R v Silcock [No 2][2022] QCA 234

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  At his re-trial the appellant was acquitted by a jury of one count of rape (penile) and convicted of one count of rape (oral) and two counts of unlawful and indecent assault.  The appellant appeals against his convictions.  There are four grounds of appeal.  Before considering the grounds it is necessary to outline some of the procedural history.

Procedural History

2. [2]
   On 1 March 2019 an indictment was presented in the District Court of Queensland at Brisbane charging the appellant with two counts of rape and two counts of unlawful and indecent assault.  All counts were alleged to have been committed in the early hours of 25 June 2017 and involved the same female complainant.
3. [3]
   On 20 May 2019 an order was made pursuant to s 21A(2) of the Evidence Act 1977 (Qld) for the complainant’s evidence to be pre-recorded.  The complainant was a “special witness” for the purposes of s 21A, being a person against whom a sexual offence was alleged to have been committed by another person.
4. [4]
   The complainant’s pre-recorded evidence commenced on 22 July 2019.  She was able to complete her evidence-in-chief on that day but because of technical difficulties, her cross-examination had to be adjourned to 17 October 2019.  On that day, a different Crown prosecutor appeared.
5. [5]
   The complainant’s evidence-in-chief may be summarised as follows.  The appellant and the complainant had been friends for approximately four years prior to 25 June 2017.  On that night she was invited over to a unit in Morningside rented by the appellant and CG, along with their flatmate, MP, who at the time was overseas.  The complainant, appellant and CG had some drinks.  The complainant consumed four Coronas.  Through the appellant, the complainant had previously met NT, with whom she formed a relationship which ended in February 2017.  As at 25 June 2017, the complainant was still getting over this relationship but had remained friendly with the appellant.
6. [6]
   The complainant, appellant and CG then drove to the complainant’s father’s house so she could get changed.  They made their way to a unit in Tingalpa, where the complainant consumed four vodka drinks.
7. [7]
   After spending approximately two hours at the Tingalpa unit, the entire group went to The Met in Fortitude Valley.  The complainant had a gin and tonic and subsequently threw up in the bathroom.  The complainant, the appellant and GC then made their way to another bar.  At this bar the complainant was highly emotional and discussed with the appellant her recent breakup with NT.  She became tired quickly and wanted to go to sleep.  As a result, the group purchased some food and caught a taxi back to the Morningside unit.
8. [8]
   The complainant went to the kitchen, got some water, and asked the appellant if she could borrow some clothes.  He gave her a baggy shirt and some shorts to wear.  She and the appellant got changed in his bedroom.  Afterwards, she got into the appellant’s bed.  She woke up lying on her stomach, fully dressed, with the appellant cuddling her.  She thought this was harmless and fell back asleep.
9. [9]
   As to count 1, after the complainant had fallen back asleep, she woke up again, this time without her shorts and underwear on.  She stated that she was on her stomach and the appellant was behind her, inserting his penis into her vagina.  She pulled away from him and slapped him away.  She said he got off of her and lay down beside her.  They both went back to sleep.  The complainant told police in the days following that she did not know if she had experienced the sexual intercourse or had dreamt it.  Consistent with that, she told her sister-in-law that “she wasn’t sure if she was dreaming or not” but thought that the appellant had sex with her.  On the day after the alleged offence, she texted her friend SS saying “I think he raped me…” and “I’m trying to remember wtf happened and I can’t.”
10. [10]
    As to count 2, the complainant again woke up.  This time she was on her back with her legs spread.  She stated that the appellant was between her legs with his tongue penetrating her vagina and his hands spreading her vaginal lips.  She pushed him away and said “what are you doing?”.  The appellant said, “oh fuck”, to which she said “stop” or “go to sleep”.
11. [11]
    The complainant then got up and looked for her clothes.  She found her romper on the floor and her shorts and underwear on the TV cabinet at the bottom of the bed.  She told the appellant that she needed to go to the toilet.  She may well have said to the appellant “I’ll be back” or something similar.
12. [12]
    She picked up her clothes and went to the bathroom and noticed that she was wet between her legs and sore internally.  She put on her underwear and shorts and went into the bedroom of MP who was overseas.  She fell asleep.
13. [13]
    As to counts 3 and 4, the complainant woke up to the appellant opening the door to the bedroom of MP where he made his way to the bed and lay on top of the covers.  The appellant lay beside her for a couple of minutes, rolled over, then put his hand up her shirt and touched her left breast.  The complainant said “stop” and pulled the appellant’s hand away and told him to go to sleep.  The appellant rolled away and, a minute or so later, he tried again, but she grabbed his hand and said “stop”.  Only the first of these incidents was charged, as no sexual contact was alleged for the second incident.  The conduct of touching the complainant’s left breast constitutes count 3.  The appellant left the bedroom.  He again returned, got into bed and rolled straight over to cuddle again.  The complainant alleges that he put his hand under her pants and down towards her vagina to the top of the labia.  This conduct constitutes count 4.
14. [14]
    The complainant was cross-examined by defence counsel for approximately five hours.  In the course of cross-examination, defence counsel put the following propositions to the complainant relevant to counts 2, 3 and 4:

    1. (a)
       the appellant licked the complainant’s clitoris but did not at any stage have his fingers opening her vagina;^[1]
    2. (b)
       when the complainant discovered the appellant in between her legs she put her hand on his head and he pulled away;^[2]
    3. (c)
       as to count 3, the appellant did touch the complainant’s breast;^[3]
    4. (d)
       as to count 4, the appellant had his hand on the complainant’s stomach prior to moving down towards her genital area to the top of the complainant’s underpants.^[4]
15. [15]
    At the conclusion of the cross-examination, defence counsel put each of these propositions to the complainant in the following exchange:

“Secondly – yes – that he did in fact have oral sex with you by licking your clitoris but did not put his hands near your vagina?---No, he did, and he spread them open.

And, so far as the breast, he did put his hand on your breast, lightly, and then put it on your stomach and then moved his hand down to your underpants and put his hand under your underpants but didn’t touch your vagina because you told him to stop?---He touched my breast.  I pulled away.  He tried again.  He left.  He came back.  He put his hands down my pants to the top of my vagina, and then I walked away.”^[5]

16. [16]
    Defence counsel also extensively cross-examined the complainant consistent with a case theory that the appellant had engaged in the sexual activity alleged in relation to counts 2, 3 and 4 but under an honest and reasonable but mistaken belief as to the complainant’s consent.  The topics covered in cross-examination included the following:

“(a) the closeness of the appellant’s and complainant’s relationship (including confiding in the appellant about her recent break-up);

2. (b)
   her sexual history;

3. (c)
   her character as a “flirtatious person”;

4. (d)
   her “knowledge that [the appellant] had thought there was chemistry between [the complainant] and [the appellant]”; and

5. (e)
   her reactions to the appellant’s alleged flirtation with her during the relevant evening.”^[6]

17. [17]
    On 13 December 2019, a jury found the appellant guilty on all four counts.  The appellant did not give evidence at either his trial or his re-trial.
18. [18]
    The appellant successfully appealed to the Court of Appeal on the following ground:

“A miscarriage of justice occurred because of the way in which the appellant’s trial was conducted:

1. (a)
   that detailed matters were put to the complainant which were contrary to the appellant’s instructions;

2. (b)
   when those detailed matters were deployed by the prosecution as admissions, there was no challenge made.”

19. [19]
    In a judgment published on 5 June 2020, the Court of Appeal quashed his convictions and ordered a re-trial: R v Silcock [2020] QCA 118; (2020) 4 QR 517.  Boddice J (with whom Morrison JA and Applegarth J agreed) referred to evidence being called from four witnesses at the hearing of the appeal as part of the appellant’s application to adduce evidence in support of the ground of appeal.  Those four witnesses were the appellant, his father, the appellant’s trial solicitor and defence counsel.  The evidence from the appellant and his father was in the form of sworn affidavits and oral testimony.  The appellant is presently represented by Mr Rogers of Robertson O'Gorman Solicitors who filed an affidavit in the present appeal which states as follows:

“[The appellant’s] evidence addressed and disclosed to the Court of Appeal his detailed instructions to his former legal representatives.  He waived privilege over those documents in order to advance a ground of appeal which was ultimately successful.  In doing so, he knew they would be provided to the Court and to the Director of Public Prosecutions.”

20. [20]
    Exhibit DRK-04 to Mr Rogers’ affidavit is a letter of advice from Mr Holt KC dated 30 July 2021.  In this letter of advice, Mr Holt KC referred to the waiver of privilege:

“This ground necessarily required you to disclose your instructional statement to your previous legal representatives and thereby waive privilege over that document.  Mr Rogers explained to you that by attaching your instructional statement to your affidavit in the Court of Appeal it would be provided to the prosecution and thereby available to them for the appeal and any future matters.  He explained that this constituted a waiver of privilege.

Ultimately, this appeal ground was successful and a re-trial was ordered.  Your decision, on advice, to waive privilege was justified as a necessary decision to secure a re-trial.  Without doing that, your convictions would not have been quashed.”

21. [21]
    There is no evidence before this Court that the appellant sought to limit the waiver of legal professional privilege before the Court of Appeal, nor was it argued before this Court that any waiver of privilege was impliedly limited to establishing a miscarriage of justice before the Court of Appeal.
22. [22]
    Boddice J considered that a miscarriage of justice had occurred:

21. “[203]
    The case conducted by counsel at trial was not merely that the appellant accepted the complainant’s account of an act of oral sex on the night in question. Specific allegations were put to the complainant as part of the defence case, namely, that the appellant had licked her clitoris, that the appellant had not used his fingers to open her vagina and that she had pressed the appellant’s head and he had stopped performing the act of oral sex.
22. [204]
    Nothing in the appellant’s instructions or acceptance of the trial strategy permitted counsel to put such specific allegations. They were not based on instructions. They were, in fact, inconsistent with the instructions that had been given by the appellant, namely, that the acceptance of an act of oral sex did not involve acceptance of there having been penetration.”

23. [23]
    His Honour continued:

21. “[206]
    The conduct of the defence case had two consequences.  First, in the way in which the case was put to the complainant, it amounted to an admission of penetration, an essential element of the offence of rape the subject of Count 2.  Second, it permitted the Crown prosecutor to make specific submissions as to the putting of specific matters, namely, that they were based on instructions.  This allowed the Crown prosecutor to legitimately develop a criticism of the appellant’s account as an evolving story.
22. [207]
    These two consequences had a significant impact on the conduct of the trial.  Each resulted in outcomes adverse to the appellant’s interests.  Those outcomes were not consistent with his acceptance of the trial strategy.
23. [208]
    The consequence of those outcomes is that the appellant did not receive a fair trial.  There is a real risk that a miscarriage of justice occurred in that the appellant was denied a fair opportunity of an acquittal of Count 2.  As the Crown properly conceded, a denial of a fair chance of acquittal in respect of that count also permeated across the appellant’s prospects of a fair chance of acquittal in the remaining counts.”

24. [24]
    Boddice J also observed that the strategy adopted at trial did not have to be based on instructions from the appellant’s memory:

21. “[197]
    A consideration of the evidence led at the appeal supports a conclusion that, whilst the appellant never gave instructions of a memory of any sexual acts between him and the complainant on the night in question, the appellant accepted the trial being conducted on the basis that it would be put to the complainant that Count 1 did not occur, that Count 2 did occur, to the extent that there was oral stimulation of her vulva with her consent and without penetration, and that Counts 3 and 4 did not occur as described by the complainant, in that there was no touching of the breast or vulva, but there was cuddling and spooning with consent.
22. [198]
    That conclusion was consistent with the appellant’s concessions in evidence.  It was also consistent with the contents of the letter forwarded to him dated 9 December 2019, sent by his solicitor confirming the contents of their recent conference.
23. [199]
    The strategy adopted at trial, although not based on instructions from the appellant’s memory, is properly to be viewed as consistent with the appellant giving instructions as to the conduct of the defence at trial.  Those instructions allowed counsel and instructing solicitor to conduct the case on the basis there was an acceptance of an act of oral sex between the complainant and the appellant.
24. [200]
    An acceptance of the complainant’s evidence of such an act would not, of itself, breach counsel’s obligations in relation to the conduct of a case.  It is open to a defendant to give instructions that aspects of the Crown case are not to be challenged, even though the defendant has no specific memory of those events.  Such a course can be followed by counsel, if those instructions constitute an acceptance of those aspects of the Crown case.”

25. [25]
    Applegarth J made similar observations:

“[5] It was not inappropriate to conduct the defence on the basis of instructions which accepted that certain sexual contact occurred which the appellant could not remember.  In a case in which an accused says he cannot remember certain things due to intoxication, amnesia or some other cause, it is open to the accused to accept certain evidence and give instructions to conduct the defence on the basis that certain things occurred.  However, in such a case care is required by defence counsel to not positively put a proposition to a complainant about a matter or in a way which may suggest, contrary to the fact, that the accused recalls that matter and that counsel’s instructions are based on that recollection.

[6] The defence strategy adopted on the appellant’s instructions in advance of the trial and following counsel’s advice was a sensible one in the circumstances…”.

26. [26]
    Applegarth J considered that the consequence of defence counsel positively putting a version inconsistent with instructions “was the potential to discredit the appellant’s out of court statements”.^[7]  His Honour further explained this consequence as follows:

“[24] The first consequence which I have mentioned, namely that the suggestion called into question the appellant’s earlier professed lack of recollection of detail, might be said to be unimportant.  As matters transpired, the prosecutor deployed the matter in address as part of an argument that there were “glaring inconsistencies or an evolving version of events” in the appellant’s versions.  The fifth and final version of events was said by the prosecutor to emerge from the cross-examination of the complainant.  The prosecutor pointed out that defence counsel would not be making things up as he went along but was duty-bound to put forward the appellant’s case for him.  Without that aspect, the prosecutor probably would have made something of the appellant’s alleged evolving version of events.  However, it provided a basis for the prosecutor to submit to the jury that the appellant’s memory had become better that year.  The real forensic disadvantage of pointing to the appellant’s alleged evolving version of events and improved memory is that it helped deflect defence criticisms of the complainant’s evolving memory of events and apparent inconsistencies in versions which she had given.”

27. [27]
    Prior to the commencement of the re-trial, the appellant sought two pre-trial rulings.  First, an order pursuant to s 21A(6)(b) of the Evidence Act that the video recording of the complainant’s evidence not be admissible in the appellant’s re-trial as well as an order that the complainant give evidence in accordance with s 21A of the Evidence Act on a date to be fixed.  By the second pre-trial ruling the appellant sought an order that the criminal proceedings against him be temporarily stayed until such time as the Director of Public Prosecutions:

    1. (a)
       appointed a new legal officer and Crown prosecutor to conduct his re-trial; and
    2. (b)
       that the prosecution team had not previously have had access to, and undertake not to gain access to, material and information in respect of which legal professional privilege was waived for his appeal against conviction.
28. [28]
    On 11 May 2021, Byrne QC DCJ dismissed the application for a temporary stay of proceedings.  His Honour granted the application pursuant to s 21A(6)(b) of the Evidence Act but only to the extent of excising from the complainant’s pre-recorded evidence, those propositions which had been put in cross-examination identified at [14] above.  His Honour otherwise ordered that the whole of the pre-recording of the complainant’s evidence conducted on 22 July 2019 and 17 October 2019 was admissible.  His Honour permitted a further recording of the complainant’s cross-examination for the purposes of the re-trial to be conducted pursuant to s 21A(2) on the same conditions as previously ordered on a date to be fixed, but limited as follows:^[8]

“[47] In my view that better approach is to permit the admission of all the earlier cross-examination on the re-trial, other than that which must be excised.  At the very least, Counsel will be required to put the case that is to be conducted on the re-trial.  Further, cross-examining Counsel should be limited on this further occasion to those matters required to be put or suggested by the rule in Browne v Dunn as well as those areas where the re-trial instructions differ from the subject of the earlier cross-examination, and any matters necessary to give context to each of these topics.”

29. [29]
    His Honour’s reasons in relation to the pre-trial rulings are considered in more detail below.
30. [30]
    The appellant’s re-trial commenced before Judge Farr SC on 29 August 2022.  At the re-trial the pre-recorded evidence-in-chief and cross-examination of the complainant with those parts excised in accordance with the order of Judge Byrne QC were played to the jury.  Prior to the commencement of the re-trial, the appellant did not further cross-examine the complainant.  This was a forensic decision taken by the appellant on the advice of his legal representatives.  Mr Holt KC, in his letter of advice dated 30 July 2021, explained this forensic decision as follows:

“Following your re-trial being ordered, we had expressed a view that that the retrial would be best run with a full cross examination of the complainant including a full exploration of matters affecting her credit as well as putting your detailed instructions to her as per your instructional statement.  With this strategy, you were most likely going to give evidence.

In light of his Honour’s ruling, this is not possible.  In my view, a different strategy must be deployed.  The reason this is not possible is because the whole approach that Mr Kimmins took to cross examination was intended to support a case of mistaken belief in consent which accepted that certain sexual acts did occur.  As the Court of Appeal held, that was not based on instructions as to what actually happened.  Your actual instructions as to what happened do not accept that sexual acts occur and therefore do not lend themselves to mistake of act/consent based defence.  To just “put your instructions” to the complainant against the background of a cross-examination conducted by Mr Kimmins would, in my assessment, lead to a disjointed and unconvincing defence position that would leave you vulnerable in cross examination.

On that basis, I advised you that – within the limitations of the ruling – the best strategy was for you not to give evidence and, in turn, not to put any new matters to the complainant.”

31. [31]
    In his address to the jury at the re-trial, Mr Holt KC sought to place the cross-examination of the complainant by previous defence counsel into perspective:^[9]

“I wanted to make a couple of submissions to you about the cross-examination of the complainant by Mr Kimmins.  I think I just need to be frank with you.  There were some questions that Mr Kimmins asked and some topics that were covered that I wouldn’t have asked and I’m not at all sure are relevant to your consideration of this case – and my friend has been, look, persuasively and understandably critical of some of those things, so I ask you to rely on the evidence that actually matters, not things that don’t.

Can I give you a couple of examples?  I think you would think it utterly irrelevant that she had a party that involved something to do with sex and candles and things.  Who cares?  People are entitled to that.  That says nothing about anything.  I agree with my friend in that regard.

Equally, there were some messages about what she wanted to achieve on a particular night out – you know what I’m referring to, there’s no need to say it out loud – that just don’t matter for these purposes. So please, put those to one side, because they just don’t matter.”

32. [32]
    Mr Holt KC’s submission to the jury sought to respond to the Crown prosecutor’s use of the pre-recorded cross-examination in his address which included previous defence counsel examining the complainant’s history:^[10]

“So imagine a team of very experienced lawyers sifting through every detail of your life for six, seven months or even a bit more.  And then bringing that up in court two and a half years later.  So that’s what [the complainant’s] lived and that’s what she went through.  She suffered with depression, health issues, she had taken anti-depressants.  And you have seen that document there that you all have a copy of.  She was prescribed a sedative.  Now, I’m not sure if this ties into your question yesterday afternoon, but there’s no suggestion – or, well, no evidence that she took a sedative on the night of Saturday the 24^th of June 2017.  She was out drinking.  And when you look at that document anyway you will see that it was initially as needed, later before bed.  Well, look at what happened before she goes to bed, she’s highly emotional and she just wanted to go to sleep.

We hear about she had self-harmed.  Why is that relevant? She might have been skinny dipping or flashing.  She had problems at work.  She saw a counsellor.  Some of her messages were deleted, as we’ve gone through.  She wasn’t always spending her money wisely.  She had an image problem.  She broke up with her boyfriend in February 2017.  In April 2017 she had the STD test.  She was seeing a man called Logan and went to Townsville.  Her grandad had died in 2016.  In 2017 she had good news about fertility.  How is all this relevant?  48 minutes into cross-examination.  What did that have to do with what happened on the night?  Mr Holt will take you to that, no doubt.”

Grounds of appeal

33. [33]
    The appellant’s four grounds of appeal are as follows:

Ground 1: The pre-trial ruling of Judge Byrne QC refusing a defence application for the complainant to be cross-examined afresh and at large following the earlier successful appeal against conviction:

1. (a)
   was a wrong decision on a question of law; and/or
2. (b)
   resulted in a trial that was unfair, and so amounted to a miscarriage of justice.

Ground 2: A miscarriage of justice occurred because the learned Crown prosecutor was privy to the appellant’s instructions about the charges.

Ground 3: The verdicts of the jury on counts 2, 3 and 4 are unreasonable because they are (collectively and individually) inconsistent with the verdict of acquittal on count 1.

Ground 4: A miscarriage of justice was occasioned because the learned trial judge did not give a warning in accordance with Robinson v The Queen (1999) 197 CLR 162.

Ground 1

1. (a)
   The reasoning of Judge Byrne QC

34. [34]
    By the time of argument before his Honour, the appellant no longer sought an order which would exclude the video recording of the complainant’s evidence-in-chief.  His Honour commenced by identifying the appellant’s position that a fair trial could only be achieved by wholly excluding the cross-examination pre-recorded on 17 October 2019 and permitting trial counsel to conduct a cross-examination based on proper instructions and an informed trial strategy.
35. [35]
    It was common ground before his Honour that the evidence-in-chief of the complainant pre-recorded on 22 July 2019 was admissible at the trial and that any fresh cross-examination would be conducted in accordance with any order made pursuant to s 21A(2) of the Evidence Act.
36. [36]
    His Honour noted that pursuant to s 21A(6)(b) of the Evidence Act, the pre-recording was admissible in a re-trial unless the court otherwise ordered.  As the legislation provided no express guidance as to the relevant matters to be considered in a court otherwise ordering, his Honour approached the matter “as an issue of fairness”.^[11]
37. [37]
    His Honour took the following matters into consideration:

    1. (a)
       a provision such as s 21A(6)(b) of the Evidence Act exists, in part, to reduce the impact on a special witness whose evidence was pre-recorded if and when a re-trial is ordered;^[12]
    2. (b)
       the desirability of a witness’s evidence being recorded as close as possible to the occurrence of the relevant events “in an effort to obtain an account which is likely to be less prone to memory affected by the passage of time than if it were taken at a later point in time”;^[13]
    3. (c)
       in the context of (b) above, his Honour noted that it was apparent from the transcript of the complainant’s pre-recorded evidence that she had some difficulty in recalling specific detail.  It was therefore reasonable to assume that this difficulty would be even more apparent to the jury if she was cross-examined afresh:

“This may give the jury a false impression as to the reliability of her account, and would disadvantage the jury by not allowing them access to the more contemporaneous account.”^[14]

4. (d)
   the considerations in (a) – (c) favoured “excising only those parts of the pre-recorded evidence as is strictly necessary”.^[15]

38. [38]
    Having considered “issues of fairness” from the complainant’s position, his Honour, appreciating that these issues also had to be considered from the position of the applicant, had regard to the following matters:

    1. (a)
       it could be accepted that at least some of the matters put to the complainant in compliance with Browne v Dunn had to be excised “as they did not follow the instructions then provided in respect of count 2”;^[16]
    2. (b)
       the basis for allowing the appeal had “nothing to do with the vast majority of the pre-recorded cross-examination”;^[17]
    3. (c)
       fairness required that the appellant be “at liberty to put his case”.^[18]  This included putting things to the complainant which had not been put at the first trial as well as cross-examining on areas “where the re-trial instructions differ from the subject of the earlier cross-examination, and any matters necessary to give context to each of these topics”.^[19]  His Honour was unable to put precise limitations on the boundaries of any further cross-examination and noted that it would be difficult to enforce at trial:

“In my view Counsel must be afforded latitude in the exercise of his or her judgment, but will do so in the knowledge that wholesale re-hashing of the complainant’s memory will have limited utility given her earlier, and presumably better, recollection will be before the jury.”^[20]

39. [39]
    His Honour concluded that “a fair resolution of the application – fair for both sides of the trial” was reflected in the orders made.  His Honour explained this conclusion as follows:

“In my view, fairness requires that the applicant be at liberty to put his case, as informed by the presumably provided advice as to the consequences of it, but at the same time allowing the jury to consider most of the complainant’s cross-examination given at a time significantly closer to events than is now the case, and hence when she is presumed to be less susceptible to a fading memory than if it was given roughly four years after the events.”^[21]

(b) Alleged error of law

40. [40]
    The error of law identified by the appellant is his Honour’s observation that s 21A(6)(b) of the Evidence Act favoured “excising only those parts of the pre-recorded evidence as is strictly necessary”.  The appellant submits:

“Section 21A(6) neither expressly nor impliedly favours excisions only to the extent “strictly necessary”.  By supposing that it does, Judge Byrne QC approached the pre-trial application on an incorrect legal footing.  His Honour approached it from the perspective of determining what orders were necessary to avoid the complainant having to give evidence again, whereas his Honour ought to have approached it from the perspective of determining what orders were necessary to ensure that the appellant’s re-trial was fair.  His Honour’s erroneous approach privileged the complainant’s interests in not giving further evidence over the defendant’s interests in securing a fair trial.  This involved an error of law because the latter consideration was paramount.”^[22]

41. [41]
    Section 21A of the Evidence Act falls within part 2 (which is titled “witnesses”), division 4 (which is titled “evidence of special witnesses”).  Section 21A(1) defines various terms including “sexual offence” and “special witness”.  Section 21A(1) was amended by the Victims of Crime Assistance and Other Legislation Amendment Act 2017 (Qld) to insert the definition of “sexual offence” which includes offences under chapter 32 of the Criminal Code, namely rape and sexual assaults.  The amendments expanded the definition of “special witness” to also mean a person against whom a sexual offence has been, or is alleged to have been, committed by another person.  This amendment had the effect of automatically recognising as a special witness a person in the complainant’s position without any requirement to satisfy a court of any additional element of the definition, for example, that they would be likely to suffer severe emotional trauma if required to give evidence in the usual manner.  The Explanatory Notes to the Victims of Crime Assistance and Other Legislation Amendment Bill 2016 refers to the amendments as minimising “the impact of the criminal justice process on these vulnerable persons”.^[23]
42. [42]
    Even before these amendments, it was recognised that the provisions in relation to a “special witness” constituted “an essential means in appropriate cases of ensuring that the most reliable and valid evidence of an event is able to be led before a jury” and that “[a]t the same time the interests of the parties to the proceeding including the Crown and the accused must be fully protected.”^[24]
43. [43]
    The Minister for Justice and Attorney-General’s speech notes tabled in parliament on 21 April 1988 in relation to the same Bill, while recognising that the provisions assisted persons likely to suffer severe emotional trauma as a result of giving evidence in a conventional court room, noted that it was “essential to ensure that the rights of the accused person are totally protected and that whatever system is introduced will not interfere with a due process of the law.”
44. [44]
    Section 21A(6) provides:

“A videorecording made under this section of evidence given by a special witness, or a lawfully edited copy of the videorecording—

1. (a)
   is as admissible as if the evidence were given orally in the proceeding in accordance with the usual rules and practice of the court; and

2. (b)
   is, unless the relevant court otherwise orders, admissible in—

1. (i)
   any rehearing or retrial of, or appeal from, the proceeding; or

2. (ii)
   in the case of evidence given for a criminal proceeding—

1. (A)
   another proceeding in the same court for the relevant charge or for another charge arising out of the same, or the same set of, circumstances; or
2. (B)
   a civil proceeding arising from the commission of the offence.”

45. [45]
    There is a statutory presumption in s 21A(6)(b)(i) that the pre-recording is admissible at a re-trial.  As correctly observed by Judge Byrne QC, the section does not provide any express guidance as to the relevant matters to be considered on an application for the court to otherwise order that the whole or part of the pre-recording is not admissible.  The Evidence Act does not contain any express provision identifying either the objects or purposes of part 2.
46. [46]
    In considering the nature of the discretion to be exercised under s 21A(6)(b) the starting point is the statutory presumption that pre-recorded evidence is admissible at a re-trial.  By reference to the extrinsic material, this statutory presumption flows from a witness’s status as a “special witness”.  The regime established by s 21A seeks both to minimise the impact of the criminal justice process on vulnerable persons as well as ensuring that the most reliable and valid evidence of an event is able to be led before a jury.  While these are relevant considerations they cannot, in the exercise of the discretion, ever undermine the defendant’s fundamental right to a fair trial.^[25]
47. [47]
    Mason CJ and McHugh J in Dietrich v The Queen (1992) 177 CLR 292 at 299 described an accused’s right to a fair trial as follows:

“The right of an accused to receive a fair trial according to law is a fundamental element of our criminal justice system.”

48. [48]
    However the right to a fair trial “extends beyond the rights of the accused to include the interests of the community and the protection of witnesses”.^[26]
49. [49]
    In R v Wilkie (2005) 193 FLR 291 at [54] – [57], Howie J observed:

“[54] It has often been noted that the concept of a fair trial, which is embodied in s 5B(2), is not to be equated with a perfect trial. This was recognised in Ngo at [99]. The court quoted from Brooking J in Jarvie v Magistrates Court (Vic) [1995] 1 VR 84 where his Honour stated that a fair trial did not mean a trial “free from possible detriment or disadvantage of any kind or degree to the accused”. When considering the issue of whether an accused can have a fair trial, the court is concerned with whether the trial will be rendered unfair “when judged by reference to accepted standards of justice”: Barton v The Queen (1980) 147 CLR 75 at 97. The “accepted standards of justice” take into account other interests and considerations that arise in respect of a prosecution of serious criminal offence, including the interests of the public generally, and witnesses and victims in particular.

[55] It is unnecessary in determining the present case to embark upon an extensive review of cases in the appellate courts concerned with the concept of a fair trial and the means by which a court endeavours to ensure that a particular trial will be a fair one. Many of the considerations that inform a court whether a particular trial will be fair are to be found in the cases concerned with the court’s power to stay a prosecution as an abuse of process; see for example Jago v District Court (NSW) (1989) 168 CLR 23. But in all cases where the question whether a fair trial will be put at risk by the procedure adopted at trial, the admission of evidence or for any other reason arises, the court invariably engages in the exercise of balancing interests to determine that question.

[56] So in Jago Mason CJ stated (at 33):

The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community’s right to expect that persons charged with criminal offences are brought to trial: see Barton (CLR at 102, 106); [R v] Sang, at 437 Carver v Attorney-General (NSW) (1987) 29 A Crim R 24 at 31, 32. At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged ...

[57] True it is that the Court was there concerned with the exercise of a discretion to stay a prosecution but that was a remedy which was being considered in order to avoid a trial that was said to be unfair by reason of delay. If the trial was relevantly unfair, the Court could not permit the trial to proceed, whatever other interests there might have been in the continuation of the prosecution. The balancing exercise was undertaken in order to determine whether the trial would be unfair and not simply in determining whether the unfairness should be addressed by the exercise of the court’s power to stay the proceeding.”

50. [50]
    Judge Byrne QC did not err in exercising the discretion by having regard to both the position of the appellant and the complainant.  The breadth of the discretion in s 21A(6)(b) and the status of the complainant as a “special witness” permits the considerations identified by his Honour to be taken into account in otherwise ordering.  Mr Holt KC, recognising the breadth of the discretion in s 21A(6) of the Evidence Act relied more on the miscarriage of justice ground rather than seeking to establish an error of law.^[27]

(c) Miscarriage of justice

51. [51]
    The appellant submits that his Honour’s ruling occasioned a miscarriage of justice “because it forced the appellant to mount his defence while saddled with lengthy cross-examination based on a case theory that was at odds with his instructions as to what had actually happened, and which he intended (on advice) to run at trial.”^[28]
52. [52]
    The effect of the pre-recorded cross-examination is set out at [14] – [16] above.  The cross-examination was consistent with a case theory that the appellant had engaged in sexual activity generally consistent with the conduct alleged in relation to counts 2, 3 and 4 but under an honest and reasonable but mistaken belief as to the complainant’s consent.  The cross-examination was used by the Crown prosecutor in his address at the re-trial and was the subject of specific submissions by Mr Holt KC in his address to the jury as discussed at [31] above.
53. [53]
    The appellant submits that his Honour’s pre-trial ruling “not only complicated the presentation of his case but was apt to engender resentment from the jury, given the largely irrelevant and arguably judgmental cross-examination that was pursued”.  The pre-trial ruling therefore, “constrained the appellant’s freedom in presenting his defence and seriously detracted from its persuasiveness.”^[29]
54. [54]
    The respondent emphasises that the order of Judge Byrne QC made allowances for the appellant to further cross-examine the complainant.  His Honour, for example, contemplated cross-examination for “those areas where the re-trial instructions differ from the subject of the earlier cross-examination and any matters necessary to give context to each of these topics”.  The respondent relies on the fact that the appellant chose not to further cross-examine the complainant as permitted by the order.
55. [55]
    The difficulty with the respondent’s submissions is that any latitude given to the appellant to further cross-examine the complainant was in the context of most of the earlier cross-examination being admissible at the re-trial apart from those specific parts which were excised.  The pre-trial ruling therefore gave rise to a real possibility of an irrelevant case theory being advanced by original defence counsel in the pre-recorded cross-examination which was either inconsistent with, or at least irrelevant to, the case theory to be advanced at the re-trial.  Further it must be accepted that the cross-examination in relation to the topics outlined at [16] above was apt to engender resentment from the jury.  The pre-trial ruling resulted in the appellant being unnecessarily hampered in the conduct of his defence and accordingly undermined his fundamental right to a fair trial.
56. [56]
    It follows that the convictions for counts 2, 3 and 4 should be set aside and a re-trial ordered.

Ground 2: A miscarriage of justice occurred because the learned Crown prosecutor was privy to the appellant’s instructions about the charges

57. [57]
    The appellant submits that Judge Byrne QC erred by refusing a temporary stay until such time as the Director of Public Prosecutions appointed a different Crown prosecutor for the re-trial.  The appellant submits that this error resulted in a miscarriage of justice.
58. [58]
    The temporary stay was sought on the basis that the Crown prosecutor had become privy to the appellant’s instructions about the charges.
59. [59]
    In his reasons for refusing the temporary stay application, his Honour noted that the appellant accepted that the prosecution team were lawfully in possession of the evidence before the Court of Appeal outlined at [19] above because the appellant had waived legal professional privilege.
60. [60]
    Both before this Court and before his Honour, the appellant relied on X7 v Australian Crime Commission (2013) 248 CLR 92 and Lee v The Queen (2014) 253 CLR 455 in support of his submission that the prosecutor being privy to his instructions compromised the accusatorial character of his trial.  His Honour’s reasoning in concluding that this line of authority did not assist the appellant was as follows:^[30]

“[18] One of the fundamental issues for determination in the X7 line of authority is the extent to which the relevant legislation permits the conduct of the examination and/or the dissemination of the transcript of evidence given.  That is because a compulsory examination abrogates well-established common law principles and hence a clear intention to abrogate that right is required – the principle of legality.  An adjunct to that principle is the companion principle that a person accused of a criminal charge cannot be compelled to testify as to the commission of that charge.  It applies only to a person who stands charged.

[19] X7 turned on the fact that he had been charged before being compulsorily examined about matters relevant to the charged offence and therefore when he was subject to “the accusatorial judicial process”.  That was not permitted by the relevant legislation.

[20] In Lee v The Queen the appellant was compulsorily examined, after he had been charged, about matters relevant to his alleged criminality.  The whole of the Court held that the disclosure of the transcript of his examination, in circumstances when the governing legislation did not authorise its disclosure to the prosecution, altered his trial in a fundamental respect.  That was because as Sofronoff P observed in R v Leach:

‘As appears from these passages, the crucial factor in the case was that the provision to the prosecutor of an accused’s evidence, obtained under compulsion and without the protection of any privilege against self-incrimination, was a departure in a fundamental respect from the requirements of a fair trial.’

[21] Here there is no legislative permission for, nor prohibition against, the use of the disclosed material.  However, the common law requires that type of material to be disclosed to the prosecution if the privilege is waived in the circumstances which arose, and practice favours that it be accessible for use at any re-trial.

[22] Further, his criminal trial had ended.  The applicant was no longer subject to the accusatorial judicial process.  Further, he had the protection of legal professional privilege if he wished to avail himself of it and so the disclosure of his account was not compelled.  The decision to bring an appeal was entirely his including on a ground that, it can be assumed, he must have been advised would necessarily mean that his instructions would be disclosed, and in the realization that they then may be used in any re-trial.” (citations omitted).

61. [61]
    We respectfully agree with this reasoning.  A central consideration in both X7 and Lee is the intersection between a compulsory power and the fundamental principle and its companion rule.
62. [62]
    In X7 Kiefel J (as the Chief Justice then was) observed at [159]:

“Relevant to the question of legislative intention is not only the privilege of the person to refuse to answer questions which may incriminate him or her, but also a fundamental principle of the common law.  The fundamental principle – that the onus of proof rests with the prosecution – is as stated in Environment Protection Authority v Caltex Refining Co Pty Ltd, as is its companion rule – that an accused person cannot be required to testify to the commission of the offence charged.  The prosecution, in the discharge of its onus, cannot compel the accused to assist it.” (citations omitted).

63. [63]
    In Lee, the High Court considered s 13(9) of the New South Wales Crime Commission Act 1985 (NSW).  That section provided that the Commission might direct that evidence given before it or certain other information not be published, or be published only in a limited way, and that such a direction should be given if the failure to do so might, among other things, prejudice the fair trial of a person who had been or might be charged with an offence.  A father and his son were separately examined by the Commission.  A direction was made under s 13(9) in respect of the father but not the son.  Both were subsequently tried and convicted on drugs and firearms charges.  Before the commencement of their joint trial, the transcripts of their evidence before the Commission were unlawfully published by the Commission to the police and to officers of the Director of Public Prosecutions.  French CJ, Crennan, Kiefel, Bell and Keane JJ considered the fundamental principle and the companion rule at [32] – [34]:

“The principle of the common law is that the prosecution is to prove the guilt of an accused person.  This was accepted as fundamental in X7.  The principle is so fundamental that: ‘no attempt to whittle it down can be entertained’ albeit its application may be affected by a statute expressed clearly or in words of necessary intendment.  The privilege against self-incrimination may be lost, but the principle remains.  The principle is an aspect of the accusatorial nature of a criminal trial in our system of criminal justice.

The companion rule to the fundamental principle is that an accused person cannot be required to testify.  The prosecution cannot compel a person charged with a crime to assist in the discharge of its onus of proof.

…

That purpose was not met in the present case, with the consequence that the appellants’ trial differed in a fundamental respect from that which our criminal justice system seeks to provide.” (citations omitted).

64. [64]
    In the present case, the appellant submits that he was forced to choose between revealing the entirety of his instructions to demonstrate a miscarriage of justice or concealing his instructions and spending several years in custody.^[31]  The appellant was not, however, compelled by statute, court process or any conduct on the part of the Crown to waive privilege.  The decision to waive privilege was a forensic decision made by the appellant on the advice of his legal representatives as outlined at [20] above.  The appellant was specifically advised that upon waiving privilege, his instructions would be provided to the prosecution and thereby available to them for any future matters.  The present case does not therefore concern the intersection between the exercise of compulsory powers and the fundamental principle and the companion rule.
65. [65]
    Nor could it be contended that the prosecution was subject to the “implied obligation” not to use the material over which privilege had been waived other than for the purposes of the first appeal.  The nature of the implied obligation was explained by Hayne, Heydon and Crennan JJ in Hearne v Street (2008) 235 CLR 125 at [96]:

“Where one party to litigation is compelled, either by reason of a rule of court or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence.”

66. [66]
    In the present case, disclosure of the material was not compelled by reason of a rule of court or by reason of a specific order of the Court.  The material was placed into evidence before the Court of Appeal in 2020.  No attempt was made to obtain any order directed at maintaining the confidentiality which would otherwise have attached to the material.  As observed at [21] above, there is no suggestion that the appellant sought to limit the waiver of privilege before the Court of Appeal nor was it argued before this Court that any waiver of privilege was impliedly limited to establishing a miscarriage of justice before the Court of Appeal.  The appellant’s affidavit which exhibited his instructional statement was received into evidence before the Court of Appeal and the appellant was cross-examined in open court.  The appellant’s evidence before the Court of Appeal is summarised in the judgment of Boddice J at [142] to [147], and the judgment published in the usual way.  Even if, as the appellant’s argument would necessarily have to suggest, the appellant could be regarded as having been “otherwise” compelled to disclose the material, there is no room for the implied obligation to apply to the prosecution once the material had been so utilised.
67. [67]
    The appellant submits, however, that the fact the Crown prosecutor was privy to the appellant’s instructions gave rise to a miscarriage of justice.  The prosecutor who appeared at the re-trial was the same prosecutor who conducted the first trial.  He was present in the public gallery during the majority of the evidence given before the Court of Appeal.  Following the appeal, the appellant’s solicitors wrote to the Office of the Director of Public Prosecutions requesting that the appellant’s re-trial be prosecuted by a different Crown prosecutor.  The same Crown prosecutor replied to this correspondence refusing to recuse himself from the matter and prosecuted the re-trial.  Before Judge Byrne QC, the Crown prosecutor undertook not to use the evidence adduced before the Court of Appeal in the Crown’s case on the re-trial but this undertaking did not extend to not using the material for the purposes of cross-examining the appellant if he was to give evidence.
68. [68]
    In those circumstances, the appellant submits that the failure of Judge Byrne QC to grant the temporary stay resulted in a miscarriage.  The appellant submits that by the Crown prosecutor being privy to the evidence led before the Court of Appeal, this created an improper fetter on the appellant’s forensic choices open to him at his re-trial, in particular the choice whether to give evidence:

“In the present case, that choice had to be made knowing that the Crown Prosecutor was aware of – and would be prepared to undermine – the precise account the appellant would give in evidence.  This substantially constrained his decisional freedom because it rendered the option of giving evidence prohibitively costly.  This is demonstrated by the advice given to [the appellant] as to whether he should give evidence.”^[32]

69. [69]
    Mr Holt KC’s written advice to the appellant of 30 July 2021 explained one of the reasons why he should not give evidence:

“First, Mr Cook has your instructional statement which gives him a significant technical advantage on any cross-examination of you.  In our view, that is unfair.  Allowing you to give evidence and be cross-examined on that document was fraught with danger.  Mr Cook declined to confirm that he would not seek to use the statement in cross examination of you.”

70. [70]
    While it may be accepted that the Crown prosecutor being privy to the appellant’s instructions constitutes a fetter on any forensic decision in the conduct of the defence and in particular, the decision to give evidence, this fetter did not result in a miscarriage of justice.  The prosecution was legally in possession of the material.  The appellant’s decision to waive privilege was not the result of any compulsion by the Crown but rather a decision made by the appellant on legal advice.  The prosecution, in coming into lawful possession of the material, was not subject to the implied obligation nor constrained in its use in the manner for which the appellant contends.
71. [71]
    Ground 2 fails.

Ground 3: The verdicts of the jury on counts 2, 3 and 4 are unreasonable because they are (collectively and individually) inconsistent with the verdict of acquittal on count 1

72. [72]
    In relation to this ground, the appellant identifies as the crucial question “whether there exists a rational explanation for the acquittal on count 1, other than pervasive doubts about the complainant’s reliability.”^[33]  Both the appellant and the respondent accept that the central issue at trial was the reliability of the complainant.^[34]
73. [73]
    In R v GAW [2015] QCA 166 Philippides JA (with whom Margaret McMurdo P and Holmes JA agreed) by reference to M v The Queen (1994) 181 CLR 487, Jones v The Queen (1997) 191 CLR 439 and MacKenzie v The Queen (1996) 190 CLR 348 summarised the principles concerning inconsistent verdicts as follows:

“The principles concerning inconsistent verdicts are well-established. Where alleged inconsistency arises in the jury verdicts upon different counts affecting an accused, the test is one of ‘logic and reasonableness’; that is, whether the party alleging inconsistency has satisfied the court that the verdicts cannot stand together because ‘no reasonable jury, who had applied their mind properly to the facts in the case could have arrived’ at them.

However, respect for the jury’s function results in a reluctance in appellate courts accepting a submission that verdicts are inconsistent in the relevant sense, so that:

‘... if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.’

In that regard, ‘the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt’. Alternatively, the appellate court may conclude that the jury took a merciful view of the facts on one count; a function which has always been open to a jury.

It is only where the inconsistency rises to the point that the appellate court considers intervention is necessary to prevent possible injustice that the relevant conviction will be set aside. While it is impossible to state hard and fast rules, the following provide examples of relevant inconsistency; where the different verdicts returned by the jury are an affront to logic and common sense which is unacceptable, and strongly suggests a compromise in the performance of the jury’s duty, or which suggests confusion in the minds of the jury, or a misunderstanding of their function, or uncertainty about the legal difference between specific offences, or a lack of clarity in the instruction on the applicable law.”

74. [74]
    The appellant submits that there is no rational explanation for the acquittal on count 1 other than pervasive doubts about the complainant’s reliability.^[35]  In support of this submission, the appellant identifies two relevant considerations.  The first is that the complainant’s recollection of “dreaming” or being “in a daze” was an experience that attached to both count 1 and count 2.  The associated and second relevant consideration is that the acquittal on count 1, based on the reliability of the complainant, as a matter of necessary logic should have supported the same conclusion in respect of counts 2, 3 and 4 because the events were so close in time and in context.^[36]  This submission, according to the appellant, is further supported by the change in the quality of the complainant’s recollection of the alleged penile rape.  As referred to at [9] above, the complainant told police that she did not know if she had experienced sexual intercourse or had dreamt it.  She also told her sister-in-law that “she wasn’t sure if she was dreaming or not” but thought that the appellant had sex with her.  On the day after the alleged offence, she texted her friend SS stating “I think he raped me…” and “I’m trying to remember wtf happened and I can’t.”  This initial uncertainty is to be contrasted with her evidence in cross-examination where it was suggested that when she spoke to police on 3 July 2019 she was uncertain whether she had been raped.  The complainant’s response was “No, I was never uncertain”.^[37]  To similar effect is the following exchange in cross-examination:^[38]

“What you told us last time was that you felt his penis going in and out of your vagina, and you pulled away, kind of forward, and then slapped it – him away from me?---Yep.  So he had – he was holding my hips up.  I pulled myself away, and as I did, I put my hand back and slapped him away and said, like, well, whatever – whether I’d said something or not, it was pretty obvious it was a no.

All right.  So that’s clear in your memory?---Extremely.

All right.  And that is something that you will never forget?---How can I forget my rape?

Yeah.  But it’s something that’s been in your mind the whole time, and you’ve never forgotten it?---No, I can’t forget it.”

75. [75]
    This improvement in the complainant’s memory from her preliminary complaints to her cross-examination, according to the appellant, reflects “pervasive doubts about the complainant’s reliability”.^[39]  The impairment in the complainant’s initial recollection of the penile rape is supported by other factors including the complainant telling her younger sister on 28 June 2019 that when she was in the bedroom of MP she passed out three times.^[40]  Additionally, on the night of the alleged offending the complainant was very intoxicated and had taken medication she knew she should not mix with alcohol.
76. [76]
    The appellant identifies a further matter that reflects adversely on the complainant’s reliability.  The complainant incorrectly recalled that she attended a birthday party the day following the offending and tried “to pretend that [she] was okay”.^[41]  Her recollection was that it was a children’s party.  The evidence of her sister-in-law, SV, was that the complainant had in fact attended a party for SV’s daughter the day before the offending.  According to the appellant, SV’s confirmation of the date of the birthday party showed that the complainant’s memory “pretend[ing] that [she] was okay” was false.^[42]
77. [77]
    The learned trial judge gave the usual direction that the jury were required to consider each charge separately.^[43]  When regard is had to the whole of the evidence, there exists a rational explanation for the acquittal on count 1 other than pervasive doubts about the complainant’s reliability.  There were three specific bodies of evidence which enhanced the quality of the complainant’s account of the offending for counts 2, 3 and 4.  The first was the evidence as to how the complainant reacted to the relevant conduct.  Secondly, the nature and detail of the preliminary complaint evidence.  Thirdly, evidence concerning the appellant’s statements against interest.
78. [78]
    As to the first body of evidence, in relation to count 1 the complainant recalled pulling away from the appellant and slapping him.  The appellant got off the top of her and laid back down next to her and the complainant fell asleep almost instantly.  She could not recall whether she fainted, passed out or fell asleep but she was “out pretty quickly straight away”.^[44]  As correctly submitted by the respondent, the complainant’s drinking, her tiredness and the return to immediate unconsciousness after the alleged penile rape “was capable of identifying the complainant’s lucidity as an issue that potentially affected her reliability on that count.”^[45]
79. [79]
    The complainant’s reaction to the alleged penile rape is to be contrasted with her reaction to the offending constituting counts 2, 3 and 4.  As to count 2, the complainant woke up to find herself on her back with her legs spread and the appellant’s head between her legs.  She said to the appellant “what are you doing?” and pulled away.  She also pushed his head away from her.  The complainant’s recollection is that the appellant told her to go to sleep but she did not go back to sleep.  She used the flashlight on her mobile phone to find her clothes.  She gathered her clothes and went into the bathroom.  She noticed that she was sore internally and that her vagina was very wet.  She put on her underwear and shorts and changed bedrooms to the bedroom of MP.  In her text message to the appellant sent on the following Monday, she referred to the appellant having his head between her legs:

“tell me about what you remember, because I woke up with no pants on and your head between my legs and I need to know what else, if anything, happened”.

80. [80]
    Similarly, in relation to counts 3 and 4 having moved bedroom, the complainant woke when she heard the door opening.  When the appellant touched her breast she pulled his hand away and told him to “stop” and go to sleep.  When he again attempted to put his hand up her shirt, she shoved his hand away and told him to stop.  At this point the appellant got out of bed and left the bedroom.  The complainant did not go back to sleep.  She was trying to figure out if she was able to drive herself home.
81. [81]
    When the appellant returned to the bedroom and put his hand under her pants she reacted by grabbing it and pulling it away.  She got out of bed straight away and grabbed her phone and her romper.  She left the apartment and drove herself home.
82. [82]
    The contrasting reactions of the complainant support her being more lucid when counts 2, 3 and 4 occurred.
83. [83]
    As to the second category of evidence, there is a difference in quality between the preliminary complaint evidence concerning count 1 when compared with counts 2, 3 and 4.  As to count 2 the sister-in-law’s evidence was that when the complainant spoke to her on 26 June 2019 she told her that she woke up to the appellant “performing oral sex on her”.^[46]  The complainant also told her younger sister that she woke up to the appellant performing oral sex.^[47]  As to counts 3 and 4, the complainant told MP that after she had moved bedrooms the appellant put his “hand down her pants, touching her vagina”.^[48]
84. [84]
    As to the third category of evidence, there was a formal admission that in response to the complainant’s text to the appellant that she “woke up with no pants on and your head between my legs” the appellant stated “I don’t think anything else happened, I’m sorry I was in a state, I didn’t mean to do anything”.
85. [85]
    The difference in quality of evidence for counts 1 as compared to counts 2, 3 and 4 constitutes a rational explanation for the diverse verdicts.
86. [86]
    Ground 3 fails.

Ground 4: There was a miscarriage of justice by reason of the failure to give a Robinson direction.

87. [87]
    As this Court is ordering a re-trial on the basis of ground 1, it is unnecessary to consider ground 4.  It is sufficient to note that Mr Holt KC in oral submissions acknowledged that no Robinson direction had been sought at trial.  While there was an initial submission that such a direction should be given, it was not pressed.
88. [88]
    Further, when regard is had to the principles identified in R v Pollard [2020] QCA 188 and R v VM [2022] QCA 88 a Robinson direction was not required in the circumstances of the present case.  Neither the complainant’s level of intoxication, nor any issues concerning her lucidity required such a direction to be given.  These issues affecting reliability were features which did not warrant judicial instruction.  These matters would have been obvious to the jury.

Disposition

1. The appeal is allowed.The convictions and verdicts of 2 September 2022 in respect of counts 2, 3 and 4 on indictment No 403 of 2019 are set aside.
2. A re-trial is ordered.
3. Orders 2, 3 and 4 made on 11 May 2021 and Order 1 made on 11 February 2022 by Byrne QC DCJ are set aside.
4. Pursuant to s 21A(6)(b) of the Evidence Act 1977 (Qld) it is ordered that the video recording of the complainant’s cross-examination conducted on 17 October 2019 is not admissible at any re-trial.
5. A further video recording of the complainant’s cross-examination for any re-trial is to be conducted pursuant to s 21A(2) of the Evidence Act 1977 (Qld) on a date to be fixed.