R v Trott[2023] QCA 107

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  On 3 February 2021, the appellant was convicted after trial by jury of one count of rape, contrary to s 349 of the Criminal Code (Qld).
2. [2]
   The appellant now appeals against his conviction of the rape offence on the following ground:^[1]

“A miscarriage of justice was occasioned by the learned trial judge’s directions to the jury regarding the use they could make of ‘sexual interest’ evidence.”

The relevant “sexual interest” evidence concerned misconduct by the appellant in persistently making telephone calls to the complainant and taking intimate images of the sleeping complainant without her consent.

3. [3]
   As the notice of appeal was not filed until 7 November 2022, the appellant requires an extension of time in which to appeal.  There is no adequate explanation for the delay.  The appellant’s counsel accepts that the question of whether an extension of time should be granted turns on whether the extension is required to avoid a miscarriage of justice.^[2]
4. [4]
   For the following reasons, the trial judge’s direction as to the use which the jury could make of the relevant evidence did not give rise to a miscarriage of justice.  An extension of time in which to appeal should be refused.

Prosecution case at trial

5. [5]
   The prosecution case was that the appellant penetrated the complainant’s vagina with his finger without her consent early in the morning of 22 May 2019.  At that time, the complainant was asleep in the appellant’s bed, having been vomiting and unwell some hours before.  The complainant was awoken by the appellant placing her hand on his penis.  She pulled her hand away and told the appellant to stop.  The appellant did not stop and went on to penetrate the complainant’s vagina with his finger without her consent.  The complainant froze for some time before managing to push the appellant off and get up.

Defence case at trial

6. [6]
   Defence counsel did not make an opening statement.  It was apparent from his closing submissions that the appellant did not contest that he penetrated the complainant’s vagina with his fingers.  The defence case was that this sexual penetration occurred at the complainant’s instigation and with her consent.

Accounts of events given at trial

7. [7]
   Two competing accounts of the events of the night of the alleged rape offence were before the jury.  One was constituted by the complainant’s evidence.  The other was contained in the appellant’s record of interview with police, which was played to the jury.  A central issue for the jury was whether they positively rejected the appellant’s account of events and accepted the complainant’s account to be credible and reliable.
8. [8]
   The prosecution also relied on evidence of recent complaint as showing consistency of conduct and evidence of what the prosecution contended was a partial admission made by the appellant to a friend in a telephone call.^[3]  However, the primary objective evidence on which the prosecution relied as being inconsistent with the appellant’s account and tending to support the complainant’s account was the evidence of phone calls and photographs discussed below at [37] ‑ [40].
9. [9]
   It is convenient, therefore, to initially focus on the competing accounts of events given by the complainant and the appellant before turning to the evidence of the appellant’s phone calls to, and photographs of, the complainant.

Complainant’s evidence

10. [10]
    The following is a summary of the complainant’s evidence given at trial.
11. [11]
    The complainant was 20 years old at the date of the alleged offending.  She met the appellant on 5 May 2019 at the house of her friend, M.  He showed up later in the afternoon when the complainant and M were having a few drinks together.^[4]  The three of them ended up going to the Bank Nightclub and then later to the Mad Cow and Flinders HQ.  The complainant said:^[5]

“I wasn’t very comfortable that night.  He kept following me around, slapping me on the bottom.  There was a point where I was up in the smoking area of Mad Cow and I was sitting on a chair, and he pulled my chair closer to him and put his arm around me, and I had another girl come up and ask if I was okay.”

12. [12]
    The complainant kept telling the appellant to stop touching her.  He was “just laughing and smiling”.  At one point, the complainant had M follow her into the bathroom where she told M what was happening and tried to leave.  During the evening, M called the complainant from the appellant’s phone.  The complainant went home that night with another friend rather than M and the appellant.^[6]
13. [13]
    After that night, the complainant received “a lot” of phone calls from the appellant.  She told him to stop calling her, to leave her alone and that she would call police if he continued to contact her.  On one occasion, she saw the appellant when she was out in town.  He was wearing a cowboy hat and followed her around.  At one point on this occasion, the appellant came up to the complainant and stood up over her.  She felt threatened and ended up hitting him in the chest screaming, “Fuck off”.  The appellant “smacked at” the complainant, said, “That’s assault.  I’m going to the police”.  The appellant then walked across the road to “the police side on Flinders Street”.^[7]
14. [14]
    On the evening of 21 May 2019, the complainant was at Mad Cow with her friend, Y.  She spoke briefly to the appellant.  The complainant had a lot to drink that night.  The complainant and Y decided to go home at a time when Y was really upset.  The appellant followed them as they left.  Y told the appellant, “You can go now, we’re okay”.  The complainant and Y walked to the complainant’s car, with the appellant still following them.  When they arrived at the car, the complainant lay on the ground, trying to make the appellant think she was too drunk to drive so he would leave them alone.^[8]
15. [15]
    The complainant got into the driver’s side of her car, and Y got into the passenger side.  The appellant climbed into the back of the car behind Y.  The complainant dropped Y about two houses away from where she lived, and the appellant climbed over into the passenger seat.  The complainant thought she would drop the appellant home because he lived around the corner from her.^[9]
16. [16]
    When they got to the appellant’s house, the appellant said, “You know what, drink water.  You’ll be right”.  The complainant walked into the appellant’s house and felt ill.  She was sitting in the shower throwing up.  The appellant came into the shower.  He said that he had boardshorts on so she would feel more comfortable and that, if he was not there, she would choke on her own vomit.  The complainant said, “Don’t touch me, leave me alone”.  The complainant remembered being in the appellant’s bedroom and him helping her to put a black hoodie on.  She went to sleep in the appellant’s bed wearing the hoodie and her underwear.^[10]
17. [17]
    The complainant gave the following account of the offending:^[11]

“I remember waking up.  I wasn’t quite sure where I was, and [the appellant] was grabbing my hand a few times and placing it around his penis. … After a few times, I said, ‘No, stop’, and that’s when he grabbed my hand more forcefully and actually wrapped it around his penis that time, and he half-rolled over onto me and started kissing my neck and trying to kiss me on the mouth.  And at this point, he had pulled my underwear down and was putting his fingers inside me, and I remember it hurting.  It was like a sharp pain.  And I couldn’t move.

… [H]e pulled my underwear down from the top and he put his fingers inside me, and it was a sharp stabbing pain.  I remember thinking, like, screaming in my head to just move, do something.  And I tried to move up the bed away from him, and that’s when he rolled on top of me and started kissing my neck and trying to kiss me on the mouth, and he kept repeating, ‘Oh, God, oh, God’, over and over again.  And I was able to say, ‘Stop’, finally, and I was able to push him off of me and I grabbed my things and went downstairs.  I couldn’t figure out how to unlock the front door, so he came down and unlocked the door for me, and then he said that he’ll call me later.”

18. [18]
    The complainant explained that, when she said the appellant put his fingers “inside her”, she meant that he put his fingers inside her vagina for about 10 seconds.  She did not consent to the appellant penetrating her vagina and said “Stop”.  He did not stop, and she had to “push him off” to stop him.^[12]
19. [19]
    The complainant said that, following the incident, the appellant called her “quite a few times”.  She would either not answer the call, answer but put her phone on mute and walk away, or tell the appellant to leave her alone.^[13]
20. [20]
    In cross-examination, the complainant said that, before getting into the shower, she asked the appellant to help her take her dress off because it was tight.  She accepted that she told police that she asked the appellant to help her have a shower because it would make her feel better.  She agreed that it was after this that the appellant led her to the shower and helped undress her.^[14]
21. [21]
    The appellant’s trial counsel put the appellant’s case to the complainant in the following terms:^[15]

“I put to you this: when you were in [the appellant’s] bed, you took him by the hand and rubbed his hand across your breasts?---No, I did not.

You pushed his hand down over your vagina and got his fingers into your own vagina, didn’t you?---No.

Didn’t you try to get him to do that to you on several occasions that morning - - -?---No.

- - - on the 22^nd?---No.

I put it to you that you did?---No.  I don’t think about him like that.  I would never want that.  No.

I put it to you that you did?---I did not.

That morning you, in fact, kissed him, didn’t you?---No.

And at no time in that morning whilst you were in bed with him, did you tell him to stop touching you, did you?---I told him to stop touching me.

Well, I put it to you did not?---I did.”

Appellant’s account to police

22. [22]
    The following is a summary of the account of events given by the appellant in his record of interview with police.
23. [23]
    The appellant met the complainant when he went for a drink at M’s house, after which they went out to nightclubs.  The appellant described himself and M losing the complainant.  He went home with M and repeatedly called the complainant to find out where she was.  The next day, the appellant and M spoke of pursuing a relationship.  The appellant was calling the complainant because M told the appellant to call the complainant to “sort things out”.^[16]
24. [24]
    The appellant saw the complainant again when he was at nightclubs with friends, including a girl called Sam, on 21 May 2019.  At about 2.30 am, the appellant saw the complainant on a rail near the nightclubs.  She waved him over and he spoke with the complainant, as well as his friend, Sam, and a mutual acquaintance, Brad.  The complainant told the appellant that they were “all good” and shook his hand.  They went back into the club.  The complainant danced with a “tall looking guy”.  The appellant did not care as he was “just doing his own thing”, talking to Sam and Brad and having a drink.  Sam ended up going home with Brad, which “pissed [the complainant] off a little bit” as the complainant said that she wanted to sleep with Brad.^[17]
25. [25]
    As the club was closing at about 3 am, the appellant waited outside, “finding out what everyone’s doing”.  The complainant came “flying out” of the club and hid behind the appellant, indicating that she wanted to be protected from the “tall guy” she had been dancing with.  The appellant started to walk, and the complainant hugged his side.^[18]
26. [26]
    The appellant and the complainant then walked with Y to the complainant’s car.  The complainant said she was going to drive home but, when they got to her car, she was laying on the ground being “immature” and “weird”.  The appellant suggested calling a cab, but the complainant was adamant that she was driving.  After “about fifty minutes of dicking around”, the complainant unlocked her car including a door for the appellant.^[19]
27. [27]
    The appellant described them dropping Y at her home, and then speaking with the complainant in a park near her home for 5 - 10 minutes.  The complainant asked if she could come into the appellant’s house for a drink of water, and the appellant agreed.  She drove to the appellant’s house and came straight in.  This was at about 4.45 - 5.15 am.^[20]
28. [28]
    The appellant and complainant walked to the appellant’s room where she laid down, half passed out, on the bed.  The appellant got the complainant a drink of water, and the complainant said that she felt sick.  The appellant got a bucket and put it by the bed, so the complainant had something to throw up into.  The complainant went to the toilet and vomited, and then asked where the shower was.  The appellant showed the complainant to the shower and, at her request, assisted her to undress.  The complainant asked the appellant to come into the shower with her.  The appellant agreed, concerned that she was throwing up so much she would choke on her own vomit.  The appellant went to his bedroom and changed out of his jeans into board shorts so that the complainant “didn’t get the wrong idea or feel uncomfortable”.^[21]
29. [29]
    The appellant described staying in the shower with the complainant for about 1 ‑ 1.5 hours, the bathroom flooding, the complainant having a panic attack and the appellant’s housemate, Ms Cottier, being annoyed at the mess and the use of all the hot water.  He described getting the complainant out of the shower, drying her and assisting the complainant to get dressed in her underwear and one of his jackets.  The complainant got into bed, and they fell asleep while watching Netflix.^[22]
30. [30]
    The appellant then described waking up to find the complainant touching him:^[23]

“And I can feel her grabbin’ me, grab, like she’s fuckin’ touchin’ my leg, grabbin’ me dick, fuckin’ ah, just all over me.  I didn’t do anything, like fuck this, like I’ve never taken advantage of anyone drunk, I never will[.]”

31. [31]
    The appellant said that the complainant grabbed his penis from outside his shorts.  He said:^[24]

“And then that’s woke me up, and then I’ve gone nuh, and then I’ve gone to crawl over her to get out of bed, to get to the bathroom because I better go check on the housemates and check on this bathroom as well, ‘cause it is a shit show and I did leave it pretty much half done.”

32. [32]
    The appellant said that, as he was crawling over the top of the complainant to get out of bed, she grabbed him and held him down, half trapping him with her legs.  The appellant said that “I was like nuh fuck” and he got off, went to clean the bathroom and “copped a growling” from Ms Cottier.  After cleaning up and getting a drink of water, the appellant went back to the bed at about 7 am to try to get some sleep.^[25]  The appellant said:^[26]

“I’m tryna’ sleep and she’s just tryna’ make moves on me, she’s rolling around doing all types of weird shit, like just flippin’ and rolling in her sleep, throwin’ her fuckin’ legs around.

…

[T]hat went on for about, probably what, a few hours.  A few times she tried, you know, movin’ my hand around too, she’s grabbed my hand and … she moved it on her breasts and she moved it down her body.

…

I pulled my hand away a few times and she kept doing it.  Then um, yeah, you know, that shit was just going on and if it wasn’t that, she was tryna’ chuck her hand down my pants, and that’s in between like every, like every fifteen minutes to half an hour usually.”

33. [33]
    At about 9 am, the appellant moved to the edge of the bed and the complainant grabbed his penis.^[27]  The appellant said:^[28]

“Now I got nowhere to go, and this time I felt it go under my pants.  And I couldn’t roll over or anything so I just lay there and had to deal with it, I was just too tired and fucked, I’m like fuck this, just go away.”

The appellant said that the complainant was also holding his hand a few times, which he found “a bit odd”.

34. [34]
    The appellant said:^[29]

“I woke up half to this, ‘cause I’m just all over the shop, tryna’ sleep.  She’s moved my hand and then she’s put it under her pants, her underwear, and then I’ve gone to move my hand away because I felt something um, I would say I could feel moisture on my fingers, so I knew what it was.  I’m like, okay fuck this, and I tried to move my hand and she hold my hand there.  So she’s held my hand there, I couldn’t move my hand[.]”

35. [35]
    The appellant said that his hand was under the complainant’s underwear on top of her vagina.  He could not move his hand and felt the complainant push his ring finger and middle finger into her vagina.  They then started kissing and the complainant was “grinding all over” the appellant’s fingers.  The complainant was “getting off on that” and he was moving his fingers too.  The complainant grabbed the appellant, pulled him over the top of her and had her hands all over his body.  He then pulled his fingers out and “that was it”.  The complainant got up and the appellant was “pretty sure she got the shits she got turned down”.^[30]
36. [36]
    The appellant then described the complainant getting dressed and leaving his house.

Evidence of other misconduct

37. [37]
    At trial, the prosecution relied on evidence of two kinds of misconduct by the appellant as supporting its case on the rape charge.
38. [38]
    First, Senior Constable Jasmine McCabe gave evidence of the following number of calls being made from the appellant’s phone to the complainant’s phone between 5 May 2019 and 1 June 2019:^[31]

39. [39]
    Secondly, Senior Constable McCabe gave evidence of images found on the appellant’s phone of the complainant asleep in his bed, which were taken on the night of the alleged offence.  The photographs showed the complainant’s breasts and vagina having been exposed.^[32]  The complainant gave unchallenged evidence that she did not recall the photographs being taken and did not consent to them being taken.^[33]
40. [40]
    The appellant’s trial counsel did not challenge the evidence of the number of phone calls made from the appellant to the complainant or the fact that the appellant took the photographs of the complainant as she slept.  In the absence of the jury, the appellant had pleaded guilty to the offences of unlawfully stalking the complainant with the threat of violence (in relation to the persistent phone calls) and visually recording the complainant’s genital region without her consent (in relation to the photographs).

Closing addresses

41. [41]
    The prosecutor’s submissions as to the use that could be made of what he referred to as the appellant’s “desire” were expressed in the following terms:^[34]

“From the very first night the [appellant] met [the complainant], you might think he desired her.  Despite only having met her the night before, he called her 30 times the next day.  You might think that desire then evolved into an obsession with her.  Consider that in the context of 203 calls over a matter of weeks.  You might think he pursued her, and continually called her, despite her rebuffing him.

Now, he would have you believe that [the complainant] came onto him, but ask yourselves, does that actually make sense?  Does it stack up?  Now, common sense is something each and every one of you bring into your role as jurors.  It’s your everyday experience; that’s why we have the jury system.  Ask yourselves, whether that makes sense.  She left him at the club the first night they met.  She told him to stop calling her.  She told him to, ‘Leave me alone, I’m going to the police if you continue to contact me.’

As I said before, she even went so far as to punch him on the 10^th of May.  So against that background, ask yourselves whether the [appellant’s] account, that she came onto him, makes sense.  Does it make sense, in his words, that she would, ‘get the shits she got turned down’, of course it doesn’t.  It doesn’t make sense, because that’s not what happened.  What does make sense is that the [appellant] was presented with an opportunity.  The girl he desired so much, who had rebuffed him, was in his bed.

She was drunk, and asleep.  He took that opportunity, the Crown says, by inserting his finger into her vagina, without her consent.  Now, the Crown says he had that sexual desire – or sexual interest for her – and it manifested itself in those photographs that you’ve seen.  I’m not going to show you them again, but you’ll have them with you in the jury room.  That the [appellant] took those photographs at that time wasn’t challenged, and those photographs demonstrate a sexual desire – or interest – in her.  They also demonstrate a willingness, by him, to act on that sexual interest – or desire – and the Crown says the [appellant] continued to seek to fulfill that desire, when the opportunity presented itself, by penetrating her vagina with his finger.”

42. [42]
    The appellant’s trial counsel submitted:^[35]

“And my learned friend relied quite heavily on what he described as sexual interest by my client in relation to [the complainant].  Well, he may have had.  That doesn’t mean he did it [indistinct] it doesn’t mean he’s guilty of rape.  Just ask yourself the question, you know, most husbands, particularly when you were younger, have a sexual interest in their wife, but they don’t go around raping them.”

The challenged direction

43. [43]
    The appellant challenges the following directions given by the trial judge:^[36]

“Now, members of the jury, the [appellant], of course, is charged with the count of rape which this trial relates to.  The prosecution has also led evidence of other conduct by the [appellant] which has been led for a particular purpose in that the prosecution relies upon it as also pointing to the [appellant’s] guilt.  Now, this evidence, members of the jury, relates to the phone calls as well as the what I will describe as the explicit images.  … [Y]ou will recall, members of the jury, that evidence was given that from the [appellant’s] phone or from some sort of cloud storage system, that there were the images the complainant, the first one showing what appears to be the complainant asleep.  And she identified that as her being asleep in the [appellant’s] bed.  There were then a series of photos which captured the complainant’s naked breasts and then there were photos which the complainant identified as photographs of her vagina.

And the complainant’s evidence in respect of those, members of the jury, is that she wasn’t aware those photos were being taken.  She could identify as having been taken in the [appellant’s] bed because of the bed sheeting and that she was asleep at the time that those photographs were taken.  So it’s a combination of the telephone records and you heard submissions about those this morning from [the prosecutor], the large volume of phone calls, in some cases a hundred plus on any given day leading up to the 22^nd of May 2019 when the offending is alleged to have occurred.  And the subsequent large volume of telephone calls made from the [appellant’s] phone to the complainant’s phone.  That is part of the evidence which the prosecution rely upon for a particular purpose for which I’m now giving you directions about.

The prosecution relies upon this body of evidence, again, the phone calls and the explicit images of the complainant to prove that the [appellant] was, first of all, obsessed with the complainant and that, because of his obsession as borne out, again, by the large number of phone calls prior to the 22^nd of May 2019, which he had made to the complainant’s phone, that that obsession evolved into a sexual interest in her.  Which the prosecution says is proved by the intimate images, which he, again, took of the complainants’ breasts and vagina in circumstances which the complainant gave evidence that she was asleep when they were taken.  So the prosecution relies upon the images as demonstrating what was this evolving or what had evolved from an obsession into a sexual interest which the [appellant] formed towards the complainant.  Which he was prepared to act upon, the prosecution say.  And so the prosecution argues that the evidence makes it more likely that the [appellant] committed the offence he is charged with.

You can only use this other evidence if you are satisfied beyond a reasonable doubt that the [appellant] did the act as the evidence suggests.  And, again, there’s no controversy, there’s no dispute as to what the telephone records indicate as to the volume of telephone calls that were made.  There’s been no challenge to the photographs forming exhibit 2 having been located on the [appellant’s] phone.  But, nevertheless, in order to use that evidence, you must first of all be satisfied that the [appellant] engaged in that conduct, as the evidence suggests, and that the conduct demonstrates that he was obsessed with the complainant which evolved into a sexual interest in the complainant, which he was willing to pursue.  If you are not satisfied of these things, beyond a reasonable doubt, then that may affect your assessment of the complainant’s evidence about the act which is the subject of the offence for which the [appellant] is charged.

If you do not accept that this evidence proves to your satisfaction that the [appellant] had a sexual interest in the complainant, you must not use the evidence in some other way to find the [appellant] is guilty of the offence with which he is charged.  And if you are satisfied that one or more of these other acts did occur, as the telephone calls, the taking of the explicit images.  And if you are satisfied that by engaging in that conduct, the [appellant] demonstrated a sexual interest in the complainant, it does not follow that the [appellant] is guilty of the offence which he is charged.  You cannot infer only from the fact that this other conduct occurred that the [appellant] did the things which he is charged.  You must still decide whether, having regard to the whole of the evidence, the offence charged has been proved to your satisfaction beyond reasonable doubt.”

44. [44]
    In directing the jury as to the elements of the offence, the trial judge explained that the appellant did not dispute that the alleged penetration of the complainant’s vagina occurred.  The judge explained that the element of consent was the only live issue in the trial.^[37]

Appellant’s submissions

45. [45]
    The appellant submits that the sole issue at trial was whether the complainant had consented to the act of digital penetration.  The penetration itself was not in dispute and this was made clear to the jury.
46. [46]
    The appellant says that evidence of a sexual interest of the appellant towards the complainant could not rationally affect the jury’s determination of this issue in the context of this case, yet they were directed that the prosecution relied on the evidence as making it more likely that the appellant committed the charged offence.  In that context, the appellant submits that the trial judge’s directions about the use which the jury could make of “sexual interest” evidence occasioned a miscarriage of justice.  This is on the basis that that direction invited the jury to reason that a sexual interest in the complainant could not only make it more likely that the appellant would act on that sexual interest but could also make it more likely that he would have done so without the complainant’s consent.
47. [47]
    In oral submissions on the appeal, counsel for the appellant submitted that a direction was required to warn the jury against the impermissible use of evidence of the appellant’s sexual interest in the complainant as making it more likely that he acted on that interest regardless of the complainant’s consent or otherwise.

Admissibility of the evidence

48. [48]
    There was no challenge at trial or on appeal to the admissibility of the evidence of the phone calls and photographs.  The appellant’s appeal counsel accepted, correctly, that the evidence of the phone calls and photographs could be relied upon by the jury as a basis for positively rejecting the appellant’s account of events.  Counsel also accepted that the evidence tended to support the complainant’s account of being pestered and pursued by the appellant prior to the offending.
49. [49]
    The critical question in the present case was whether the evidence of the phone calls and photographs could be used to show that it was more likely that the appellant digitally penetrated the complainant’s vagina without her consent.
50. [50]
    Subject to presently immaterial qualifications, common law rules of evidence govern the admissibility of evidence which discloses the commission of offences other than the charged offence.^[38]  Evidence of this kind was broadly referred to in Pfennig v The Queen as “propensity evidence”.^[39]
51. [51]
    Such “propensity” evidence is not admissible if it shows only that the accused has a propensity or disposition to commit a crime or that he or she was the sort of person likely to commit the charged offence.  However, it may be admissible if it tends to show that the accused is guilty of the offence charged for some reason other than that he or she has committed crimes in the past or has a criminal disposition.  In order to be admissible, propensity evidence must possess a strong degree of probative force which must clearly transcend the prejudicial effect of mere criminality or propensity.  For propensity evidence to be admissible, the objective improbability of it having some innocent explanation must be such that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged.^[40]
52. [52]
    In R v McNeish,^[41] the majority (Sofronoff P and Henry J) cautioned against drawing up a closed list of the sorts of cases in which the principles applied in Pfennig operate.  They recognised that labels and definitive descriptions, while useful, are neither comprehensive nor restrictive.  Their Honours observed that propensity evidence may be led for a number of purposes including, but not limited to the following purposes:^[42]

2. “1.To remove the implausibility that might otherwise be attributed to the complainant’s account of the offence if the offending were thought to be an isolated incident; (sometimes called ‘relationship evidence’).
3. 2.To demonstrate the sexual attraction felt by the accused so as to show a motive to commit the offence; (‘motivation evidence’ and sometimes also called ‘relationship evidence’).
4. 3.To demonstrate that the accused not only had a motive to commit the offence but that he was a person who was prepared to act on his motivation to commit the charged offence because he had committed similar offences against the complainant or others previously; (sometimes called ‘tendency’ or ‘propensity’ evidence).
5. 4.To identify the offender, as in Pfennig itself.”

(citations omitted).

53. [53]
    Sofronoff P and Henry J held that the Pfennig test must be satisfied whatever the purpose of leading the propensity evidence.  A relevant question to be asked when applying that test is whether there is a rational view of the evidence that is consistent with the innocence of the accused.^[43]  This does not require the judge to conclude that the propensity evidence standing alone would demonstrate the accused’s guilt of the charged offence.  However, propensity evidence must be excluded if, assuming it is true and that the prosecution case may be accepted by the jury, there is a reasonable view of the propensity evidence, considered in the context of the prosecution case, which is consistent with the accused’s innocence of the charge.^[44]
54. [54]
    In McNeish, the majority also recognised that the Pfennig test will usually, if not invariably, be satisfied in relation to evidence of uncharged sexual offences against a single complainant.  Their Honours regarded the reasoning in R v Bauer,^[45] under statutory propensity provisions in Victoria, to apply to the common law test despite the higher threshold of the common law test.^[46]

Use of the propensity evidence to prove absence of consent

55. [55]
    The appellant’s central submission is that the fact that an adult has a sexual attraction to another adult on which he or she is prepared to act does not make it more likely that that person acted without the other person’s consent.  The appellant also says, in effect, that a propensity or tendency of an accused does not make it more likely that a complainant had a certain state of mind at the relevant time.  These statements may be accepted as general propositions.  However, general propositions stated in these abstract terms may be of limited assistance in determining the permissible use of evidence of sexual interest in the circumstances of a particular case.
56. [56]
    To say that the only element in issue at trial was whether the complainant did not consent to the appellant sexually penetrating her vagina as charged is strictly correct but requires elaboration.  While there was no contest that the appellant penetrated the complainant’s vagina with his fingers while she was in his bed, the manner and circumstances in which that penetration occurred was contested.
57. [57]
    On the complainant’s version of events, the appellant forced his fingers into her vagina after she has said, “No, stop” multiple times, and rolled on top of her as she tried to move away from him.  She was either unable to move or offer physical resistance to the sexual penetration and told him to stop.  On the complainant’s account, her conduct plainly demonstrated that she was not consenting to the appellant digitally penetrating her vagina.
58. [58]
    On the appellant’s account, the complainant was the instigator of the sexual activity, which he had no interest in engaging with her.  She forced his fingers into her vagina and, to the extent that he voluntarily participated in sexual activity, it was a reluctant participation.  On the appellant’s account, there was no room for doubt that the complainant was consenting to the sexual penetration.
59. [59]
    Neither account suggested that the appellant might have held an honest and reasonable but mistaken belief that the complainant was consenting to the charged sexual penetration.
60. [60]
    Therefore, while the only contested element of the offence was absence of consent, determining whether the Crown had proved absence of consent in the present case required the jury to make findings as to the circumstances of the sexual penetration.  To find the appellant guilty of rape in the circumstances of this case, the jury were required to accept the complainant’s account of the circumstances of the sexual penetration beyond reasonable doubt, and positively reject the appellant’s account of the event.  If the jury believed the appellant’s account of the circumstances of the charged sexual penetration, or thought that his account might be true, then they were required to find him not guilty of rape.  The jury were given a Liberato^[47] direction to that effect.^[48]
61. [61]
    Evidence of sexual interest demonstrated by the appellant’s persistent phone calls to the complainant, and his taking intimate images of the complainant while she slept, was inconsistent with the appellant’s account to police.  It showed that, contrary to his account, he did have a sexual interest in the complainant, he had pursued her with persistent phone calls, and he had acted on that interest by taking intimate pictures of the sleeping complainant without her consent, just prior to the sexual penetration.  The objective evidence of the large number of phone calls and the photographs taken by the appellant on the night of the alleged offence provided a basis on which the jury might not accept the appellant’s account to police and conclude that there was no reasonable possibility that the appellant’s account might be true.
62. [62]
    The evidence of sexual interest also supported the complainant’s account of the appellant pursuing her prior to the sexual penetration.  The evidence of the photographs supported the inference that the appellant manipulated the sleeping complainant’s clothing to expose and photograph her breasts and vagina.  The fact that the appellant was prepared to do that without the complainant’s consent while she slept made it more likely that the complainant’s account of waking to find the appellant having placed her hand on his penis was true.
63. [63]
    The appellant’s sexual interest in the complainant evidenced by the persistent phone calls and photographs was circumstantial evidence that provided a basis for positively rejecting the appellant’s account of events on the night of the charged offence and which tended to support the complainant’s account.  In that way, the evidence made it more likely that the appellant committed the charged offence by penetrating her vagina with his fingers without her consent.
64. [64]
    Further, the evidence that the appellant took intimate photographs of the complainant as she slept, without her consent, demonstrated the appellant’s willingness to deal with the complainant’s body in a sexual manner without her consent.  The conduct concerned was directed specifically to the complainant and occurred shortly before the charged rape offence.  While the appellant did not formally admit his conduct in taking the photographs before the jury, there was no challenge at trial to the evidence that he had engaged in that conduct.
65. [65]
    The evidence of the appellant becoming fixated on the complainant, as demonstrated by his persistent phone calls, and the appellant acting on his sexual interest by taking intimate photographs of the sleeping complainant without her consent, had a very strong degree of probative force.  If that evidence was accepted then, considered in the context of the prosecution case as a whole, there was no reasonable view of the propensity evidence which was consistent with the appellant’s innocence of the charged rape offence.
66. [66]
    That probative value of the evidence is of sufficient force to overcome its prejudicial effect, constituted by the risk that the jury might use the evidence for an impermissible purpose.^[49]  For the reasons explained above, it was not an impermissible use for the jury to reason that the evidence made it more likely that the appellant penetrated the complainant’s vagina with his fingers without her consent.  The character of the evidence, concerning specific conduct directed towards the complainant at a time proximate to the offence, is not such as to invite some other form of propensity reasoning which would be impermissible.

The trial judge’s direction

67. [67]
    Where evidence which may show propensity is admitted, it is generally necessary for the trial judge to give a clear direction about the uses to which the evidence may, and may not, be put.^[50]
68. [68]
    The use of that evidence contemplated by the prosecutor’s submissions and the trial judge’s directions was to raise the inference that the appellant had an obsession with the complainant, which developed into a sexual interest that he acted on by taking intimate images of the complainant while she was asleep.  That was contended to make it “more likely that the [appellant] committed the offence he is charged with”.  The jury were directed that they “must not use the evidence in some other way to find the [appellant] is guilty of the offence with which he is charged”.
69. [69]
    The submission of counsel for the appellant, that the direction invited the jury to draw an inference from the evidence of the number of phone calls independently of the evidence of the photographs, cannot be accepted.  The direction made clear that it was the combination of the evidence of the telephone calls and the photographs which the prosecution relied on to support the inference it invited the jury to draw.
70. [70]
    For the reasons explained above, it was permissible to regard the evidence of the phone calls and photographs as making it more likely that the appellant committed the charged offence.
71. [71]
    As noted above at [47], the only “impermissible use” that the appellant submitted a direction was required to guard against was the use of evidence of the appellant’s sexual interest in the complainant as making it more likely that he acted on that interest regardless of the complainant’s consent or otherwise.  However, the jury were not invited to reason that mere sexual interest made it more likely that a person would act on that interest regardless of consent.  To have done so would have involved using the evidence in “some other way” than was contended for by the prosecutor’s submissions, which would have been contrary to the trial judge’s direction.  The nature of the evidence was not such as to naturally suggest to the jury that the mere existence of a sexual interest in the complainant made it more likely that the appellant committed the charged offence.
72. [72]
    The last paragraph of the trial judge’s direction set out at [43] above was adequate to guard against the perceptible risk that the jury might use the evidence in a logically irrational manner.  The judge directed that guilt of the charged offence did not automatically follow from a finding of the conduct, in making the phone calls and taking the photographs, demonstrating sexual interest in the complainant.  The judge emphasised that the jury had to decide whether, having regard to the whole of the evidence, the prosecution had proved the rape offence.  The jury were told that the use that the Crown sought to make of the evidence was the only way in which the evidence could be used.  In the circumstances of this case, this direction sufficiently guarded against the risk that the jury might use the evidence for some impermissible purpose.  The fact that trial counsel, immersed in the atmosphere of the trial, did not complain of the direction that was given tends to reinforce that conclusion.
73. [73]
    Therefore, the trial judge’s direction did not give rise to any miscarriage of justice in the particular circumstances of this case.  The sole ground of appeal is not established.  It is unnecessary to consider the respondent’s submission as to the application of the “proviso” in the event miscarriage was established.  Given the length of the delay in instituting the appeal, the lack of any adequate explanation for that delay and the lack of merit in the appeal, the application for an extension of time in which to appeal should be dismissed.