R v HMN[2022] QCA 3

SUPREME COURT OF QUEENSLAND

1. [1]
   FRASER JA:  I agree with the reasons for judgment of Freeburn J and the orders proposed by his Honour.
2. [2]
   MULLINS JA:  I agree with Freeburn J.
3. [3]
   FREEBURN J:  On 5 August 2020, a jury found the appellant guilty of four counts of rape following a trial before Moynihan QC DCJ, and a jury, in the District Court at Ipswich.
4. [4]
   At the trial, the appellant was represented by counsel.  He was self-represented on this appeal although, with the leave of the court, his oral submissions were delivered by a friend whilst he was present via video link.  The appellant appeals against the convictions on four grounds:

   1. (a)
      Ground 1: There was a miscarriage of justice due to the misconduct of the prosecutor;
   2. (b)
      Ground 2: There was a miscarriage of justice as a result of the trial judge’s failure to address the prosecutor’s misconduct;
   3. (c)
      Ground 3: There was a miscarriage of justice as the trial judge erred in his summing up; and
   4. (d)
      Ground 4: the verdicts were unsafe and unreasonable.^[1]
5. [5]
   It is convenient to summarise the evidence, and then to deal with each of the grounds of appeal in order.

Background – Events of 25 January 2019

6. [6]
   The complainant and the appellant had been in an intimate relationship.  On 25 January 2019, they agreed to end their relationship.  A few days later the complainant arrived home from work in the evening.  The appellant was sitting outside her house.  She told him she was going to bed, and did so.  The appellant followed her and got into bed.  The complainant says she fell asleep but awoke to find the appellant having sex with her.^[2]  She says she told the appellant to stop but he responded by pushing down on her neck and continuing to penetrate her for a few minutes until he ejaculated.^[3]  That is count 1.
7. [7]
   A week or so after that incident, the appellant and the complainant exchanged text messages.  The complainant confirmed that she was single and did not want a relationship with the appellant or anyone else.  During the text message conversation she told the appellant: “I am sick of you fucking me when I am trying to sleep.”  He responded, “I didn’t know it offended you, me doing what I did to you the other night either. You didn’t say anything.”  The complainant replied that she had kicked him and told him no.  Amongst the other things he said in response, the appellant apologised and asserted that “You’ve told me in the past to ignore you saying no”.  That leads to the second incident on 14 February 2019 which gave rise to counts 2, 3, and 4.

Background – Events of 14 February 2019

8. [8]
   On 14 February 2019, the appellant was at the complainant’s house.  The appellant left the house and returned to his car.  But a short time later he returned to the house and attempted to kiss the complainant.
9. [9]
   The complainant’s evidence was that what then happened was that:

   1. (a)
      she resisted and told him “No. Stop. What are you doing?”.
   2. (b)
      she walked away from the appellant but he followed her and pushed her onto a couch where he climbed on top of her.
   3. (c)
      she yelled at him to get off and slapped him in the face.
   4. (d)
      following that, the appellant grabbed the complainant by the hair and dragged her into her bedroom and threw her on the bed.
   5. (e)
      the complainant crawled away from the appellant and asked him for some water.
   6. (f)
      he went to get some water but, before he did, he said: “don’t fucking move, stay there”.
   7. (g)
      when he returned, he gave the water to the complainant and tried to grab her.
   8. (h)
      she attempted to get out of the room but was thrown back on the bed and pinned to it so that her stomach and head were forced down.
   9. (i)
      she tried to kick the appellant off and told him “No. Get off me. You’re hurting me”.
   10. (j)
       he replied “Shut the fuck up. Do as you’re told. This isn’t about you”.
   11. (k)
       despite verbal and physical resistance, the appellant removed the complainant’s clothing and inserted his fingers in her vagina as he held her down.  That is count 2.
   12. (l)
       the appellant tried to force his penis into her mouth so she bit it.
   13. (m)
       immediately afterwards, he grabbed a sex toy from a nearby drawer and inserted it into the complainant’s vagina.
   14. (n)
       she told him to stop as it was hurting but he continued for a few minutes (The evidence was that the appellant was aware, from texts on 3 February 2019, that this particular toy “hurts” her and “won’t even fit”). That is count 3.
   15. (o)
       after removing the sex toy, the appellant again held the complainant down by her neck and put his penis in her vagina.  He had sex with her for a minute or two before ejaculating on her stomach.  That conduct formed count 4.
   16. (p)
       He told her “you wouldn’t have got hurt if you’d just done as you were told”.
10. [10]
    The appellant did not give evidence.
11. [11]
    Some of the details of the complainant’s version were challenged in defence counsel’s cross-examination of the complainant, but no relevant concessions were made.
12. [12]
    Following the incident, the appellant accompanied the complainant to pick up her son from school.  When they got back to the house the appellant left and the complainant went to a friend’s house and informed her that she had been raped.  Despite receiving text messages from the appellant, the complainant stopped communicating with him.
13. [13]
    Some three days later, on 17 February 2019, the complainant participated in a recorded pre-text call to the appellant.^[4]  On 20 February 2019, the complainant’s mother also participated in a recorded pre-text call to the appellant.^[5]

Pre-text Call by Complainant’s Mother

14. [14]
    The pre-text call by the complainant’s mother to the appellant is significant.  First, the appellant said to the complainant’s mother:

“she said to me one time, she said, don’t worry, if I ever say no to you, don’t worry about that. And I just, and I stopped, and I said, no. I said…no way, because I don’t wanna go down the same path as [the complainant’s ex-partner]”

15. [15]
    Thus, in that passage, the appellant explained that he had expressly rejected the idea that the complainant’s ‘no’ could be ignored.
16. [16]
    Second, in discussing the incident on 25 January 2019, the complainant’s mother said to the appellant: “You, you apologised after the first time because you knew that it shouldn’t have happened.”  The appellant replied: “Exactly. But that was…That was probably a little bit, that was probably a little bit different the first time, yeah?”
17. [17]
    The conversation continued:

“COMPLAINANT’S MOTHER: Yeah. But the first time…

APPELLANT: Ah…

COMPLAINANT’S MOTHER: You knew you shouldn’t o’ done it…

APPELLANT: [INDISTINCT]

COMPLAINANT’S MOTHER: And that, and she had said no.

APPELLANT: Yeah. Yep, and that was, that was completely different to this time [i.e. 14 February]. This was middle of the day, I’ve just been poked, and prod, and annoyed…

COMPLAINANT’S MOTHER: Yeah.

APPELLANT: And flirted with, basically, yeah?”

18. [18]
    And so, it was at least open to the jury to conclude that in the pre-text call the appellant conceded that the complainant had said ‘no’, and that he should not have done it, but that his view was that she had been flirting with him.  It is doubtful that the jury would have regarded the claim of flirtation as of any particular relevance to the issue of consent.
19. [19]
    Third, in the pre-text call the complainant’s mother pointed out the obvious:

“COMPLAINANT’S MOTHER: But you know…, even if someone’s flirting, poking, prodding you, whatever, if they don’t wanna do it, they don’t wanna do it, and if someone’s hitting…

APPELLANT: But…

COMPLAINANT’S MOTHER: You, and saying no…

APPELLANT: Yeah. Yeah.

COMPLAINANT’S MOTHER: Then surely that means no, like why would you…

APPELLANT: [INDISTINCT], and this is, this is the problem with her, because, and you can ask her this, ‘cause she said it to me twice in the pub. If I ever say no to you, don’t worry about it.”

20. [20]
    And so, despite having earlier rejected the idea (“no way…’”) the appellant sought refuge in the idea that the complainant had, sometime previously, said that if she said ‘no’ he should not worry about it.
21. [21]
    Fourth, the complainant’s mother returned to the topic of the first incident:

“COMPLAINANT’S MOTHER: After the first time ‘round when you apologised, you knew you shouldn’t have done it, you, you…

APPELLANT: Yeah.

COMPLAINANT’S MOTHER: And you knew that was a ‘no’, right, sec-,…

APPELLANT: Yeah.

COMPLAINANT’S MOTHER: Second time ‘round she’s telling me that you got her by the hair, and you forced her down, and you had her by the neck.

APPELLANT: Her neck. Yeah.”

22. [22]
    Here, the appellant seems to accept that he forced the complainant down and had her by the neck.  That is consistent with the complainant’s version of both events.
23. [23]
    Fifth, the complainant’s mother confronted the appellant with the complainant’s lack of consent:

“COMPLAINANT’S MOTHER: You know if somebody says no [name of appellant], you just don’t take that chance, do you? Or do you carry…

APPELLANT: Like…

COMPLAINANT’S MOTHER: On? You know, like really?

APPELLANT: When you’re, when you’re, when you’re told, but hang on, but when you’re told in the past, if I …

COMPLAINANT’S MOTHER: Does-,…

APPELLANT: Ever say no, just ignore it.”

24. [24]
    And so, again, the appellant appears to accept that the events occurred, and in the way described by the complainant, but he returned to the conversations he said had occurred in a “pub” some time before.  It is odd that the appellant sought refuge in the ‘pub’ conversations when he had said “no way” at the time.  And, it is difficult to see how any arrangement said to have been arrived at during the pub conversations could have survived the ending of their relationship and his acceptance that the conduct on 25 January justified an apology.
25. [25]
    Incidentally, on the appeal the appellant made the point that when he is recorded in the transcript of the pre-text calls as using the words “Okay” and “Yeah”, he should not be taken to be acknowledging the proposition put to him by the complainant or her mother.  Instead, the appellant argues that, when one listens to the recording, those words were said in a tone and manner that merely indicates that the appellant is merely acknowledging what was said for the purpose of moving the conversation forward.^[6]
26. [26]
    Of course, in accordance with usual practice, the recordings of the pre-text calls were played to the jury.  The recordings became exhibits and were available to the jury when they deliberated.  And so, the appellant’s point here lacks a proper foundation.  The jury did not see and did not have available to them the transcripts of the pre-text calls.  Thus, by listening to the actual recordings, the jury were able to hear the tone and manner of the conversations and could thereby distinguish between answers that were genuine agreement with what was being put to him and answers that were merely designed to progress the conversation.
27. [27]
    Thus, there were two issues at the trial: whether the jury were satisfied beyond reasonable doubt that the complainant consented, and whether the jury could be satisfied beyond reasonable doubt that the appellant held an honest and reasonable belief that the complainant was consenting.

Ground 1 – Alleged Misconduct of the Prosecutor

28. [28]
    The appellant contends that there was a miscarriage of justice due to the misconduct of the prosecutor.  The alleged misconduct of the prosecutor falls into these categories:

    1. (a)
       Expressing personal opinions;
    2. (b)
       Inappropriate comments;
    3. (c)
       Inflammatory statements;
    4. (d)
       Rhetorical questions;
    5. (e)
       An incorrect statement;
    6. (f)
       An implied criticism of defence counsel; and
    7. (g)
       Omissions of evidence.

The Prosecutor Expressing Personal Opinions

29. [29]
    The appellant relies on five statements by the prosecutor as expressing personal opinion:

    1. (a)
       “He says her legs were up on her [sic^[7]] in the movie cinema, but, again, how that translates to flirtation and sexual desire and consent escapes me. It doesn't, ladies and gentlemen.”
    2. (b)
       “…because he doesn't take ‘no’ for an answer. It's his way or the highway.”
    3. (c)
       “He’s trying to say when the moon is up, it's different. When the sun is up, it's different. ‘No’ means no to him; ‘no’ means yes to him when it's in a different context. He's trying everything under the sun, under the moon, ladies and gentlemen, to get his way out of what he did, but what he did was rape. It cannot be construed any other way.”
    4. (d)
       “…as opposed to what he said in the recordings, he has not learnt his lesson from the time of count 1”.
    5. (e)
       “…there is absolutely no way he could’ve held an honest belief ...”
30. [30]
    It is not clear that all five of those statements were expressions of the prosecutor’s personal opinions.  There may be a nuanced difference between what, on the one hand, an advocate submits in a powerful or colourful way and, on the other hand, an expression of the advocate’s own personal view.  Much depends on the context.
31. [31]
    It is likely that the first of those statements may stray into opinion.  The use of the words “escapes me” suggests that the prosecutor personally finds the argument to be implausible.  That said, there is little prospect that the jury was distracted by that.  The prosecutor was really emphasising to the jury that the relatively uncontroversial fact that, even if there was some flirtation, that is not equivalent to consent.
32. [32]
    The second statement is best viewed in its context:

“All that cross-examination about [the complainant] not being asleep or falling to sleep, but in the [pre-text] call he says:

Well, that was sleeping. This is the middle of the day, when you are awake.

Earlier in the call [i.e. the pre-text call with the complainant], when counts 2, 3 and 4 are discussed, he responds with at page 8, line 3 onwards:

Oh well, guess what? I’ve obviously crossed the line again.

Another admission, you might well think, ladies and gentlemen. He’s come to the conclusion about count 1. An admission that, I suggest, you would find that, by his own words, he crossed that line on that first occasion. All of this defendant’s own admissions and what he has said support [the complainant’s] evidence about sleeping or trying to remain asleep before waking up with his penis inside her vagina, withdrawing her consent if any was given to begin with, and he just kept going, because he doesn’t take ‘no’ for an answer. It’s his way or the highway.” [The impugned words are in bold.]

33. [33]
    The prosecutor was entitled to submit to the jury that:

    1. (a)
       The appellant admitted the complainant was asleep at the time of the first incident, despite the defence having cross-examined the complainant on the basis that she was not asleep;
    2. (b)
       The appellant admitted that he “crossed the line” on that occasion - a statement the jury were entitled to conclude was a significant admission;
    3. (c)
       The complainant had withdrawn her consent, even if consent had been given, and that the appellant had just kept going.
34. [34]
    The prosecutor was entitled to emphasise that evidence to the jury and to invite the jury to infer an absence of consent.  He was not obliged to do so in a bland, colourless way.  A prosecutor is not prohibited from utilising rhetoric.^[8]  The sentence “It’s his way or the highway” is properly characterised as an advocate’s flourish.^[9]
35. [35]
    The context here was that the prosecutor gave a reasonably lengthy address to the jury.  The defence then addressed the jury, commencing with the observation that, whilst the issues were narrow, they were not quite as simple as the prosecutor had suggested.  The trial judge summing up of the prosecution case included this as his Honour’s summary of one of the prosecutor’s submissions:

“Thirdly, the defendant was a dominating, jealous, controlling, manipulative person. He would not let the complainant leave and he would not take no for an answer.”

36. [36]
    That summary was described by the trial judge as one of the “rival contentions” of the parties and as a summary of “each counsel’s major contention”.  In the circumstances, the jury can hardly have misinterpreted the prosecutor’s statement as being anything other than a submission that they were entitled to accept or reject.
37. [37]
    The next and third statement (paragraph (c) above) commences with: “He is trying to say when the moon is up, it’s different…”.  Rather than being an expression of the prosecutor’s personal opinion, that is a slightly intemperate attack on the appellant’s evidence and therefore his credibility.^[10]  However, defence counsel directly responded to this part of the prosecutor address.  He described the prosecutor’s statement as ‘mocking’ and provided a full explanation of his client’s position:

“He [the appellant] says that this one was different. It was in the middle of the day. Now, my learned friend – I don’t think he was being too mocking intentionally about that. What he was clearly saying was, ‘I was more prone to misreading a symbol at night when I didn’t realise she was asleep than when we’re in the middle of the day and engaging in this particular level of conduct.’ That’s what he was saying.

He wasn’t drawing some difference between the sun and the moon, and has some sort of bearing on him. He was saying that thing that happened at night was different to this. This was two wide-awake people. Maybe, at the end of the day, misunderstanding the communication. But this was not the night-time in the bed when she apparently fell asleep. I accept, in hindsight, that’s what she tells me occurred. This was the middle of the day. That’s what he’s telling her.”

38. [38]
    In those circumstances, the jury must have appreciated that there were competing contentions about this issue.
39. [39]
    The fourth statement, in its context, is as follows:

“Like he said to [the complainant’s mother], he crossed the line as soon as he re-entered that house. He re-entered, and he decided, ‘I’m going to do what I want to do.’ He physically attacks her, hoping she’ll reciprocate, she’ll give in, they’ll rekindle. It’s a romantic day. They’ll be back to their happy ways. That’s not the case and that’s not what happened. As I said, he continued and continued, but what he did was he furthered his rapes. He kept going up until the point that he got his own sexual gratification from it. He took her to the bedroom, and, as opposed to what he said in the recordings, he has not learnt his lesson from the time of count 1.”

40. [40]
    The last sentence does not appear to be personal opinion.  In any event, a prosecutor is not prohibited from forcefully and firmly putting the prosecution’s case to the jury.^[11]  The last part of that statement is correctly characterised as an advocate’s flourish.
41. [41]
    The fifth statement, “There is absolutely no way he could have held an honest belief” must also be viewed in its context.  The prosecutor recounted to the jury the events of 14 February 2019 and the three separate counts of rape that occurred on that day.  His point was that, in the circumstances, and particularly having regard to his conduct with the sex toy, the jury could be easily satisfied beyond reasonable doubt that the appellant did not have an honest belief that the complainant was consenting.  In its context, that was a submission rather than an expression of the prosecutor’s personal opinion.  The submission was open on the evidence and this was in a context where defence counsel attacked the complainant’s credibility and portrayed the events as part of sex play.
42. [42]
    A prosecutor is not obliged to constrain submissions that are reasonably open on the evidence.  A prosecutor is entitled to firmly call on the jury to reject defence evidence or a defence case as inherently unbelievable.^[12]  That was what the prosecutor was doing here.

Summary

43. [43]
    It is true that counsel's role is to make submissions, not to express personal opinions or to enter the fray as a contestant.^[13]  However, here, only one of the five statements appears as personal opinion.  It was certainly a strong address.  Defence counsel was similarly robust in his address.  Defence counsel raised no complaint about the prosecutor’s address.
44. [44]
    Further, a prosecutor is not prohibited from forcefully and firmly putting the prosecution case to the jury.^[14]  The critical question, however, is not whether the prosecutor’s remarks were improper but whether they may have improperly influenced the jury so as to cause a miscarriage of justice.^[15]  As explained, the five statements are not likely to have improperly influenced the jury.

Inappropriate Comments

45. [45]
    The appellant complains that, in his address to the jury, the prosecutor ‘attacked my defence counsel’ by saying: “That’s a red herring. The defence are trying to distract you and muddy the waters for you” and “He’s just trying to pull the wool over your eyes with another excuse, ladies and gentlemen.”
46. [46]
    It was open to the prosecutor to submit that to the jury that the issue was a distraction or a ‘red herring’.^[16]  And it was acceptable to challenge the defendant’s credit, and to do so forcefully.  However, it was unacceptable to submit that the defence was trying to distract the jury.  As explained by the NSW Court of Criminal Appeal in Hughes v The Queen,^[17] that was open to interpretation by the jury as being an attack upon the person and motives of the defendant’s advocate himself, and not on the submissions of the defence.
47. [47]
    Nonetheless, to the extent that they were inappropriate, the remarks are not likely to have improperly influenced the jury.  As explained, defence counsel did not raise an objection to the address or seek directions, and the trial judge fairly summarised the rival contentions.

Inflammatory Statements

48. [48]
    The appellant contends that the prosecutor made inflammatory statements, namely:

    1. (a)
       “He tried to blackmail her ...”
    2. (b)
       “He violently dragged her by the hair”
    3. (c)
       “They saw the movie Escape Room. It's not as if they went to a couples romantic movie. They didn't go and watch The Notebook. They didn't go and watch Dirty Dancing or Pretty Woman.”
    4. (d)
       “He is the only one to blame for this. Look at the evidence. It demonstrates that he is a controlling possessive man who play games and get what he wants.”
    5. (e)
       “Everything he does is a game - everything - and the game has to end in his favour.”
    6. (f)
       “He came back in annoyed. That makes sense, because look at what he did with that sex toy. That alone speaks volumes of what happened on that day.”
    7. (g)
       “... he continued and continued and continued and continued. He did what he pleased.”
    8. (h)
       “This was jealousy. This was anger. This was, perhaps, humiliation about the sex toy. This was controlling. This was dominance.”
    9. (i)
       “He did not care about what [the complainant] was doing or saying. He did not care ...”^[18]
49. [49]
    First, the word ‘blackmail’ was used in the course of the prosecutor’s submissions about particular text messages.  This part of the prosecutor’s address, in its context, was as follows:

“You can clearly see – and you’ll have those text messages with you in the jury room, and the evidence of [the complainant] as well – that this defendant was someone who was not going to let [the complainant] leave him. He was going to own her. The evidence and the messages demonstrate that he is a jealous man, a person who liked to play games with [the complainant], a person who tried to make her jealous on occasion, a person who would not take ‘no’ for an answer. When told that [the complainant] wanted to be single, his response was that he couldn’t allow her to be. He tried to blackmail her that if she broke up with him, then he would no longer look after …, her son.”

50. [50]
    Thus, the prosecutor wished to portray the appellant as a controlling person.  In the same way, defence counsel sought to characterise the complainant as the aggressor in the relationship.  However, the context shows that the prosecutor’s use of the word ‘blackmail’ was limited to conduct disclosed by the text messages whereby the appellant had said that, if the relationship ended, he would be unable to look after her son.  The jury were able to assess the text messages themselves.  They were able to determine whether, in fact, the appellant was a controlling person.
51. [51]
    Second, the words “violently dragged her by the hair” comprise the prosecutor putting his case to the jury.  The appellant complains that at no point in the trial did the complainant give evidence that the alleged acts were violent.  It is true that the complainant did not use that word.  However, the evidence she gave was as follows:

“And what happened next?---He followed me over and he pushed me down onto the couch and climbed on top of me. And again was trying to kiss me. And I started yelling and saying, ‘No. Get off me.’ And he got up and, then, as I got up, I slapped him in the face. And then he grabbed me by my hair and dragged me through to my bedroom.

…

And after you did that, what happened next?---So that’s when he grabbed my hair. And my hair was up how it is now, actually, in, like a bun. And he grabbed hold of it and he dragged me through from my couch through my living room and threw me onto my bed.”

52. [52]
    It is difficult to see why the prosecutor was not entitled to describe that conduct as violent.  By its nature dragging a person by their hair from one room to another is an act of violence.  On the prosecutor’s case it was a violent act.  In ordinary parlance it was a violent act.
53. [53]
    The appellant points out that in Hughes v The Queen,^[19] the NSW Court of Criminal Appeal described the prosecutor’s use of the word ‘depravity’ as loaded with emotional connotations and criticised the use of the emotive word ‘horrible’.  However, in Hughes v The Queen the relevant passages of the prosecutor’s address were passages plainly designed as an emotional plea to the jury rather than as a submission.^[20]  Here the prosecutor’s use of the word ‘violently’ is confined to a description of the act of dragging the complainant from one room to another by her hair.  That confined use of the word, in describing a specific act, is some distance from the deliberate emotional speech made in Hughes v The Queen.  In fact, the appellant’s counsel used the word in a similar way in putting to the complainant that she had, in the past, acted in a manner that was “very physically, violently aggressive to [the appellant]”.
54. [54]
    Third, the appellant submits that:

    1. (a)
       it was prejudicial to state that the acts were violent simply because the acts themselves are unorthodox;
    2. (b)
       in their relationship those types of acts were commonplace; and
    3. (c)
       the complainant had conceded that this (unorthodox) method was the only way she had experienced sex.^[21]
55. [55]
    That may be so but the fact that, during their relationship, those types of acts were commonplace does not mean that it was inaccurate or inappropriate for the prosecutor to characterise the act of dragging the complainant from one room to another by her hair as violent.  The prosecutor was not obliged to sanitise his depiction of the conduct by describing it as ‘unorthodox’.  Importantly, the prosecutor readily acknowledged the ‘unorthodoxy’ but pointed out to the jury that the unorthodox sex had occurred in the context of an intimate relationship.  He said to the jury: “You heard that their intimacy involved some physicality during intercourse ... slapping, choking, pulling of the hair, biting etcetera. That ladies and gentlemen all took place when they were in a relationship together. That is very important in this case.”
56. [56]
    Fourth, it is difficult to see why the statements in subparagraphs [48](c) to (i) above comprised improper conduct on the part of the prosecutor.  They were plainly legitimate submissions by the prosecutor based on the evidence.  Defence counsel did not object at the time.  The trial judge was not asked to give directions.
57. [57]
    Fifth, the prosecutor was entitled to tie all the different conduct together and to give the jury a submission comprising a summary of what had happened and why.  In other words, the prosecutor presented the jury with what is commonly described as a ‘case theory’.  That is what the prosecutor was doing in the passages quoted above, particularly in subparagraphs [48](f) to (i).
58. [58]
    Sixth, the prosecutor’s statement at paragraph [48](h) above needs to be put in context.  The last part of the prosecutor’s address to the jury was a conclusion:

“There was on the 14^th of February no consensual intercourse taking place at [the complainant’s] house. This wasn’t a defendant who honestly and reasonably but mistakenly believed this was consensual. This was jealousy. This was anger. This was, perhaps, humiliation about the sex toy. This was controlling. This was dominance. What he did was rape. None of this was done with her consent. You would be satisfied of that, ladies and gentlemen, beyond a reasonable doubt, and you would return verdicts of guilty to all counts on the indictment under your consideration. Thank you very much. Thank you.”

59. [59]
    The appellant submits that the complainant did not say in evidence that she was humiliated, and that the prosecutor was therefore wrong to state that ‘perhaps’ she was humiliated.
60. [60]
    There is some confusion here.  This part of the prosecutor’s address is not directed to the complainant’s state of mind.  The prosecutor’s focus was the appellant’s state of mind.  The prosecutor sought to convince the jury that the appellant did not honestly and reasonably, but mistakenly, believe that the complainant had given her consent.  The prosecutor sought to portray the appellant’s state of mind as influenced by jealousy, anger, and a desire to control, and ‘perhaps’ a desire to humiliate.  Certainly, the prosecutor’s use of the word ‘perhaps’ suggests a rather tentative attribution of the appellant’s motivation.
61. [61]
    In any event, the prosecutor was entitled to draw the jury’s attention to the events and to invite them to conclude that the appellant was not mistaken as to consent because, in the circumstances, his actions were more consistent with more aggressive motivations.

Rhetorical Questions

62. [62]
    The appellant complains that, during the prosecutor’s closing address, the prosecutor asked the jury rhetorical questions.  Those rhetorical questions, it was submitted, further elicited emotion in the jury and, in the appellant’s submission, reversed the onus of proof.^[22]
63. [63]
    There were three rhetorical questions posed by the prosecutor.  The first is at the end of the following passage of the prosecutor’s address:

“He couldn’t have the complainant in the way he wanted, so he had his way with her. He violently dragged her by her hair, which was up in a bun, to her bedroom, threw her onto the bed, pinned her down, removed her clothes over [the complainant] trying to hold them up, the one-piece boob tube that she was wearing. She asked for a drink of water, and he told her to ‘not fucking move’, got the drink, and when she tried to leave, she was thrown back onto the bed. She’s physically tried to leave that room. Prior to that, she has physically tried to push him off, yelling, slapping him, saying no once they’re in that room, saying he’s hurting her. What more can she do?” [emphasis added]

64. [64]
    The question posed by the prosecutor was a legitimate question.  And the jury cannot have understood that the question was reversing the onus of proof.
65. [65]
    The trial judge’s summing up to the jury carefully and fully explained the onus of proof they were to apply.
66. [66]
    It follows that there was nothing improper about that first rhetorical question and the question could not have misled the jury to apply a ‘reverse’ onus.
67. [67]
    The second rhetorical question objected to by the appellant appears at the end of this passage in the prosecutor’s address:

“…She was trying to fight him off. She even bit his penis. She screamed. She said no. She said she was in pain. She said to stop, as he was hurting her. As I said, how much clearer can [the complainant] have possibly been to him, verbally and physically?”

68. [68]
    For the same reasons, that question was not improper and could not have reversed the onus of proof.
69. [69]
    The third rhetorical question the appellant complains about is, in fact, a series of questions posed to the jury in relation to something of a side issue that arose during cross-examination of the complainant.
70. [70]
    Defence counsel’s cross-examination of the complainant, presumably designed to damage her credit, was to the effect that she had failed to disclose to police that his penis entered her mouth when her evidence was that she had bitten his penis.  However, that part of the cross-examination was pointless because the complainant had in fact told police that she had bitten the appellant’s penis.  That act of biting must have involved the appellant’s penis entering the complainant’s mouth.  That was the point being made by the prosecutor when he described the point as a red herring.  It was a legitimate point which addressed the alleged inconsistency.  And, to the extent that there was a point to be made, after the prosecutor addressed the jury, defence counsel addressed the jury and took the opportunity, twice, to try to convince the jury that there was some significance to this issue.

Incorrect Statement

71. [71]
    The appellant complains that, in his address to the jury, the prosecutor told the jury that the complainant, after coming home from work late at night, had performed some chores.^[23]  The appellant says that there is no evidence that supports those statements and submits that the prosecutor has made this statement to exaggerate how tired the complainant must have been.  The appellant acknowledges that, in isolation, these statements may appear to be insignificant, however in the context of the entire trial, he submits that, again, the effect was to elicit emotion in the jury.^[24]
72. [72]
    It is true that the statement was inaccurate.  The complainant’s evidence was that she got home from work late, that she was very tired, and that she needed to go to bed.  The complainant said that she told the appellant she was really tired, and then got herself ready for bed and hopped into bed.  She says she “woke up to him having sex with [her].”  In that context, the incorrect statement is of little or no significance.^[25]

Quality of the Evidence

73. [73]
    The appellant complains that the prosecutor stated: “The cross-examination was pointed. At times, [the complainant] was stopped from explaining some answers or explaining some text messages or events.”  It was submitted by the appellant that that statement comprised criticism of the conduct of the defence, and was unfair.  He says that defence counsel’s questioning of the complainant was legitimate but that it was improper for the prosecutor to imply that the defence had acted inappropriately and had stopped the complainant from explaining herself.
74. [74]
    In fact, the context of those two sentences of the prosecutor’s remarks makes clear that the prosecutor was making submissions about the complainant’s credibility – a significant issue at the trial.  The context of the two sentences is as follows (with the impugned sentences in bold):

“Let me just touch upon the general tenor of [the complainant’s] evidence. The complainant is telling you the truth. She is telling you the truth about what happened to her. These things happened, ladies and gentlemen. She’s telling you the truth about kicking him, saying ‘no’, ‘stop’, yelling, screaming, biting him, biting his penis, pushing him off. That is truthful, because [The complainant] is a credible and a reliable witness. The real question is one of subjective test for this defendant’s state of mind at the time, and [the complainant’s] state of mind, and an objective one as to the circumstances at the time.

[The complainant] was coherently – was able to coherently and quite easily tell you everything about the relationship with this defendant. The topics discussed in her evidence were not easy topics. They wouldn’t be easy for any ordinary person to have to come along and tell to anyone, let alone strangers. She was able to describe and give reasons for particular things. But, come cross-examination – and nothing against my learned friend. This is his requirement. He has to do this. He had to put this defendant’s case to her. The cross-examination was pointed. At times, [the complainant] was stopped from explaining some answers or explaining some text messages or events.

You can think about a time in your own life where something has happened to you and you’ve been challenged on that. One might think that, in those circumstances, you were able to leave the situation, deflect, change the topic. [The complainant] didn’t have that luxury. She was required to answer those questions. Her sexual history with this defendant was laid bare. Conversations from months prior brought up. They weren’t pleasant, but she was required to answer those, and she did her absolute best to explain the meaning behind them. There were serious messages. There was banter. From your own collective life wisdoms and experience, you’ll be able to see some of those messages were clearly just banter.

It is entirely unsurprising that [the complainant] reacted on occasions the way she did during cross-examination. Just because of those reactions, that doesn’t impact on her reliability. You might actually think that those reactions are a genuine reaction that someone in her position would have when challenged about events. So does it detract from her reliability or does it add to it, the manner in which she responded?...”

75. [75]
    Those submissions were proper submissions to make on the substantive issue of the complainant’s credibility.  There was no improper attack on defence counsel’s questioning.  The prosecutor expressly told the jury that defence counsel was obliged to put the appellant’s case to the complainant.  However, the real submission the prosecutor was making was that the complainant gave genuine and credible answers and responses to difficult, and necessarily intrusive, questions.  The prosecutor was entitled to make that submission.

Omissions of Evidence

76. [76]
    The appellant submitted that the prosecutor did not present the case fully and fairly in that the prosecutor only presented evidence which advanced the Crown case and not that evidence which was detrimental to the Crown case.  The appellant gave some examples.

Mental Health

77. [77]
    The first example relied on by the appellant is that the prosecutor failed to “tender evidence which clearly demonstrated that the complainant has a mental health condition”.^[26]  There are a number of difficulties with the argument.  Defence counsel did in fact explore the topic of the complainant’s mental health when he cross-examined the complainant.  He did so on at least three occasions.  It may be that the appellant’s complaint is that his own counsel ought to have explored the issue further, or that further evidence on the point ought to have been pursued in cross-examination.  However, the appellant is bound by the way the trial was conducted by his counsel.^[27]  There may well have been sound forensic reasons why defence counsel approached the rather sensitive topic of the complainant’s mental health in the way he did.
78. [78]
    In any event, the precise evidence which ought to have been tendered is not identified by the appellant’s submissions.  That is important because a mental health issue some months or years prior to the relevant events is unlikely to be relevant.  And, the appellant does not explain why the existence of a mental health issue, even if contemporaneous, was relevant to the complainant’s credibility on the issue of consent.

Text Messages

79. [79]
    The second example relied on by the appellant is that the prosecutor submitted that the relationship between the complainant and the appellant had ceased on 25 January 2019 but there were text messages on 28 January, 2 February, and 4 February 2019 that contradicted that submission because they suggested a continuation of their sexual relationship.  The appellant complains that the prosecutor did not produce that evidence because it was contrary to the prosecutor’s case.
80. [80]
    The problem with this example is that at least one of those text messages was in fact in evidence.  It was one of many text messages tendered by the prosecutor.  There were approximately 2,994 pages of texts which defence counsel had access to.  Defence counsel had access to all of the relevant text messages.  The relevant text messages were tendered without objection.
81. [81]
    During the trial, defence counsel took the complainant to many of those text messages in his cross-examination of her.  There was no attempt to tender any further text messages, and no rejection of any tender of text messages.  Consequently, it is difficult to understand the alleged unfairness.  Defence counsel made forensic choices as to those text messages that would inform his cross-examination of the complainant.  The appellant is bound by those forensic choices.
82. [82]
    The appellant contends that the prosecutor’s failure to produce evidence of the three text messages offends the principle made clear in R v Soma^[28] that the prosecution was bound to “take the good with the bad”.^[29]  However, that principle applies to a tape recording of a police interview.  The principle is that, if the prosecutor makes a defendant’s police interview a part of the evidence, it then becomes evidence for the defendant as well as against him.^[30]  Here, the texts comprised numerous individual communications, rather than a record of interview.  And both counsel were at liberty to choose to tender or cross-examine on the text messages, or chains of text messages, that suited their case.

Fluid Release

83. [83]
    The third example relied on by the appellant starts with a part of defence counsel’s cross-examination of the complainant.  Defence counsel put to the complainant that on occasions during sexual intercourse the complainant released fluid.  She said it was an involuntary response.  Defence counsel put to the complainant that, during the incident on 14 February 2019 fluid had been released and that therefore she was in fact enjoying what was going on.  She rejected that proposition and repeated words to the effect that it was an involuntary response.
84. [84]
    At a later point in the trial, the prosecutor raised with the trial judge the prospect that he may call a government medical office doctor to offer an opinion that the release of fluid in this situation is a physiological response entirely divorced from the person’s mental state.  Ultimately, a joint admission was made in these terms:

“The release of fluid (‘squirt’, ‘fluid release’, ‘fluid release orgasm’ – however described in cross-examination) is a physiological response and is independent from a person’s subjective state of mind. As such, the release of fluid itself is not indicative of either consensual or not consensual penetration.”

85. [85]
    The prosecutor addressed the jury about the issue.  He urged the jury to read the admission and explained that the evidence was neutral in the sense that it did not mean that the complainant was consenting or not consenting.  Defence counsel did not address on the issue.  That was plainly a forensic decision made by defence counsel.
86. [86]
    However, on this appeal, the appellant now wishes to rely on another text message in which it is alleged the complainant said that she had an ability to ‘hold it in’ (meaning the fluid).  Presumably the contention is that whilst defence counsel accepted the admission, the text message demonstrates that he was wrong to do so because the text message supports the view that the complainant had some control over the release of fluid.  The appellant says that the text message supports “my defence of honest and reasonable mistake on the issue of consent and her enjoyment during sex with me.”^[31]
87. [87]
    However, the appellant has not made an application to permit this fresh evidence^[32] on the basis that a miscarriage of justice has taken place by reason of the absence of the fresh evidence, and he has not proffered a satisfactory explanation for why the evidence was not used at trial.^[33]  Crucially, the appellant did not contend at trial that there had been a release of fluid that had led him to believe that the complainant had given her consent.^[34]  The appellant’s counsel did not put to the complainant that the release of fluid may have led the appellant to believe that she consented.  Indeed, it is difficult to see how the release of fluid during the course of sexual intercourse can possibly be relevant to consent at all unless it occurred at the outset.  And the evidence certainly has no possible relevance to counts 2 and 3.  Further, there is no expert or other evidence proffered that contradicts the admission which was agreed to by both counsel.
88. [88]
    The point made by the appellant is that the prosecutor failed to tender the 4 February 2019 text message.  The prosecutor had no obligation to do so.  All of the text messages were available to both the prosecutor and the defence.  Each chose to tender or cross-examine on the text messages that suited their case.  The appellant is bound by the forensic decisions of his counsel in the conduct of his case.

Pre-text Recordings

89. [89]
    The fourth example relied on by the appellant as demonstrating that the prosecutor did not present the case fully and fairly involves the pre-text recordings.  The appellant says the entire pre-text recordings ought to have been played to the jury.  They contain, the appellant contends, ‘‘mixed statements and they support my defence.’’^[35]
90. [90]
    A pre-text recording between the complainant and the appellant became exhibit 16.^[36]  Similarly, a pre-text recording between the complainant’s mother and the appellant became exhibit 18.^[37]  Both recordings were played to the jury.  There was no objection to the tender of the recordings.  In fact, both counsel agreed to the admission of exhibits 16 and 18 including edits of the recordings,^[38] presumably to delete irrelevant or prejudicial material.  Again, the appellant is bound by the way the trial was conducted by his counsel,^[39] and there is no reason for thinking that the forensic decisions of counsel were irrational.
91. [91]
    As it happens, the appellant does not contend that anything significant or decisive is contained in the second and separate recording of the pre-text call involving the complainant.^[40]  The recording was of a different conversation, which neither counsel sought to tender.  The appellant relies on the principle discussed by Hayne J in Mahmood v Western Australia:^[41]

“If there is admissible evidence available to the prosecution of out-of-court statements of the accused that contain both inculpating and exculpating material, fair presentation of the prosecution case will ordinarily require that the prosecution lead all that evidence.”

92. [92]
    But that principle does not apply where the conversation is a different conversation and where both counsel have agreed on what ought to be put to the jury.
93. [93]
    Only part of the pre-text recording with the complainant’s mother was played to the jury.  But that edited version was an edited version that both counsel agreed should be played to the jury.  That is sufficient to dispose of this ground.
94. [94]
    In any event, the appellant complains that, within the 22 minutes of recorded conversation that was not played to the jury, there were very clear statements that show the complainant’s communication during the entire period of our relationship was ambiguous.  It is difficult to conclude that there is any particular relevance to that rather general evidence about the complainant’s ‘ambiguous’ or ‘mixed’ communication during the entire period of her relationship with the appellant.  Especially given that defence counsel cross-examined in detail on the communications between the complainant and the appellant.  Defence counsel addressed the jury on the intimacy of the communications between the complainant and the appellant.
95. [95]
    The prosecutor’s failure to play the entire recordings was not a breach of his duty to present the case fully and fairly.  It was a reasonable step taken to ensure that the jury were not burdened by overly lengthy recordings.  The undisputed excision of some irrelevant or prejudicial material is entirely sensible and appropriate.

Exhibit C

96. [96]
    The fifth example relied on by the appellant as showing that the prosecutor did not present the case fully and fairly involves Exhibit C.^[42]  Exhibit C is a document that contains the extracts of the transcript of the pre-text recordings that were relied on by the Crown.  In the absence of the jury the trial judge and counsel discussed what was to be given to the jury before they retired to consider their verdict.  It was agreed that the jury would have with them the recordings of the pre-text calls.  Then the trial judge and counsel discussed how a document prepared by the prosecutor comprising a version of Exhibit C was to be dealt with.  His Honour explained to defence counsel that the choice was whether his Honour identified the alleged admissions in the pre-text calls that the Crown relied on by reading them out or by handing the jury the extract document – Exhibit C.  Defence counsel said that he had no issue with the extract document going to the jury.
97. [97]
    During his summing up, the trial judge gave a conventional warning to the jury: ^[43]

“Now, that document which you will get in due course identifies the passages that the Crown relies on.

You must keep in mind that that document is not the evidence. It is to identify the statement relied on only.

It is the recording or the message that is the evidence and you must act on that. What is in that document is really someone else’s opinion as to what the conversation on the recording was or what was in the message at that point.

But it is what you hear or see in the exhibit that matters. So if you hear or see something different from what appears in the document, you should act on what you have read or heard, not on the document. And you must always view any statement in the context of the whole of the recording or text exchange.”

98. [98]
    The trial judge also warned the jury that to rely on the evidence they must be satisfied that the appellant had made the statements (that was not in dispute), and that they were true and accurate, and that by his statement the defendant was admitting that he had done an act to the complainant and that the act he had done was the act with which he was charged.  His Honour continued:

“If you are not satisfied of those matters, you cannot rely on the statement as going to prove his guilt. You must ignore it.

If you are satisfied of those matters, it is capable of being an admission and it is up to you to decide if you think it proves anything at all.

During the course of the phone calls or text conversations, a number of questions were asked by either the complainant or her mother, of the defendant. The same reasoning applies here, as I told you about earlier in relation to questions by counsel of a witness. If the defendant did not agree to or in some way accept the contents of a question asked of him, that question cannot become any evidence against him.

So in the course of the text messages and recorded phone calls, it is said by the prosecution that the defendant made statements which the prosecution relies on as pointing to his guilt. If you accept them as having been made by the defendant and as true, it is up to you to decide what weight you give them and what you think they prove.

He also made statements which you might view as indicating his innocence. You are entitled to have regard to those answers if you accept them and to give them whatever weight you think appropriate, bearing in mind that they have not been tested by cross-examination.

In relation to the statements which the prosecution relies on as indicating guilt, and those which may point to his innocence, it is entirely up to you what use you make of them and what weight you give to them.”

99. [99]
    The appellant has two broad complaints about the use of Exhibit C.  The first is that in the discussions between the trial judge and counsel in the absence of the jury, the prosecutor appears to have intended that Exhibit C would have the limited purpose of constituting evidence of penetration.  It was not tendered as evidence of an absence of consent.  The discussion of this issue is confusing.^[44]  It seems entirely pointless for the extracts to be tendered on that basis given that penetration was never an issue at trial.  The central issues at trial were consent and whether there was an honest and reasonable belief as to consent.
100. [100]
     Nevertheless, none of that confusion involved the jury.  The trial judge’s summing up to the jury, quoted above, was entirely fair.  The jury was entitled to rely on the appellant’s statements in the Exhibit C extracts if they were satisfied as to their veracity as explained by the trial judge.  And, importantly, defence counsel consented to the tender of Exhibit C and had no complaint about the trial judge’s summing up.
101. [101]
     The appellant’s second complaint is that Exhibit C, and particularly its heading ‘Admissions’, could have misled the jury into relying on Exhibit C to resolve the issue of consent, or a lack of consent, when it was not intended for that purpose.  Despite the confusion in the discussions in the absence of the jury, the jury was entitled to use the statements made by the appellant to the complainant, and to the complainant’s mother, as evidence of a lack of consent or that the appellant knew there was no consent.
102. [102]
     It may have been preferable for the document to have been given a more appropriate heading.  However, the trial judge’s directions left the jury in no doubt that it was a matter for them as to the weight they gave the statements in Exhibit C.

Relationship Period

103. [103]
     The appellant’s last complaint about the conduct of the prosecutor is as follows:^[45]

“The prosecutor is swaying the jury to only consider a 3-week period in isolation and completely out of context for the purposes of considering my defence of honest and reasonable mistake. My defence is supported by the complainant's ambiguous communication, our commonplace unorthodox sexual behaviours and my understanding of her communications the during the entire period of our relationship. It is only possible to consider my defence with consideration of the entire period of our relationship.”

104. [104]
     Whilst the prosecutor did focus on the interactions between the appellant and the complainant in the three weeks between 25 January and 16 February 2019, there was no unfairness in that.  That was the period when the relevant events are alleged to have occurred.  The prosecutor did not focus exclusively on that period.  As the appellant also acknowledges, the prosecutor also asked the jury to take into account the messages, the tone, tenor, and manner of the subsequent pre-text call between the appellant and the complainant.^[46]
105. [105]
     The unorthodox sexual behaviours were taken into account by the prosecutor.^[47]  The text communications between the appellant and the complainant were raked over in some considerable detail.  There is no discernible unfairness in the approach of the prosecutor.

Ground 2 – Conduct of the Trial Judge

106. [106]
     The appellant’s second ground is that the trial judge ought to have intervened by stopping the prosecutor during his address, or he ought to have discharged the jury at the close of the prosecutor’s address.^[48]
107. [107]
     The appellant’s specific submission is that:^[49]

“In light of the submissions made in the first ground of appeal, I submit that the Judge should have discharged the jury at the close of the prosecutors address because the extent of the prosecutor's misconduct could not have been cured by a re-direction alone. Emotion and prejudice were elicited during the entire address in so many different ways that it is arguable that the prosecutor was more interested in victory than serving justice.”

108. [108]
     For the reasons given in relation to the first ground, the second ground is not made out.  Further, the trial judge’s summing up was entirely fair and included an accurate summation of the rival contentions.  At trial counsel for the appellant made no complaint about either the prosecutor’s address or the trial judge’s summing up.

Ground 3 – The Summing Up

109. [109]
     The appellant contends that the trial judge erred in his summing up in four different ways.

First Error - Use of Emotive Words

110. [110]
     The appellant submits that the trial judge erred in using emotive words:^[50]

“The Judge stated in his summing up that the defendant ‘abused her’. It was never once mentioned during the trial that the complainant was ‘abused’. The sexual acts described during the trial being performed by both parties, namely, hair pulling, biting, choking, slapping and scratching are very specific verbs. The word 'abuse' elicits emotion in the jury as a reasonable person associates abuse with a wider range of behaviours, such as emotional, financial, verbal or psychological and it is not limited to only physical acts.”

111. [111]
     The context of his Honour’s use of the words ‘abused her’ is instructive.  In the course of summarising the complainant’s evidence the trial judge said:

“She told you how the defendant, after initially leaving the house, came back in, forced himself on her in the lounge room, she slapped his face, then the defendant dragged her into the bedroom by the hair, threw her on the bed, abused her, pulled her underwear and clothes off and ultimately penetrated her vagina, first with his fingers, then a vibrator from the drawer beside the bed and then his penis, before he withdrew and ejaculated on her stomach…

The complainant said that the sexual relationship with the defendant had ended before the acts relied on to constitute the offence happened and that she did not consent to any of those acts.”

112. [112]
     That is reasonably accurate summary of the complainant’s evidence.  Of course, some detail is always lost when giving an abbreviated account of events.  In referring to ‘abused her’ it is likely that his Honour was referring to this passage of the complainant’s evidence:^[51]

“Then, again, he just was climbing on me and, like, you know, pulling my hair and grabbing my throat and pushing me into – into my bed. And I was kicking him and trying to get away from him and telling him, ‘No. Get off me. You’re hurting me,’ and the only things he really said to me was, ‘Shut the fuck up. Do as your told. This isn’t about you.”

113. [113]
     That was a reasonable summary.  The appellant’s counsel did not put to the complainant that the details she had recounted were wrong.  From the cross-examination and addresses, it appears that the appellant’s version was that what had happened was part of their usual sexual activity to which the complainant had consented, or as to which the appellant honestly and reasonably believed she had consented.  And, as his Honour explained to the jury, they should only act on the complainant’s evidence if, after considering her testimony and all the other evidence, they were convinced of its truth and accuracy.
114. [114]
     In short, the use of the word ‘abused’ by his Honour was not an emotive word to use in the context, and it was entirely appropriate for the trial judge to summarise the complainant’s evidence in that way.

Second Error – Incorrect Statement

115. [115]
     The appellant submits that:

“The judge incorrectly states ‘.....the defendant had sex with another woman during his relationship with the complainant.’ The evidence given by the complainant was that I ‘told her’ I had sex with another woman.”

116. [116]
     Again, context is important.  At the relevant point in the trial judge’s reasons his Honour listed various alleged conduct by the defendant that the jury may have found discreditable.  That list of alleged conduct included that the defendant had sex with another woman.  His Honour warned the jury that they may only use that evidence in one way, that is to assess the complainant’s evidence of the charged acts in a realistic and intelligible context.  His Honour warned against using the evidence for wider purposes.
117. [117]
     In any event, it is difficult to see how it mattered that his Honour cautioned the jury against relying on the evidence that the appellant had had sex with another woman during their relationship, when strict accuracy required that the jury be warned against relying on the evidence that the appellant told the complainant that he had had sex with another woman during their relationship.  Either might be said to qualify as discreditable conduct.

Third Error – Exhibit C

118. [118]
     The appellant’s submission is that:^[52]

“For all of the reasons stated in 1.7.4 above the Judge failed to ask the prosecutor to remove the word ‘admissions’ from the document, prior to it being handed to the jury. Agreed admission(s) were contained in Exhibit 19. Exhibit D [sic, C] was not agreed admissions.”

119. [119]
     The title of Exhibit C hardly mattered.  The title to Exhibit C was “Admissions from the pre-text call and the text messages”.  The title to Exhibit 19 was ‘Admissions’.  The jury can hardly have confused the two documents.  Both documents were carefully explained by the trial judge.
120. [120]
     As explained above, the trial judge carefully and appropriately described Exhibit C and the conditions necessary before they could rely on it.  His Honour was careful to explain to the jury that: “If you are satisfied of those matters, it is capable of being an admission and it is up to you to decide if you think it proves anything at all.”  And, of course, Exhibit C went to the jury as an aid with the agreement of counsel for the defence.

Fourth Error – Inconsistent Directions

121. [121]
     The appellant submits that the trial judge made inconsistent directions:^[53]

“The Judge states that should the jury accept the statements made within the text messages and telephone evidence which indicate my innocence, they should bear in mind that they have not been tested by cross-examination. He did not however state this in relation to statements made which the prosecutions relied upon as pointing to my guilt.”

122. [122]
     The relevant passage from his Honour’s summing up is as follows:

“During the course of the phone calls or text conversations, a number of questions were asked by either the complainant or her mother, of the defendant. The same reasoning applies here, as I told you about earlier in relation to questions by counsel of a witness. If the defendant did not agree to or in some way accept the contents of a question asked of him, that question cannot become any evidence against him.

So in the course of the text messages and recorded phone calls, it is said by the prosecution that the defendant made statements which the prosecution relies on as pointing to his guilt. If you accept them as having been made by the defendant and as true, it is up to you to decide what weight you give them and what you think they prove.

He also made statements which you might view as indicating his innocence. You are entitled to have regard to those answers if you accept them and to give them whatever weight you think appropriate, bearing in mind that they have not been tested by cross-examination.

In relation to the statements which the prosecution relies on as indicating guilt, and those which may point to his innocence, it is entirely up to you what use you make of them and what weight you give to them.”

123. [123]
     The trial judge noted that some of the text messages and pre-text conversations were relied on by the Crown as pointing to guilt.  The jury were to decide the weight to give to those statements.  His Honour noted that statements within the same conversations could be viewed as indicating innocence.  Again, the jury was invited to give those communications the weight they thought appropriate, but bearing in mind that the statements had not been tested by cross-examination.  That qualification was reasonable because it reflected the reality of the trial.  To the extent that there were statements in the nature of admissions made in those text messages and pre-text calls, cross-examination was not necessary for them to be used as pointing to guilt.  Finally, his Honour reminded the jury that the use and weight of statements pointing to either innocence or guilt was entirely up to them.
124. [124]
     Based on the High Court’s decision in Nguyen v The Queen,^[54] the trial judge may have invited the jury to attribute less weight to the appellant’s exculpatory assertions than to his admissions.  However, his Honour merely noted the absence of cross-examination in respect of the statements said to be favourable to the defence.
125. [125]
     It was a careful and appropriate summing up.  The third ground of appeal fails.

Ground 4 – Unreasonable Verdict

Introduction

126. [126]
     The appellant contends that the conviction by the jury was unreasonable or could not be supported having regard to the whole of the evidence.  In particular, the appellant relies on the following passage from Pell v The Queen:^[55]

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

127. [127]
     However, not every inconsistency, discrepancy, inadequacy or other evidence will be sufficient to convince the court that the jury, acting rationally ought to have entertained a reasonable doubt.  As this court explained in R v Miller:^[56]

“[16] It is fundamental that it is not sufficient for an appellant merely to show ‘discrepancies’ or ‘inadequacies’ in the evidence or to show that the evidence is ‘tainted’ or ‘otherwise lacks probative force’. It is necessary to demonstrate that such features appear in the evidence ‘in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted’.”

128. [128]
     Thus, there is a heavy burden on an appellant relying on this ground:^[57]

“[18] An appellant who contends that the verdict of the jury was unreasonable or that it was unsupported by the evidence must identify the weaknesses in the evidence and must then also demonstrate that these weaknesses reduced the probative value of the evidence in such a way that the appellate court ought to conclude that even making full allowance for the advantages enjoyed by the jury there is a significant possibility that an innocent person has been convicted. The mere identification of weaknesses in the prosecution case is not enough to sustain the ground. As Brennan J said in M v The Queen, and as criminal practitioners and trial judges know very well, it is a sad but salutary experience of counsel for the defence that the prosecution’s ‘weak point’ is often brushed aside dismissively by a jury satisfied of the honesty of the prosecution witness.

[19] The burden upon an appellant who relies upon this ground is heavy and an appellant, by merely asserting the ground, does not force the Crown to prove its case for a second time.”

129. [129]
     Even in Pell v The Queen,^[58] the High Court stated the test as whether there was “a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof’’.^[59]
130. [130]
     With that burden in mind, it is necessary to examine each of the appellant’s criticisms of the jury’s verdict.

First Criticism – Complainant lacked Credibility

131. [131]
     The appellant contends that:

“The prosecution case was wholly dependent upon an acceptance of truthfulness and reliability of the complainant's account. I submit that if the jury had considered the gross inconsistencies in the complainant's evidence and had they acted rationally they would have entertained doubt as to my guilt.”

132. [132]
     That submission cannot be accepted.  First, the prosecution case did not wholly depend on the complainant’s credibility.  As explained at the outset, the prosecution case was assisted by the statements made to the complainant and to the complainant’s mother in the pre-text calls.  In the pre-text calls the appellant admitted to having “crossed the line” and to having “over-step(ped) the mark”.  The jury were entitled to consider those remarks as well as the complainant’s credibility.
133. [133]
     And, as the Crown submissions explain, the jury were presented with the testimony of the complainant who said that she did not consent to the penetrative acts and had made that clear.  The texts supported her contention that there had been a break-up and that she no longer wanted intimacy.  Her contemporaneous complaints to her neighbour and mother were consistent.^[60]
134. [134]
     Second, as the appellant acknowledges, some of the inconsistencies in the complainant's evidence were highlighted during defence counsel’s closing address.^[61]  The appellant was properly represented.  Despite the appellant’s submissions to the contrary, it was not the prosecutor’s obligation to press those inconsistencies on the jury.^[62]
135. [135]
     Third, there were no “gross inconsistencies” in the complainant’s evidence.  A detailed table at pages 13 to 16 of the appellant’s submissions lists 12 separate alleged inconsistencies.  Some involve errors of detail that are not significant.  For example, the appellant says that in her evidence on day one of the trial the complainant said that she sat on the side of the bed whilst the appellant went out of the room to get her a drink and that after she had a drink she tried to run from the room.  The appellant says that on day two of the trial, the complainant gave evidence that she sat on the end of the bed and tried to run from the room before she had the drink.
136. [136]
     This alleged inconsistency is not particularly clear.  The details are all the more uncertain because the complainant was not cross-examined about those alleged inconsistencies.  And, even assuming there was an inconsistency, it was an inconsistency as to detail.  As the court pointed out in R v Miller honest witnesses are frequently in error about the details of events.^[63]
137. [137]
     Another category of inconsistency alleged by the appellant involves the allegation that the relationship had ended by 25 January 2019 and yet there were acts of intimacy after that.  This is an issue discussed above.  The issue was before the jury.  They were able to assess the complainant’s evidence in the light of an attack on her credibility by defence counsel.
138. [138]
     A further category of alleged inconsistency involved the question of who initiated the unorthodox sexual activity during their relationship and the details of what was and was not part of that unorthodox activity.  That collateral issue was before the jury and defence counsel addressed on it, and the trial judge gave a fair summing up of the standard of proof and the parties’ various contentions.
139. [139]
     The alleged inconsistencies do not give rise to a significant possibility that an innocent person has been convicted.

Second Criticism – Reasonable Belief

140. [140]
     The appellant contends that the Crown was required to prove beyond reasonable doubt that his belief was not a reasonable belief.  He says that the Crown were unable to bring forward any admissions that he had acted intently on either occasion knowingly without consent.
141. [141]
     Both counsel addressed the jury on the two principal issues: whether there was consent, and whether there was an honest and reasonable but mistaken belief as to consent.  The trial judge accurately summarised the law for the jury.  The jury, properly instructed by the trial judge, returned a verdict of guilty.  No argument proffered by the appellant by reference to the evidence adduced at trial enables this court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted.^[64]

Third Criticism – New Evidence

142. [142]
     One of the alleged inconsistencies involves an allegation that the complainant had been dishonest concerning a historical sexual offence committed by another person against the complainant some years previously.  The offence was only hinted at in the evidence.  The appellant seeks to tender that new evidence.  The appellant also seeks to tender new evidence designed to demonstrate that the complainant’s ex-partners have various complaints about her conduct and character.  All of that proposed evidence is collateral and has not been shown to have been unavailable at the time of trial, or to have been unable to be discovered with reasonable diligence.  Leave to adduce that new evidence should be refused.

Fourth Criticism – ‘Glaringly Improbable’

143. [143]
     The appellant relied on the High Court’s decision in Fennell v The Queen.^[65]  There, the High Court found that the evidence of two witnesses to be glaringly improbable.^[66]  The appellant contends that there is a glaring improbability here.  He contends that the Crown case was that the complainant and the appellant had ceased their intimate relationship and, in that context, consent was unlikely to have been given, and the appellant could not have honestly and reasonably believed that the complainant was giving her consent.  He contends that the evidence shows that he and the complainant had in fact been intimate in the intervening period.
144. [144]
     The analogy with Fennell v The Queen is not a good one.  That was a murder case based entirely on circumstantial evidence.  The two witnesses identified the murder weapon, a hammer, twelve days after seeing the hammer on a television news broadcast.  This was not a circumstantial case.  The complainant gave direct evidence of what happened.  Here, there was nothing glaringly improbable about the complainant’s version of what happened.  There were text messages that supported the complainant’s evidence that the intimate relationship had ended.  And, as explained at the outset, the pre-text calls comprised considerable support for the complainant’s version of events.  In any event, even accepting that there were occasions of intimacy between the complainant and the appellant in the period between 25 January and 14 February 2019, that does not demonstrate consent on the particular occasions or even that their intimate relationship had resumed.

Fifth Criticism – An Absence of Bruising

145. [145]
     One issue addressed in both the appellant’s written submissions, and in oral submissions, is the absence of bruising on the complainant after the incident on 14 February 2019.  The absence of bruising does not make the complainant’s version implausible.  The complainant agreed in cross-examination that she usually bruises easily on her arms.  However, it was not established that the complainant’s version of the 14 February 2019 incident must necessarily have involved some bruising to her arms or elsewhere.
146. [146]
     In any event, the appellant’s counsel did cross-examine on the absence of bruising, and he did address the jury on the absence of bruising.  The trial judge’s summary of the appellant’s case included the appellant’s submission that the complainant’s evidence was implausible because of an absence of bruising.  The jury plainly took a different view.

Conclusion

147. [147]
     It follows that leave should be refused to tender new evidence and the appeal should be dismissed.