R v SDQ[2022] QCA 91

SUPREME COURT OF QUEENSLAND

1. [1]
   SOFRONOFF P:  A jury found the appellant guilty of two counts of rape, one count of choking and one count of common assault.  He now appeals against those convictions upon the following grounds:

   1. (a)
      the learned trial judge erred in directing the jury that there was evidence of distressed condition which, if accepted, was capable of corroborating the complainant’s account;
   2. (b)
      the learned trial judge erred in not directing the jury concerning the complainant's motive to lie;
   3. (c)
      the learned trial judge erred in directing the jury that exhibit 1, the letter from DVConnect, should be treated with caution; and
   4. (d)
      there was a miscarriage of justice caused by the admission of inadmissible and prejudicial evidence at the trial.
2. [2]
   The complainant met the appellant in March 2018.  They began dating and, within a very short time, the appellant invited the complainant to live with him.  She was about to lose her present accommodation, so she agreed.^[1]  It did not take long for tensions to arise in the relationship.  Evidence was given about an incident involving the appellant showing an irrational degree of anger and assaulting the complainant.  The following is a summary of the evidence at the trial.
3. [3]
   It seems the complainant was taking longer to eat her meal before going to the gym and the appellant became angry and started slamming kitchen cupboards and making a commotion.
4. [4]
   The complainant finished eating rather quickly and then said, in jest, that she was going to leave without the appellant.  The appellant became enraged about that, and as the complainant left the unit and went outside, he came running towards her screaming, “You what, cunt?” She was leaning against her car holding her car keys.  The appellant snatched the keys out of her hand, and in the process of doing so, dragged her arm down the open car door and she felt a sharp pain on her right forearm.  When she looked down, she could see that her forearm was cut.  The complainant drove to the gym with the appellant.  She was crying and obviously upset throughout the journey to the gym.
5. [5]
   The appellant continued to shout and abuse her as she was driving.  He was calling her names and told her to “fuck off”.  Once they approached the gym, the appellant changed his manner.  He appeared to calm down and started apologising.
6. [6]
   There were other altercations.  The complainant left to live with her sister for a period, but then returned.
7. [7]
   The counts on the indictment arose from things that the complainant said the appellant did to her on the night of 9 to 10 April 2018.^[2]
8. [8]
   On the evening of the 9th of April 2018, the appellant and the complainant were at his house, and they had been to the gym.  The appellant went to shower, and the complainant joined him.  The complainant was washing herself when the appellant started, in her words, “getting himself ready to have sex” with her.
9. [9]
   She told him that she didn’t want to have sex with him.  That she didn’t feel like it.  The appellant got out from the shower and went to bed.  A few minutes later, the complainant joined the appellant in bed.  The complainant was wearing underwear and a crop top.  It was about 12.10 am on the 10th of April.  The appellant tried to initiate having sex with her.  The complainant told him, “I do not want to have sex with you, [appellant]”.  The appellant was naked.  He grabbed his penis and started to play with it.  He was trying to kiss the complainant and, again she told him she did not want to have sex.  She offered to give him a back massage or to walk on his back if it helped him to get to sleep but she did not feel like having sex.
10. [10]
    The response from the appellant was, “But we have sex every night.  You know I need to have sex with you to make me fall asleep”.  Once again, the complainant offered to give him a back massage.  She said she didn’t feel like having sex with him because of the way he had treated her that day.  The appellant said, “What do you mean? You’re my girlfriend. I can’t even get decent pussy from you?”  The appellant then got on top of the complainant and started rubbing her vagina with his hand.  The complainant told the appellant to stop.  She said, “I don’t want it and that’s not going to make me feel like it”.  The appellant persisted, and he put his penis close to her face and said to her, “Can you at least suck it?” The appellant then grabbed the complainant’s head and put his penis into her mouth.  This was count 1, rape.
11. [11]
    His penis was in her mouth for some time when the complainant asked, “Can I stop? Can you just jerk off? I don’t want to do this”.  The appellant lost his erection and masturbated for a few moments.  He then said, “No. No. Just let me fuck you. You know you’ll love it”.  The complainant was positioned with her head on her pillow.  She was lying on her back and the appellant turned towards her suddenly, and pulled down her underwear.  He pushed her legs apart and moved between them.  He was kneeling, in that position.  And he then spat on his hands and rubbed his saliva onto his penis to lubricate it.
12. [12]
    The complainant tried pushing against the appellant and tried to close her legs.  He was, of course, in between her legs.  She said to him, “No. I don’t want to. I don’t want to”.  The appellant held her hands together, above her head.  He then pushed his penis inside her vagina and began to thrust into her.  The complainant told him, “[appellant], I said no. Do you still want to do this to me?” And the appellant’s response was, “Shoosh, I’ll be quick, I promise”.  This was count 2, rape.  At some point during the rape, the appellant put his hand around the complainant’s throat and applied pressure, but she could still breathe.  During the rape the complainant was emotionless and expressionless, not taking any part.
13. [13]
    After about 30 minutes, the appellant ejaculated.  The appellant then got out of the bed and went to the bathroom.  He returned to the bedroom and threw a towel to the complainant.  She wiped the area of her vagina and said to him, “I can’t believe you just did that. You forced yourself onto me”.  The appellant’s response was, “No, I didn’t. Shut up. You’re my girlfriend. Go the fuck to sleep”.  Eventually, the complainant slept.
14. [14]
    When the complainant woke up at 7.10 in the morning, the appellant was up and complaining that the flatmates dog had made a mess in the bathroom.  The complainant said she had an appointment that day and wouldn’t be able to drive him to work as she had done previously.  The appellant’s response was to grab the complainant’s arm and leg and pull her from the bed with some force.  He dragged her towards the bedroom door and flung her through it across the hallway.  He told her to, “Get the fuck out of my house”.  The complainant broke her fall by sticking out her right hand.  It hurt her wrist, she squealed in pain at that, and he told her to “Shut the fuck up, you’ll wake them”.  Presumably, a reference to the appellant’s flatmate and his flatmate’s girlfriend, who were in the townhouse at the time.
15. [15]
    The complainant got up from the ground and said to the appellant, “You forced yourself onto me last night. I said no. I said no so many times”.  The appellant’s response, “You know, I should put a bullet in your head for even saying that”.  The appellant was standing in the bedroom and the complainant was by the doorway.  He reached out and grabbed her by the throat with his right hand, and he squeezed.  His hand kept getting tighter and the complainant had to raise up onto her toes, as the appellant was lifting her off the ground.  The appellant said, “How dare you accuse me of this? You’re my girlfriend. We have sex every night. Are you saying what I think you’re saying? That I raped you?”
16. [16]
    The complainant was having difficulty breathing and was unable to respond.  The appellant let her go.  This was count 3, unlawful choking.
17. [17]
    He pushed her onto the bed and grabbed her throat again.  The appellant said “Don’t ever make those accusations again.  You have no grounds to make those accusations”.  He told her to get her “shit” and “get out”.  He then left the room, and the complainant packed her bags.  She went downstairs to get her phone off the kitchen counter.  The appellant took her phone, and he began to delete photographs of himself.
18. [18]
    The complainant asked for her phone back.  She tried to take it from him and he hit her in the chest, just above her right breast, with the bottom edge of his fist.  This was count 4, assault.
19. [19]
    The complainant shouted, “Don’t hit me, [appellant]” and left the house.  She drove a short distance away and stopped and called a Sexual Assault Hotline.  She told the receptionist what had happened to her and that she was looking for some assistance.  She also called a friend of hers, a male by the name of Neil.  She told Neil something bad happened and that she needed to see him.  They made arrangements to meet.  She said that she was upset throughout these calls.
20. [20]
    By the time Neil had arrived she had received a call from the Sexual Assault Hotline with information about where to go.  She told Neil she knew where she had to go and went to the address that she had been given.  This was at about 7.30 am on the morning of 10 April.  When the complainant got to the facility it was closed.  She called another number had she found online and was advised to attend the hospital.  The complainant then went to the Gold Coast University Hospital where she spoke to a social worker and was examined in the afternoon and evening.  She was not given a genital examination because she had been engaging in consensual sex with the appellant some 24 hours before these assaults.
21. [21]
    By ground 1 of his appeal the appellant contends that the learned trial judge erred in directing the jury that there was evidence of the complainant’s distressed condition that, if accepted, was capable of corroborating the complainant’s account.  The evidence was given by the complainant herself and by the social worker at the hospital, Ms McBeth.
22. [22]
    The complainant said that during her call to the sexual assault hotline she “would have been in a very distressed state” and was “probably like, crying”.^[3]  When she rang her friend Neil she was “crying hysterically”.^[4]  Ms McBeth, who gave evidence at the trial, had taken notes during her conversation and, the event having happened some three years before, she relied upon those notes when giving evidence.  She had only recorded “the nature of the complaint and the details” of what the appellant had done.^[5]  Nevertheless, when asked about the complainant’s demeanour at the time, Ms McBeth said that she “believe[d] she looked tired and as if she was – had been crying”.^[6]
23. [23]
    Distress shown by a complainant may, depending upon the circumstances, constitute corroboration of an account of rape.  Factors such as the complainant’s age, the time between the alleged offence and the signs of distress, the complainant’s behaviour in the interim and the circumstances existing when the complainant is observed in a distressed condition must be taken into account when deciding if signs of distress are capable of corroborating a rape account.^[7]  If the evidence is capable, as a matter of law, of corroborating a rape account, it is for the jury to decide whether it does as a matter of fact.
24. [24]
    Evidence of distress is circumstantial evidence, and, like all evidence of that kind, it is necessary to consider whether there are other rational hypotheses that might explain it.^[8]  For example, in the case of multiple rapes by two different groups of men at different locations and times, the distressed state of the complainant could not corroborate one set of allegations more than the other set.^[9]  In other cases, the causal connection between the offence and the occurrence of the observed distress may be tenuous for various reasons.^[10]  The issue for the judge is whether the evidence is capable of corroborating the complainant’s evidence in relation to an element of the offence.  In the present case the relevant element was a lack of consent.  The issue for the jury is whether the evidence does corroborate the complainant’s evidence in relation to consent.
25. [25]
    Distress is a natural consequence of a person having been raped.  It may be indicative of penetration and lack of consent or, if penetration is admitted, as in this case, it may be indicative of lack of consent.  Corroborative evidence is evidence that tends to confirm the oral evidence of a witness.  That is its purpose.  Evidence that corroborates a complainant’s evidence cannot be found in the complainant’s own testimony.  Corroborative evidence is, of its very nature, evidence that is independent of the testimony that is to be corroborated.^[11]
26. [26]
    Evidence given by a complainant of her own distress is relevant and admissible because it tends to prove an element of the offence and, in any case, it is usually part of the necessary narrative.  In a case such as the present, the jury might think that a woman who had been raped, choked, and beaten in the way described by the complainant would, naturally, be distressed.  The absence of this expected distress would tend to prove that none of the offences were committed.  For that reason, evidence of the complainant’s distressed state was relevant.  But it is not corroborative of her other evidence.  It is just part of the complainant’s account.
27. [27]
    The appellant submitted Ms McBeth’s evidence that the complainant “looked tired” and looked “as if she … had been crying” was, because of the passage of time, too tenuous to be corroborative and that it should, for that reason, have been excluded.
28. [28]
    The learned judge directed the jury as follows:^[12]

“Now, evidence has been placed before you of the distressed condition of the complainant on 10 April 2018 as observed by the social worker, Ms McBeth, who said that she looked tired and as if she had been crying. You’ll also recall the complainant’s own unchallenged evidence, that she was very distressed and crying when she spoke to the person from Sexual Assault Helpline or Domestic Violence Connect. And that she was crying hysterically when she spoke to her ex-boyfriend on the phone. Now, the prosecutor submits that you can use this evidence in support of the evidence that the complainant was raped by the [appellant]. It’s a matter for you as the sole judges of the facts whether you accept the evidence relating to the complainant’s distressed condition. If you do, then you have to ask yourself was the distressed condition genuine or was the complainant pretending. Was she putting on the condition of distress? Was there some other explanation for the distressed condition at the time? It is customary for judges to warn juries that you ought to attach little weight to distressed condition because it can be easily pretended. If you find though that the distress was genuine, then it may be used by you as evidence that supports the complainant’s account.”

29. [29]
    This direction was foreshadowed in a draft set of directions that, this Court was informed, the learned judge gave to counsel for their consideration before the summing up.  This particular direction was taken from Benchbook Direction 67.1.  That draft direction is wrong in one respect.
30. [30]
    It may be right to say, as the learned judge did, that it is customary for judges to warn juries to give little weight to evidence of distressed condition because it can easily be feigned.  That is because the Benchbook direction says so.  However, it ought not be customary because that proposition was authoritatively rejected as long ago as 1984 in R v Roisseter,^[13] a case in which McPherson J held that the Full Court was bound so to hold by a previous decision of the Full Court.^[14]  In future, that part of the direction ought not be used.  This error was immaterial because, to the extent that the jury acted upon it, it favoured the appellant.
31. [31]
    No objection was taken to the admission of the evidence of distress at the trial or to the learned judge’s direction about it.  What is more, the evidence was not challenged.  It follows that, in order to succeed on this ground, the appellant has to demonstrate that the direction occasioned a miscarriage of justice.  I shall deal with that aspect of the matter below.
32. [32]
    The appellant’s second ground of appeal is that the learned judge ought to have directed the jury that the complainant might have had a motive to concoct her allegations.
33. [33]
    Defence counsel put to the complainant that the appellant’s previous relationship with another woman had made her jealous.  She denied feeling jealousy but admitted that the other woman had been a factor in her earlier separation from the appellant.  Defence counsel submitted to the jury that the complainant “has reason to have animosity towards” the appellant.^[15]
34. [34]
    However, defence counsel did not put to the complainant that she had a motive to concoct the allegations or that she had done so.  Her character was not attacked.  Nor was that submission made to the jury.  It is unsurprising, therefore, that defence counsel did not ask the trial judge for such a direction nor did he complain when such a direction was not given.  For these reasons, there was no error in the failure to give such a direction and this ground should be rejected.
35. [35]
    Ground 3 concerns a direction that the learned judge gave about exhibit 1, a letter from DVConnect, a sexual assault support agency.
36. [36]
    The complainant’s account has already been set out.  At the request of a police officer, DVConnect sent the officer a letter stating the content of notes made of the complainant’s phone call on the morning of 10 April 2018.  Those notes recorded an account that was, to some degree, in conflict with the complainant’s evidence.  In summary, the notetaker recorded that the appellant had “ripped [the complainant] out [of the shower] by her hair” and that, before this, the appellant had “never even yelled at [the complainant]”.^[16]  In these, and other respects, this preliminary complaint was at odds with her evidence.
37. [37]
    The letter containing a representation of the notes was tendered in the following circumstances.  It had evidently been disclosed to the defence by the prosecution and in the course of his cross examination of the complainant on the first day of the trial, defence counsel, Mr Caruana, put the contents of the letter to the complainant.  The complainant denied making the contradictions in the letter.^[17]  The letter was not shown to the complainant.  On the second day of the trial, there was the following exchange:^[18]

“MR CARUANA: Yes, your Honour. Your Honour, I just wanted to raise the note from the DV Line and be clear everybody’s position in relation to that.

HIS HONOUR: Yes.

MR CARUANA: My learned friend hasn’t tendered it. I thought he was going to.

HIS HONOUR: I had understood that there was a position between you that it was going in on some basis, so I assumed.

MR CARUANA: And I’m not being critical. It may have been that I cross and my friend’s happy to tender it. I just wanted to be clear before I’m throwing documents around.

HIS HONOUR: Yes, of course.

MR CONNOLLY: Yes. I’m happy for it to go in, your Honour. The reason I didn’t tender it, I don’t actually myself have a physical copy of it. I think one can be obtained, …”

38. [38]
    There was a brief adjournment to allow counsel to confer about the letter and, after court resumed, the prosecutor tendered the letter as exhibit 1.  Defence counsel cross examined Detective Senior Constable Bennett about the letter.  He gave evidence that he had been unable to identify the notetaker.^[19]
39. [39]
    The letter would have been inadmissible to prove preliminary complaint because it was hearsay.  Nor was it admissible as a business record, although the actual notes might have been.  This did not matter at the trial because the letter was plainly tendered by the prosecution at the request of the defence and for its benefit.
40. [40]
    In his summing up, the learned judge introduced the subject of the letter as follows:^[20]

“Now, I want to say something to you about the concept of preliminary complaint. In this case there is evidence of the complainant’s preliminary complaint to, firstly, an unknown employee of the Sexual Assault Helpline or Domestic Violence Connect at about 7.55 am on 10 April 2018. Exhibit 1, which is said to be a note made at some unidentified time after the events and by an unidentified person who was not necessarily the person [the complainant] spoke to on the phone, it’s said to be however a note of the telephone conversation or part of it. It states:

‘Your boyfriend of four weeks had raped you last night. That he got angry because you were taking too long in the shower, so he ripped you out by your hair and raped you and that you said that occurred once last night and once in the morning. And you told them that was the first time he had ever done anything like that to you and he’d never even yelled at you before.’

Now, you will recall that [the complainant] denied saying those things to the woman she spoke to on the phone. You haven’t heard from the person that she spoke to on phone that day. Because of that and because of the uncertainty about, what the note is and how it came to be made and by whom, you would be very cautious before you concluded that the complaint [the complainant] is said to have made to that person is somehow inconsistent with what she otherwise said in evidence about the alleged rapes.”

41. [41]
    Later, his Honour said:^[21]

“As I’ve said in relation to the person from the Sexual Assault Helpline or Domestic Violence Connect, you would exercise some caution given you haven’t been able to hear from that person and the contents of that note hasn’t been able to be tested. Ultimately though, inconsistencies in describing events are relevant to whether or not evidence about them is truthful and reliable. And the inconsistencies are a matter for you to consider in the course of your deliberations. But the mere existence of inconsistencies does not mean that of necessity you must reject [the complainant’s] evidence. Some inconsistency is to be expected because it’s natural enough for people who are asked on a number of different occasions to repeat what happened at an earlier time to tell a slightly different version each time.”

42. [42]
    Towards the end of his summing up, his Honour repeated his direction that the letter should be treated with caution.^[22]
43. [43]
    The appellant submitted that, by giving these directions, his Honour “undermined what would have otherwise been a significant piece of evidence affecting the complainant’s credibility and reliability”.^[23]
44. [44]
    It is true that the direction had the potential to weaken the significance of the contradictions contained in the letter.  However, redirections were not sought at the trial.  Consequently, the appellant must show that these directions occasioned him a miscarriage of justice.
45. [45]
    It is difficult to see what was wrong with the directions.  His Honour was correct to point out that the letter represented the contents of a note made at an undetermined time and by an unidentified person.  The person who made the note may not even have been the person who spoke to the complainant.  Consequently, while it was open to the jury to conclude that the complainant’s reliability as a witness was affected by the content of the letter, it was hardly out of place for the learned judge to warn the jury about treating the letter with caution before accepting it as an accurate record of what the complainant had said in the phone call.
46. [46]
    It is the duty of a trial judge to warn a jury about the potential for illogical reasoning for reasons that are apparent to those who have forensic experience but which might not immediately be apparent to those without such experience.  The use of a letter like exhibit 1 raises such risks.  On its face, the letter might appear to be a solemn record of an accurate contemporaneous note of a conversation.  However, forensic experience demonstrates that the absence of evidence to prove the accuracy of a record can be fatal to its probative value as evidence.  In my respectful opinion, his Honour was right to warn the jury in the way that he did.  I would add that, for these reasons, the letter could never have been regarded as a “significant piece of evidence” affecting the complainant’s credibility.  This ground should be rejected.
47. [47]
    Ground 4 relates to certain evidence that was said to be inadmissible.  None of this evidence was the subject of objection.  The appellant submitted that the cumulative effect of this inadmissible evidence occasioned a miscarriage of justice.
48. [48]
    Ms McBeth, the social worker to whom the complainant spoke at the hospital, gave the following evidence:^[24]

“All right. Perhaps if you could just work through that step by step and tell us what [the complainant] told you and - - -?---Yes. So she reported a rape by her partner, [the appellant], overnight.

Yeah?---She reported clearly stating to her partner that she did not want to have sex, but that he disregarded this. She reported that the incident had occurred at about 00.40 that day.

That’s - - -?---Twelve-forty.

For those who don’t like the 24-hour clock - - -?---Yeah.

- - - that’s 12.40 or 20 to 1 in the morning?---That’s right.

Okay. Yes?---Yeah. At that point, she hadn’t been – hadn’t spoken to police and stated she was fearful of her partner and his connections. I believe that when she tried to have communication with [the appellant] the next morning about what had happened, he then became violent and aggressive and strangled her, holding her around her neck, lifting her up on to her tiptoes and then pushing her across the room, threw her across the room.

All right. Now, those were the brief details that she gave you and you noted down?---Yes.”

49. [49]
    The appellant submitted that Ms McBeth’s evidence strayed impermissibly into inadmissible hearsay about events on the morning of 10 April 2018 and which concerned the choking and assault counts.
50. [50]
    Not only was no objection taken to this evidence being admitted, but defence counsel expressly acknowledged that this evidence was admissible as “context”,^[25] and he repeated that he took no issue with this evidence.^[26]  In the face of an express concession at trial about the admissibility of the evidence, it is difficult to reach a conclusion that the admission of the evidence occasioned a miscarriage of justice.  The complainant had already given evidence, without objection, that during her conversation with a hospital receptionist she had reported that she had been “sexually and physically assaulted”^[27] and that she had related “what had happened” to Ms McBeth at the hospital.^[28]
51. [51]
    The appellant makes the same point in relation to the evidence of Dr Mahoney, who examined the complainant on the morning of 10 April 2018.  Yet this evidence about the allegation of assault and choking was necessary in order to explain Dr Mahoney’s examination and search for physical injury.  His evidence, which favoured the defence, was to the effect that the only sign of injury that he saw was a bruise, the origin of which was indeterminate, and the tenderness in the place where the complainant said the appellant had punched her chest was merely self-reported.^[29]  Naturally enough, defence counsel cross examined in some detail about the absence of bruising that might normally be expected in choking cases and the lack of significance of the single observed bruise.  All of this evidence was led, not only without objection but with defence counsel’s express consent that it could be led from the witness by the prosecutor.^[30]
52. [52]
    There is nothing in these points.
53. [53]
    The appellant submitted that certain evidence given by Ms Gocher, a work colleague of the complainant’s, was inadmissible as hearsay and that it was prejudicial.  Her evidence concerned the assault that the complainant said that the appellant had committed against her in March 2018, which was “the first time [the complainant] saw his violent side”.^[31]  She described how the appellant had lost his temper and, while the complainant was resting her arm on the sill of her car’s window, holding her car keys, the appellant had grabbed her wrist and pulled her hand down so that the edge of the car door so that it “sliced [the complaint’s] skin on [her] forearm and it start (sic) bleeding”.^[32]
54. [54]
    That evidence was led without objection and no complaint is now made about it.  It was obviously relevant to explain the nature of a relationship that was capable of leading to rape.  Defence counsel put to the complainant that nothing like that had happened.  However, in addition, he had the complainant affirm that it was her allegation that she had suffered a “cut on [her] arm”.^[33]  The relevance of that single question, one that committed the complainant to her evidence in that respect, would become apparent.
55. [55]
    According to Ms Gocher, the complainant was normally a “happy and chirpy” person but, on a certain occasion in March, some weeks before these offences were said to have been committed, Ms Gocher noticed that the complainant was “very quiet and a little … nervous about something”.^[34]  Her inquiry resulted in the complainant telling Ms Gocher about the incident described above.
56. [56]
    Ms Gocher’s evidence began, significantly, as follows:^[35]

“Right. Your Honour, my learned friend said I may – has kindly said I may lead this witness, and I’ll just find the relevant passage. All right. You were – you were talking with [the complainant], and during that conversation is it correct that you saw that [she] had a number of bruises going up her right arm?---Yes.

And is it correct that she told you [the appellant] had caused that bruising during an incident?---Yes.

All right. Just bear with me a moment, please, your Honour. And the incident that she’d described to you was that when she’d been standing by her car and [the appellant] had grabbed the car – grabbed her car keys out of her hand and grabbed hold of her right arm?---Yes.

And he’d forcibly removed the keys from her hand and hurt her in the process?---Yes.”

57. [57]
    Defence counsel’s entire cross examination of this witness can be reproduced:^[36]

“I’ll just be very brief. That conversation you said was in March 2018; is that right?---Yes.

And you observed some bruising on [the complainant’s] arm, that’s right?---Yes.

You didn’t observe any cuts or scratches, or anything like that, did you?---No.”

58. [58]
    Not only was no objection taken to this evidence but, having regard to how it was led and then followed by the limited cross examination, the irresistible inference is that it was admitted for the forensic purposes of the defence, namely, to discredit the complainant.  By reason of the contradiction in evidence about the nature of the injury its admission did not occasion a miscarriage of justice.
59. [59]
    The prosecution led evidence from the complainant about an incident at the gym that the complainant and the appellant used to attend together.  So too did a woman with whom the appellant used to have a relationship and whom the complainant suspected he was still seeing on the side, Hannah.  According to the complainant, both women met at the gym and reached the conclusion that the appellant had been manipulating both of them for his advantage.  They confronted him with this allegation and he responded by accusing Hannah of telling lies.  The appellant said to her, “I should put a fucking bullet in your head”.^[37]
60. [60]
    Like the other evidence complained of under this ground, this evidence was led without objection and it was used to gain a forensic advantage.  This, and other evidence about Hannah’s relationship with the appellant, was used to support the defence theory that the complainant bore animosity towards the appellant.  For this reason, the omission to object to the admission of this evidence did not give rise to a miscarriage of justice.
61. [61]
    The appellant submitted that the complainant’s evidence that the appellant “regularly bought and consumed cannabis with another person”^[38] was inadmissible and prejudicial.  No objection was taken to the evidence.
62. [62]
    Evidence was led from the complainant that Hannah was prone to coming to the appellant’s and the complainant’s home and that she did this because she supplied the appellant with cannabis.  The point of this evidence was to describe the continuing relationship between Hannah and the appellant.  The forensic advantage sought to be drawn from this aspect of the case has been discussed.  The evidence about cannabis furnished the explanation, or pretext, for Hannah’s visits but the evidence did more than this.  It also formed the basis for an attack upon the complainant’s credit.  She was cross examined about her cannabis use.  She admitted that she would inhale cannabis smoke that the appellant blew at her.  She accepted that she inhaled deliberately and that she felt the effect of the drug.^[39]  The use of cannabis in the household appears to have been common ground and the complainant’s use of it was the basis of an attack on the reliability of her memory.^[40]  In any case, it is far-fetched to think that a modern Australian jury would tend to be prejudiced against an accused in a rape trial because the jury was told that he was wont to smoke cannabis.  No miscarriage was caused by the admission of this evidence.
63. [63]
    Ms McBeth gave evidence that the complainant told her that she was “fearful of her partner and his connections”.^[41]  The letter from DVConnect similarly stated that she was frightened he would “get people” to come after her and that he “hangs around with ‘bad people’”.^[42]  The appellant submitted that this evidence was inadmissible and prejudicial.
64. [64]
    The evidence about the appellant’s fears in that respect was irrelevant.  It was prejudicial.  However, it was not objected to and the letter was tendered in its unredacted form, evidently at the behest of the defence.  In those circumstances, the fact that the evidence in the letter and that given by Ms McBeth was prejudicial is only the starting point.  The question is whether its admission has occasioned a miscarriage of justice.
65. [65]
    As the reasons above have demonstrated, the ultimate question in this appeal is whether the learned judge’s direction about the appellant’s distressed condition and the admission of the evidence about the complainant’s fears of the appellant’s friends, considered singly or together, resulted in a miscarriage of justice.
66. [66]
    The complainant gave evidence that, after choking her, the appellant threatened her.  According to her evidence, he told her that “he’ll put a fucking bullet in my head if I ever told anyone”.^[43]  She said that he threatened to kill her if she told anybody what he had done.^[44]  He told her that, because she was his girlfriend, “he has every right to fuck me whenever he wants”.^[45]  She gave the following evidence:^[46]

“All right, did he say anything else that you recall?---When he finally let go of my neck, I could finally breathe again. My neck was really sore, my throat was sore and he pushed me onto the bed and he grabbed my throat once again.

When you were on the bed, how were you positioned?---I was on my back and he was on top of me.

All right, so he’s grabbed your throat again. What happened then?---He’s continued with the threatening, saying if I ever tell anyone, he’ll fucking kill me and put a bullet in my head and everyone that I know and love, he just was hurling all these threats and abuse. I said to him, I was terrified and I said to him, ‘I’m sorry, I’m sorry, I only want an apology. I won’t get you in trouble.’ I just wanted to get out of there, I really did.”

67. [67]
    In my opinion, in the context of that evidence, as well as other evidence about how the appellant choked the complainant, the two pieces of evidence about how the complainant feared the appellant because of the nature of his friends added very little.  I do not accept that the evidence might have been misused by the jury so as to affect the verdicts.
68. [68]
    The direction given about the significance of the evidence of distress falls into a different category.  It must be accepted that it was wrong to direct the jury that the evidence of the complainant herself about her distress on the morning of 10 April 2018 could corroborate her other evidence.
69. [69]
    The issue concerning Ms McBeth’s evidence is different.  The submission is that the evidence was inadmissible because it was incapable of constituting corroboration because of the lapse of time between the alleged commission of the offences and the exhibition of distress to Ms McBeth.
70. [70]
    As I have said, no objection was taken to the complainant’s evidence about her distressed state that morning and the evidence was not challenged.  Nor was any objection taken to his Honour’s direction and no redirection was sought.  Likewise, no objection was taken to Ms McBeth’s evidence of demeanour and it was not challenged.
71. [71]
    That being so, the appellant must establish that, notwithstanding the course adopted by defence counsel, there has been a miscarriage of justice.
72. [72]
    The relevant principle is well settled.  No miscarriage of justice will have occurred in a case like the present unless the appellant demonstrates that “it is reasonably possible” that the direction that was given, and the evidence that was led, “may have affected the verdict”.^[47]  In considering these questions, the Court must have regard to the gravity of the error misdirection or significance of the inadmissible evidence as well as the strength of the case against the appellant.^[48]
73. [73]
    The Crown’s case depended upon the jury’s acceptance of the complainant as a witness of truth.  In the face of her evidence about the two rapes and the appellant’s subsequent assaults upon her and his use of violent and intimidating language, the defence case was that the complainant consented to both acts of penetration and that the choking and the assault did not happen.  “The bulk of [defence counsel’s] address”^[49] concerned what he referred to as “issues of reliability”.  Out and out fabrication of the allegations was not put to the complainant and it was not suggested to the jury.  Rather, there was this:^[50]

“Now, reliability isn’t the same, necessarily, as credibility. A witness could be doing their best to tell the truth, but just not be giving a reliable historical account of events. But, ultimately, the important thing to remember is you don’t need to find that [the complainant’s] intentionally lying, if you do, well, that’ll be the end of it, but you don’t need to find that. What I’m saying to you, the submission I’m making to you, is that noting all the factors I’m going to take you to, you’d have concerns as to whether you can rely on her evidence. Because that’s what the Crown’s asking you to do, take [the complainant], rely on her evidence, and you would have no doubts on her account – and it really does come down to her account alone, as to the guilt of [the appellant].”

74. [74]
    Counsel then proceeded to put forward five arguments to support a conclusion that the complainant did not “present in a way that would fill you with confidence as to her reliability”^[51] and that, for example, in relation to count 1, the jury “wouldn’t be comfortable acting on her evidence”.^[52]
75. [75]
    In a case which depended entirely upon acceptance of the complainant’s evidence, a direction that her evidence that she was distressed on the morning of 10 April 2018, if the jury accepted it, constituted corroboration cannot be regarded as having no significance.  The reason why that evidence was not challenged is clear enough.  On any view of the facts, the complainant had experienced an emotionally charged morning.  At least she had ended her fraught relationship with the appellant by finally leaving him.  It would have been unrealistic to challenge her on this.  Evidence of distress that she felt and that she showed was admissible on the Crown case because it was consistent with her allegations and an omission to refer to it might have raised a false impression in the mind of the jury; but the evidence of distress was equivocal as to the cause of the distress and could not have assisted in the resolution of the case.  This was not a case like some others in which the distress, if it existed, must have been the result of the offending conduct because there was no other cause.  The evidence of Ms McBeth is of the same character.
76. [76]
    Ms Goldie’s submission that the misdirection has occasioned a miscarriage of justice must, therefore, be accepted.  I am satisfied that the direction may have affected the verdict.  For these reasons I joined in the orders made on 13 April 2022.
77. [77]
    MORRISON JA:  I have had the advantage of reading the draft reasons prepared by Sofronoff P.  They reflect my own reasons for joining in the orders made on 13 April 2022.
78. [78]
    BODDICE J:  I agree with Sofronoff P.