R v Peter[2023] QCA 1

SUPREME COURT OF QUEENSLAND

1. [1]
   McMURDO JA:  I agree with the orders proposed by Dalton JA and I agree with her reasons, save perhaps for the argument for Mr Ingui that he ought to have been given a separate trial.  The judge’s clear direction that the jury was not to use Mr Peter’s statement against anyone other than Mr Peter avoided the risk that the jury would use that evidence when considering the case against Mr Ingui.  There was no good reason for the Court to depart from the usual position where several accused are charged with committing a crime together, namely that there should be a joint trial.
2. [2]
   BOND JA:  I agree with the reasons for judgment of Dalton JA and with the orders proposed by her Honour.
3. [3]
   DALTON JA:  Each of the appellants was convicted by a jury of three counts of rape of the complainant, who was 16 years old at the time.  The rapes were said to have occurred one after the other on 28 December 2017.  They were penile/vaginal rapes.
4. [4]
   As well as the appellants, the complainant’s evidence was that a Mr Anau and another man, who she could not identify, raped her that night.  Each appellant was charged with four counts of rape.  Mr Peter and Mr Ingui were each charged with one count as principal offender, and three counts as parties to the other rapes which were alleged to have occurred that night.  Mr Banu was charged with four counts as a party.  Count 1 on the indictment was the rape by Mr Anau as principal offender; count 2 on the indictment was the rape by Mr Ingui; count 3 on the indictment was the rape by the unknown man, and count 4 on the indictment was against Mr Peter as principal offender.
5. [5]
   The jury’s verdicts were guilty on all charges except for the charges in relation to the unknown man.  The charges in relation to the unknown man were count 3 against each of the defendants below, and on each of those counts, the jury verdict was not guilty.  Mr Anau originally appealed, but he discontinued his appeal before the hearing.
6. [6]
   Each of the appellants relied upon different circumstances to challenge the jury verdicts.  In my view the appeals in relation to Mr Peter and Mr Ingui ought to be dismissed; Mr Banu’s appeal ought to be allowed; his convictions should be set aside and verdicts of acquittal entered.
7. [7]
   I will deal with the factual matters relevant to the offending before dealing with the individual points raised by the appellants.

Evidence at trial

8. [8]
   On 2 January 2018 the complainant reported to police that she had been raped.  She was 17 when she gave evidence via video link during a pre-recording.  Her evidence in chief consisted of identifying four written police statements which were read to the jury.  She was then cross‑examined briefly by counsel for each of the appellants.
9. [9]
   The complainant said she knew all of the appellants.  The complainant said in cross‑examination that she had never spoken to Mr Banu before the occasion of the offending, but she knew who he was.  She had first met Mr Ingui in 2014 when she was 12.  She met him when she was with Toby Amber and spoke to him for a short time.  She saw him again when she had been drinking with a group of people at a house at Yorkeys Knob.  In cross-examination the complainant said she had never spoken to Mr Peter before 28 December 2017.  She met him that day.
10. [10]
    On the afternoon of 28 December 2017 the complainant was at her auntie’s house when Mr Anau made arrangements to pick her up.  She told police she did not want to go, but at the same time she co-operated in making the arrangements.  Soon after 2.00 pm the appellants arrived in Mr Banu’s car.  The complainant described his car as “a new car”.  She said it was a dark Mazda, and that part of the licence plate was the letters “XEM”.  The complainant said that Mr Anau told her it was Mr Banu’s car.
11. [11]
    The complainant got into the car.  Mr Banu was driving, Mr Ingui sat in the front passenger seat, Mr Anau and Mr Peter were in the back with the complainant.  They sat either side of her.  Mr Banu drove to a liquor store.  Mr Anau bought a cask of wine.
12. [12]
    Mr Banu then drove to the house of Toby Amber.  They all knew Mr Amber; the complainant had briefly been his girlfriend.  The men left the complainant at the unit with the wine.  She drank about two cups of the wine and then “blacked out”.  She said the next thing she remembered was Toby being angry with her, pushing her and hitting her, trying to get her out of his unit.  In cross-examination the complainant said she did not remember blacking out or passing out or going to sleep at Toby’s unit.
13. [13]
    She remembered sitting in the back seat of Mr Banu’s car with Mr Anau when it was parked outside Toby’s unit block and then falling asleep again.  She said that when she woke up she was in “the boot of [Mr Banu’s] car” and it was night.  She could see sugar cane around the car.  The car had been driven to an isolated location in a sugar cane field.
14. [14]
    The complainant said that she was lying on her back in the boot of the car with “my legs hanging out”.  She said she still had on her top, but she didn’t have any pants on.  Mr Anau was standing “in between my legs.  I could feel his hands holding onto my waist and feel his penis in my vagina.”  The complainant said in her fourth statement to police, and in cross-examination, that it felt as though Mr Anau had sex with her for a long time, it felt like half an hour.  Her evidence was that he ejaculated and then, “Before I could get up, [Mr Ingui] had pulled down his shorts and stood between my legs”.  She said that Mr Ingui had sex with her but then ejaculated on the grass.
15. [15]
    She said that she was about to get up but Toby then stood between her legs.  “He pulled down his shorts, but only halfway.  He then pushed the insides of my legs, spreading them apart.  I asked him ‘How could you do this?’.  He said ‘If you love me you’ll do it for me’.”  She said that he had sex with her until he ejaculated.  Then Mr Peter had sex with her and ejaculated on the grass.
16. [16]
    The complainant told police “Even though it was night, it was a bright enough night with the moon that I could recognise [Mr Anau, Mr Ingui, Toby Amber, and Mr Peter]”.
17. [17]
    The complainant said that she yelled and protested as the various men had sex with her.  She said that when the series of rapes finished she managed to get up.  She saw her shorts on the ground near the boot of the car.  She put them on and then tried to run through the sugar cane.  She tripped over.  She said “one of the boys came and got me” though she could not remember which one.  He grabbed her by the shirt and pulled her back to the car.
18. [18]
    She said the car was the same car in which Mr Banu had picked her up from her auntie’s that afternoon.  She sat in the middle back seat.  Mr Banu drove and Mr Ingui was in the front passenger seat.  The other men were in the back seat on either side of her.  She could not remember the trip back and thinks she passed out again.
19. [19]
    She said she remembered being dropped off at a park in Cairns where Toby and Mr Peter got out of the car and told her to “Get the fuck out”.  She said this was near the Bendigo Bank on Sheridan Street.  The “boys” drove away in the car.  She started walking towards town but fell over, blacked out and woke up in the park the next morning.
20. [20]
    In a second written statement to police dated 21 March 2018, approximately three months after the first statement, the complainant said, “Since I provided [my first] statement I have remembered Toby was not there”.  She said that the early part of her recollection about Toby was correct, including about him kicking her out of the unit.  However, as to Toby’s involvement in the rapes, she said:

“… I was mistaken and Toby was not in the car that night and was not at the canefields.

I do still remember one of the boys saying ‘How could you do this to me’ and he replying ‘If you love me you’ll do it for me.’

I believed it was Toby at the time because Toby and I had previously been boyfriend and girlfriend and he was the only one of the boys I had ever liked and I had told I love.

I still remember having sex four times that night in the back of the car and I can still remember seeing [Mr Anau, Mr Ingui and Mr Peter] on top of me. …I know I was drunk but I do remember seeing the side of their faces in the moonlight.”

21. [21]
    In her second statement the complainant said that she had not been dropped off near the Bendigo Bank, but was actually dropped off near John Aruba’s unit.  She knew John Aruba.  She explained, “I said I got dropped at the Bendigo Bank because John [Aruba] is not supposed to have contact with me and I thought he would get in trouble”.  In fact John Aruba was not home, and the complainant did not remember where she spent the night.  When she woke up in the morning she was in some bushland.
22. [22]
    The police witness said that it was the complainant who raised the mistakes in the first statement with the police, rather than her giving additional information when police raised matters with her.
23. [23]
    The complainant’s third statement dealt with preliminary complaints, the contents of which are detailed below.
24. [24]
    The fourth statement which the complainant gave was focused particularly on Mr Banu.  The complainant said that while Mr Anau was having sex with her she saw Mr Banu standing behind him, “about three metres away from where I was behind the car.  He was talking to [Mr Ingui] and [Mr Peter]”.  At another point in her statement she describes them as being “about two metres away”.  She said “They were all just talking to each other, I don’t remember them saying anything to me or [Mr Anau]”.  She said Mr Banu did not move from where he was after Mr Anau finished having sex with her.  She said that he and Mr Peter were still in the same place “standing and talking to each other”.  Mr Anau walked around behind the car and joined them.  She said they were all talking “in language and I don’t understand what they said.  When I say ‘language’, I mean traditional Torres Strait Island language.”
25. [25]
    Further as to this the complainant said in her fourth statement:

“After [Mr Ingui] went away, another person came over, it was a man, big built he had dark skin and was an islander.  That person came and stood between my legs.  I looked away because I thought it was my ex-boyfriend Toby, he was built like Toby.  I didn’t see his face, I thought it was Toby because I didn’t think those other boys would touch me unless Toby was there and let them.

I looked away and kept looking out the window.  I didn’t see anyone other than [Mr Banu], we walked past the window I was looking out to the passenger side of the car.  He didn’t look at me, I don’t know what he was doing, I just saw him walk past.  I didn’t look at the person having sex with me because I didn’t want to see his face, because I thought it was Toby.  I spoke to him and I recognised Toby’s voice, it sounded just like him.”

26. [26]
    The complainant said that while Mr Peter was raping her she saw Mr Banu talking to Mr Anau and Mr Ingui.  She said that Mr Banu “walked past to the driver side near the seat, I couldn’t see them anymore but I could hear them talking in language”.
27. [27]
    In cross-examination the complainant accepted that Mr Banu did not have sex with her and said “he wasn’t near me” when the others were having sex with her.  In re‑examination she clarified that she meant he was not “really close” to her.  She said Mr Banu did see her being raped by the other men.

The relationship between the appellants

28. [28]
    John Aruba said that Mr Ingui was his “big brother”, and Jeffrey Banu was his brother.  They were from the same Torres Strait Island.  Mr Anau was his “little nephew”.  He was also related to Mr Peter.  Mr Banu was born on 8 May 1980.  Mr Peter was born on 16 May 1984.  Mr Ingui was born on 2 February 1974.  Police gave evidence that Mr Peter was 155cm tall, Mr Ingui was 190cm tall, and Mr Banu was 175cm tall.

Preliminary complaint

29. [29]
    John Aruba gave evidence that the complainant visited him on 1 January 2018, in the morning.  She was nervous and scared.  She told him that she had been drinking with Mr Anau, Mr Ingui, Mr Banu, Mr Peter and Toby Amber.  She said that they went to a cane field somewhere and they “gangbanged her”.  She said that it was Toby Amber, Mr Peter, Mr Anau and Mr Ingui who “gang banged her”.  John Aruba was 43 at the time of this conversation and said that he was in a relationship with the complainant at the time.  In cross-examination he agreed that his police statement was to the effect that the complainant came to see him in the evening rather than the morning, and agreed that the statement would be more accurate than his evidence.
30. [30]
    In cross-examination John Aruba agreed that Mr Banu was not one of the men the complainant named as drinking with her.  He also first disagreed, and then agreed, with the proposition that the complainant told him that she and the men were drinking in the cane field and then she fell asleep.
31. [31]
    Mr McChesney gave evidence that, he thought towards the end of December 2017, the complainant attended at his house one morning saying that she had walked there.  She used his mobile phone to make some “heated” telephone calls.  He tried not to listen as he did not think the content of the calls was something he should hear.  After that the complainant told him that she had been raped after she had only about four drinks.  She thought that the “guys” might have spiked her drinks because “she flaked out on it”.  She said she had been raped by roughly four or five guys and that she woke up in a park.  He thought she was “pretty matter of fact” at the time she told him these things.  She was not crying and did not seem affected by what she was relating.
32. [32]
    In cross-examination Mr McChesney agreed that his police statement recorded that the complainant told him she could not remember much.  In cross-examination he recalled that one of the men she complained about may have been called Toby; he recalled that she visited this man a little bit and recalled dropping her at a house on one occasion which he thought might have been associated with Toby.  Mr McChesney recalled that the complainant told him she remembered being at one guy’s place and the guy tried to throw her down the stairs and called her a slut.  Later in the cross-examination Mr McChesney said that the complainant did not identify Toby as one of the persons who raped her, but of the group of men, Mr McChesney knew his name, and not the names of the others.  The complainant had not told him that Toby did not rape her, it was just an assumption he made.
33. [33]
    Ms Carrie Addo was called to say that she exchanged text messages and phone calls with the complainant on 28 December 2017.  She said that on that date the complainant said she had been drinking and sounded intoxicated; in one telephone call the complainant started to vomit – she thought that was later in the evening.  The complainant said she was at Toby Amber’s house.
34. [34]
    Ms Addo said that on 30 December 2017 the complainant called her and told her that she had been raped by Mr Ingui, Mr Banu and Mr Anau, “She told me that she woke up to them raping her and she blacked out in and out of consciousness, and then apparently they dropped her off at a park”.  She seemed upset and embarrassed; she was crying.  In cross-examination Ms Addo said that the complainant had told her there was a fourth person but, despite Ms Addo’s attempts, the complainant would not tell her who it was, she “kept dodging my question and not giving an answer”.

Mr Banu

35. [35]
    Mr Banu owned two cars.  A dark coloured Mazda CX-5 registration 567 XEM and a white Holden Jackaroo.  There was a formal admission made that the Mazda was filmed at 2.35 pm on 28 December 2017 at a liquor store.  Mr Anau was shown on the CCTV entering the store and purchasing a cask of wine.  There were admissions to the effect that between 8.49 pm and 9.13 pm the Jackaroo was shown on CCTV heading north, first along the Bruce Highway and then on a smaller road, Mulgrave Road.  Likewise, that between 10.22 pm and 10.51 pm the same car was captured on CCTV heading south along some smaller roads north of Cairns, then Mulgrave Road, and then the Bruce Highway.
36. [36]
    A Ms Lynch gave evidence that she had been Mr Banu’s de facto partner for the last 18 years.  She said Mr Anau was “[Mr Banu’s] cousin brother”, as was Mr Ingui and Mr Peter.
37. [37]
    Ms Lynch said that on 28 December 2017 Mr Banu picked her up from a café in the Mazda, at about 6.00 or 6.30 pm.  They then went together to Woolworths and subsequently to their home.  Shortly after that he left home.  He received a phone call and said that he had to go and drop his brothers home.  She thought that was about 7.00 or 7.30 pm.  He left in the Jackaroo.  She said that he returned home at night, before midnight.
38. [38]
    She explained that Mr Banu would sometimes go for “smoke drives”.  She explained that expression, “It’s that we drive around for a period of time.  It doesn’t – it’s – could be 10 minutes; could be an hour with no particular destination.  We’re just driving around Cairns.  It’s a way of relaxation for us.”  She said that Mr Banu went for a smoke drive “every day” and that sometimes on smoke drives he would pick people up and give them lifts.
39. [39]
    She gave evidence that the Jackaroo had “the darkest legal tint” to all windows except for the front windscreen.  That meant that, “At night time, it’s a little bit more difficult to see outside the window”, particularly in the bush where there was no external lighting.  The Jackaroo was a seven-seater car and Ms Lynch referred to the back of it as the “boot”.
40. [40]
    On 3 January 2018 police attended at Mr Banu’s home and recorded their interactions with him.  Police almost immediately arrested Mr Banu for rape and told him that he was not free to leave.  He was warned.  The keys to his Mazda were taken and he was handcuffed.  The recording includes:

“Con Little: So, what I need you to do is, I just need you to hand your phone over to the officer here.  Um, your keys as well, your cigarettes.  This is the only set of car keys for the Mazda?

Banu: Yeah.

Con Little: Yep.  What I’ll get you to do is just turn around and place your hands behind your back.

Con Little: [Indistinct]

Banu: I didn’t do anything.

…

Con Little: Just turn around and face me.  So there’s a report that’s been [indistinct] to police about an incident that occurred, um, late Thursday night, Friday morning.

Banu: [Indistinct]

Con Little: Um, it involves yourself, you’ve been nominated, Lesley, ah, Amber has been nominated.  Tomax or Tom Ingui.  Aaron Anau.

Banu: Yeah.

Con Little: And, ah, Lachy Peter.

Banu: Yeah, what happened - -

Con Little: Okay.  Involving that vehicle and a female naming, named [redacted].  That female, that - -

Banu: No, It’s [indistinct] - -

Con Little: Report is that she’s been driven out to some - -

Banu: It’s - -

Con Little: Cane fields - -

Banu: It’s not that - -

Con Little: You need to, you need to listen.

Banu: Yeah, I’m just telling you, it’s not that car.

Con Little: It’s not that car?

Banu: Nah.

Con Little: What car was it?

Banu: It’s a white Holden Jackaroo.  The Holden Jackaroo.  It’s not that car.

Con Little: Okay, when you say not that car, okay - -

Banu: We got two cars, so, so - -

Con Little: And what occurred in the white Jackaroo? What happened in the white Jackaroo?

Banu: No, I’m just saying that I was only driving that, I wasn’t driving that.” (my underlining)

41. [41]
    Little more is said to police on the recording except that Mr Banu says that it was a long weekend and he can’t remember driving.  He then says:

“…

Banu: I can’t re-, I can’t remember driving [indistinct]

Con Little: Okay.  This is - -

Banu: [Indistinct]

Con Little: Thursday night, the 28^th of December.  So, less than a week ago.  Today’s Wednesday, Tuesday.

Unidentified male officer: Wednesday.

Con Little: Wednesday, the 3^rd of January.

Banu: So did yous, um, get the other blokes beside me, or [indistinct] - -

Con Little: Ah, the investigation’s ongoing.  We’re talking to you at the moment. …” (my underlining)

No case submission

42. [42]
    After the Crown closed its case, counsel for Mr Banu made a no case submission.  In response, the prosecutor said that in relation to count 1, Mr Anau’s rape of the complainant, the complainant says that Mr Banu was standing about three metres behind Mr Anau talking to Mr Ingui and Mr Peter in a Torres Strait language, and remained there until the end of the rape by Mr Anau.  The same facts were relied upon in relation to count 2, the rape by Mr Ingui.  In relation to count 3 the complainant’s evidence was that Mr Banu walked past the window of the car in which she was being raped.  He walked from the rear of the car.  As to count 4, Mr Banu walked back to the rear of the car and was talking to Mr Anau and Mr Ingui.  The complainant said Mr Banu saw her being raped by the other men.
43. [43]
    The Crown case was that Mr Banu’s presence and continued presence encouraged the other men who raped the complainant.  The Crown said Mr Banu’s driving the other men to and from the cane field was demonstrative of his encouragement and acceptance of what was occurring, or what had occurred.  The Crown relied on the fact that Mr Banu did not voice any dissent or opposition.  The prosecutor conceded that there was no evidence that Mr Banu had knowledge of what was about to occur as he was driving to the cane field.
44. [44]
    The primary judge refused the no case submission saying:

“… Considering the whole of the complainant’s evidence as best I can at its highest, she describes the defendant, Mr Banu, driving her to a remote location – an isolated location, at least, a cane field. She describes Mr Banu standing behind the first of the men who rape her, and about three metres away. He remains in that position whilst the second of the men allegedly rape her.

He’s then described by her as moving away past the window, and she was looking out to the passenger side of the car, bearing in mind she’s in the boot. And she describes him again returning to the rear of the vehicle. When cross‑examined, it was put to her that Mr Banu wasn’t near her when the others had sex with her, which she agreed to. And that was clarified to mean that he wasn’t really close to her, whatever that might mean. But significantly, she describes that Mr Banu was positioned – at least positioned such that he was able to see. Or he was at least in a position where he would have been able to see her being raped by the other three men.

That he was present and voiced no dissent or opposition at a time when she was making clear that she was being raped, and then driving the three other men and the complainant away is, in my view, tenuous evidence that can be taken into account by the jury in its deliberations, and is capable of supporting a verdict of guilty, even though it is tenuous and weak.”

Unreasonable verdicts

45. [45]
    Most significantly, Mr Banu was not charged with rape as a principal.  He was charged only as a party, on the basis that he had aided rapes by Mr Anau, Mr Ingui, the unknown man, and Mr Peter.  The question is whether or not the Crown proved facts which could, if accepted by the jury, have amounted to Mr Banu aiding the three rapes which the jury found proved.
46. [46]
    The relevant law is discussed in two Queensland cases: R v Beck^[1] and R v Butler & Lawton & Marshall.^[2]  The facts in Butler were that the complainant was sitting on a park bench at night-time; three men came along.  They asked her for sex but she refused.  After that one man pulled her trousers and underpants off and he put his penis into her vagina.  The second man also did so, “the third person was just standing there, probably about a metre away. He was not outside the park but he was about a metre away” – [6].  All three men were convicted of rape.  The Court of Appeal entered a verdict of acquittal in respect of Lawton on the basis that the conviction was unreasonable and could not be supported having regard to the evidence.  Chesterman J said this:

“[67] The evidence is, I think, clear that Lawton struck the complainant after the acts of intercourse by the co-accused and at a time when the complainant was putting her clothes back on. The motive for the blow is unclear: whether it was to dissuade the complainant from following the three men or because the complainant had, or Lawton believed she had, taken his hat. There is no evidence that he said anything to the complainant or the co-accused during their activity with the complainant. There is no evidence he did anything to facilitate their acts with the complainant. The case against him comes down to the fact that he was present.

[68] Presence by itself is not enough to constitute aiding for the purposes of s 7(1)(c) of the Criminal Code. The law was explained by Macrossan CJ in R v Beck [1990] 1 Qd R 30 at 37 and 38. The Chief Justice said:

‘Intentional encouragement may come from expressions, gestures “or actions intended to signify approval”. Voluntary and deliberate presence during the commission of a crime without opposition or real dissent may be evidence of wilful encouragement or aiding. It seems that all will depend on a scrutiny of the behaviour of the alleged aider and the principal offender and on the existence which might appear of a bond or connection between the two actors and their actions. The fortuitous and passive presence of a mere spectator can be an irrelevance so far as an active offender is concerned. But, on the other hand, a calculated presence … can project positive encouragement and support to a principal offender. The distinction between a neutral and a guilty presence of a person at the scene of a crime will be for the jury to assess. Proof of guilt of the crime of aiding will not ordinarily be established by mere presence if no telltale acts are performed by the alleged aider but the intention behind and the effect of the presence of the additional person at the scene may be established by other evidence from which it is possible to say that a case of intentional encouragement or support of the principal offender is made out.

…

It is not possible to be an aider through an act which unwittingly provides some assistance to the offender in the commission of the offence and it is not possible to be an aider, whatever the intention, unless support for the commission of the offence is actually provided. In some cases … where positive intervening acts in support of the commission of the offence by the principal offender may not have occurred it has been natural to speak of encouragement and this will often be an appropriate word to convey, in the absence of direct physical involvement, the relevant active element in the aiding which has taken place.’

[69] There is, in this case, no evidence of expressions, gestures or actions by Lawton intended to signify his approval of what the co‑accused were doing. One must scrutinise the behaviour of the alleged aider to see whether it affords evidence of wilful encouragement. Such scrutiny reveals nothing. The important proposition is that proof of guilt of the crime of aiding will not ordinarily be established by mere presence if no telltale acts are performed by the alleged aider. There were no acts. The intention behind and the effect of the presence of the aider at the scene may make out a case of intentional encouragement. There is no evidence that the appellant’s presence had any effect on the others. Intention is dealt with next.

[70] It is important to recall that the three men encountered the complainant by chance. None of them went to the park intending to commit rape. The meeting was by chance and the offences were opportunistic or fortuitous. In that circumstance it is inaccurate to describe Lawton’s presence as deliberate, or intentional. He was at a place where a crime was opportunistically committed. It is true he did not leave or do anything to discourage those committing the crime from the course they set upon but that does not make him an aider. The point is that there was nothing sinister in his presence. The case may be contrasted with that of a man who goes with others to where a crime is committed, knowing those others intend to commit the crime.

[71] In short the evidence was insufficient to prove that Lawton aided either Marshall or Butler to rape the complainant. The appellant has made out his first ground of appeal. The convictions are unreasonable and cannot be supported having regard to the evidence. The appellant is entitled to be acquitted.”

47. [47]
    In the present case, the first three statements from the complainant mention Mr Banu as driving the Mazda which came to the complainant’s auntie’s place to pick her up, and from there to the liquor store and Toby’s house.  The complainant says that after Toby forced her out of his house she remembered sitting in the back seat of Mr Banu’s car in a carpark outside Toby’s house.  The next thing the complainant recounts is coming to consciousness in the boot of Mr Banu’s car.  There was an inference from the complainant’s evidence, together with what Mr Banu said to police when they arrested him, that he had driven the complainant and the appellants to the cane field.  The complainant describes the rapes, and then describes trying to run away and being brought back to Mr Banu’s car.  She was put in the middle of the backseat and Mr Banu drove until she was put out of the car.  She identified her thongs as being thongs which police found in the back of Mr Banu’s Jackaroo.
48. [48]
    There was no evidence at all as to Mr Banu’s intention in driving to the cane field.  The cane field was isolated and thus well sited for a sexual assault.  However there was no evidence that Mr Banu intended this to occur when driving there, and no evidence that he knew the other appellants intended this.  Having driven the men and the complainant to the cane field, I cannot see that his driving them back to Cairns adds anything to the case against him.
49. [49]
    On the day before the complainant’s pre-recorded evidence, she met with the prosecutor.  The prosecutor distributed notes of that conference to defence counsel.  Defence counsel asked that the notes be recorded as a formal statement and they were.  This fourth statement was provided 15 months after the date on which the rapes took place.
50. [50]
    In this statement the complainant said that Mr Banu was two to three metres away from her and talking to the other appellants while she was being raped.  He was talking in “language” to the other men.  During the rape by the unknown man Mr Banu walked away from these men and around the car.  By the time Mr Peter was raping her, Mr Banu was at the back of the car again, talking to the other men.  She says that Mr Banu saw her being raped by the other appellants.
51. [51]
    There are two major difficulties with this evidence.  The first is that it was given 15 months after the incident.  The complainant’s memory of the incident was poor and patchy in any event.  She was intoxicated to the point that she was blacking out through the evening.  She wrongly accused Toby Amber of having participated in the rapes.  She was mistaken about the car she was in at the time of the rapes.
52. [52]
    The second difficulty is that there is no description at all as to the type of conversation Mr Banu was engaged in with the other men.  It is not known whether he was laughing and joking with them, or whether he was asking them to desist from a course which he did not agree with.  On the no case submission, the prosecutor said that there was no dissent from Mr Banu.  However, the Crown had not proved this.  There was simply no evidence as to what was being said between Mr Banu and the other men, or even the type of conversation (friendly, or otherwise) which was had.
53. [53]
    Little is known about the relationship of the appellants as amongst themselves.  Mr Ingui was the oldest brother and the biggest of the men.  There was insufficient evidence from which the jury could draw inferences as to the personal dynamics between the group of men – for example, was Mr Banu likely to be a leader in the group or was he likely to have been suborned by the others?
54. [54]
    Where the Crown was obliged to prove its case beyond reasonable doubt, it did not do enough, in my opinion, to prove that Mr Banu aided and abetted the other defendants by a deliberate and encouraging presence during the rapes.  In my view the verdicts against him were unreasonable and he is entitled to be acquitted on all three charges.

Mr Peter

55. [55]
    Mr Peter appealed on the basis that: (1) the verdicts against him were unreasonable, and (2) that there was a miscarriage of justice, because the trial judge did not warn the jurors of a special need for caution before convicting him in reliance on the complainant’s identification of him.
56. [56]
    The jury listened to a recording of an interview between police and Mr Peter.  Mr Peter told the police that he had been drinking cask wine from about 10.00 am on the morning of 28 December 2017.  Mr Banu had picked him up, gave him a bottle of wine which he drank, and then they picked up Mr Ingui and Mr Anau.  Mr Anau had been drinking for a couple of days.  Mr Banu picked him up in a white Toyota “or something”.  They went to Toby Amber’s unit where there was a girl who started to throw punches at Toby.  He had never met the girl before.  He thought she was in her twenties.  Mr Ingui held the girl by her hands to stop her throwing punches at Toby and took her back to the car driven by Mr Banu.
57. [57]
    Mr Peter said that once they picked up the complainant, he told the driver to drop me off “as soon as she got in”, but Mr Ingui said we will drop her at her place.  However, they did not, because the driver kept driving.  Mr Peter said he started to get worried and scared.  By the time they were driving down Mulgrave Road, Mr Peter asked to be dropped off but Mr Ingui asked angrily why he wanted to “jump out”.  He was frightened by then.  Mr Ingui had been hugging the girl and trying to calm her down but Mr Peter knew his body language and thought he was going to do something.  The girl was drunk.
58. [58]
    They stopped in a paddock.  They drove into a big open space in the cane field, one or two hundred metres off the road.  He got out of the car and went for a walk because he was scared; he did not know what Mr Ingui was thinking.  As soon as the car stopped, he took a walk 50 metres from the car because he did not want to see what they were doing.  Mr Anau followed him and he told Mr Anau not to go back to the car because he would get into trouble.
59. [59]
    After a couple of minutes Mr Banu turned the car lights on, and he and Mr Anau walked back to the car and they drove off.  He was away from the car for five to ten minutes.  He told Mr Ingui not to mention his name so as not to get him into trouble.  The girl was dropped off at Cairns North.  Mr Banu was driving.  Mr Anau was in the front passenger seat.  Mr Ingui was hugging the complainant on the way back to Cairns telling her that everything was alright.  He asked Mr Banu to drop him off anywhere and he would get a cab back home.  Toby Amber had stayed at his unit, he did not accompany the men after the girl had been put in the car.
60. [60]
    Earlier in the day Mr Banu had picked him up and then picked up Mr Ingui and Mr Anau.  The three of them then picked up the complainant and dropped her at Toby Amber’s house.  At that stage Mr Banu was driving a new dark car, not the white Toyota.

Identification

61. [61]
    The appellant said that there were two identification issues: (1) whether the complainant’s evidence identified Mr Peter as the person who raped her last in time on 28 December 2017, and (2) whether the complainant’s evidence identified Mr Peter as one of the persons standing at the rear of the vehicle while she was being raped by Mr Anau and Mr Ingui.
62. [62]
    There were issues with the complainant’s identification of Mr Peter.  Her evidence was that she had only met him that day.  His record of interview was to the same effect; they had met that morning.  The complainant described Mr Peter as sitting next to her in the back of Mr Banu’s car when she was picked up at her auntie’s place and taken to Toby’s house.  Mr Peter’s record of interview included his saying that he was in the car when the complainant was driven to Toby’s house.
63. [63]
    The complainant did not mention Mr Peter being in the car when she was taken to the cane field.
64. [64]
    In her first statement the complainant described Mr Peter as tall, fat, having no hair on his head and having brown skin.  In her oral evidence the complainant described Mr Peter as having a big build with goldish or greenish eyes, light skin,^[3] tall and fat.  She said he was much taller than she was, and a bit chubby.  In fact Mr Peter was quite a short man (155 cm); he was the shortest of the group of men charged.  He had brown eyes, in the police officer’s opinion. 
65. [65]
    Counsel for Mr Ingui asked the complainant some questions about the unidentified participant in the rapes.  The following exchange was had:

“You don’t know who that other Islander man was, do you? - - - No.

He had dark skin, did he? - - - Yes.

Dark skin like Tomax Ingui? - - - No, like Francis Peter.”

66. [66]
    The submission was made that the complainant’s evidence as to the colour of Mr Peter’s skin was internally inconsistent.  That is, she originally told police he had brown skin, then agreed he had light skin, and from the exchange just extracted, it appears she was saying he had dark skin.
67. [67]
    The complainant told Mr Aruba that “your nephews and brothers raped me”.  She clarified that she meant Mr Ingui, Mr Peter, Toby Amber and Mr Anau.  However, she told police that she told Mr Aruba that it was Mr Ingui, Mr Banu and Mr Anau, ie., she did not include Mr Peter.  The complainant did not tell Ms Addo that Mr Peter had raped her, although she refused to give Ms Addo the name of one of the men who had raped her.
68. [68]
    In summing up, the trial judge dealt with the evidence against Mr Ingui before she dealt with the evidence against Mr Peter.  In dealing with issues of identification concerning Mr Ingui, the trial judge said:

“The prosecution relies on the evidence of [the complainant] to prove that Mr Ingui was present at the scene, and that he raped her or encouraged others to rape her. It is for the prosecution to prove beyond reasonable doubt that Mr Ingui was present at the cane field. It is argued on his behalf that [the complainant] is mistaken. This issue of identification is one for you to decide as a question of fact. The prosecution’s case against Mr Ingui depends, to a significant degree, on the correctness of [the complainant’s] visual identification of him, which he argues is mistaken. I must therefore warn you of the special need for caution before convicting in reliance on the correctness of that identification.

The reason for this is that it is quite possible for an honest witness to have made a mistake in identification. Notorious miscarriages of justice have sometimes occurred in such situations. An honestly mistaken witness may nevertheless be convincing. You must examine carefully the circumstances in which [the complainant’s] identification of Mr Ingui as being present was made. Consider how long did she have the person she says is Mr Ingui under observation. At what distance was he from her? In what light did she see him? Was her observation impeded in any way? Had she seen him before, and if so, how many times? If only occasionally, did she have any special reason to remember him? What time elapsed between the original observation and her identification of him to the police? Where evidence is given by a stranger or a casual acquaintance, and at most Mr Ingui was a casual acquaintance of [the complainant], you should treat the evidence of identification with care.

You should be cautious about concluding that identification has been established in such a case, and scrupulous to be satisfied, firstly, [the complainant] is not only honest, but also accurate.” (my underlining).

69. [69]
    No criticism of this direction is made.  Having made these comments and warnings of general application, the trial judge moved on to discuss the particular difficulties in the identification of Mr Ingui – see [86] below.  After dealing with the case concerning Mr Ingui, the trial judge moved onto the prosecution case against Mr Peter.  She said:

“I’ll move on, then, to the case against Francis Peter. The prosecution sets out to prove that Mr Peter had sexual intercourse with [the complainant] without her consent. That is count 4. And that he either immediately before that had sexual intercourse with her without her consent, that being count 3, or that he aided the other defendants or the unknown man to rape [the complainant] by encouraging them through his deliberate and continued presence in the vicinity. Mr Peter’s case is that, whilst he was present at the cane field, he walked away and was 50 metres or so away from the car.

He was not present during whatever it was that happened and, whilst he might have suspected what was going on, he was not encouraging anyone else to rape her and was not intending to encourage anyone else to rape her. You will remember what I said about evidence of identification. You must be careful to examine the circumstances in which the identification by [the complainant] was made, ensuring that she is both honest and accurate in her identification of Mr Ingui and also Mr Peter. Whilst she honestly believes that Mr Peter raped her and was present nearby when the others raped her, it is argued that she is mistaken.

An honest witness who is mistaken can, of course, be compelling. Because [the complainant] was, at most, a casual acquaintance, you should treat the evidence of identification with care. You should be cautious about concluding that identification of Mr Peter has been established in such a case and be scrupulous to be satisfied, first, that she is not only honest in her evidence, but also accurate in her identification. [The complainant] said, in her first statement, that she knew Locky Peter and had met him through Toby at Toby’s house.

When cross-examined by Mr Trevino, she said that she met Locky Peter that day – so that’s the 28^th of December 2017 – and that she’d never spoken to him prior. Clearly enough, she was only a very recent acquaintance of him. [The complainant] described Locky Peter in this way in her first statement to police:

He is tall, fat and no hair on his head.

She described him as wearing a light blue shirt and dark denim jeans on this day. [The complainant] described the four men in the Mazda when she was first picked up as Aaron, Jeffrey, Locky and Tomax. She said that Locky was seated to her left-hand side. After going to Toby’s house, Jeffrey, Locky and Tomax left. They came back to Toby’s house and then left again. She was drinking and next remembered being in the back seat of Jeffrey’s car with Aaron. She did not mention Locky being in the car. She said she fell asleep again and awoke in the cane field in the boot of the car with Aaron having sex with her.

Locky was the fourth man she described as raping her. She said she saw the side of Locky’s face in the moonlight. When she was cross‑examined by Mr Trevino, she said that the man she described as Locky had a big build and gold-ish, green-ish eyes. He had light skin, was tall and fat. He was much taller than she was and he was a bit chubby. She agreed that, when she woke up in the cane field, it was very dark. There are some weaknesses in her identification of Mr Peter. He is not, by any stretch, a tall man. Indeed, he is quite a short man, only 155 centimetres tall.

He does not have gold-ish, green-y eyes, but, rather, brown eyes. You need to consider whether she is mistaken about Mr Peter being one of the men who raped her. It was, for her, a traumatic event where her emotions were heightened and she was physically stressed. You should consider whether she has assumed that Mr Peter is one of the men who raped her because he was with Mr Anau, Mr Banu and Mr Ingui earlier that day in the Mazda. You also know she was intoxicated. You should consider whether that has impacted on her ability to accurately identify her rapists, particularly in circumstances where it was very dark and they are all men with dark skin.

Of course, she admittedly misidentified one of her rapists as a man she knew well. Indeed, had said she loved; that being Toby Amber. She misidentified his voice. If she was mistaken about him, is it possible that she is mistaken about Mr Peter? It is for you to determine, as a matter of fact, whether you are satisfied beyond reasonable doubt, on the evidence of [the complainant], that Mr Peter was the fourth man who had sexual intercourse with her and was in the vicinity of the boot of the car when she said she was raped.” (my underlining).

70. [70]
    The submission made before us was that the direction in relation to Mr Peter was lacking because the underlined part of the direction in relation to Mr Ingui, [68] above, was not repeated when the judge was speaking about identification of Mr Peter.  Instead, at the underlined part of the general direction in relation to Mr Peter, [69] above, the trial judge reminded the jury of what she had said when discussing Mr Ingui’s case.  It was accepted that thereafter the trial judge identified all the factual matters necessary in respect of the identification case run by Mr Peter.  Her direction is detailed and thorough.
71. [71]
    There is nothing in this point.  The judge gave a detailed and careful Domican direction in relation to Mr Ingui.  A few minutes later she reminded the jury of it when discussing Mr Peter’s case.  She repeated parts of it, although not its entirety.  She then very well drew to the jury’s attention the points which the defence relied upon to impugn the complainant’s identification of Mr Peter, in the context of his case that, although he accompanied the other men to the cane field, he immediately walked away and played no part in the offending.

Unreasonable verdict

72. [72]
    The complainant’s evidence of identification of Mr Peter being before the jury, there was evidence upon which they could convict him both in relation to the rape as principal (count 4) and the rapes at counts 1 and 2, as a party.
73. [73]
    Although it was not particularly raised, I will note that so far as the verdicts on counts 1 and 2 were concerned, the very significant difference between Mr Peter’s case and Mr Banu’s case is that Mr Peter was alleged by the complainant to have raped her, and the jury was satisfied of this.  Issues as to aiding, encouragement and dissent, which were decisive in relation to my thinking about Mr Banu, therefore do not arise in relation to Mr Peter.  Because the jury was satisfied that he had raped the complainant, as she described, inferences can be drawn as to the willingness of Mr Peter’s participation in the events at the cane field and inferences can be drawn that he did not dissent when speaking to the other men during the time the complainant was being raped by others.  His deliberate and continued presence, including his participation in raping the complainant, was sufficient evidence for the jury to be satisfied that he was guilty on counts 1 and 2 as a party.
74. [74]
    Apart from the issues which went to identification, there were other difficulties with the complainant’s evidence which meant that the jury had to scrutinise it carefully before they could accept her as a reliable and creditable witness.  She was very drunk at the time of the events; so drunk she was passing in and out of consciousness.
75. [75]
    The complainant mistook one of the rapists for Toby Amber, and later retracted what she told police about his having been one of the rapists.  She gave an explanation for her mistake, which the jury was entitled to bear in mind in considering this.  She made the same mistake when she complained to John Aruba, naming Toby Amber as one of the men who had raped her.  When the complainant told police about her conversation with John Aruba, she included Mr Banu’s name.  In my view there was some ambiguity as to whether or not she was naming Mr Banu as a rapist, or someone involved in the rapes.  In any event, there was a point there for the jury to consider.  Independently, there were points about the reliability of Mr Aruba’s memory as to this conversation.  The complainant told Ms Addo that she had been raped by Mr Ingui, Mr Banu and Mr Anau and another man who she did not name.  The jury were entitled to scrutinise this evidence to see whether or not the preliminary complaint showed the complainant was unreliable.  The jury obviously had a doubt about her memory of the unknown man raping her.
76. [76]
    The complainant deliberately lied to police about being dropped at John Aruba’s house when she gave her first statement.  She explained why, and the jury was entitled to take her explanation into account in assessing this part of the evidence.  The jury was also entitled to take into account that it was evidence peripheral to the offending.
77. [77]
    The complainant was mistaken about the car in which she was driven to the cane field, and in which she was raped.
78. [78]
    The jury heard and saw the witnesses.  There were certainly points to be made for the defence, and they were made.  They were summarised in a very detailed and thorough way by the trial judge in her summing up. 
79. [79]
    In my view, having regard to all the evidence before the jury, there was nothing unreasonable about their verdict.  That is, I think that on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that Mr Peter was guilty on all three counts on which the jury returned a guilty verdict.^[4]  There was no evidence which meant that the jury must have had a reasonable doubt about guilt: Pell v The Queen.^[5]

Ingui

80. [80]
    Counsel for Mr Ingui advanced two grounds on appeal: (1) that the verdicts against his clients were unreasonable, and (2) that there had been a miscarriage of justice because Mr Ingui ought not to have been tried with the other appellants.

Unreasonable verdicts

81. [81]
    Mr Ingui’s case was that he was not present with the other appellants at the time they visited the cane field on 28 December.  The complainant’s evidence was that Mr Ingui was there and the evidence from his phone registering at various towers tended to support the complainant.
82. [82]
    The matters I deal with at [73] above apply to Mr Ingui’s case.
83. [83]
    Mr Ingui relied upon the difficulties with the complainant’s evidence (discussed in relation to Mr Peter at [74]-[77]).
84. [84]
    As well, it was submitted on behalf of Mr Ingui that there were difficulties with the evidence of the complainant identifying him.  Mr Ingui’s case relied upon the fact that the complainant had only met him on two occasions prior to the alleged offence, one of those occurred four years before the incident, when the complainant was aged 12, and the second one occurred when they were together with a group of people drinking at Yorkeys Knob.
85. [85]
    The complainant said Mr Ingui had short hair which was hidden by a cap.  He had no beard or other facial hair.  A photograph of Mr Ingui taken on 3 January 2018 showed that he had a moustache.  The photograph shows a fairly slight moustache, I cannot think that it is conclusive evidence as to the state of his face on 28 December 2017.
86. [86]
    The trial judge gave the general direction as to identification outlined at [68] above, but went on specifically to say in relation to Mr Ingui:

“… [The complainant’s] evidence identifying Mr Ingui is as follows. In her first statement to police she said that she had been drinking, and that she had engaged in text messages with Aaron, who said that he would pick her up. When Aaron arrived in Mr Banu’s car, he was with Locky and Tomax Ingui. Mr Ingui was wearing a white singlet, she said. Jeffrey Banu drove them all to Liqourland at White Rock, where Aaron Anau went into the store. They then all went to Toby’s unit.

Once at Toby’s unit, Jeffrey, Locky and Tomax left. She then said she sat on the veranda with Toby and Aaron and smoked cigarettes, and she had more to drink. She said that Jeffrey, Aaron and Locky came back, and then all left again. She next recalls Toby going off his head at her and pushing her out of his unit. The next thing she remembers, she was sitting in the back seat of Jeffrey’s car with Aaron. She fell asleep, and was then awoken to being raped, she says by Aaron. Importantly, [the complainant] did not identify Mr Ingui as being in the car later in the evening. When she first identified Mr Ingui as one of her rapists, it was night time and in a cane field where there was little in the way of lighting. She said she was lying in the boot of the car. Her evidence is Aaron raped her, Tomax raped her, Toby then raped her, and Locky then raped her. Almost three months later she says that, no, it was not Toby who raped her. She was mistaken about that.

All she said about the nature of her observation of Mr Ingui is that she saw the side of Tomax’s face in the moonlight. There is no reliable evidence of what sort of night it was in terms of weather and what phase the moon was in. You know that the windows of the car were tinted a very dark colour, and that the men who she alleges raped her all have dark skin, adding to the difficulties in identifying them. The circumstances in which she identified Mr Ingui as being one of her rapists where when her emotions were heightened and she was physically stressed, because she was, on her account, being raped by a number of men, which would have been traumatic. She was also intoxicated to the extent that she had passed out or blacked out or fallen asleep a number of times. And of course she had also vomited earlier when speaking to Ms Addo.

She has misidentified one of the rapists as Toby Amber, who she knew well, as she had been in love with him. She even misidentified his voice. You will remember that when cross-examined she said that she had only met Mr Ingui twice before. Once when she was 12 in 2014 when he was with Toby. That was only a brief meeting. And the second time happened when she was at a house at Yorkeys Knob and had been drinking. So she was only a casual acquaintance and did not know him well at all.

At the cane field she described the man she believe was Mr Ingui as having short hair and wearing a cap. She could not see his hair, because it was hidden by his cap. He did not have facial hair, including moustache. He had a tattoo on his arm something. You know how Mr Ingui looked on the 3^rd of January 2018, as you have an image of him, which clearly shows that he had a moustache, and you might think had one for some time, looking at that image. He has tattoos on his chest and left arm, and the tattoo on his arm is not very big. You don’t know where the tattoo is, and you don’t know what it is of.

You should also carefully consider whether [the complainant] has assumed that it was Mr Ingui who was one of the men who raped her because she saw him in the presence of the other three men earlier in the day, or that she saw him in the presence of Toby earlier in the day, or whether she has assumed it was Mr Ingui because she saw him in the presence of Toby in the Mazda earlier that day. There are a number of weaknesses to [the complainant’s] identification of Mr Ingui which you need to give careful consideration to, particularly her heightened emotional state, her intoxication, a lack of lighting, the real possibility she has made an assumption as to it being Mr Ingui, because he was present earlier in the day with, particularly, Toby, and that she was admittedly mistaken about who one of the rapists was, identifying a man that she knew very well. The prosecution argue that there is support for her identification of Mr Ingui. They rely upon the evidence contained in the admissions, which are exhibit 2, titled Telstra Records.

They argue that the cell tower which Mr Ingui’s mobile phone connected to is consistent with his being in the car with Mr Banu and the others. They argue that her description of his having a tattoo on his arm supports her identification, although you do not know what that tattoo is of or the size of it, as she was never asked. The Prosecution also rely upon the evidence of Ms Kabai that at around midday on the 28^th of December 2017, when she arrived on Horn Island that she spoke to Mr Ingui and he said he was going to ask Jeffrey Banu to drive him places to find money to purchase her return trip to Cairns. The Prosecutor also relies upon Ms Kabai’s evidence that she lived at Bentley Park in December 2017, that Mr Ingui was her partner and that the admissions in exhibit 1 demonstrate that the white Jackaroo turned right on to Robert Road at Bentley Park at 10.51 pm and left from Robert Road at Bentley Park at 11.02 pm, consistent with him being dropped at Ms Kabai’s home at around that time.”

87. [87]
    For the same reasons expressed in relation to Mr Peter, I think there was sufficient evidence before the jury for them to come to the view that Mr Ingui was guilty on all three counts upon which they returned guilty verdicts.  The jury was made well aware of the difficulties with the complainant’s evidence and was directed appropriately in relation to it.  The matters raised by the appellant were matters for the jury.  There was nothing which meant the jury must have had a reasonable doubt as to Mr Ingui’s guilt.

Separate trial

88. [88]
    Mr Ingui says that he ought not to have been tried with the other defendants below because in Mr Peter’s statement to police he put Mr Ingui in the car travelling to the cane field (contrary to Mr Ingui’s case), and said that it was Mr Ingui who angrily put a stop to his wishes to leave the car.  Mr Peter’s statement to police said that it was Mr Ingui who was hugging the complainant on the way to the cane field and that his body language was such that Mr Peter realised Mr Ingui had a sinister purpose.
89. [89]
    The trial judge gave a direction to the jury specifically not to use Mr Peter’s statement against anyone other than Mr Peter.  She said:

“Although the defendants are being tried together, you must give the cases against each of them and for each of them separate consideration. So there are, in fact, four separate trials taking place before you. You must separately consider the evidence admitted in relation to each defendant and determine your verdicts based upon that evidence admissible against them. In respect of each charge, each defendant is entitled to have the case decided on the evidence and on the law that applies to him and as it relates to each particular charge. I have already told you that the interviews of each of Mr Anau, Mr Banu and Mr Peter are not admissible against anyone other than themselves, and I will remind you of that when I direct you specifically as to each of their cases.”

90. [90]
    Further, when the trial judge was discussing Mr Ingui’s case with the jury, she referred to his argument that he was not present at the cane field and said:

“It is for you to determine as a matter of fact whether you are satisfied beyond reasonable doubt on the evidence of [the complainant] that Mr Ingui was present at the cane field and was one of the men involved. You cannot have regard to anything that Mr Peter said to police about Mr Ingui’s involvement. What Mr Peter said is not admissible against Mr Ingui. So in considering the case against Mr Ingui and whether the Prosecution has proved beyond reasonable doubt that he was present, you must ignore everything that Mr Peter said. So, too, the interviews of Mr Banu and Mr Anau are not admissible against Mr Ingui. So you should ignore everything said in all of those interviews when you come to consider whether the Prosecution has proved the guilt of Mr Ingui beyond reasonable doubt.”

91. [91]
    Where several accused are charged with committing a crime together, prima facie there should be a joint trial.^[6]  Counsel for Mr Ingui contended that there was a real possibility of significant prejudice to his client, which could not be dispelled by judicial direction, because the case against Mr Ingui would be impermissibly strengthened by the evidence led against Mr Peter.
92. [92]
    It may be accepted that the evidence in Mr Peter’s police statement, if misused, contrary to the trial judge’s directions, strengthened the case against Mr Ingui.  In R v Aboud; R v Stanley^[7] this Court spoke of separate trials being ordered where there is “a real risk that the weaker prosecution case will be made immeasurably stronger by reason of prejudicial material in the case of the other accused and where the degree of prejudice from evidence admissible only in the case of one accused to the case of the other is so great as to make it unfair to try the accused together”.
93. [93]
    I am not convinced that the information in Mr Peter’s statement to police made the case against Mr Ingui “immeasurably stronger”.  Secondly, I do not think that Mr Ingui’s case can be described as a weaker case, and Mr Peter’s case as a stronger case.  I think the evidence in each rose or fell according to similar considerations, largely whether the jury accepted the complainant’s evidence.  If anything, Mr Peter’s case was weaker because he admitted that he was in the car and went to the cane field.  In fact what counsel for Mr Ingui complains of is not a disparity between a weak case and a strong case being tried together, but the fact that Mr Peter, in his account to police, provided a statement which (if misused) might tend to inculpate Mr Ingui.  This means that it is not the principle in the above passage from Aboud & Stanley which is to be considered, but another principle, dealt with in Swan (amongst many cases):

“… the risk of inconsistent verdicts, is particularly significant where each accused seeks to blame the other. The risk of prejudice from inadmissible evidence ‘must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused’.” – [39].

94. [94]
    This is not quite a case where each accused sought to blame the other.  Mr Ingui said nothing which would tend to inculpate Mr Peter, but Mr Peter sought to inculpate Mr Ingui when he spoke to the police.  Nonetheless, what the passage from Swan shows is that this case falls within that class of cases where accused persons who make accusations against each other are tried together, and the risk of prejudice from inadmissible evidence is obviated by careful directions to the jury, to use the language of Holmes JA in Swan.
95. [95]
    In my view, the directions given by the trial judge were clear and precise.  They were given generally, and then specifically repeated in relation to the case against Mr Ingui.  They did not require the jury to perform difficult feats of logic or engage in hypothetical reasoning.  They required the jury not to have regard to what Mr Peter said in his police statement when considering the case against Mr Ingui.  There is no reason to think that the jury did not obey the judge’s direction.