R v Myer[2023] QCA 144

SUPREME COURT OF QUEENSLAND

1. [1]
   McMURDO JA:  The reasons given by Bond JA for the orders made by the Court on 16 November 2022 accord with my reasons for joining in those orders.
2. [2]
   I agree with the orders proposed by Bond JA for the disposition of the remainder of the appeal and with his reasons for those orders.
3. [3]
   BOND JA:  On 4 March 2021, after a four-day jury trial in the District Court, the appellant was convicted of 11 counts of unlawful and indecent dealing with a child under 16 years (counts 1–11), and one count of rape (count 12).  The complainant for all counts was a female child who was aged 14 at the time of the offending.
4. [4]
   The table below identifies the nature of the case advanced in relation to the 12 counts, organised into seven incidents consistently with the way in which the case was particularised at trial, which was in turn consistent with the complainant’s evidence.

5. [5]
   The appellant was sentenced to 2 years’ imprisonment for each of counts 1 to 11 and to 8 years’ and 6 months’ imprisonment for count 12.  Pre-sentence custody from 7 January 2019 until 3 March 2021 was declared to be time served under the sentences imposed.
6. [6]
   The appellant, who represented himself, sought to appeal against his sentence on all counts and against conviction only in relation to the count of rape.  However, without seeking leave to amend his notice of appeal, his written submissions advanced an appeal against his conviction on all counts.  The Crown was content to meet that case and written and oral submissions proceeded accordingly.  The appellant should be treated as having amended his notice of appeal consistently with the case advanced in his written submissions.
7. [7]
   The result is that there were three grounds of appeal against conviction on all counts:

   1. (a)
      first, the verdicts were unreasonable and could not be supported by the evidence;
   2. (b)
      second, the trial Judge erred in failing to give the jury a distressed condition direction having regard to the emotional state of the complainant; and
   3. (c)
      third, the respondent failed to honour its disclosure obligation, occasioning a miscarriage of justice.
8. [8]
   On 31 October 2022, the appellant filed an application seeking orders for production of “[t]he ‘pre-interview’ Interview transcripts and blue record book” and “Q prime records” and for leave to adduce evidence on appeal.  The application was not supported by any evidence.
9. [9]
   On 16 November 2022, and for the reasons which follow, I joined in orders which allowed the appeal against the conviction on the count of rape, and which quashed the conviction and entered a judgment of acquittal in respect of that count.  The Court reserved its decision in respect of the appeal against conviction for the remaining counts and in respect of the application filed 31 October 2022.^[1]
10. [10]
    For reasons which follow, I would order that –

    1. (a)
       the application filed 31 October 2022 be dismissed; and
    2. (b)
       the appeal against conviction on counts 1 to 11 be dismissed.

The case supported by the Crown’s evidence at trial

11. [11]
    I will narrate the case which the evidence at trial supported, before examining in a little more detail to the way in which particular witnesses shed light on it.
12. [12]
    The complainant and her parents first met the appellant around October 2017 in his role as a fitness instructor at a gym in Caloundra.  The complainant and her parents regularly attended classes run by him at that gym.  They were all friendly with the appellant.  Indeed, the complainant’s father regarded the appellant as a trusted friend and with whom they regularly socialised.  The appellant was in his mid-30’s.
13. [13]
    At some time during 2018, and upon the appellant’s request, he became the complainant’s personal fitness instructor and gave her one-on-one sessions, free of charge.  Because he had helped the complainant fill out the entrance form for a “Tough Mudder” competition, the appellant knew that the complainant was 14 and would not turn 15 until August 2019.
14. [14]
    On Saturday, 5 January 2019, the complainant texted the appellant an invitation to join the complainant’s family and some friends surfing the following day.  She repeated the text invitation on the morning of Sunday 6 January 2019.  Later that morning the complainant, her parents, her elder sister and her elder sister’s boyfriend, and their friend Ms X were all at the beach.  Ms X was 22.  She too attended the gym and knew the appellant.  Indeed, (as yet) unbeknownst to the others, she had had a casual relationship with the appellant.
15. [15]
    While the others were in the surf, the complainant’s mother checked the complainant’s phone to see if the appellant had replied about joining them.  This was when she discovered texts the appellant had sent to the complainant on Saturday 5 January 2019, which plainly disclosed his sexual interest in the complainant.
16. [16]
    After the complainant’s text invitation to come to the beach the next day, there was this exchange:

17. [17]
    The text conversation then continued with some innocuous exchanges, but then the following exchange occurred:

18. [18]
    Of course, as the appellant and the complainant’s mother knew, the complainant was not in fact turning 15 on Tuesday.  Her 15^th birthday was not for 8 months.
19. [19]
    The complainant’s mother immediately showed her husband, and when the complainant came out of the surf, they confronted the complainant.  Although she initially tried to brush off the texts as the appellant being humorous, she eventually broke down crying.  Her parents asked questions of her but she was unable to articulate answers.  Ms X offered to speak to her and she disclosed to Ms X that the appellant had dealt with her indecently.  Ms X conveyed the substance of her conversation with the complainant to the complainant’s parents, and during this conversation disclosed to them that she had had a casual relationship with the appellant.  They then all left the beach and went back to the complainant’s parents’ house.  I will come back to the evidence of the complainant’s parents and of Ms X in a little more detail.
20. [20]
    The complainant made similar disclosures to her mother during a conversation back at their house.  She also had another conversation with Ms X, during which Ms X conveyed to the complainant for the first time that she had had a casual relationship with the appellant.  Ms X did not recall whether the complainant disclosed any additional information to her in this conversation.  The complainant’s parents encouraged her to go to the police, which she did on the following day, Monday 7 January 2019.
21. [21]
    The complainant was interviewed by police on three occasions: 7 January 2019, 31 January 2019 and 18 November 2019.  During the interviews the complainant identified seven occasions when the appellant engaged in inappropriate sexual conduct with her and gave evidence supportive of the way in which the counts were eventually framed.  It was not until the third interview that the complainant disclosed that she had been raped by the appellant.  I will come back to the complainant’s evidence in a little more detail.
22. [22]
    Later on the day of the first interview, the complainant participated in three pretext telephone calls with the appellant.  Those calls were played to the jury.  The first two pretext calls occurred between 12.41 pm and 12.55 pm and the final pretext call took place between 2.30 pm and 2.36 pm.
23. [23]
    The first pretext call involved the complainant calling the appellant.  She conveyed that she was not going to come tomorrow (by inference, to training) and that she was really uncomfortable with everything that had been happening.  She said that she had been feeling sick in the gut, that it was “not right” it was “not supposed to happen”.  He acknowledged that she “shouldn’t be feeling like that” and it was all his fault and apologised.  He asked where she was and whether she was by herself and she said that she was at home and that she was by herself.  He reiterated that she shouldn’t be feeling like that and it was all his fault and that he was sorry.
24. [24]
    The second pretext call occurred shortly thereafter when the appellant rang the complainant.  He stated that she should not hang up.  He said that it wasn’t her fault and that she didn’t need to feel bad.  He said that she did not need to feel anything, “no guilt, no nothing”, that it was “on me”.  Later in the conversation she said that “what happened on the beach and stuff … and then at the apartment the other day” that it was not right.  The conversation proceeded further in a discussion as to why he did not attend at the beach on the Sunday morning when he was invited.  Later she asked him whether he would say what had happened at the beach was wrong and he responded that he would chat to her in person to “start fresh”.
25. [25]
    The third pretext call involved the complainant calling the appellant again.  He answered the phone and launched into a discussion concerning news which he said he had received that one of his family members had died.  She raised again the question of what happened “the other day, like in the apartment, like how everything was happening”.  His response was to ask whether they could talk the next day.  She said that she didn’t think she could talk to him.  The conversation concluded with him begging her and saying that he just wanted to talk; they needed to “reset”; and that he was not answering her question as to whether “what happened the other day was right”.
26. [26]
    Immediately after his phone call with the complainant ceased, the appellant texted Ms X.  Unbeknownst to him, Ms X was also at the police station giving a statement.  She showed the texts to police.  In the text the appellant told Ms X that he needed her help “desperately”.  In the exchange the appellant asked Ms X if she was able to meet him that evening saying “I need to fully explain as I’ve fucked up.”
27. [27]
    Ms X made an arrangement with police that she would attempt to record the appellant at the proposed meeting.  They gave her a recording device.
28. [28]
    There was a further text exchange and telephone call between Ms X and the appellant in the early evening at about 6.48 pm.  They made an arrangement to meet face to face.  In the telephone call he conveyed to her:

    1. (a)
       something had happened which was “not something I’m proud of” but he “should be all right”;
    2. (b)
       he said it was “gonna change everything”, it was “not something I planned”, and he had “totally dropped the ball”;
    3. (c)
       she was the only one he trusted who could probably help him.
29. [29]
    The face-to-face meeting between the appellant and Ms X occurred in the later in the evening of 7 January 2019 in a carpark at McDonald’s.  The recording of the relevant part of their conversation was tendered through Ms X and played to the jury.  During the conversation the appellant made multiple admissions as to having indecently dealt with the complaint, and as to his sexual interest in her, and also tried to get Ms X (who he knew to be a friend of the complainant’s) to try to convince the complainant not to talk to her parents or to the police.
30. [30]
    The most telling parts of the recording were as follows:

(at page 2 of the transcript)

“MYER: … I’m so dumb. I don’t know why. I didn’t even plan it or intentionally do that. And like, I was, I was, like literally today, I was trying my hardest not to cry. That is really rare for someone like me ‘cause I’m so proud. ‘Cause I just I, oh fuck, what have you done? Like, I didn’t even mean to.”

(at page 3 of the transcript)

“MYER: So I’m in a predicament right now because it jeopardises everything that I’ve created in the last year and a half and it can come down in the space of ten seconds. So I’m gonna tell you something that, it, it, it’ll, it’s eventually gonna get out but if it does, I’m fucked anyway.

…

But what I’ve done, over the past probably, I dunno, last six weeks, I didn’t even fucking see it coming. I honestly, I didn’t see it coming and did I pursue it? I’m not sure. It just fucking happened. And I wish it never did because now it’s come back to bite me in the ass. And I, I could be in serious trouble with the law, like serious trouble. Like, I don’t even, I don’t even know how I got myself in this spot.”

(at page 4 to 5 of the transcript)

“MYER: I didn’t do anything like overly bad but it’s just morally and ethically, it’s just fucking shit ‘cause it’s just shit. So I don’t know what to do. I’m, I’m fucked. I’m fucked. I was just, I was, I was initially gonna [INDISTINCT] my lawyers over in Florida and say, get me a plane ticket. I’m coming, I’m gone. I’m gonna get straight into my plan, bang, new identity, new face, new fuckin’ body. I’ll just chill out for six months and then get into it. No one will hear from me ever again. That’s what I was prepared to do. I was that close today, to doing that. Just on the speculation that it may get out. [INDISTINCT] it’s not something that I wanted to continue. I was gonna like stop. But yeah, rang me twice today, cryin’ her guts out and I’m just like, so you, you know where I’m going with this?

…

MYER: Okay. I’mma tell ya ‘cause I have to. And I don’t even care if you think less of me. I’m already there. I, I’m already there. You, you can’t even beat me up. So um, [he mentioned the complainant’s first name].

[X]: Yeah.

MYER: I know she’s kinda flirty with me.

[X]: Yeah.

MYER: I knew that but she’s a young girl.

[X]: Mm.

MYER: And I don’t know how the fuck we got into that position. I didn’t, I didn’t fuck her or anything. I wouldn’t do that. But I like literally, like kissed her and then she’s, this was like probably twice, at best, tops. And she’s fourteen. I get it. Like morally, that’s why I said it’s so fucked up. I didn’t even, like I wasn’t thinking. It just fuckin’ happened. And it, it’s not something like [INDISTINCT]--

[X]: How did it happen?

MYER: I don’t know. I don’t even fucking know. She can’t even recall. Like, I--

[X]: When did it happen?

...

MYER: Just like, probably four weeks ago or something. And then like, like the last time was probably like last week. So it’s just, it was fucked up. I didn’t even know why. I mean aft-, when I was, when I was there, I was okay. But after that, I, I just, it just hit me like, woah, you’re, you’re going to jail, dude like. This is where it’s goin’. [INDISTINCT]

[X]: So you just kissed?

MYER: I didn’t fuck her or anything. She didn’t give me a blowie. She’s not, she’s never done anything like that.

[X]: But you did other stuff?

MYER: Oh like, at best, at best, I, I, I sucked her tits. That was it. Like s-, oh no, I fingered her. Like, just a little bit. Like, mm, that’s, that’s tops, tops. That was it. Like, that is fuckin’ bad. And then like the, the thing was, the [INDISTINCT] go, I was like, oh maybe. And I’m, no, no, like no, no, no. Because the first thing I’m thinking is, [he mentioned the first names of the complainant’s parents]. I’m like, woah, you’re shitting where you’re eating, like she doesn’t deserve this. And that’s where I was at. So I was like winding it up. She rang me today, she’s crying. She’s like, oh can I come to the gym anymore? And I’m like, woah, I’m not a [predator]. I’m not, it’s not, it wasn’t predatory behaviour. It was like consensual but ‘cause you’re fourteen, if you were eighteen and I was like say twenty, we’re all good.

[X]: So she, she wanted you to do it?

MYER: Oh, a hundred per cent. Like, you got no fuckin’ idea. Like, she’s all over me. She’s fuckin’ in my face, like lovin’ it. But I should know better ‘cause I’m the older one. But like, conceptually, it’s wrong.”

(at page 8 of the transcript)

“[X]: What do you want me to do?

MYER: Just talk to her. Just like privately, away from [he mentioned the first names of the complainant’s parents]. Just hold her up. Promise I’ll get things back to normal. I’ll fuckin’ set their family up for fucking life. I-, this isn’t a bribe. This is what I was gonna do anyway. When I went, I was gonna hand youse all the fuckin’ keys. You got no idea how, how deep I think about getting everyone better. They think I’m fuckin’ full of shit. It’s like, you got no idea, guys. You’re, you’re gonna have freedom and I fucking promise you, like no tomorrow, ‘cause of where I stand.”

(at page 10 of the transcript)

“[X]: … How did you even feel a connection with a fourteen year old girl that was flirting with you? Like, I don’t get that.

MYER: I didn’t.

[X]: Then why did you do it?

MYER: I’ve got no fucking idea. I got no idea. I’ve asked all those questions, a thousand times over. That’s why I said to ya. You’re not gonna look at me the same, ever again. And I get it. It takes a thousand years to build an empire. Take one second to destroy it. What do I do? I just want things to go back to fucking normal. Idiot. Fucking idiot. Why?

[X]: If it happened more than once, though, why’d you do it a second time?

MYER: I don’t know. I don’t fucking know. I get, I get where you’re coming from. I feel your head. I get it.”

(at page 11 of the transcript)

“[X]: What do you want me to do?

MYER: I’m fucking begging you, [X]. I’m honestly, sincerely, from the bottom of my fucking heart, I’m begging you to help me. You have no idea, no, I respect that you might be upset at me. Yeah, I feel it, I get it. It’s, I didn’t ask for your help because I was tryna shift the burden or get myself out of a hole. I fucked up. I declare that. I need to pay for that but I’ll pay in my own way. I don’t wanna pay like that. Been down that road before. It’s.

[X]: I don’t know what you want me to do, though.

MYER: I just want you to talk to [he mentioned the complainant’s first name] and just.

[X]: And say that I know?

MYER: Yes. And get her to talk to you about it. Don’t have to discuss the whole nature of it but just please get her, I can’t let her talk to her parents or go to the fuckin’ cops. Not to dust it under the rug. I’ll fuckin’ cop the grunt of that but just come back to my class and I’ll treat her like normal, like nothing ever fucking happened. I promise you that. I just want her to just fuckin’ be normal. That’s it. I, I, I have the ability to do that.

[X]: Okay.”

(at page 12 of the transcript, after Ms X indicated that she could speak to the complainant)

“MYER: … she’s treating me like I’m a fuckin’ [INDISTINCT]. Crying on the phone, today, while I’m at a business meeting. I’m just like, sorry. Like, you sound like a spoiled fuckin’ schoolgirl that didn’t get her own way. How am I g-, you can’t flip this on me, on the phone. Can I talk to you in person? No, I don’t think I can do that ever again. I don’t think I can see you. Oh, my god. She’s talking like a fucking rape victim. You’ve got to be kidding me. I didn’t even fuck you. Are you serious? Please. I’m telling you now. I probably could’ve. She would’ve let me but I didn’t ‘cause I knew fuckin’ not to. I knew, I knew that much. Don’t fuckin’ do that. [INDISTINCT].

[X]: [INDISTINCT] much difference. You’ve already touched her, so.

MYER: Thanks for the update. Like, the polarity of that has gone through my head, a fuckin’ multitude of times. Remember, I am autistic. Fuckin’ Asperger’s.

[X]: But I’m saying, you said that like you weren’t stupid enough to like fuck her but you might as well have done that because.

MYER: ‘Cause it’s the same thing. I get it. I get it. It’s the same thing. What, you, as soon as you kiss her, you’re done. I get it.”

31. [31]
    Against that background I turn to a consideration of the evidence of the complainant and of her parents and Ms X.^[2]

The complainant’s evidence

32. [32]
    I will first address the complainant’s evidence in chief under relevant headings and then turn to the cross-examination and re-examination.

Overview

33. [33]
    Pursuant to s 23AK of the Evidence Act, the complainant’s evidence was given by playing to the jury her pre-recorded testimony given on 19 January 2021.  The complainant attested to the truth of the matters she had informed the police in her interviews with police on 7 January 2019, 31 January 2019 and 18 November 2019.  The recordings of her interviews were played to the jury and tendered pursuant to s 93A of the Evidence Act 1977.  Her handwritten diagram of the appellant’s apartment was tendered.  Photographs of the Currimundi Beach and Shelly Beach locations referred to in the interviews were tendered.  Photographs of the appellant’s apartment were tendered.  The complainant explained by reference to the photographs where the events referred to in her police interviews had occurred.  The complainant also identified the photographs of the text messages to which reference has been made at [15] and [16] above.

The seven incidents

34. [34]
    As mentioned, during her three interviews the complainant gave evidence supportive of the way in which the counts were eventually framed.  I will proceed to identify how that occurred under separate headings below.

Count 1

35. [35]
    At the first interview the complainant recounted that the appellant had invited her down to the beach at “Robe Street” for a training session.  Once in the water he started grabbing her, kissing her chest and neck.  He kept trying to move the straps at the top of her swimming costume down.  He was holding her breasts and grabbing her bottom and feeling around.  She thought this might have been a Saturday in early November 2018 but wasn’t sure.  She recounted that she had been to Robe Street with the appellant twice and on both times he was touching her.  She said that the appellant had not penetrated her vagina or her bottom on either occasion.

Counts 2, 3, 5 and 6

36. [36]
    At the first interview the complainant recounted a time she and the appellant went to Shelly Beach.  The appellant was making comments about her breasts and how he would like to have sex with her which made her uncomfortable.  She was sitting with a towel wrapped around her when he pulled her to the ground and started kissing her on the cheek and on the mouth.  He was feeling down her chest and her stomach and then down trying to touch to her private parts.  He was telling her to trust him, that he was not going to hurt her and that he knew she was ready.  He was touching her vagina outside her clothing.  She was asked whether he penetrated her vagina or her bottom and she said every time he tried to move her swimmers out of the way she would just push him away.  She said at Shelly beach his touching was all above her swimmers.
37. [37]
    At the first interview she thought there were maybe three or four times at which they went to Shelly beach.  The last time was about a week ago.  The first time was two weeks after they went to Robe Street.
38. [38]
    At the second interview the complainant was asked again about the offending at Shelly Beach.  She said that on the first time she was sitting next to him and he kissed her cheek and forehead and then started to kiss her lips and lowered her to the ground.  He grabbed her breasts but on the first time did not go further down with his hands.
39. [39]
    At another time after the first occasion, she was sitting with her arms folded in front of her and he sat behind her.  His hands came through her arms and groped her.  When they were lying down he would push himself up and grab her and move “so he could get towards it sort of thing”.  She thought it might have been in early November 2018, but did not really remember the date.  It was on an occasion after they had done circuit training at the gym.  They dropped Ms X off at her house; went back to the gym so the appellant could pack up the equipment and they went down to the beach after that.
40. [40]
    The next time occurred when the appellant picked her up from her house.  They were sitting at the beach and the appellant started trying to kiss her again and tried to put his hand up her skirt, telling her to take her top off.  He was moving her skirt so he could put his hand on her private parts.  He touched them on top of her swimmers.  She sat up and moved away and he sat behind her again and groped her breasts again.  He kept trying to move her swimmers aside to touch her private parts.  He touched her breasts and her vagina.  He was trying to move the straps of her swimmers down.  A helicopter went past and he suggested that she should flash the helicopter.  This would have been before they went to his apartment the first time.  It was late December 2018, she thought.  He also put his hand on top of hers and placed her hand over his penis through his shorts.

Count 4

41. [41]
    At the first interview the complainant recounted a time she and the appellant were participating in a training group at Golden Beach.  They had to climb up a rope which was attached to a jetty.  Everyone was holding onto the rope while one person was climbing the rope.  While that was happening the appellant moved her so she was sitting on his leg and tried to put his hands down her pants, with everyone around, but no one could see.  He was grabbing her chest and her bottom and kept touching her and rubbing her when no one was looking.  He did not at any time penetrate her vagina or her bottom.
42. [42]
    She was also taken back to that incident during the second interview.  She explained that they were in the water and he was making her sit on his lap and he put his hands down her pants and was moving his hands between her thighs touching her.  She said she was not comfortable doing it and he grabbed her shoulder, turned her around and grabbed her chest.  She swam away but had to return to the water and it was then he put his hands down on pants and touched her private parts on the outside of her tights.  He was touching her vagina and her bottom through her clothing.

Counts 7, 8, 9, 10, 11 and 12

43. [43]
    At the first interview the complainant said that she had been to the appellant’s apartment at Golden Beach twice.  She said the first time was a couple of weeks before (justifying the date mentioned in counts 7 and 8) and the second time was “last Friday” (justifying the date mentioned in counts 9 to 12.)  At the apartment the appellant tried to go further than he had tried to go at the beach.
44. [44]
    On the first occasion at his apartment, he was getting her on the ground to do muscle stretch exercises.  She was in a skirt and a jumper.  He removed the jumper so she could lie on a roller and then he lay on top of her started feeling her and started kissing her.  He was touching her vagina, her bottom and her breasts.  He kept trying to get his hands underneath her swimmers and she kept moving his hands away.  He grabbed her chest and said that was his property.
45. [45]
    On the second occasion at the appellant’s apartment, they were sitting on his couch watching some history show on Netflix when he tried to grab between her legs and move her swimmers aside near her vagina.  He pulled his pants down and was trying to have sex with her on the couch.  He put his penis on top of her swimmers and then moved the side of her swimmers and was trying to put it in her.  He was saying that she was ready.  He grabbed his penis and moved his hand up and down on it.  He grabbed her wrist and put her hand on his penis.  She was asked whether at any time he penetrate her vagina or her bottom and she said that he kept trying to rub her vagina.
46. [46]
    On both occasions at his apartment the appellant exposed his penis to her.  He kept grabbing her wrist and got her to touch it.
47. [47]
    The third interview occurred at the request of the complainant because she wanted to get some things off her chest before it went to Court and to have more closure.  She said that:

“Um um one of the occasions we were at um Joey's apartment and um he was showing me and he had like four laptops sitting on a bench and so I went backwards to turn around to see them because they were behind me on like, in between the couch, and um he said that he was using them for his like research or somethink um and it was all like downloading stuff, like it was just on this like white page with all downloading things I guess.

…

And then um I was like looking at them and he um he pushed my hand down under my back, my um right hand, and um and like pressed his body over me, holding his arm over my left arm and um I kinda like tried to like move it wi-, with my shoulder.

…

And um he has like pushed down on to me um and that was when he tried to move my bikinis like on the bottom um and down the ah my legs and um I tried tellin' him not to and to stop and that I didn't want to and um he said that like it was fine, I could trust him and um then um he began to undo his pants and I said no, I didn't want to. And he just wasn't listening. And then--

…

Um after I told him to get off, he's um kept telling me to stay and that it was fine and that he wasn't gonna hurt me. And then um and then he pressed his fingers up against my skin on my inner thigh and then he started to pull his penis up in me. And I told him to stop and to, and to let me go and he wouldn't.”

48. [48]
    She said that the appellant had his penis all the way inside her.  He had not ejaculated inside her.  The incident made her feel dirty and powerless.  The complainant said that she thought that this had occurred on a Saturday but was unsure of the date.  The appellant had picked her up at the park nearby to her house.  She thought it was one of the last incidents which had occurred between her and the appellant.  When reminded that the initial police report had been on a Sunday she thought it was maybe two weeks before that.  When asked why she had not previously mentioned this incident, she said she was scared and didn’t know whether he was going to go to jail or not and did not want him to get out.

Cross-examination

49. [49]
    The complainant agreed that she had made no complaint about the appellant’s behaviour until her parents discovered the text messages on Sunday 6 January 2019.  She agreed that she had been messaging the appellant about coming to the beach that Sunday and that she had contacted him herself on the Saturday.
50. [50]
    She agreed that when first asked about the texts by her father, she had responded that the appellant was just “mucking around” and “being stupid”.  She was asked to agree that her first response to her father had been to defend the appellant but said that she had said what she had “because [she] was scared of what was going to happen when ... people found out”.
51. [51]
    She agreed that she had told her father that the appellant had not hurt her.  She explained that on the basis that she had understood the question as going to punching or physically hurting her in that sense.  However, she rejected the proposition that she had never suffered any physical pain at the hands of the appellant.  It was put to her that that meant she had been hurt in the sense she had understood her father to mean.  Counsel suggested that she was being untruthful to her father and she gave an unconvincing explanation that she was interpreting the question as relating to being punched as the appellant had been a boxing instructor.  She then agreed that when she told her father that she had not been hurt, that was not true.
52. [52]
    She was asked about her conversation at the beach with Ms X.  She agreed that she had answered in the affirmative questions about whether the appellant had kissed her and touched her private parts.  It was suggested to her that Ms X had asked her whether they had had sex and that she had answered in the negative.  She acknowledged that she meant to convey to Ms X that the appellant had not put his penis into her vagina.  She acknowledged that she was lying to Ms X about some things.
53. [53]
    She was asked about Ms X telling her that she had been in a sexual relationship with the appellant.  She had not known about that before that day and was shocked by the information.  She denied having a crush on the appellant.
54. [54]
    She was asked about her conversation later on the Sunday with her mother.  She acknowledged that during the conversation her mother had asked her whether the appellant had inserted his penis into her and that she had responded “I don’t think so.  I don’t know”.  She acknowledged that her mother had asked her whether she was sure and that she responded “I don’t know, Mum.  I was concentrating on trying to push him off”.  She acknowledged that she was not being truthful with her mother in that conversation.
55. [55]
    She was asked about her interviews with police and acknowledged that in the first interview she had not mentioned that her vagina had been penetrated by the appellant, even though she had spoken about the times she had been in the appellant’s apartment.  She acknowledged the same thing about the second interview, even though she knew that the police wanted to know all about the offending the appellant had done.  She acknowledged that the third interview was the first time she told the police that the appellant had put his penis in her vagina.  It was put to her that that never happened and she rejected that proposition.
56. [56]
    She agreed that –

    1. (a)
       When she told her mother that she hadn’t been penetrated, she was lying;
    2. (b)
       When she told her mother that the appellant hadn’t hurt her, she was lying;
    3. (c)
       When she told Ms X that she had not had sex, she was lying;
    4. (d)
       When she told the police at the first interview that she had told them everything, she had not forgotten that the appellant had put his penis into her, she had chosen to lie to the police.
57. [57]
    She agreed that when, at the third interview, she told police that the appellant had penetrated her vagina, she was wanted to make sure that the appellant did not get out of jail.
58. [58]
    She agreed that she had not made a complaint about the appellant until her parents saw the text messages.  She agreed that she had felt hurt when she found out that Ms X had some form of sexual relationship with the appellant.  It was suggested that she said that the appellant had been doings things to her because she was angry with him, and she rejected that.
59. [59]
    She was cross-examined to no particular effect about the details of the incidents which she had recounted.  She agreed that she did not scream for help or complain to anyone at the time, and said it was because she was scared.  She mentioned that at an early stage the appellant had told her that it was just their secret.
60. [60]
    She was taken to the events she had described occurring at the appellant’s apartment and it was suggested to her that it was she who had tried to kiss the appellant and she who had tried to pull him towards her to touch her; that it was she who had rubbed her vagina with the appellant’s hand and she rejected those suggestions.  It was suggested that the appellant pushed her away and then at his suggestion he took her home.  She rejected those suggestions.  She acknowledged that the appellant had driven her home.  The cross-examiner then put a particular slant on the text messages which had passed between the complainant and the appellant on Saturday 5 January 2019 in this passage:

“You and Joey agreed that you would send some text messages in a day or so to break the ice?---Sorry. I don’t understand - - -

All right?--- - - - what you’re asking.

You and Joey agreed that in order to overcome the awkwardness between you, you would trade some text messages in a day or so?---No.

You said that you would send some rude or explicit type sex messages to each other to get over what had happened?---No, I don’t remember - - -

All right?--- - - - that.

All right. During that last visit to Joey’s unit, you had suggested to him that he could have sex with you when you turned 15, hadn’t you?---No. He said that he wanted me to lose my virginity to him, and I said, “No, I’m 14. That’s like, not legal,” and that I wasn’t going to have sex with anybody until I was with [sic] legal age, and he said, “Well, 14 is young enough.” So he said 15 would be when I was ready.

…, I suggest to you that you were the one who suggested he should have sex with you. Do you agree or disagree?---Disagree.

And it was when you suggested that that he said:

We’re going home. I’m taking you home.

?---No. Disagree.”

61. [61]
    The complainant acknowledged that at Christmas 2018 she and Ms X had made an arrangement to give the appellant a Christmas present for doing so many free training sessions and for paying for everyone to go to Tough Mudder.  She also acknowledged that on 5 January 2019, which could have only been days after the rape which she had described, she invited the appellant to go to the beach with her family.  She said she did so because her mother asked her to let him know that they were going down to the beach.  She acknowledged that she did so and did not tell her mother that he had raped her.  She acknowledged that she had deleted all the other messages between she and the appellant other than those which her mother say on the Sunday morning.  She said that they had been inappropriate messages and she deleted them because she did not know what else to do.  She rejected the proposition that she did so because they would show that she was the one chasing the appellant.
62. [62]
    The cross-examination concluded with the suggestions addressing each aspect of the offending conduct described by the complainant had not occurred.  Each suggestion was rejected.  She rejected the suggestion that she had made up the allegations and that she continued to maintain them because she was caught in a lie.

Re-examination

63. [63]
    She was asked why she didn’t complain before the texts were found by her mother and she explained that –

    1. (a)
       the appellant was helping so many people through the gym and giving so many free opportunities to people that she didn’t think people would believe her or understand;
    2. (b)
       he had a girlfriend, and she didn’t want to ruin their relationship as well; and
    3. (c)
       she was so scared that her parents would be disappointed in her.
64. [64]
    She could not really explain why she told her father that the appellant was just mucking around being stupid, when her father asked her about the texts.  She thought that she didn’t want it to all unfold how it did.  She was trying to stop it for so long that she didn’t want to get to where she was, namely sitting in a courtroom, waiting to see what happens.
65. [65]
    She was asked why she had made the denials about having sex with the appellant, and said that she was scared and didn’t trust anybody.  She felt like she was going through the whole thing alone and felt like she couldn’t talk to anybody about it.
66. [66]
    She was also asked about occasions when at Currimundi, Golden Beach or Shelly Beach she didn’t try to ask for help from anyone, and said she was scared and thought she was in a position where she could be hurt.

The evidence of the complainant’s mother

67. [67]
    The complainant’s mother told the jury that she, her husband and the complainant first met the appellant at the gym in Caloundra where he was a fitness instructor.  She and her family participated in training in a group organised by the appellant for a “Tough Mudder” event.
68. [68]
    At one of their training sessions, the appellant approached the complainant’s mother and asked if the complainant would be interested in doing some personal training.  She then spoke to the complainant and the complainant agreed to try personal training and see how she felt.  The appellant did not charge for the personal training, he said that it was a free service that he was happy to try and help the complainant achieve her goals.  There were no particular arrangements for the personal training, it was done on a weekly basis for about an hour each week and arrangements for the timing of the session were made via text message.  The locations varied from week to week, sometimes they were at the gym and sometimes they were at other locations, for example the beach.  This occurred throughout 2018.
69. [69]
    The complainant’s mother described the events of Sunday 6 January 2019.  The family plan was to go surfing at the beach.  A couple of friends would attend.  The appellant had also said he would come down.  The complainant’s mother knew that the complainant was in contact with the appellant to arrange with him where they were at the beach and where to meet them.  Everyone had gone out in the surf except her and she got the complainant’s phone to see if the appellant had responded.  She started to scroll back through previous messages and read those to which reference has been made at [15] and [16] above.
70. [70]
    When the complainant’s elder sister and father came out of the surf she showed them the messages and then when the complainant came out of the surf the complainant’s parents spoke to her.  The complainant broke down crying and seemed to her mother to be hysterical.  The complainant’s father asked her if the appellant had done anything to her, if he had touched her but at that time the complainant kept crying and her mother did not recall whether she gave any verbal answers.  Ms X asked if she could speak to the complainant by herself because the complainant was sobbing so much.  That occurred and Ms X and the complainant spoke separately.  Later Ms X told the complainant’s mother what the complainant had told her.
71. [71]
    At that stage, being concerned that the appellant might actually arrive at the beach, they all left the beach in their car and went home as quickly as they could.  Later that day they called the police and an appointment was made to see detectives the next morning of 7 January 2019.
72. [72]
    The complainant’s mother recalled a further conversation later on 6 January 2019 with the complainant and Ms X.  It took place in the complainant’s bedroom.  The complainant was sobbing the whole time but managed to convey to her mother that the appellant had touched her and kissed her.  When asked whether the appellant had done anything with his penis, the complainant said that she was not sure as she was trying to push him away.  She did convey to her mother that when she was last with the appellant she was trying to push him off; he was trying to insert his penis; she could not tell whether he did because she was trying to push him and she remembered telling him to stop.
73. [73]
    The complainant’s mother was cross-examined initially about the arrangements that were made concerning picking up and dropping off during the private training sessions between the complainant and the appellant.  She confirmed that sometimes the appellant might pick the complainant up and sometimes she would offer to go and pick the complainant up.  On some occasions the complainant said that she did not need to be picked up because the appellant was dropping her home.  She could not remember how times the complainant refused her offer to pick her up from private training sessions.  There were probably at least two or three occasions on which the complainant told her that the appellant was going to drop her at home.  She confirmed that when asked about whether the complainant had said the appellant inserted his penis into her, the complainant’s recollection as conveyed to her was that the complainant had said “I don’t think so I don’t know”.

The evidence of the complainant’s father

74. [74]
    The complainant’s father related evidence similar to that given by his wife concerning how the family came to know the appellant and how the complainant ended up doing personal training with the appellant.  By the time of the events of 6 January 2019, he said he would describe the appellant as a trusted friend with whom they would meet socially, meet for coffee and have dinners.
75. [75]
    He related the events of 6 January 2019 to the jury.  They had planned a family day down at the beach his two daughters, his elder daughter’s boyfriend and some other friends.  He knew that the appellant had been invited.  Ms X was there.  They had all been out in the water and when he came out of the water and spoke to his wife, he saw that she was upset.  He asked her what was wrong and she explained that she had been checking the complainant’s phone and saw some messages.  She showed him the messages.  He confirmed the messages he saw were those to which reference has been made at [15] and [16] above.
76. [76]
    He said to his wife there was something “not right about this”.  He spoke to the complainant who initially responded that the appellant was just “mucking around” in his texts and “being stupid”.  He suggested to the complainant that the texts appeared to indicate some sort of relationship between them.  She again responded that the appellant was just being stupid and he referred to the text about bikinis and being in bed together and asked her “[w]hat the hell is this all about” and she broke down and cried.  She conveyed to him that there had been other messages between she and the appellant but she had deleted them.  He said to his daughter that if she could not speak to him could she speak to her mother or Ms X.  She said she would be more comfortable talking to Ms X and that occurred.  They went home and he described events occurring consistently in the way his wife had.

The evidence of Ms X

77. [77]
    Ms X knew the complainant and her family through the gym.  She also knew the appellant through the gym.  She had a casual relationship with him prior to the events of 6 January 2019.  She would not describe their relationship as that of girlfriend and boyfriend.
78. [78]
    She described the events of 6 January 2019 in a way which was consistent with the evidence of the complainant’s mother and father.  She said that it was a family outing at the beach and after they had finished surfing she found that the complainant’s mother had found messages on the complainant’s phone which bought up some surprising information.  She confirmed the messages she saw were those to which reference has been made at [15] and [16] above.
79. [79]
    She said she talked to the complainant about the messages because the complainant was not willing to speak about it in front of everyone and the complainant trusted her.  She said that the conversation proceeded more by way of the complainant crying and her asking questions to which the complainant nodded yes or no.  She said she told the complainant that the complainant needed to tell them what was going on so they could “get to the bottom of things”.  She said she asked whether the appellant touched her to which the complainant responded yes.  She asked whether the appellant kissed her to which the complainant sort of smiled and blushed and then said yes.  She asked whether the appellant had touched the complainant inappropriately to which the complainant nodded.  She asked whether the appellant had touched her private parts to which the complainant said yes.  She said she asked her if he had touched her anywhere else to which the complainant responded her private parts and her breasts.
80. [80]
    She said that after that occurred they both walked over to the complainant’s parents and sister. The complainant sat with her sister while the complainant’s parents and Ms X stood some distance away to speak with each other. Ms X told them about her conversation with the complainant.  She explained to the complainant’s parents that she had a casual relationship with the appellant which had been a secret up until that point.  They then all left the beach to return to the complainant’s parents’ house.
81. [81]
    There she had a further conversation with the complainant at which time she told the complainant what she had told her parents, namely about the casual relationship between she and the appellant.  She did not recall whether the complainant had given her any further details.  She said “it was more so us hugging each other and her sort of feeling like she wasn’t alone, in the sense that we had both been, I guess, taken advantage of in a way”.
82. [82]
    She then recounted the police attendance at the complainant’s parents’ house that day, that she met the investigating officer on the following day and that he took a statement from her.  She recounted the events to which reference has been made at [25] to [29] above, identifying the text messages and the recordings.
83. [83]
    In her cross-examination she was asked whether she was confident that she had told the complainant about her relationship with the appellant on 6 January.  She said she was confident that she did and she was confident that it occurred in the complainant’s room after they had all returned to the parents’ house from the beach.
84. [84]
    She was cross-examined about Christmas 2018 at which time she and the complainant had prepared some gifts for the appellant and had both had made a conscious effort to enjoy organising those gifts.  She was cross-examined about her conversation with the complainant at the beach on 6 January.  She was asked whether, when she first began to talk to the complainant about the text messages, the complainant was underplaying things.  Ms X said the complainant was being vague as to what the messages meant.  She expressed the view that it was obvious what they meant because she could read them but the complainant did not want to elaborate upon them.

The defendant neither gave nor called evidence

85. [85]
    With the evidence of Ms X and the replaying of parts of the tape recording of the third pretext call, the prosecution closed its case.  The appellant was called upon after a brief adjournment for advice and through his counsel the appellant responded that he would neither give or call evidence.

The Crown address to the jury

86. [86]
    Counsel for the Crown invited the jury to accept the evidence of the complainant as proving beyond reasonable doubt the alleged offending. He suggested that any inconsistencies in the complainant’s evidence could be attributed to the complainant’s age, to the time since the offending, to the unfamiliar and intense experience for the complainant of reporting the offending, and to the wide variety of ways in which victims of sexual abuse can respond to trauma.
87. [87]
    Counsel suggested that the jury could conclude that the complainant was a truthful and reliable witness.  He addressed the complainant’s failure to report the offending until it had been discovered by her parents and stated that the complainant had “done what [the appellant] told her to and kept [the offending] a secret”, that she had thought that people wouldn’t believe her about the offending and that she was fearful that her parents would be disappointed in her.
88. [88]
    Counsel for the Crown invited the jury to conclude that her willingness to admit to having lied about certain things – about “bad things, that [the appellant] had done” – in cross-examination and her failure to embellish her evidence when given the opportunity supported her truthfulness.  He stated that the jury should distinguish between the complainant leaving out details and “flat out lying”.  He suggested that this explanation pertained to the complainant’s initial lack of disclosure regarding the alleged rape.
89. [89]
    Counsel suggested that the complainant’s evidence was supported by that of her parents and Ms X, by the text messages exchanged between the appellant and the complainant and the appellant and Ms X, by the recorded conversation between the appellant and Ms X and by the recorded phone calls.
90. [90]
    Counsel for the Crown addressed the jury on the criminal standard of proof and noted that it was not an unattainable standard.  He invited the jury to accept that the evidence addressing the offending against the complainant was very clear.  He posited that the jury could infer from the sum of this evidence that the appellant clearly had a sexual interest in the appellant, had acted on it and had attempted to conceal the offending which demonstrated a guilty conscience.

The defence address to the jury

91. [91]
    Counsel for the appellant invited the jury to conclude that the complainant was unreliable and that her evidence could not prove the appellant’s guilt beyond reasonable doubt.
92. [92]
    He stated that the complainant had said things to other witnesses and police that she would later concede weren’t true.  Of particular significance was:

    1. (a)
       That when she was first confronted with the inappropriate text messages she had told her mother “[h]e is just mucking around. He is being stupid.”  She would obviously later say this was not the truth.
    2. (b)
       That she had separately told her mother, Ms X and the police (the latter in the interview on 7 January 2019) that the offending had not included penetration.  She later stated the offending had included penetration in an interview with the same detective on 18 November 2019.
93. [93]
    He suggested that the complainant had behaved in a way that was inconsistent with having been offended against.  That behaviour, evidenced in the complainant’s, her parents and Ms X’s witness testimony, purportedly included:

    1. (a)
       deleting text messages she had exchanged with the appellant;
    2. (b)
       giving Christmas presents to the appellant;
    3. (c)
       choosing to let the appellant drop her home after training, rather than agreeing to let her mother pick her up;
    4. (d)
       not calling anyone to report the offending at the time it was occurring;
    5. (e)
       not disclosing the offending to Ms X before the text messages were discovered on 6 January 2019;
    6. (f)
       her active participation in the text exchange with the appellant;
    7. (g)
       continuing to attend classes taught by the appellant at secluded locations;
    8. (h)
       not wanting her father or sister not to attend classes with her;
    9. (i)
       texting the appellant after the alleged rape; and
    10. (j)
        inviting the appellant to a “beach day” with her family the week after the alleged rape.
94. [94]
    Counsel for the appellant invited the jury to use those matters to assess the credibility of the complainant and ultimately the guilt of the appellant.
95. [95]
    A particular argument was advanced in relation to the rape count in the following terms:

“Now, there is another relevant feature of those texts, and that is this feature where there is reference to turning 15. Now, you will see that it might appear to you that there is something to happen when she turns 15. But ladies and gentlemen, if that’s the case, if it is to be sexual intercourse that is to occur when she turns 15, well, that [flies] in the face of the Crown case, because the Crown case is that it had already happened by the time these messages were sent:

You are 15 on Tuesday. The time has arrived.

Well, what time has arrived, ladies and gentlemen? It can’t be time for penile/vaginal penetration, because on the Crown case, it has already happened. Nothing on the Crown case explains, I would suggest to you, what that is a reference to. There is then some discussion about:

Yesterday was a milestone and advance forward, and you are not going to wait eight months.

Well, if that’s the chronology, ladies and gentlemen, if that is a reference to sexual intercourse, it hasn’t happened yet. So it can’t be the case, if you accept that those messages are read that way, that they somehow support the Crown case in terms of count 12. There is simply no explanation on the Crown case as to what this milestone is. You might think it makes sense when you read those messages as perhaps being an allegation of sexual intercourse. That is a matter for you. But if you do take that view, then you will have to come to a view that sexual intercourse hadn’t occurred at that point, and if you come to that view, then you will certainly be left with no choice but to acquit Mr Myer in respect of count 12.”

The summing up

96. [96]
    The summing up was unremarkable.  The only criticism advanced of it was in relation to the second appeal ground, to which I will return.
97. [97]
    The trial judge explained that each of the 12 charges had to be considered separately and that the jury had to evaluate the evidence relating to each charge separately to determine whether the prosecution had proved its essential elements beyond reasonable doubt.  Separate verdicts had to be returned and they did not necessarily all have to be the same.
98. [98]
    Nevertheless, the trial judge directed the jury that if they had a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to any one or more of the counts, whether by reference to her demeanour, or for any other reason, that must be taken into account in assessing the truthfulness and reliability of her evidence generally.  Their general assessment of the complainant as a witness would be relevant to all counts, but they would have to consider her evidence in respect of each count when considering that count.
99. [99]
    The trial judge directed the jury that the Crown relied on the evidence of each of the charged acts as evidence that the appellant had a sexual interest in the complainant and was willing to give effect to that interest.  He explained:

“If you are satisfied beyond reasonable doubt of a particular offence, that finding may make it more likely that the defendant committed the other offences charged in the indictment. If you are satisfied beyond reasonable doubt that the defendant committed a particular offence, then you must consider whether you can conclude that the defendant had a sexual interest in the complainant. If you are so satisfied, you may use that finding in considering whether the defendant committed the other offences charged.

The evidence of each charged act must not be used in any other way, though. It would be completely wrong to reason that because the defendant committed one offence, he is generally a person of bad character and for that reason must have committed the other offences. If, based upon a conclusion that the defendant is guilty of a particular offence, you are satisfied that the defendant had a sexual interest in the complainant, it does not inevitably follow that you would find him guilty of the other counts on the indictment, though. You must always decide whether, having regard to the evidence relevant to a particular count, the offence charge has been established beyond reasonable doubt.”

100. [100]
     The trial judge addressed the other pieces of evidence which the prosecution relied on as being supportive of the prosecution case including the text messages of 5 January 2019; the pretext phone calls on 7 January 2019; the texts, phone calls and face to face interaction between the appellant and Ms X on 7 January 2019.  He gave unremarkable post-offending conduct directions in relation to that evidence explaining the legitimate way in which the jury could take that evidence into account in a way supportive of the prosecution case.  The directions included that the jury could not use the evidence to infer that he was a person of bad character and therefore must have committed the offence.  Further, he noted, even if the jury was satisfied that he had a sexual interest in the complainant and was prepared act upon it, it would not inevitably follow that the jury would find the appellant guilty of all counts of the indictment.  They must always decide whether the prosecution had proven each count beyond reasonable doubt by reference to all of the evidence relating to a particular count.
101. [101]
     The trial judge also addressed the particular aspect of the face-to-face interaction with Ms X in which the appellant asked Ms X to speak to the complainant to see if she could persuade the complainant not to tell anyone what had occurred.  He directed the jury that –

“… before you could use his request of Ms [X] to do that as in any way being indicative of guilt on his part, you would have to first find that he did that knowing that he was guilty of the offences with which he is now charged, and not for any other reason. You should remember that people do not always act rationally, and that conduct of this type can be explained in other ways at times. For example, as the result of panic or for reasons having nothing to do with the offence or offences that are charged.

Before the evidence of the defendant’s request of Ms [X] in this regard can assist the prosecution, you would have to find not only that his request of her was motivated by a consciousness of guilt on his part, but also that it was in – that what was in his mind was guilt of the offences with which he has been charged and not some other misconduct. If, and only if you reach the conclusion that there is no other explanation for this behaviour, such as panic or fear of wrongful accusation, for instance, you are entitled to use that finding as a circumstance pointing to the guilt of the defendant to be considered with all of the other evidence in the case. Standing by itself, though, it could not prove guilt.”

102. [102]
     The trial judge addressed the cross-examination of the complainant which had suggested potential motives for her to lie about the conduct of the appellant, namely (1) that she did not want him not to go to jail and (2) she had a crush on him and was angry to discover about the relationship between Ms X and the appellant.  He directed the jury:

“If you reject the motive to lie put forward, either of them or both of them, put forward on behalf of the Defence, that does not mean that the complainant is necessarily telling the truth. Remember, it is for the prosecution to satisfy you that the complainant is telling the truth, because it is the prosecution’s burden to satisfy you beyond reasonable doubt of the guilt of the defendant.

The prosecution has submitted that the complainant does not have any motive to lie. You must bear in mind that any failure or inability on the part of the defendant to prove a motive to lie does not establish that such a motive does not exist, though. If such a motive existed, the defendant may not know of it. There may be many reasons why a person may make a false complaint. If you are not persuaded that any motive to lie on the part of the complainant has been established, it does not necessarily mean that the complainant is truthful. It remains necessary for you to satisfy yourselves that the complainant is truthful.”

103. [103]
     The trial judge carefully summarised and gave an appropriate direction concerning the preliminary complaint evidence given by the complainant’s mother and by Ms X.
104. [104]
     The trial judge gave the jury an appropriate direction concerning the elements of each of the counts alleged against the appellant and summarised the arguments of counsel, including the material on which the appellant’s counsel had suggested gave rise to relevant inconsistencies and discrepancies.

Consideration of the first appeal ground

105. [105]
     The ground of appeal requires this Court to consider 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 (see M v The Queen (1994) 181 CLR 487 at 493 and Dansie v The Queen (2022) 403 ALR 221 at 224).  I apply the principles summarised in R v Mirotsos [2022] QCA 76 at [68].
106. [106]
     It was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty in relation to counts 1 to 11.  The complainant’s evidence supported that conclusion.  The evidence of preliminary complaint concerning those counts supported the conclusion that the complainant had given reliable evidence in relation to those counts.  The evidence that the appellant had a sexual interest in the complainant and was prepared to act on it was overwhelming and supported the prosecution case.  The various matters identified by counsel for the appellant as alleged inconsistencies were all matters of little moment when evaluating the reaction of a 14-year-old child to sexual conduct of a man in his mid-30’s.
107. [107]
     The same could not be said of the rape count.  To the contrary, I find it was not open to the jury to be satisfied of guilt beyond reasonable doubt in relation to count 12.  That was so primarily because of the argument advanced by counsel for the defendant at trial and recorded at [94] above.  Counsel for the defendant was correct in suggesting that the Crown had no answer for the problem caused by the texts.  First, the text exchange plainly conveyed that there had been some escalation in the sexual activity between them on the previous night, but that the escalation had fallen short of actual penetration.  The appellant’s text suggested that the complainant would be “ready” for that further escalation on the following Tuesday when he suggested, contrary to his knowledge, that she would be 15.  Second, that interpretation of the texts was also supported by the complainant’s evidence that during the last visit to his apartment he had said that 15 would be when she was ready to lose her virginity to him: see the passage recorded at [59] above.  The text evidence provided further objective support for the criticisms advanced of the complainant’s reliability concerning count 12 founded upon the initial denials of penetration and the complainant’s delayed reporting of rape.
108. [108]
     In this Court, the appellant contended that the jury should have been persuaded that the complainant lied in respect of count 12 and in respect of her being afraid of him.  He relied on the Latin maxim “falsus in uno, falsus in omnibus”.  As to that notion and even if it were appropriate to conclude that the complainant should have been regarded to be telling a conscious untruth in relation to count 12, juries are entitled (and, indeed, are directed) not to regard the question whether they should accept or reject a witness’s evidence as an all or nothing proposition.  As McKerracher, Robertson and Lee JJ explained in CCL Secure Pty Ltd v Berry [2019] FCAFC 81 at [94]:

“It has been a long time since the maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) was part of the common law, its broad applicability having been rejected long ago (including by no less a judge than Lord Ellenborough CJ in R v Teal (1809) 11 East 307; 103 ER 1022). It is trite that the tribunal of fact (be it a judge or jury), having seen and heard the witness, is to decide whether the evidence of the witness is worthy of acceptance and this may involve accepting or rejecting the whole of the evidence, or accepting some of the evidence and rejecting the rest: Cubillo v Commonwealth [2000] FCA 1084; (2000) 103 FCR 1 at 45-47 [118]-[123]; Flint v Lowe (1995) 22 MVR 1; and S v M (1984) 36 SASR 316. It is for this reason a jury is directed that they may accept some parts of a witness’s evidence, but not other parts: Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155. This reflects the accumulated wisdom and experience of the common law that witnesses may lie about some things and yet tell the truth about others, and the tribunal hearing the evidence is best placed to fix upon the truth. The same can be said about a tribunal of fact assessing whether the balance of the evidence of a witness should be believed, when the witness has admitted an untruth after having been caught out in a deceit. …”

109. [109]
     I do not find any inconsistency between concluding that it was open to the jury to be persuaded of the appellant’s guilt on counts 1 to 11 and concluding that it was not open to them to be so persuaded on count 12.  There was a qualitative difference between the evidence relevant to the counts.  Moreover, it does not follow from my conclusion in relation to count 12 that I would find the complainant was telling a conscious untruth in relation to that count.  My construction of the texts is that the sexually experienced appellant had subjectively appreciated that he had not succeeded in having penile/vaginal intercourse with the complainant and had conveyed as much to the complainant.  On Sunday 6 January 2019, the sexually inexperienced complainant told her mother that she was unsure whether or not he had inserted his penis, because she had sought to push him off.  A little over 10 months later she had concluded that he had succeeded.  The jury should have had a reasonable doubt as to the reliability of that change of view, but it does not follow that they should have formed the view that she was consciously telling an untruth.  Nor does it follow that her evidence on count 12 irretrievably tainted her evidence in relation to the other counts.
110. [110]
     The first appeal ground fails in relation to counts 1 to 11 and succeeds in relation to count 12.  Its success on count 12 justified the orders made to quash the conviction and to enter a verdict of acquittal in respect of that count.

Consideration of the second appeal ground

111. [111]
     The appellant contended that the trial Judge erred in failing to give the jury a distressed condition direction in relation to the complainant’s evidence in chief referred to in the prosecution’s closing argument.
112. [112]
     The part of the prosecution’s closing argument to which reference was made was as follows:

“Then, in November, she went back. Now, she was upset from the start in that interview. We have just watched the first five minutes again. You can actually see her left leg shaking under the table. You can see that within a couple of minutes she is crying, and the detective has to go and get her some tissues. She then says what happened on that last occasion.

By then, you might conclude that she was ready to come forward, ready to tell what was left of her story. She had waited long enough. We have heard that she had been to counselling by that stage. She said, in her words, that she wanted closure, and of course, she – she still doesn’t know that she had to be questioned further here at court, and I will come to some of the things again that were asked to her. But you might just think that that all fits in the timeline. At some time later, she is no longer in the position she was, that we have seen on the 6^th of January: scared, reluctant, and willing to say exactly what happened to her.”

113. [113]
     First, this was not a case in which evidence of “distressed condition” was led in support of the complainant’s evidence that she was raped.  The submission was not that the jury should infer from evidence of the complainant’s distressed condition that she was raped.  Rather a submission was made concerning her demeanour when giving the evidence the truth of which the jury was invited to accept.
114. [114]
     Second, even if the evidence was of a kind which might have attracted a distressed condition direction, the appellant’s counsel did not seek such a direction at trial.  There was a good forensic reason not to do so, namely that it would tend to distract from the submissions which counsel wanted to make, namely reliance on the inconsistency between, on the one hand, the text evidence and the complainant’s initial version of events (both of which were consistent with each other) and, on the other hand, the complainant’s version of events given 10 months later in November.
115. [115]
     The second appeal ground must fail.

Consideration of the third appeal ground

116. [116]
     The third appeal ground was that the respondent had failed to honour its disclosure obligation, occasioning a miscarriage of justice.
117. [117]
     The respondent submitted, correctly, that there was no evidence in the appeal record to suggest that there had been a failure to disclose or a failure to meet any request for disclosure; no issues raised in this regard prior to or at trial by the appellant’s legal representatives; and no cross-examination of the investigating police officer when he was called.  This ground rests entirely on the appellant’s assertion on appeal and must be regarded as speculative.
118. [118]
     The third appeal ground must fail.

Consideration of the application filed 31 October 2022

119. [119]
     The appellant sought orders for production of “[t]he ‘pre-interview’ Interview transcripts and blue record book” and “Q prime records” and for leave to adduce evidence on appeal.  As I have mentioned, the application was not supported by any evidence at all.  There was no evidentiary basis for this Court to make any order for production.  As mentioned in relation to the third appeal ground, there was no evidentiary basis for any conclusion that there had been any failure by the prosecution to honour its disclosure obligation.  Nor, apart from assertion, was the appellant able to explain how documents bearing the description which he gave would necessarily have contained evidence that would have helped his defence at the trial.
120. [120]
     The application must be dismissed.

Conclusion

121. [121]
     For the foregoing reasons, on 16 November 2022, I joined in orders which allowed the appeal against the conviction on the count of rape (count 12), and which quashed the conviction and entered a judgment of acquittal in respect of that count.
122. [122]
     In relation to the matters on which on 16 November 2022 the Court reserved its decision, I would make the following orders:

     1. (a)
        the application filed 31 October 2022 be dismissed; and
     2. (b)
        the appeal against conviction on counts 1 to 11 be dismissed.

123. [123]
     DALTON JA:  For the reasons given by Bond JA, I joined in the making of the Court’s orders on 16 November 2022.  I agree with the reasons and orders proposed by Bond JA for the disposition of the remainder of the trial.