R v Kynuna[2023] QCA 112

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Morrison JA.

2. [2]
   MORRISON JA:  This appeal concerns events which occurred on 4 June 2020.  The appellant and the complainant knew each other.  The complainant had worked in reception and as a support worker in a lodge where the appellant was a resident.  At first, their relationship was one confined to the workplace, but they subsequently became friends and then had an intimate physical relationship for a period of time.
3. [3]
   The complainant did not wish to continue the relationship, but the appellant pursued her by text messages and face-to-face contact when she was working.  In circumstances that were the subject of considerable dispute at the trial, the complainant, on 4 June 2020, left the workplace in her car with the appellant as a passenger.  At a point remote from the lodge, the appellant had sexual intercourse with the complainant.
4. [4]
   Arising out of those events, the appellant was charged on four counts: three counts of rape,^[1] and one count of attempted rape.^[2]
5. [5]
   The appellant’s case at the trial was that all of the acts constituting Counts 1, 2, and 4 were consensual, and the acts alleged in Count 3 never occurred.
6. [6]
   The appellant was convicted on Count 3, with the jury being unable to return a verdict on Counts 1, 2, and 4.
7. [7]
   The appellant challenges his conviction on several grounds:

   1. (a)
      Ground 1 – a miscarriage of justice occurred because the trial judge failed to discharge the jury after it received inadmissible and/or highly prejudicial evidence;
   2. (b)
      Ground 2 – a miscarriage of justice occurred because the trial judge did not adequately direct the jury on the opinion evidence received by the jury; and
   3. (c)
      Ground 3 – the verdict on ground 3 is unreasonable or cannot be supported having regard to the evidence.

Evidence at the trial

8. [8]
   The principal witness at the trial was the complainant.  Her partner was called to give evidence in respect of the contact he had with the complainant subsequent to the events she described on 4 June 2020.  A co-resident of the lodge was called to give some general evidence as to the interaction between the complainant and the appellant on 4 June 2020.  A forensic nurse examiner gave evidence of what she observed when she examined the complainant.  Finally, two police witnesses were called to give evidence as to scientific examination results concerning the car and items of clothing, as well as DNA results, CCTV footage and other results of the investigation.
9. [9]
   There were formal admissions made in the following terms:

“Admission 1

The [appellant’s] DNA was in/on the following areas of the complainant:

1. a)
   High vagina;

1. b)
   Vulva;

1. c)
   Perianal area; and

1. d)
   Upper chest area.

The [appellant’s] sperm was in the complainant’s high vagina and on her vulva.

The complainant’s DNA was on the following areas of the [appellant]:

1. a)
   Under the fingernails of both hands;

1. b)
   The base of the penis;

1. c)
   The shaft of the penis; and

1. d)
   The glans of the penis.

Admission 2

On 4 June 2020, at 8:11pm, the [appellant] telephone called ‘07 4725 0077’ which is the telephone number for Battery World, Townsville.  The duration of this telephone call was one minute and eleven seconds.”

The complainant’s evidence

10. [10]
    The complainant met the appellant when she was working at the lodge in which he was a resident.  She was working in reception and as a support worker.  Over time, the relationship developed from one confined to the workplace to friendship and then eventually a relationship involving sexual intercourse.  Eventually, she did not want to continue the relationship but the appellant “was pursuing [her] by texting [her] and hanging around outside [her] workplace when [she] was in with a client”.^[3]
11. [11]
    A series of texts between the appellant and the complainant were admitted into evidence.^[4]  The time span of those messages was 18 May 2020 through to 4 June 2020.  A sample of the messages demonstrates the exchanges which the jury could have understood as being friendly or loving up to 23 May 2020, but then diminishing, and even becoming resentful on the appellant’s part.
12. [12]
    The exchange of texts diminishes substantially, particularly from the complainant, from 24 May 2020 until 28 May 2020.  Then, on 28 May 2020, the following exchange occurred:^[5]

13. [13]
    Contact is then minimal until 3 June when the appellant sent the following message to the complainant: “Your a Sly Little two faced Dogg Hey [complainant’s name]”.
14. [14]
    By 29 May, the complainant was making up excuses in text messages to avoid the appellant, and blocked his number a couple of times.^[6]
15. [15]
    As to the events on 4 June 2020, the complainant said she was carrying out a shift from 4 pm with another resident at the lodge.  She took him to buy groceries.  After she had returned, she saw the appellant “kind of sticking his head out of his room and … gesturing for me to come over to him”.^[7]  She described the appellant as having an angry look on his face.  She told him that she could not stop to speak to him and continued with her support shift.
16. [16]
    When she finished her shift, the appellant called her over again a number of times.  She resisted, telling him that she had to go and collect her children.^[8]  She walked a little closer to him, but kept her distance because he looked angry.  When she said she had to go, the appellant grabbed her by the neck, squeezed her neck, and said he was going to rip the middle part of her neck out.^[9]  He moved her into his room and said, “I’m going to kill you.  You don’t ignore me”.^[10]
17. [17]
    Once the complainant was in his room, the appellant positioned himself so that she could not get out.  He was threatening to kill her and “bash [her] up”, and said, “[d]on’t bother screaming.  I’m going to kill you today.  I’ve been planning this”.^[11]  The complainant said she was crying and hyperventilating, and saying that she wanted to go home because she had to get her children.^[12]
18. [18]
    The appellant took her bag, turned off her phone, and told her that they were “going for a drive and that he was going to kill [her]”.  He was saying that over and over.^[13]
19. [19]
    He told her to bring her car around to the side of the lodge and he would meet her there.  She did that, and could see the appellant coming out of the gate holding her bag and walking towards the car.
20. [20]
    The complainant said she considered driving away and wanted to do so, but she was scared.  She stopped the car “hoping he would just give [her her] handbag and then he got into the car”.^[14]
21. [21]
    The complainant said she was pleading for the appellant just to let her go home, but he said that if she started crying too loudly she would be hit.  He directed her where to drive, which she did “really slow”.  She was really scared and thinking about jumping out of the car.  She described her thinking at the time, which was that the appellant was a lot bigger than her and could probably run faster than her, so “there wasn’t much [she] was going to be able to do.  [She] just had to go with him”.^[15]
22. [22]
    The appellant directed the complainant down to an area on a dirt road.  He was “raising his fists and stuff and, like, like grabbing at the wheel”.^[16]
23. [23]
    Once they reached a particular spot at the end of the dirt road, the appellant continued to threaten her, telling her that he had beaten up his girlfriend and she was in hospital on Palm Island.^[17]
24. [24]
    She continued to plead that he let her go.  The appellant told her to take the child seats out of the back seat and then get in the car.  He got in as well, still threatening her.  She was still crying and asking to be let go, so that she could go home to her children.  She described how she felt:^[18]

“I was crying and still asking him to let me go.  I was still saying that I just wanted to go home to my kids.  And he was still yelling at me and still threatening that he was going to beat my face in, that he was going to hurt me.  And I was just, like, I’ve never – I’ve never been, like, scared in my whole life because I actually really thought that he was going to start, like, beating me and he’s a lot bigger than me.  So I didn’t feel like I could get away and I was just kind of trying to think of how I could get through it.  I didn’t think that I was going to be able to go home to my kids.  And I was just – yeah, like, never been that scared in my whole life.  I was so scared when I was sitting there.”

25. [25]
    The appellant told the complainant to “give him head”, and pushed her head down, culminating in his forcing her mouth onto his penis.^[19]
26. [26]
    He told her to get out of the car and take off her pants.  She starting crying more loudly and he responded by saying he would hit her if she kept crying out so loud.^[20]
27. [27]
    She did what he told her to do, all the while crying and saying she wanted to go home.  The appellant told her to get back in the car where he “got on top of [her] and he was starting to put his penis into [her] vagina”.^[21]  He had one of his forearms pushing on her neck which made it hard to breathe.^[22]
28. [28]
    The appellant attempted to put his penis into the complainant’s anus.  She described that in the following terms:^[23]

“And before he ejaculated, did he do anything else whilst he was on top of you?---No.  He also tried to put – in between, he was trying to put his … I could feel him trying to put his penis into my bum as well – into my anus.

Okay?---I could feel that he was trying to push it in there and I have never done anal before and I was trying to, like, squirm away.

And so what could you feel when he was trying to put his penis in your bum?---It was very painful.

All right.  And do you know any other word for ‘bum’? ---Anus.

Thank you.  And how long did he try to put his penis in your anus?---He tried it a couple of times during the thing.  I could feel him trying to do it.

And what could you see at that point?---I could see him on top of me.

All right.  And after he tried to put his penis in your anus, did he do anything after that?---Seems like he kind of gave up and then he would go back to having sex – like, vagina.  He was pushing his penis into … my vagina”.

29. [29]
    After the appellant ejaculated, the complainant used her jumper to wipe herself down.  Then the complainant described the appellant as starting to settle down:^[24]

“I was kind of still asking – I was still asking if I could go home and he was saying – he seemed like he, like, started to, like, settle down and he was, like, ‘Well, nothing happened, did it?  Nothing happened.’  And my phone was off the whole time and I was asking for my phone because I thought, maybe, I could call someone and ask for help.  My phone had been off the entire time.  He had my phone the entire time.  He said that I can’t turn it on for a while because people would be looking for me.”

30. [30]
    The complainant then drove the appellant to a service station because he said he wanted to get a pie.  When she stopped, he said, “[n]othing happened, did it? Nothing happened, did it?”  She replied, “[y]eah, everything’s fine.  Nothing happened”.  She explained she said that because she thought he would get out of the car if she did.^[25]
31. [31]
    The complainant checked her phone once she was able to turn it back on.  She saw a lot of missed calls, including from her partner.  She said she was texting and trying to tell her partner what had happened, and he was confused because, “I didn’t really want to talk on the phone because I didn’t want to talk about it”.  She bought a sixpack of rum cans and parked in a park because she was having a panic attack and did not know what to do.^[26]
32. [32]
    The texts with her partner, commencing at 8.53 pm on 4 June 2020 and continuing until 9.31 that night, were tendered in evidence.^[27]  The texts reveal what she told her partner, including:^[28]

33. [33]
    The complainant eventually met her partner who was then intent on confronting the appellant.  However, as they got closer to the lodge the complainant “started really … freaking out and … screaming at the top of [her] lungs and … hyperventilating because [she] was terrified about going back there”.^[29]  The partner then proposed that they go straight to the hospital, and they did.
34. [34]
    A series of photographs were tendered through the complainant showing various bruises on her body including her arms and legs, left shoulder, neck, and left thigh, as well as scratches on her back and red colouring near her collarbones.  The complainant attributed all of those marks to the appellant grabbing her by the neck, arms, and legs.
35. [35]
    In cross-examination, a number of points were revealed:

    1. (a)
       she had given two statements to police, the first on 5 June 2020 and the second on 16 June 2020; the second one was taken because police had discovered images and text messages on the appellant’s mobile phone revealing the relationship between the complainant and the appellant; she agreed that she had not told the police of her prior sexual relationship with the appellant in the first statement, and explained that was “Because [she] was afraid they wouldn’t believe [her]”;^[30]
    2. (b)
       in the second statement to police, she had confirmed that she had a prior sexual relationship with the appellant; she said she knew they would eventually find that out because she knew that the appellant had texts and images on his phone;
    3. (c)
       police had discovered no messages between the complainant and the appellant on the complainant’s phone; she had deleted them when she blocked the appellant’s number;
    4. (d)
       she also agreed that, when she gave her first statement to police, she lied when she told them she did not know how the appellant got her telephone number; she explained that she was “embarrassed about the relationship and ... didn’t want to tell them that there was a prior relationship”;^[31]
    5. (e)
       she accepted that she had engaged in consensual sex with the appellant once or twice a week for the two months or so that they were in a relationship;^[32]
    6. (f)
       it was put to her that she and the appellant had engaged in sexual intercourse in the car on previous occasions; she denied that;^[33]
    7. (g)
       she agreed she did not tell her current partner about her relationship with the appellant; she explained that she and her current partner were not then officially in a relationship, that she was going through a divorce, and that when she and her partner “first met, the dealings with [the appellant] had already [begun] and [she] wanted to get out of them”;^[34]
    8. (h)
       she explained that, when she drove the car around to collect the appellant, she was afraid to drive away; she explained: “At the time [she] didn’t even think of the police station or anything.  [She] was afraid because [her] life had just been threatened, [she] didn’t ... know what [she] was thinking.”;^[35]
    9. (i)
       it was put to her that at no time did the appellant threaten her, take her by the neck, threaten to rip her neck out, prevent her from leaving the room, or force her to drive anywhere; she disagreed with each proposition;^[36]
    10. (j)
        it was put to her that, by agreement, she and the appellant drove to the place where they had consensual sexual intercourse and that throughout the complainant had her phone; she disagreed with all of those propositions;^[37]
    11. (k)
        it was put to her that the penetration of her mouth and vagina with the appellant’s penis was with consent; she disagreed;^[38]
    12. (l)
        it was put to her that at no time did the appellant attempt to put his penis in her anus; she disagreed with that proposition;^[39]
    13. (m)
        she agreed that, when the car reached the place where it stopped, she had a can of rum and coke; she explained, “I was afraid.  When I’m ... nervous, I drink.  If I’m scared, I drink.  Unfortunately.  … [T]he entire time, I was begging for him to let me go”;^[40]
    14. (n)
        it was put to her that she was the initiator of sexual contact when the car was stopped, kissing the appellant, moving onto his lap in the front passenger seat, and grabbing at his penis; she denied all of those propositions;^[41]
    15. (o)
        it was put to her that “at no point in time did [the appellant] attempt to put his penis in [her] anus”; she denied that, saying that he did;^[42]
    16. (p)
        it was put to her that, after the appellant ejaculated, and after a further period time, she and the appellant moved to behind the back of the car and proceeded to have vaginal intercourse; it was put to her that she was facing the boot of the car and the appellant was having sex with her from behind; she denied all of those propositions;^[43]
    17. (q)
        she agreed that, when she went to drive away, the car would not start and someone came to help start it; she thought that the appellant might have gone to get help in that regard, and thought that she remained at the car;^[44]  she explained that, when the other person came down to assist, she was “trying to calm [herself] down because [she] didn’t want to say anything to him that would make it look like something happened … [she] was hoping he would see how distressed [she] was, and [she] didn’t want to say anything to him because [she] was still scared”;^[45] she said she was still terrified because the appellant was still there and she did not know what he was going to do;^[46]
    18. (r)
        she agreed that she did not mention the issue concerning the car battery when she gave her first statement to police; she said she did not even have that in mind when she was giving the statements and, at that point, did not remember it happening;^[47] and
    19. (s)
        it was put to her that she had invented a false complaint about rape in order to explain things away with her partner; she denied that.^[48]

The partner’s evidence

36. [36]
    The complainant’s partner said he recalled the texts sent to him by the complainant on 4 June 2020.  She was panicking and stressed out, saying she had been kidnapped and “wasn’t really making much sense”.^[49]  When he eventually had a telephone conversation with her, she was saying the same sort of things that she had said in the texts, namely that she had been kidnapped and driven out near the prison.  He regarded his main job was to calm her down.
37. [37]
    He described the complainant’s appearance when he met her that night.  She was “frozen” and “having a panic attack”, “[h]yperventilating, not making much sense, shaking, the usual panic attack”.^[50]
38. [38]
    The complainant told him a lot more when they were in the car including that she had been kidnapped and raped.  She identified the appellant as the person who had raped her.  That caused the partner to seek to confront the appellant.  He commenced driving towards the lodge.  However, the complainant’s panic attack was getting worse; she was kicking the door, trying to get out, and taking her seatbelt off.  He pulled over, and the complainant started screaming and looking up at the sky.  He abandoned his plan of confronting the appellant and, after consulting his mother, took her to the hospital.^[51]
39. [39]
    In cross-examination, the partner said he was aware that the appellant had the complainant’s telephone number but was not aware that she had been in a sexual relationship with the appellant.  He had made assumptions that she was seeing other people but did not know the specifics.  He agreed that he was unaware the complainant and the appellant had sex at the lodge, or that, as late as 28 May 2020, she had sent a text to him which included the words “[l]ove you”.^[52]  When various texts between the he and the complainant were put him, including some on 4 June 2020, he responded:^[53]

“Up until this point, I knew [the complainant] was seeing other people.  I did have the assumption that one of them was [the appellant].  So the fact that she never confided that in me hurt me, and she still hasn’t confided that in me.  Of course, that hurts me.  So yes, I sent those messages.”

40. [40]
    The messages to which he referred were those he sent in response to the complainant where he expressed doubt about what she was saying.  He explained that his motive for sending those text messages was that he was “just trying to antagonise [the complainant] into calling [him]”.^[54]

Evidence of the other resident

41. [41]
    The other resident of the lodge said that the appellant asked him where the complainant was on the afternoon of 4 June 2020, saying that he wanted to talk to her.  When she arrived, the appellant was standing in that resident’s room.  When she walked into the room, the appellant “turned around and just left.  Without saying a word to her”.^[55]

Evidence of the forensic nurse examiner

42. [42]
    The nurse said she had been employed as a forensic nurse examiner for 12 years.  She described her qualifications, adding that she had probably seen about one person a month over that 12 year period.^[56]
43. [43]
    She described the results of her examination of the complainant by reference to a variety of sites on the body, including upper arms, shoulders, left side of the neck,^[57] the right arm, centre of the chest, and right lower leg.  She explained that the bruises could not be aged except to the extent that research showed that a yellow bruise was at least 18 hours old.
44. [44]
    She explained how she took swabs from various areas on the complainant’s body and then turned to an explanation of her findings by reference to a diagram of the anatomy of the female vagina with markings made by the nurse examiner.^[58]  Relevantly, she explained that she had found three lacerations in the area called the fourchette, which she identified as the entrance going into the vaginal canal.  She said those lacerations would cause pain and discomfort and could have been caused by something heading into the entrance which had actually put pressure on the fourchette and split it.^[59]  She could not comment on the number of acts or attempted acts of force by reference to those lacerations, saying that it could have been one or 10, but a number could not be given.  Then followed this passage:^[60]

“And in your experience, what does the presence of three lacerations to the posterior fourchette as opposed to one indicate or suggest?---Okay.  So – so you can end up with lacerations in consensual or non-consensual sex, but it’s highly unusual to have multiple - - -

Okay?--- - - - in – in - - -

Thank you?--- - - - consensual sex.”

45. [45]
    The nurse examiner also identified lines she had drawn on the diagram, Exhibit 9, to indicate an area which was tender to touch on palpation of the anus.^[61]
46. [46]
    In cross-examination, she agreed that she was unable to say whether the bruises she observed arose on the evening prior to her examination of the complainant.  She was then asked, with reference to “the genital injuries” whether she was unable to exclude the possibility that “those injuries were caused by consensual vulval penetration”.^[62]  She responded that “multiple lacerations are very ... unusual”.^[63]  She was asked again whether she could exclude the possibility that “those injuries were caused by consensual vulval penetration”.  She responded:

“It’s a simple question, but it’s got a different kind of answer.  So no, I can’t say it was caused by consensual, but it’s unusual in ... consensual sex to find …”.^[64]

At that point, her answer was cut off by the trial judge.

Police evidence

47. [47]
    For reasons which will appear, there is no present need to set out a full review of the police evidence.  However, the two police witnesses produced evidence of testing for seminal fluid, photographs of the car and clothing, a description of the tape lifts taken for the purpose of DNA testing, and the retrieval of evidence such as CCTV footage and the downloading of text messages from telephones.

Grounds 1 and 2 – Consideration

48. [48]
    The appellant’s contentions on these grounds centred around the evidence of the forensic nurse examiner, namely that it was unusual to find multiple lacerations to the fourchette in consensual sex.  It was contended that the trial judge erred by ruling that that evidence was admissible, and in not ordering a mistrial.  Quite apart from whether the evidence was admissible, it was contended that it was so prejudicial it ought not to have gone before the jury, and as a consequence a miscarriage of justice had occurred.  Further, a mistrial was not ordered and the trial judge indicated that a direction could be given to remedy any issues with that evidence.  However, the only direction given was a direction about how to deal with expert evidence, and nothing was said as to the dangers of using the nurse examiner’s opinion^[65] in reasoning to guilt.
49. [49]
    It was pointed out in the appellant’s submissions that there was no identification and proof of the factual basis upon which that opinion was advanced and it was, in any event, beyond the expertise of a forensic nurse examiner.  Further, it was said that the forensic nurse examiner’s evidence in that respect was, even if technically admissible, highly prejudicial, and that the prejudicial effect was compounded by the fact that it had been repeated in evidence.
50. [50]
    The respondent accepted that there was not a proper foundation for the admission of the opinion evidence of the forensic nurse examiner.  The case must therefore be approached on the basis that it was conceded to be inadmissible evidence.
51. [51]
    The point made by the respondent’s submissions was that the evidence related only to the injuries to the complainant’s vagina and could not have directly impacted upon the consideration of whether the appellant attempted to penetrate the complainant’s anus without her consent.  It was pointed out that the complainant had accepted in her evidence that she had previously had sexual intercourse with the appellant on a number of occasions, but also had testified that she had never previously had anal sex.  It was submitted that it was open to the jury to conclude that, whilst they had a reasonable doubt about the lack of consent on the other sexual acts, they could accept there was clearly no consent given to the anal intercourse, and therefore there was no miscarriage of justice.
52. [52]
    It is relevant to consider the way in which the prosecution used the evidence of the forensic nurse examiner.
53. [53]
    In the Crown prosecutor’s opening address, the evidence was referred to in constrained terms, namely that she had observed “three lacerations to the folds of the skin at the bottom of the entrance of the complainant’s vagina”.^[66]
54. [54]
    At the conclusion of the Crown prosecutor’s address, the following was said:^[67]

“[The forensic nurse examiner] has told you that the three lacerations were located in the complainant’s posterior fourchette and this would have caused pain and discomfort and that’s consistent with the complainant’s evidence that her vagina was hurting.  [The forensic nurse examiner] also told you that they would have been caused by something heading into that entrance, which was actually – which has actually put pressure on the fourchette and split it.  She said it would have been something firm pushing into where the lacerations are.  And that’s also consistent with the complainant’s evidence that the defendant was pushing his penis into her vagina and trying to push it into her anus.  The complainant’s evidence is consistent with what [the forensic nurse examiner] has told you.”

55. [55]
    Several matters about that passage of the address must be noted.  First, no reference was made to that part of the evidence where the forensic nurse examiner had said it was unusual to find those lacerations in consensual sex.  However, the evidence as to those lacerations, in the way it was given in the presence of the jury, went hand in hand with the opinion that it was unusual in consensual sex.
56. [56]
    Secondly, the Crown prosecutor referred to the forensic nurse examiner’s evidence in a way that could be said to be intended to confine the reference to an injury to the vaginal entrance rather than the anus; that is to say, the lacerations were caused by something heading into “that entrance”, and that it could have been caused by something pushing into “where the lacerations are”.  However, that is not a distinction that the jury would necessarily have understood.  They had the diagram, Exhibit 9, which showed everything in a relatively confined area.
57. [57]
    Thirdly, even if the Crown prosecutor had been careful in attempting to confine the comments to that point to the area of the vaginal entrance, the comments made in the last two sentences departed from that.  The prosecutor urged that the lacerations to the posterior fourchette were “consistent with the … evidence that the defendant was … trying to push [his penis] into her anus”.  That was then emphasised by the following sentence, that the complainant’s evidence was consistent with what the forensic nurse examiner had said about the lacerations.  On any reasonable view, the prosecutor urged that the jury should accept the forensic nurse examiner’s opinion in connection with the attempt to have anal sex, which was the subject of the only guilty verdict at the trial.
58. [58]
    The jury having been invited by that address to reason to guilt on Count 3 by use of the forensic nurse examiner’s inadmissible opinion, there was a pressing need for any such misuse to be dispelled by an appropriate direction by the trial judge.  That did not occur.  The only direction given was one concerned with how to deal with expert evidence.  In itself, that was a misdirection because the forensic nurse examiner’s evidence was not expert evidence.  A forensic nurse examiner can, without more by way of qualification as an expert, only give evidence as to what the examination revealed.  The witness did that, but then went further with the (concededly) inadmissible opinion.
59. [59]
    The consequence is that the jury received no guidance from the trial judge as to how to deal with that evidence, or to guard against misuse of it.
60. [60]
    In my view, the position in which the jury was left gives rise to a miscarriage of justice.  The evidence should have been excluded because it was inadmissible (as is now conceded), and it was prejudicial to the appellant, particularly where no instruction was given to the jury as to how to deal with it.  The danger in that course is one reflected by what was said in Orreal v The Queen.^[68]
61. [61]
    Further, the respondent’s contention that the evidence was not harmful because it could not rationally apply to Count 3, in circumstances where the appellant’s case at trial was that there was no attempt at anal sex, and therefore no question of consent, does not avoid the prospect of the jury irrationally reasoning to guilt by use of that evidence.  As was said in Orreal:^[69]

“[23] The respondent submits that the impugned evidence was neutral and logically incapable of assisting the jury in support of their ultimate determination as to the guilt or otherwise of the appellant.  This submission mirrors what was said by the majority in the Court of Appeal.  It may be accepted that, logically, the evidence could not assist the jury, but often the nature of prejudicial evidence means that it may not be rationally applied.  Uninstructed by the trial judge, the jury may well have reasoned that the test results were no coincidence and pointed to the complainant having contracted the virus from the appellant.  Had the jury been directed to disregard the evidence, such prejudice would almost certainly have been overcome, but that did not occur.”

62. [62]
    The consequence is, in my view, that Grounds 1 and 2 must succeed and there must be a retrial on Count 3, unless the conclusion on Ground 3 is that the verdict is unreasonable.  For that reason, I now turn to Ground 3.

Ground 3 – Consideration

63. [63]
    The legal principles applicable where the ground in that the verdict was unreasonable are well known.  They were recently restated in Dansie v The Queen.^[70]  Dansie reaffirmed the approach set out in M v The Queen.^[71]
64. [64]
    The Court reaffirmed the relevant task as being that laid down in M v The Queen:^[72]

“[8] That understanding of the function to be performed by a court of criminal appeal in determining an appeal on the unreasonable verdict ground of a common form criminal appeal statute was settled by this Court in M.  The reasoning in the joint judgment in that case establishes that ‘the question which the court must ask itself’ when performing that function is ‘whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’, that question being ‘one of fact which the court must decide by making its own independent assessment of the evidence’.

[9] The joint judgment in M made clear that ‘in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses’.  The joint judgment equally made clear how those considerations are to impact on the court’s independent assessment of the evidence.  That was the point of the carefully crafted passage in which their Honours stated:

It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred [on the unreasonable verdict ground].  That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.  If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by a jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.  In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

65. [65]
    The High Court also said:^[73]

“[12] The authoritative guidance to be gained from the joint judgment in M has not diminished with time.  M was unanimously affirmed in MFA v The Queen and again in SKA v The Queen, where it was spelt out that the ‘test set down in M’ required a court of criminal appeal to undertake an ‘independent assessment of the evidence, both as to its sufficiency and its quality’ and that consideration of what might be labelled ‘jury’ questions does not lie beyond the scope of that assessment.  Coughlan v The Queen illustrates that an independent assessment of the evidence in a case in which the evidence at trial was substantially circumstantial requires the court of criminal appeal itself ‘to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard’ and in so doing to form its own judgment as to whether ‘the prosecution has failed to exclude an inference consistent with innocence that was reasonably open’.”

66. [66]
    In Pell v The Queen,^[74] the Hight Court said:

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

67. [67]
    In R v Miller,^[75] this Court said:

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

68. [68]
    The appellant contends that the verdict on Count 3 was unreasonable and unsupported by the evidence because:

    1. (a)
       the complainant was shown to be an unreliable witness;
    2. (b)
       the likely explanation for the jury’s failure to reach a verdict on the other counts was a concern about the complainant’s credibility;
    3. (c)
       the remaining evidence could not have rehabilitated her credit;
    4. (d)
       the only rational explanation for the verdict on count 3 was a reliance on the inadmissible opinion evidence; and
    5. (e)
       accordingly, without the inadmissible evidence, the concern about the complainant’s credibility should have resulted in an acquittal.
69. [69]
    In my view, for a number of reasons those submissions should be rejected.
70. [70]
    First, it is true to say that the cross-examination of the complainant exposed areas where the jury would have cause to consider her credibility and reliability; for example, the failure to tell police about the true nature of her relationship with the appellant, the deletion of text messages from her phone, and her lack of candour with her current partner.  However, the complainant offered explanations which were open to the jury to accept.  Her explanations as to why she did not tell police about her previous liaisons with the appellant were that she was embarrassed and concerned that police might not believe her.  She said that she deleted texts because she wanted to cease contact with the appellant.  She intimated that she did not consider that she had reached an appropriate point in her relationship with her current partner where private information needed to be disclosed.  None of those are, in my view, so irreparably harmful that the jury were compelled to reject her evidence entirely.
71. [71]
    Secondly, there was no question that sexual activity took place.  At least as regards Counts 1, 2 and 4, the question of consent was put squarely in issue by the cross-examination.  The same was not done in respect of Count 3, the attempted anal sex.  There, the proposition that was put to the complainant was simply that it never occurred.  The complainant said it did.  Her evidence received some support from the examination of the forensic nurse examiner who palpated and touch the area of the anus, finding it was “tender to touch”, a finding reflected in the lines drawn on Exhibit 9.  It was open to the jury to accept that evidence as supporting the complainant’s account that there was an attempt at anal sex.
72. [72]
    Thirdly, it is true to say that there was reason for the jury to consider aspects of the complainant’s account about the events of that evening with closeness.  For example: the complainant did not drive away when she had the chance before the appellant got in the car; she drank a rum and coke when they arrived at the place where the events occurred; she forgot about the fact that a local person assisted in starting the battery; and her account of the timeline seemed long compared to the account of the sexual acts.  However, none of those matters, either individually or collectively, necessarily called for the rejection of her evidence completely.  It was open to the jury to accept her evidence that she was terrified, panicking, and pleading to be allowed to leave and go home to her children.  Her recollection of events and timelines could well be distorted by such an experience.  Further, she explained that when she was nervous or frightened, she drank.
73. [73]
    Fourthly, the jury could find that there was some support for her evidence in the sense that her texts to her partner reflected many elements of the events she gave in evidence.  True it is, that those texts did not delve into the sexual activity, but it did record substantial elements of her account of the evening.  Her explanation for the texts included that she was hyperventilating and experiencing severe panic attacks, which the jury might also accept as explaining any deficiencies in what she said.
74. [74]
    Fifthly, the jury’s inability to reach a verdict on Counts 1, 2, and 4 does not necessarily bespeak a rational doubt on Count 3.  The aspect that distinguished the appellant’s case on Count 3 from Counts 1, 2, and 4 was that the attempt at anal sex never occurred, whereas all of the other sexual acts did occur but consensually.  Therefore, the jury had to grapple with whether they were satisfied beyond reasonable doubt that there was an attempt at anal sex.  As previously discussed, there was some support for the conclusion that there was an attempt at anal sex.  If there was, the complainant’s evidence on the lack of consent was stronger in respect of Count 3, and therefore the jury could reason to guilt on Count 3, undisturbed by any difficulties of Counts 1, 2, and 4.
75. [75]
    Sixthly, the complainant’s evidence on Count 3 had a distinctive feature, absent from her account of Counts 1, 2, and 4.  She said she had never done anal sex before, tried to squirm away, and found it very painful.  It was open to the jury to accept that evidence as marking a distinction about Count 3.
76. [76]
    In  my view, it cannot be established, on a review of the evidence, that it was not open to the jury to be satisfied beyond reasonable doubt of guilt on Count 3.  The identified weaknesses in the evidence do not reduce the probative value of that evidence in such a way that I would conclude that, even making for full allowance of the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted.
77. [77]
    Ground 3 therefore fails.

Conclusion

78. [78]
    I propose the following orders:

1. Appeal allowed.
2. The verdict on Count 3 be set aside and a retrial ordered.

79. [79]
    BODDICE JA:  I agree with Morrison JA.