discs were marked as exhibit 1.  One contained not only the 000 recording but copies of other documents containing highly prejudicial, inadmissible evidence in respect of the ambulance records.  The other disc only contained the 000 recording.  The fact that both were marked exhibit 1, and the jury was given access to all exhibits, raises the real likelihood the jury had access to that inadmissible evidence, which was specifically relevant to counts 8, 9 and 10.

Respondent’s submissions

127. [127]
     The respondent submits the verdicts of guilty on counts 8, 9 and 10 were not unreasonable.  The complainant gave consistent accounts of the events of 11 August 2018.  Her evidence was supported by photographic evidence of bruises and lacerations.  Whilst there were discrepancies and inconsistencies in aspects of the evidence, they were not such as to warrant the jury rejecting the complainant’s evidence on these events as being reliable and credible.  The fact that the jury found the appellant not guilty of the other counts did not necessitate a conclusion that the jury ought to have held a reasonable doubt as to the complainant’s reliability and credibility in respect of the events of 11 August 2018.  The earlier counts related to events which were not the subject of any initial complaint and only arose after the complainant had given a formal statement to the police.  There was also no photographic or other objective evidence to support the commission of those offences.
128. [128]
     The respondent further submitted that there was no miscarriage of justice in the incorrect marking of two discs as exhibit 1.  The trial judge had raised concerns after the disc containing the inadmissible material was tendered and it was agreed it would be substituted by a disc containing only the 000 recording.  Whilst both were marked as exhibit 1, there was no basis to conclude that the jury was given other than one disc as exhibit 1, being the disc containing solely the 000 recording.

Consideration

Ground one

129. [129]
     A verdict of a jury is unreasonable and cannot be supported by the evidence if an Appellate Court, undertaking its own independent assessment of both sufficiency and the quality of the evidence, determines that notwithstanding there being evidence upon which a jury might convict, it would be dangerous in the circumstances to permit the verdict to stand.^[27]
130. [130]
     In determining that ground, the Court proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable.  However, the Court examines the record to see whether, notwithstanding that assessment, the Court is satisfied, either by reason of inconsistencies, discrepancies or other inadequacy, or in light of other evidence, that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilty.^[28]
131. [131]
     An independent assessment of the evidence at trial supports a conclusion that the discrepancies and other deficiencies in the complainant’s account of the events the subject of the verdicts of guilty were not such, either individually or collectively, that the jury ought to have entertained a reasonable doubt as to the defendant’s guilt of each of those offences.
132. [132]
     The discrepancies identified are differences consistent with an honest witness.  They did not relate to the core complaints of strangulation, rape and assault occasioning bodily harm.  Those complaints remained consistent throughout.  Importantly, there was independent evidence to support a conclusion that the complainant’s account of those events was reliable and credible.  The photographs of the bruising and lacerations were particularly telling in this respect.
133. [133]
     A conclusion that the complainant’s evidence was reliable was open, notwithstanding the appellant having given evidence calling into question the truthfulness of the complainant’s account.  The jury could properly reject his account of events as neither reliable nor credible.  The evidence gave no satisfactory explanation for the bruising to the complainant’s neck.
134. [134]
     It was also open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt of Counts 8, 9 and 10, notwithstanding the verdicts of not guilty of the remaining counts.  Each of the remaining counts related to events said to have occurred sometime previously, in circumstances where there was not a prompt complaint and there was no independent evidence to support the complainant’s account.  The evidence of those counts was therefore significantly different in quality.
135. [135]
     In such circumstances, it was open to the jury to not be satisfied beyond reasonable doubt of the appellant’s guilt of the earlier counts but still be satisfied that the complainant was a reliable and credible witness in respect of the remaining counts and that the evidence established the appellant’s guilt of each of those offences beyond reasonable doubt.
136. [136]
     Once it is concluded that it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt of each of Counts 8, 9 and 10, there is no basis to conclude the verdicts were unreasonable.  Ground 1 fails.

Ground 2

137. [137]
     Bond JA has helpfully summarised the evidence and relevant principles in respect of ground 2.  I gratefully adopt that summary.
138. [138]
     Unlike Bond JA, I am not satisfied it can be presumed that the exhibit 1 provided to the jury was the disc containing only the 000 audio recording.  Both discs were marked exhibit 1.  The record reveals that the jury was provided with the exhibits.
139. [139]
     It cannot be safely concluded that the Associate drew a distinction between the two discs marked exhibit 1, such that only the correct exhibit 1 was placed before the jury.  The reasonable inference is that due process was followed, and all materials marked exhibits were made available to the jury.
140. [140]
     As a consequence of that failure of process, inadmissible evidence, solely relevant to the counts in respect of which the jury entered verdicts of guilty, was rendered accessible to the jury.  That evidence contained highly prejudicial material suggestive of the ambulance officers’ examination supporting a conclusion that the complainant had in fact been assaulted by another person.
141. [141]
     In circumstances where the jury found the appellant not guilty of all other counts, the accessibility to the jury, as part of the record, of a disc containing prejudicial and inadmissible evidence, gives rise to a miscarriage of justice.  There has been a failure of process which renders it impossible for this Court to decide whether the applicant’s convictions are just.^[29]
142. [142]
     As there was a miscarriage of justice, the appellant’s convictions are to be set aside and a new trial held in respect of those counts.

143. [143]
     MELLIFONT J:  I agree with the reasons of Boddice J in dismissing ground 1 of the appeal.
144. [144]
     I also agree with the finding by Boddice J that ground 2 is made out and that as there has been a miscarriage of justice, the convictions are to be set aside, and a new trial ordered.  My reasons in respect of ground 2 follow.

Section 668 and the concept of miscarriage of justice

145. [145]
     Section 668 provides, inter alia, that the Court of Appeal, on appeal, shall allow the appeal on “any ground whatsoever that there was a miscarriage of justice”.
146. [146]
     The concept of miscarriage of justice under provisions like s 668E is wide.
147. [147]
     In Simic v The Queen (1980) 144 CLR 319, the High Court^[30] stated, in the context of a miscarriage of justice argument, that “[t]he fate of a criminal appeal should not depend on the application of rigid formulas”.^[31]
148. [148]
     In Nudd v The Queen (2006) 80 ALJR 614^[32] Gleeson CJ stated the concept of miscarriage of justice is: 

“… as wide as the potential for error.  Indeed, it is wider; for not all miscarriages involve error.  Process is related to outcome, in that the object of due process is to secure a just result.  Justice, however, means justice according to law, and the observance of the requirements of law according to which a criminal trial is to be conducted has a public as well as a private purpose.  An unjust conviction is one form of miscarriage.  Another is a failure of process of such a kind that it is impossible for an appellate court to decide whether a conviction is just.  Another is a failure of process which departs from the essential requirements of a fair trial.”^[33]

149. [149]
     Determining whether there has been a miscarriage of justice requires consideration of what did or did not occur at the trial,^[34] of whether there was a material irregularity in the trial,^[35] and whether there was a significant possibility that the acts or omissions of which the complaint is made affected the outcome of the trial.^[36]
150. [150]
     One means by which a miscarriage of justice can be shown by an appellant is that there has been a failure of process which renders it impossible for this Court to decide whether the applicant’s convictions are just.^[37]

Is miscarriage of justice established here?

151. [151]
     The respondent properly concedes that if it is established that the jury had access to the material it is irrelevant as to whether they in fact reviewed the material, the risk of such a possibility is sufficient to constitute a material irregularity, and the proviso would not apply.  This is an appropriate concession, particularly in light of the content of the old disc which contained highly prejudicial material, directly relevant to the counts on which the appellant was found guilty.
152. [152]
     What is not known is whether the old disc did go to the jury room.
153. [153]
     It is this feature of not knowing whether the impugned material went to the jury which sets it apart from:

     1. (a)
        Those cases where it is known that material went to the jury when it should not, and the question for determination is whether the nature of that material was such as to occasion a miscarriage of justice; and
     2. (b)
        Those cases where the feature said to cause miscarriage is manifest on the record, for example, the wrongful admission of evidence, a misdirection by a trial judge, improper communication between the bailiff and incompetence of counsel where the question for determination is whether that error or failing was such as to occasion a miscarriage of justice.
154. [154]
     The determination of ground 2, in this case, therefore, depends on what must be shown, in order for the court to be satisfied that there was a miscarriage of justice when there is a possibility that material which was not evidence went before the jury, but did or not is unknown.
155. [155]
     The appellant submits, inter alia, that the irregularity of the impugned disc being marked as an exhibit, and remaining marked as an exhibit, together with the possible inference that both may have gone to the jury, is sufficient for the Court to reach the opinion in s 668E that there was a miscarriage.
156. [156]
     The respondent submits, though, that for the appellant to succeed on this ground, the Court must be satisfied that the jury did in fact have access to the impugned material.
157. [157]
     The respondent argues that the appellant must persuade the Court that there was a reasonable possibility, as opposed to a mere or remote possibility, the verdict was affected, before s 668E is engaged.^[38]  The respondent submits that for miscarriage of justice to be established, the Court must make a finding that there has been a “relevant antecedent fact/act/omission/event” before the qualitative assessment of whether that antecedent fact/act/omission/event occasioned miscarriage can occur.  The respondent submits that because it is not manifest on the record that the old CD made it into the jury room, the appellant has not established that there was a reasonable possibility that the verdict was affected, and that the appellant must fail.
158. [158]
     One case relied upon by the respondent in support of the proposition that there must be a positive finding of a “relevant antecedent fact/act/omission/event” is Knight & Ors v The Queen [2014] 1 Qd R 329.  It concerned an application for orders pursuant to s 70(7) of the Jury Act 1995 (Qld) that there be an investigation of suspected bias or the commission of an offence related to the membership of the jury or the performance of functions as a member of in respect of a retrial of three persons for murder.  In that case, there had been a statement made by a juror 19 days after trial, to the hairdresser of the solicitor for one of the appellant’s that the case involved a murder in prison in Rockhampton and that “it wouldn’t make any difference as they were already serving life terms or long terms of imprisonment already”.  It was argued that this gave rise to the possibility that the juror was aware of the criminal history of the appellants prior to verdict.
159. [159]
     There had been extensive media coverage after the first trial, at which the appellant’s had been convicted.  Those convictions were overturned on appeal and a re-trial ordered.  The media coverage included publication of the appellants’ criminal histories.
160. [160]
     The Court of Appeal found that for there to be grounds to suspect that a person “may have been guilty of bias, fraud or an offence” for orders under s 70(7) of the Jury Act, there needed to be more than the existence of a mere possibility that a juror obtained knowledge of prior convictions before a verdict was returned.^[39]
161. [161]
     The appellants contended that the possibilities that the jury found out about the prior convictions before the verdicts, on the one hand, or after the verdicts, on the other, were equally open.  That contention was not accepted by the Court of Appeal.  There was nothing in the conversation between the juror and hairdresser that suggested his knowledge of the prior convictions was gained before delivery of the jury’s verdict.  To the contrary there were good reasons for concluding the juror’s knowledge was gained post verdict.^[40]
162. [162]
     This case does not assist the respondent here.  It concerned the application of express wording in the Jury Act which has no application here.  Further, the ruling against the appellants was in no small way due to the finding by the Court of Appeal that there were cogent reasons for concluding that the knowledge of the prior convictions occurred after the verdict.  In those circumstances, the mere possibility that the knowledge was acquired before verdict was insufficient to ground the relevant suspicion.
163. [163]
     In this case, there is, in any event, more than a “mere possibility” that the old CD went to the jury.^[41]
164. [164]
     There apparently being no authority which directly goes to what must be shown as to whether the impugned material did go to the jury room, applying the general principles set out above as to miscarriage of justice, it is my view what should be shown is that there is a “reasonable possibility” to use the words in Simic or a “significant possibility” to use the words in TKWJ v The Queen (2002) 212 CLR 124 that the old disc went to the jury.

Was there a significant possibility that the old disc went to the jury?

165. [165]
     When the new CD was produced^[42] for the purpose of tender, it, like the old disc, was marked as “Exhibit 1”.  As to the fate of the old disc, the prosecutor stated “just to go on the file”, to which learned trial judge said “yes”.
166. [166]
     The old disc did not have the “Exhibit 1” marking struck through, or anything else written on it to indicate that it was not an exhibit in the trial.
167. [167]
     The two CDs being marked as Exhibit 1, with nothing on the old disc to indicate that it was not, in fact, an exhibit, is an irregularity.
168. [168]
     When appellant’s counsel went to inspect the file, both CDs were found in the same envelope as each other, and with the trial exhibits.
169. [169]
     As stated above, it is not known whether the old disc went to the jury, or the new disc went to the jury, or both.  The presence of both discs in the same envelope, together with the trial exhibits, is insufficient to conclude positively which of these events occurred.
170. [170]
     In circumstances of the irregularity of both CDs being marked as “Exhibit 1”, and there being nothing express on the transcript which would discount the possibility that the old CD went into the jury room, or other evidence discounting that possibility, there is a real risk – a significant possibility – that the old CD went.  In fact, given that the learned trial judge stated that the jury would have access to all exhibits, and that the old CD was marked as an exhibit, the usual expectation would be that all things marked as an exhibit did, in fact, go to the jury room.
171. [171]
     As such, I am satisfied that there was a significant possibility that the old disc went to the jury, and therefore, a significant possibility that the verdict was affected.
172. [172]
     In those circumstances, there has been a miscarriage of justice.