R v VN[2023] QCA 184

SUPREME COURT OF QUEENSLAND

1. [1]
   BOWSKILL CJ:  On 13 May 2021, the appellant was convicted, following a trial by jury, of three counts of rape, one count of assault with intent to commit rape and two counts of common assault.  He was subsequently sentenced, on 30 August 2021, to 12 years’ imprisonment, concurrently, for each of the three counts of rape, with additional concurrent terms of four years’ imprisonment for the assault with intent to rape and six months’ imprisonment for one count of assault, with no additional punishment for the other count of assault.
2. [2]
   The victim of each of the six offences was the same young woman, aged 17 to 18 at the time, who was essentially the appellant’s stepdaughter (her mother was in a sexual relationship with the appellant at the time of the offending).
3. [3]
   The appellant appeals against the convictions and seeks leave to appeal against the sentences imposed for the rape convictions.  He is separately represented, by counsel acting pro bono on the conviction appeal and counsel instructed by Legal Aid on the sentence application.  These reasons deal only with the appeal against conviction.  As the hearing of the conviction appeal was adjourned when it first came on for hearing, following issues raised by the court in relation to the notice of appeal, and then subsequently occupied two hearing days, the sentence application has not yet been heard.

Grounds of appeal

4. [4]
   The notice of appeal against conviction has had three iterations.  As amended by the time of the hearing in August 2023, the grounds on which the appellant appeals his convictions are prolix.  The grounds in full are set out in the appendix to these reasons, but may be distilled down to complaints that:

Ground 1: The original video footage, from which a 30 second video that was tendered at the trial was apparently taken, is fresh evidence, or new evidence, the absence of which at the trial deprived the appellant of the possibility of an acquittal, such that the trial miscarried; to the extent that trial counsel failed to take steps to achieve this, he was incompetent.

Ground 2: Contradictory expert evidence obtained post-conviction from Dr Sorrell is fresh evidence, or new evidence, the absence of which at the trial deprived the appellant of the possibility of an acquittal, such that the trial miscarried; steps should have been taken to obtain defence expert evidence to respond to the prosecution’s expert evidence in relation to editing/manipulation of the 30 second video; the failure of trial counsel to either object to the prosecution’s expert evidence on the ground of unfairness, or seek to adjourn the trial to obtain a responsive report,  was incompetent; as was the failure of trial counsel to advise the appellant that he could (and should) give evidence to explain how the 30 second video came into existence.  Also, an admission about the video should not have been made.

Ground 3: Evidence of phone communications between the appellant and the complainant, obtained from the appellant’s phone(s) seized by police, is new evidence, the absence of which at the trial deprived the appellant of the possibility of an acquittal, such that his trial miscarried; and, again, trial counsel was incompetent because he failed to view the phone communications data and cross-examine the complainant in relation to it, or otherwise seek to have the phone communications data put into evidence in some way.

Ground 4:  Evidence of Google map timeline printouts is new evidence, the absence of which in evidence at the trial deprived the appellant of the possibility of an acquittal, such that his trial miscarried; and trial counsel was incompetent because he failed to view and consider the Google maps together with the phone data, cross-examine the complainant about the maps, or otherwise seek to have the maps put into evidence in some way.

Ground 5: The absence of the following things in evidence at the trial deprived the appellant of the possibility of an acquittal such that his trial miscarried: videos of the complainant on her 18^th and 19^th birthdays; evidence of the appellant buying her gifts; and evidence of the appellant buying a lock for the complainant’s bedroom door.

Ground 6: The trial miscarried “from one or more of the following cumulative errors”: the trial judge allowing the return to the Crown of the 30 second video on the USB marked “B” for identification; the failure to provide to the jury a corrected transcript of the translation of a pre-text phone call; the failure of the trial judge to properly direct the jury in relation to preliminary complaint evidence; and the failure of the trial judge to properly direct the jury about one part of the interpreter’s evidence (the meaning of the word “ruin”).

5. [5]
   There being no objection from the respondent, the appellant was given leave to rely upon further evidence from himself, his solicitor, an expert (Dr Sorrell), an interpreter and one of the barristers who is part of the pro bono team assisting him on his conviction appeal, for the purposes of determining the appeal.  With the expansion of the grounds of appeal to allege incompetence, the court also received evidence from the appellant’s trial lawyers.

Evidence at the trial

6. [6]
   In order to deal with the various grounds of appeal, it is necessary to understand the context, having regard to the course taken, and evidence given at the trial.
7. [7]
   The complainant was born in Sri Lanka, and came to Australia in 2013, aged 13, with her mother and her brother (who is four years older than the complainant).  At the trial, the complainant and her brother spoke English well enough to give evidence without an interpreter.  The complainant’s mother did not; she gave evidence at the trial in the Tamil language, with the assistance of an interpreter.  The appellant is also Sri Lankan, does not speak English well and required the assistance of a Tamil interpreter to understand the proceedings and provide instructions.
8. [8]
   Shortly before the trial commenced, orders were made that each of the complainant, her mother and her brother was a “special witness” within the meaning of s 21A of the Evidence Act 1977 and that their evidence be given in a remote room and pre-recorded.  The pre-recording of their evidence took place on 28, 29 and 30 April 2021.
9. [9]
   The trial commenced on 29 April 2021, with the jury being empanelled on that day.  But as the pre-recording of the evidence of the special witnesses was still ongoing, the trial was otherwise adjourned until Tuesday, 4 May 2021.
10. [10]
    The complainant was 21 at the time she gave evidence in April 2021; she was born in March 2000.  She recalled meeting the appellant for the first time in about October 2017, when he came to their home.  The circumstances were traumatic: her mother had attempted suicide.  Although that was the first time the complainant had met the appellant, she said something was “going on with” her mother and the appellant prior to that.
11. [11]
    In fact, the mother had met the appellant a number of years earlier, in 2014, shortly after she and her two children (the complainant and her brother) had arrived in Australia from Sri Lanka.  The appellant had given her his phone number and said to contact him if she needed any help.  He then moved to Sydney for some time before returning to Brisbane.  He started to visit the complainant’s mother regularly from October 2017.
12. [12]
    The appellant had a wife and children in Sri Lanka.  When he started to visit the complainant’s mother, from October 2017, she said “[h]e told me that he is now living single.  The wife in Sri Lanka is having a relationship with someone else there, so I want to live with you, I will marry you, like that, he talked to me very romantically”.
13. [13]
    The home the complainant, her mother and her brother lived in at this time was small, a two-storey unit with two bedrooms.  The complainant and her mother shared one bedroom and her brother slept in the other.  From October 2017, the appellant started to stay the night sometimes.  In the bedroom they shared, the complainant had a single bed and her mother had a double bed.  When the appellant stayed over, he slept with the mother in the mother’s bed.  The complainant would sleep in her bed, facing the wall.
14. [14]
    The complainant called the appellant “uncle”, which she described as part of Tamil culture, given that he was more than 20 years older than her.  The appellant was aged 40 to 41 at the time of the offending.
15. [15]
    At some stage, in either December 2017 or January 2018, the complainant’s mother asked her to call the appellant “dad” instead of uncle.  As the complainant said, in the Tamil language there is no word for “step-dad”, so she called him dad (or “appa”, in Tamil).
16. [16]
    The complainant said that in about the middle of January (2018), the family were “starting to interact with him [the appellant] more”, and he “just … comes and goes to our house”.  She said this “interaction” would include her talking to him, on the sofa in the living room.  She said that the appellant started to “inappropriately touch me”, for example “tried to, like, hug me he put his hand across me, so it would touch my breast”, when sitting on the sofa.  She said she told him not to, and that “he would say that I’m his daughter and I would do the same thing to [my] daughter, and he just smiled”.  The complainant described another occasion when she was making coffee or washing her hands, and he “brushed my bottom” with his fingers, in a way that did not really look that obvious.  When she confronted him, he would just “smile and walk away” and say “it was an accident”.  She said this happened a few times.  This was in January; she was about to start year 12 at school.  She was 17.
17. [17]
    The complainant said that shortly before her 18^th birthday (which was in mid-March 2018) she recalled an occasion when she was sleeping in her bed (in her mother’s room).  Around 9 or 10 in the morning, the appellant woke her up and told her that he wanted to have sex with her.  She said she tried to walk away, and also that she screamed and was yelling and crying, but he “just forced me”, and also slapped her a number of times.  She had never had sex before.
18. [18]
    She said she “felt dizzy and unconscious” afterwards.  The appellant left the room, and came back within a couple of minutes and threatened her, saying she was not to tell anyone, especially her mum.  The complainant stayed in bed and slept the rest of the day.
19. [19]
    This was the subject of the first charge of rape (count 1).
20. [20]
    After that incident, which she said was in about early March 2018, the complainant said her interactions with the appellant changed, in that she did not talk to him.  Her mother asked her why she did not talk to him, and the complainant “just told her that I don’t want to”.
21. [21]
    Then at the very end of March, the appellant came into the complainant’s room and told her that he had “capture[d] a video” of him having sex with her.  He told her that he would post it “everywhere”, on social media.  She cried and begged him to delete the video.  He refused, and threatened her: he said he wanted to have sex with her “for another month or so”, and would delete the video after that.  When the complainant said she would tell her mother everything, the appellant said to the complainant that “she [the mother] might kill herself if she knows that”.  The complainant said she felt frightened and trapped and did not know what to do.  She believed the appellant’s threat that he had a video of them having sex – because he worked as a cameraman, shooting and editing videos for ceremonies and functions.  The mother described him as a “videographer”.  The complainant said she was frightened because, as she said “my culture is… totally different” and “it would ruin my future and it would ruin my reputation”.  She did not know what to do, and agreed to have sex with him again “out of fear”.
22. [22]
    The next time that the appellant had sex with the complainant was in April 2018.  The complainant had “quit school” by this time.  She was staying at home.  The appellant approached her, when she was in the bedroom she shared with her mother, when nobody else was around, and forced her to have sex with him.  She said she tried to get away from him and told him that she did not want to, but that he told her she had already agreed, because of the video.  This incident was the subject of the second charge of rape (count 2).
23. [23]
    In May 2018, the complainant said that her brother was starting to leave the house more, and she moved her bed to her brother’s bedroom.  The brother gave evidence that he moved out of the house at that time, because the appellant was staying over regularly, and he thought it was better that his sister (the complainant) have her own room “[b]ecause I didn’t like the fact that he [the appellant] had to spend even a little moments with my sister”.
24. [24]
    The complainant described an occasion when she had had a shower, and then returned to her (now separate) bedroom, with just a towel wrapped around herself.  The appellant suddenly opened the door and forced her to have sex with him.  She said she tried to “block what was happening, but I couldn’t”.  This was the subject of the third charge of rape (count 4).
25. [25]
    In addition to those specific occasions, the complainant said there were other times when the appellant forced her to have sex with him.  She could not say accurately how many times, other than it was “definitely less than 10”.
26. [26]
    In around June 2018, the complainant said that she realised that “this was not going to end”, that the appellant was lying and that he was not going to delete the video he had used to threaten her, and so she “stood up to” him, telling him to “[d]o whatever you want”, meaning “go and post the video”, “because I’m done with it”.
27. [27]
    Another incident the complainant described happened in about June, after she had stood up to the appellant, when she was talking on the phone to a male friend who lived in Sri Lanka, around 11 or 12 o’clock at night.  She said the appellant came into her room, slapped her, and hit her with his fist to her face.  She started screaming and crying, and said her mother woke up and came to her room.  The complainant did not suffer any injuries as a result, other than a red, painful feeling on her cheeks.  This gave rise to a charge of common assault (count 3).
28. [28]
    The complainant’s mother gave evidence consistent with this – of being woken up hearing her daughter crying, and going to her bedroom and seeing the appellant coming out of that room.  She observed some finger marks on the complainant’s face.  When the mother asked the appellant what had happened, the appellant was angry and said the complainant was talking to someone on Facebook.  The mother said she was also angry, and told the appellant that “you should not beat my daughter”; and that he replied, “I’m her dad”.
29. [29]
    The complainant’s family (including her mother and her brother) moved to a home in another suburb in August 2018.  The appellant moved with them.  By this time, he was permanently living with the family.  The complainant said that after the family moved to the new suburb, she and the appellant “don’t talk to each other at all”.
30. [30]
    A further incident took place in September, at this new home.  The appellant was drunk.  Nobody else was home.  The appellant came into the kitchen, where the complainant was, and threatened her, telling her he wanted to have sex with her.  She was frightened and tried to get away, but was unable to.  She said the appellant was hitting her hard, she was on the floor and he kicked her on her thighs.  She was crying and he slapped her, near her ear, causing her to feel an echo in her ear and become dizzy.  All the while he was using swear words and speaking “nastily, using very dirty words” to her.  Eventually, he fell unconscious, and she was able to run outside.  This gave rise to the charge of assault with intent to rape (count 5).
31. [31]
    The complainant called her aunt and told her what had happened, and the aunt told her to go to a neighbour’s house.  She did not return home until her mother came back.  The complainant told her mother the appellant had slapped her, but did not tell her about the sexual offending at this time.  The mother gave evidence of coming home on a Sunday in September, finding the complainant at the neighbour’s house, and observing finger marks on her arm and cheek.  The mother asked the appellant what had happened, and he said “she was communicating in Messenger.  So I beat her”.  She observed broken glass pieces in the loungeroom, asked the appellant about that, and he said he broke the complainant’s phone because she was communicating in Messenger.
32. [32]
    A couple of months later, in about December 2018, the complainant’s mother told her to take some food to a doctor.  The appellant drove the complainant to the doctor with the food.  Unbeknownst to the appellant, the complainant recorded her conversation with the appellant in the car, on her mother’s old Nokia phone.  She said that, in that conversation, he made reference to the video, and his intention to post it on social media.  The complainant said she confronted him about forcing her to have sex with him, and that he admitted doing this.  She also said he talked about the video he had taken, and said that he “was threatening my life, like, he was saying that he won’t leave me – if – like, he would ruin my future, also, … and also that … he was going to post the video to everywhere”, and that “he would kill me because – sounds like that I did something to him… just all lies”.
33. [33]
    The complainant said that, shortly before Christmas, possibly on 24 December 2018, she told her mother the “whole story”, of the appellant raping her and threatening her with the video; and she played the recording (of the conversation just referred to) to her mother as proof, in essence, of what she was saying.  In her evidence, the mother also referred to a conversation on 24 December 2018, in which the complainant told her the appellant had raped her.  The mother said that the complainant “told me that [the appellant] ruined me”, and said her understanding is that, in the Tamil language, when someone says “ruined” it means raped.  The mother said that she and the complainant were at home when this conversation took place; and the appellant was there also.  The complainant showed her that she had a recording, on the mother’s old Nokia phone, but because the appellant was around, the mother and the complainant went to a nearby shopping centre and listened to it there.  She said she could hear the appellant and the complainant speaking on the recording, in Tamil, and heard the appellant say something like “I ruined you, but why are you not coming to me and if you tell this to your mother, I will kill your mother, and, also I will kill you”.
34. [34]
    The mother gave evidence that, when they returned home, she confronted the appellant, asking him if he had “ruined my daughter”, to which he said ‘yes”.  She agreed in cross-examination that the appellant told her he had been having sex with the complainant for four or five months.  The mother also said that the appellant threatened her, that she was not to tell anyone and if she did, he would kill her; and also said that he had a video recording of both her (the mother) and the complainant, and would post the videos on Facebook and social media.
35. [35]
    The complainant said that, later, her mother told her to delete the recording, which she did.  In her evidence, the mother said she did this because the appellant was threatening her, telling her not to tell anyone, including the complainant’s brother.  As the brother sometimes used other phones, she did not want to risk him coming across the recording inadvertently, and so told the complainant to delete it.  This phone was not able to be located by the complainant, during the police investigation.
36. [36]
    A few months later, on 7 April 2019, the appellant came into the complainant’s bedroom around midnight.  She was sleeping.  He woke her up and said he wanted to talk with her and asked her to come to his bedroom.  She was frightened and told him to get out; and he slapped her.  The complainant was screaming and crying, and her mother came into the room and told the appellant to get out.  This incident led to the further charge of assault (count 6).  The mother gave evidence of hearing the complainant screaming, and running to her room, where she saw the appellant “beating” the complainant, by slapping her on the face.  The mother said she tried to stop him, but he kicked and beat her.  Eventually, the brother, who had heard the complainant screaming, came into the room.  He saw the appellant slap the complainant.  The brother called the police, and they took the appellant away.
37. [37]
    Up until this date in April 2019, the appellant had continued to live with the family and continued in the relationship with the complainant’s mother.  He did not return to live with the family after this date.
38. [38]
    When the mother was asked why she allowed the appellant to stay in the home, after Christmas 2018 and up until April 2019, despite what the complainant had told her about him, the mother said it was because he had threatened her, saying that he would post the videos.  She said “my primary reason for keeping [him] at home is to get that video from him”.
39. [39]
    At some time after that incident, also in April 2019, the complainant told her brother what the appellant had done to her, including that he raped her and had threatened her with release of a video.  The complainant’s mother was present during this conversation.  As described by the brother in his evidence at the trial, the complainant told him that, when the appellant was living with the family in January (2018), he started to grope her and touch her private parts.  He asked her why she did not tell their mother, and she told him the appellant had “emotionally blackmailed” her, saying “if you tell mum… she’s going to kill herself”.  As the brother said, their mother had attempted suicide before, “so that’s why my sister was really frozen with fear – fear of my mum’s life”.  The brother went on to say that the complainant told him that in March (2018) the appellant forced her to have sexual intercourse with him and, after that, blackmailed her with threats about the video, as well as death threats.  He said he could imagine “how my sister should have frozen with fear of her and my mum’s life, plus reputation”.  He further explained that “from our background and from our culture, it’s real concern that if those videos released, her reputation would be really ruined and the – nobody would want to marry her in the future”.
40. [40]
    It emerged in cross-examination that, after having made a statement to the police, the complainant instructed a lawyer to tell the Director of Public Prosecutions that she wished to withdraw the complaint.  She said that:

“it was my mum that just forced me and was telling that if I’m go to court, my name would be ruined and my future will also be ruined.  So I don’t want to, like, no mother, like, wish her child to be embarrassed in front of court.  And I just accept – accepted what she was saying and at point, I was really depressed, and I accept when mum was saying at that point in time”.

41. [41]
    In her evidence, the mother agreed that she bullied the complainant into withdrawing the complaint.  This was because a “catholic father” had told her the complainant should not proceed with the case, because it would affect her future.
42. [42]
    The complainant later changed her mind and decided she did want to proceed with the charges, because her brother told her she had to take action because otherwise this would not end, “he would just threaten my whole life”.
43. [43]
    The appellant’s case at the trial was that he and the complainant had a consensual sexual relationship, which only began after she had turned 18 in March 2018, and lasted for about five months.  In cross-examination, it was put to the complainant that she would willingly have sex with the appellant about four to five times a week during this period and that it was always consensual.  She denied that, saying “he raped me and he forced me to have sex with him”, “he forced me every single time”.
44. [44]
    At another point in the cross-examination, defence counsel put to the complainant that “the sex that you had was entirely consensual”.  She said no, it had “all been by force and out of fear I did everything”.  Counsel put to her that she “certainly, wouldn’t lie on a bed with the defendant and cuddle him… you would never have kissed and cuddled him whilst lying on a bed with him, would you?” and she said “no”.
45. [45]
    Defence counsel later showed the complainant a video (which was marked “B” for identification at the time).  The video is about 30 seconds long.  It shows two people on a bed, a man (whose face can be seen) and a woman (whose face cannot be seen).  The complainant agreed the man shown in the video was the appellant and that the woman in the video was her.  She agreed it was in the appellant’s bedroom at the house he had lived in in Goodna (not her home).  It was put to her that the video showed the two of them “just kissing and cuddling like a normal couple”, and that it depicted her willingly being with the appellant.  She responded “No.  He was raping that time”.
46. [46]
    The cross-examination ended at that point.  In re-examination, the complainant said she could not remember the particular occasion depicted in the video; and that she was not aware, on any occasion when she was on a bed with the appellant, that it was being recorded.  When asked to expand on her answer, indicating it did not depict her willingly being with the appellant, the complainant said:

“Well, he would just – I don’t remember that scene, but he just made me, like, to want it and I know that it would get worse if I don’t do what he says and you couldn’t, like, see my face, my reaction on that video. … So you couldn’t see my face in that video, like, how I’m – am feeling, only you could see him, like, his face.”

47. [47]
    Nothing more was done with the video at this stage, in terms of its tender or otherwise.
48. [48]
    In cross-examination, the complainant was also shown photographs of her and the appellant, taken at her 18^th birthday party, in March 2018 (exhibit 5).  She is smiling in the photographs, as the appellant stands beside her with his arm around her, and kissing her on the cheek.  She was also shown photographs taken at her 19^th birthday party, in March 2019, of herself with her mother, brother and the appellant (exhibit 6).  Again, she is smiling in the photographs.  Nothing more was put to the complainant, in cross-examination, about these photographs.  But in re-examination, the complainant explained that in the 18^th birthday photographs, she was pretending to be happy, “for my mum”.  In relation to the 19^th birthday photographs, she said there were about 20 people in front of her (that cannot be seen in the photographs).  She had not wanted to celebrate her birthday, but the appellant insisted the complainant celebrate her birthday with all these people, effectively forcing her mother to arrange it.  One of the photographs depicts the appellant feeding cake to the complainant, and another depicts the complainant feeding cake to the appellant.  She said the photographer urged her to feed cake to the appellant, for the photo, and that she had to “pretend that, you know, like, nothing happen in front of people.  I had no other choice”.
49. [49]
    A pre-text phone call took place between the complainant’s mother and the appellant, on 28 April 2019.  The call was recorded by the complainant’s brother, who was with the mother at the time.  The conversation between the mother and the appellant was in Tamil.  A translation of the conversation was prepared by an experienced Tamil interpreter, Mr Ponnusany.  As explained by the prosecutor:

“The plan is to play the recording as it is, in Tamil, for the jury to have a copy of the transcript and then to stop it at the bottom of each page at approximate time references, so they can mark for their own references when each page ends in terms of the time in the recording. That’s probably the most efficient way so that they can understand roughly the flow of the recording versus the transcript. And then at the end of each page I will ask if there’s anything additional that he [that is, Mr Ponnusany] would like to add or clarify in the meaning of the words on that page.”

50. [50]
    Defence counsel told the trial judge that he was quite content for the jury to have 12 copies of the transcript of the translation for the duration of the trial, including in the jury room.  There were no issues raised with the qualifications of Mr Ponnusany; defence counsel said it was accepted he was an expert in the Tamil language.
51. [51]
    Mr Ponnusany identified the translation he had previously prepared and that was marked exhibit 8.  Each member of the jury was given a copy of exhibit 8.  The trial judge told the jury that they could “make your own notes on your copy”, noting that they would have their copies with them in the jury room.
52. [52]
    The recording of the phone call (exhibit 7) was then played to the jury, stopping at regular intervals (the end of each page of the transcript) so that Mr Ponnusany could be asked if there was anything in the transcript that he wished to clarify, amend or speak to.
53. [53]
    The court took a break part way through Mr Ponnusany’s evidence, so that he could re-listen to the recording, with earphones, before continuing with his evidence.
54. [54]
    Following that break, and before the jury returned, he was asked if there were any changes he wanted to make to the transcript.  The only changes he identified were:

    1. The addition of another use of the word “cunt” and repetition of a phrase, “you separated us”, on page 6 of the transcript; and
    2. An additional use of the word “cunt” on page 7 of the transcript.
55. [55]
    The jury returned, and the process of Mr Ponnusany giving his evidence before the jury, by reference to the portions of the recording being played, continued.  He identified the corrections above.
56. [56]
    In cross-examination, he was asked about the meaning of a word or words he had not previously been able to hear (and so had recorded “not clear” in the transcript) and about the effect of some of the things he had transcribed.  An example of the latter is Mr Ponnusany being asked whether a “hm” that he had recorded represented agreement with the statement immediately before.  He asked for the recording to be replayed and then said no, it was not said in a sense of agreement, but rather scoffing, or disagreement.  In some other respects, a subtly different translation was suggested to him, but this did not result in the witness agreeing to further changes to the transcript.
57. [57]
    It is apparent from reviewing the evidence of Mr Ponnusany that the jury had the benefit of listening to the recording, slowly, with the translated transcript in front of them, to hear the “sense” and “tone” of the conversation.  They had the benefit of hearing from Mr Ponnusany as to the couple of minor corrections to the transcript.  They were invited to make notes on their copies of the transcript.
58. [58]
    The phone call was relied upon by the Crown as containing admissions against the appellant’s interest, including his admission that he had sex with the complainant, and what it demonstrated about the relationship between the appellant, the complainant and her mother – in terms of what was said to be clear aggression by the appellant towards the mother, together with offensive and abusive language.
59. [59]
    Before the recording of the phone call was played, Mr Ponnusany was asked about the word “ruined” and what meaning it might have in the Tamil language.  His evidence was that it depended upon the context in which it is used.  He was asked if “rape” is a possible meaning of the word “ruined” or the words “to ruin”, in Tamil, and he said “it is remotely possible, very remotely”, “in some situations”.  Mr Ponnusany was asked to give the Tamil word for rape – which he did – and then asked what that means in English.  He said the “literal meaning of the word is to ruin a woman’s chastity”.
60. [60]
    After the recording had been played, Mr Ponnusany was asked about some words that appear on pages 7 to 8 of the transcript, attributed to the complainant’s mother, saying that “you ruined the life of my child” and “ruining the life of an eighteen year old child”.  He was asked to explain the meaning of the words used there, in context.  Mr Ponnusany said:

“Here, the word ‘ruin’ is used in the sense of one’s life being destroyed, being ruined beyond repair”.

61. [61]
    Mr Ponnusany said that was the meaning of the Tamil word translated by him to mean “ruin”, in this context – to destroy beyond repair.  He said that word cannot mean rape, in this context (although said in other contexts, it can very remotely mean rape).
62. [62]
    Otherwise, there was evidence at the trial from a number of police officers of their involvement in the investigation.  One of them, officer Johnson, gave evidence that in the course of the investigation, three mobile phones were seized from the appellant on 2 May 2019.  He said there was no material “depict[ing] any intimate contact” between the complainant and the appellant, or between the mother and the appellant, on any of those phones.
63. [63]
    In terms of the course of the trial, the complainant gave her evidence, which was pre-recorded, on Wednesday, 28 April 2021, followed by her mother on 29 April and her brother on 30 April.  The question of the video, shown to the complainant during cross-examination, was raised by the trial judge with the prosecutor on the morning of Friday, 30 April, following an exchange about the need for editing of the recording of the complainant’s and the mother’s evidence.  The exchange was as follows:

“HER HONOUR: There is also the recording of the video of the complainant and Mr VN. Is that to be tendered? It’s a – for identification at the moment.

MR JACKSON: Yes. Yes, I am sorry. I understand your Honour’s point. My learned colleague, Ms [Wooldridge],^[1] elected not to tender that. And I respectfully agree with her position - - -

HER HONOUR: Well, I think that you ought to look at it, actually.

MR JACKSON: Yes.

HER HONOUR: With respect. It may well be that you form the view that it has blatantly been edited. And you might think that it has probative value. And, especially if the jury are being told that there is a video, and she’s been shown it. I don’t know that it is necessarily fair to the complainant to leave it just as - - -

MR JACKSON: I understand your Honour’s point.

HER HONOUR: - - - without the jury actually being able to assess it for themselves.

MR JACKSON: Yes. I raised this with my learned friend this morning. As I appreciate things, my learned friend would be entitled to tender the disc of his own initiative in the Crown case, on the basis that he would lose the right of first address. And that is a forensic decision that is open to him. From the Crown’s perspective, it is not my proposal to tender it. And it is not something that I would place in the Crown case before the jury as a Crown exhibit.

HER HONOUR: So you propose to leave the complainant admitting that that is her in a video without the jury getting to see what it is that has been recorded?

MR JACKSON: No. That is not my intention.

HER HONOUR: Well, I supposed we don’t need to deal with that at this point. But - - -

MR JACKSON: That is not my intention. And it is my intention to try and ascertain more detail. But if I am unable to do so, or unable to view it - - -

HER HONOUR: Well, it’s here. The court has it, you can view it.

MR JACKSON: The – my [under]standing is, though, just the portion that was played to the complainant was on the disc, and nothing more.

HER HONOUR: Yes. That’s right, isn’t it? There’s nothing else on the disc.

MR FENTON: I will just give my learned friend a copy of the – I [omitted] to do that, sorry.

HER HONOUR: Thank you. All right. So we’re ready?”

64. [64]
    As already mentioned above, the jury was empanelled on Thursday, 29 April, but sent away after the empanelment.  The jury returned on Tuesday, 4 May, for the start of the trial (Monday was a public holiday).
65. [65]
    The prosecutor returned to the issue of the video first thing on the Tuesday morning, saying:

“MR JACKSON: Good morning, your Honour. I can indicate that, after reflection over the weekend, the Crown will be tendering the video which is currently marked for identification. It is also the case that I have asked the Electronic Records Unit at Queensland Police to have a look at it. I propose to take a copy of that which was earlier marked for identification to ensure consistency. I understand it’s on a USB.  So if it pleases, if the USB could be returned to the custody of the bar table for that copy to occur.

HER HONOUR: Yes.

MR JACKSON: I don’t propose to open to the jury on the specific evidence that any ERS officer would give or who that will be.”

66. [66]
    There was no objection raised by defence counsel to that course.  In due course, the complainant’s recorded evidence was played before the jury.  At the end of this, which was at around 11 am on Friday, 7 May, the prosecutor tendered the video and it became exhibit 9.  There was no objection to that tender by defence counsel.
67. [67]
    The jury then retired to the jury room, whilst the trial judge dealt with the voire dire of the proposed expert witness from the Electronic Records unit, Mr Hall.
68. [68]
    The outcome of Mr Hall’s analysis had been reduced to another video (an analysis video), explaining his evidence.  Defence counsel indicated that there would be an objection to Mr Hall’s evidence, including that analysis video, based on lack of expertise (that is, that most of the opinions were matters the jury could work out for themselves, and did not require any expertise).
69. [69]
    Mr Hall was examined on a voire dire, in the absence of the jury.  At the end of this, which was just before 1 pm on the Friday, defence counsel requested that he have time over the weekend to prepare written submissions about the admissibility of the evidence, which was allowed.
70. [70]
    The jury returned at 1 pm, with a note (marked “F” for identification), which asked “what kind of device was video recorded on – and what was the date of recording”.  In answer to that, the trial judge said:

“And your question is about the kind of device of the recording, which, I take it, was the recording that was shown to [the complainant] by Mr Fenton [defence counsel], and the date of the recording. Well, the short answer to that is there no – is at this point no evidence of those two questions. You’ll remember that I told you at the start you had to decide this case on the evidence before you, and that the state of the evidence in relation to that is, so far – and the case has not yet finished, but so far, you’ve heard that evidence from [the complainant] that she didn’t know about any recording of her until the threat was made to her, and that she was never shown any recording, so she’d never seen it. The police gave evidence that they had not found any recording.

And then, the defence produced that recording during the cross-examination of [the complainant]. And she accepted that it was her in the video, but she said she had no memory of that particular occasion. That is really the extent of information about that video, other than the fact that she accepted it could have been in the Goodna room. So that is the extent, as I understand it so far, of the evidence. It may be that there will be more evidence about it, I don’t know. But you’ll have to wait and see on Monday, because I’m told now that we’re really reached the extent to which we can go today, and that there is further evidence, but it will be provided – it’s only available on Monday…”

71. [71]
    The trial was adjourned at that time, until the following Monday.
72. [72]
    On Monday, 10 May 2021, there was argument about the admissibility of Mr Hall’s evidence; both the prosecution and the defence having provided written submissions over the weekend.  The trial judge ruled the evidence was admissible, on the basis that Mr Hall was sufficiently qualified and that his analysis of the video went further than could be observed through ordinary experience.  As the trial judge observed, although it may have been obvious to the jury that the video had been edited, the question of editing had not been admitted by the defence and was still in issue.  The evidence of Mr Hall was said to be probative and, if accepted, may remove any doubt that the video had been edited.  Further, the evidence may assist to explain why the identified circumstances (of apparent editing) speak to deliberate manipulation rather than inadvertent degradation.
73. [73]
    The trial could not proceed further that day, because of an unwell juror and then an unavailable juror, and so resumed on Tuesday, 11 May.  Mr Hall gave his evidence before the jury on that day, including by reference to the analysis video (which became exhibit 10).  Mr Hall’s evidence included:

    1. that the sound on the video was “not naturalistic” and was not “an original sound recording from those events”, that is, it was not the sound in its natural form that would have occurred at the time the depicted events occurred – leading him to the opinion that the sound had been manipulated and was incomplete – either that sound was added or the original sound removed later;
    2. that there were “visual discontinuities” in the video, including sudden changes of the location of the two people – which could be the result of editing, or malfunction in the recording process (although he considered the latter unlikely); and
    3. that the video showed elements that would not be seen by a camera recording a scene, but rather looked like “computer screen items” (such as the white boundaries, black bars at the top and bottom, a pause button and a “progress bar”) – leading to the view that what the video depicted was a “recording of a recording” – that is, that the video shown to the complainant was a recording of another recording playing on a computer screen.
74. [74]
    Prompted by a further question from the jury, at the start of the following day, Wednesday, 12 May, Mr Hall was asked whether he was able to determine when the video file (which was shown to the complainant and became exhibit 9) had been created.  He said that he could, and that it was created on 21 May 2020.
75. [75]
    The cross-examination of Mr Hall was relatively brief, and elicited the evidence that if a file (such as the video file) had been deleted and then recovered, that could cause malfunction or corruption of the file, and also that it was possible that the discontinuities Mr Hall observed could have been caused by equipment malfunction.
76. [76]
    Just prior to the close of the Crown’s case, a number of joint admissions were made, which became exhibit 12.  One of the admissions was that:

“The complainant’s evidence was recorded on 28 April 2021.  Exhibit 9 (the recording later analysed by Mr Stuart Hall) was produced by the defence during the complainant’s cross-examination.  On 4 May 2021, Officer Ryan Johnson obtained an accurate copy of Exhibit 9, which he provided to Mr Stuart Hall for analysis.” [underlining added]

77. [77]
    The appellant elected neither to give nor call evidence.
78. [78]
    There followed an exchange between the trial judge and counsel about the directions to be given.  In the course of that, another note came from the jury, marked “J” for identification.^[2]  The note reads “can we see the part in the video where [the complainant] appears to push the defendants face away.  Has this motion been quicken or slowed down.  It is around or just before frame number 478.”  The trial judge referred to this in a shorthand way, by saying “the jury have asked if they can see the video while they’re waiting”.  Although the prosecutor said that should not occur until after the addresses, defence counsel said he had no objection, and the judge ruled that the jury could have exhibit 9.
79. [79]
    Although there had been some discussion earlier in the trial about whether a Weissensteiner^[3] direction, or a consciousness of guilt direction, ought to be given, in relation to the editing/manipulation of the video which became exhibit 9, ultimately, favourably to the appellant, the trial judge decided not to do so.  Instead, her Honour indicated – prior to either counsel’s closing address – that what she proposed was:

“to tell them what they make of the – the video – what they make of the video is a matter for them. It may – if they think it’s a credible piece of evidence, it may support – it may discredit the complainant and support the defence case, of a consensual affair, or they may think that is shows on its face that something less than – that she’s pushing him away. In which case, it doesn’t – it may – it does not take that argument very far, in the defence case point of view.

Or that they might find it’s completely worthless as a piece of evidence. And if they find that it’s edited, then they should put it to one – it’s been edited so that it is not an accurate account of events, they should put it to one side and they cannot use it as evidence of guilt.”

80. [80]
    Consistent with that indication by the trial judge, the prosecutor adapted his closing address, such that what he said about the video was:

“He basically built a web of deception and lies. Lies because he told her that he had a video. He told her that he had filmed them and he told her, importantly, that he would get rid of that video if she had sex with him for a month. Now, we don’t know whether he got rid of that video or not, but magically in this case there comes a video, and that video, on the evidence of Mr Hall, was created a long time after the end of this indictment period, which ends in April 2019.

Now, it’s very important we don’t reverse the onus of proof. The defendant is not under any obligation to call evidence, this burden rests with the Crown, but I can comment on the evidence that you’ve seen and the analysis of it that came from Mr Hall. That video has been heavily manipulated. That much is clear. Mr Hall arrived at a number of conclusions and you might think that he is someone that arrives at those conclusions with a wealth of experience. He knows what he’s talking about.  He was with the ABC for 17 years, he did podcasts for the ANU, and now he’s spent 13 years as a video analyst. The upshot is that that video has been so manipulated, it has been so contorted, that you simply wouldn’t rely on what it shows. We don’t know what it really shows. Sure, it shows a person that the complainant identified as herself in the bed, and it shows a person she identified as the defendant. That’s really it.

We don’t know where that was filmed. It’s been suggested that it was in Goodna, and as part of my role as a prosecutor, to fairly prosecute this case, you saw the admissions that the parties arrived at that it’s possible that the defendant had filmed that in Goodna, because he had an address listed in Goodna. And the complainant, having had this video dropped on her in cross-examination like a bomb – which you might think was the purpose of it, to surprise, with shock and awe, the complainant – in fact, you might think it had the reverse effect. She looks at this video which would have been, if you accept her evidence, very traumatic for her, and she was fair and measured in her response. She said it could have been Goodna, she wasn’t sure, and importantly, she identified herself.

That video does not show her face. There is very little in that video that shows us, as the viewers, that it’s her. How do we know that it’s her? Because she told us. She told us up front. Mr Fenton was pushing at an open door. This wasn’t some lengthy piece of cross-examination where she had to drag this information out of her…

…

Now, we don’t know how that video was edited. We know objectively that it was substantially edited. There is no evidence in this trial as to who did it. All we know in the admissions, the objective facts, is that the defence produced it. That was on the 28th of April. That was handed to officer Ryan Johnson, who took it over to the police to have it analysed, and Mr Hall gave three hours – you might think a very detailed evidence about it – to show you step-by-step, on the basis of his observations, his conclusions, and how he applied his considerable experience to the observations and the conclusions that it is simply a worthless piece of evidence. It’s worth nothing.

But what it shows, on the basis of her response to it, is that this is a defendant who was manipulative, that she was manipulated, and he was utterly shameless…

…

It was defence counsel who established that she never knew she was being filmed. It was actually Mr Fenton who had her agree she didn’t know she was being filmed.  However that recording came about – and my submission is to you, you would put it in the evidential bin – it came to your attention because you need to see it. It was played to the complainant in cross-examination and it’s important that you have it so you can assess it for yourselves – you are the judges of the facts – but you assess it with the benefit of significant experienced analysis to point out to you just how worthless that is. We don’t know so much about that video. We don’t know where it’s come from; we don’t know what it once included. We simply don’t know. You’d chuck it, in my submission, and you would turn to the complainant’s account of what happened.” [underlining added]

81. [81]
    Defence counsel’s closing submissions, in relation to the video, relied upon it as a piece of evidence consistent with consent.  Defence counsel said:

“Then, finally, there’s the video that was on the bed, the one that the Crown were so terrified of that we had to hear hours of expert evidence, but the expert evidence doesn’t in any way change these three facts: that it is clearly [the appellant], that it is [the complainant], and they are on a bed and appear to be cuddling. That, members of the jury, is the tale of these four tapes,^[4] all of which support innocence.”

And later:

“…There is no obligation on a defendant to disclose anything to the prosecution. That is our law. It allows you to see what happens when someone’s confronted with something they haven’t seen in real life. And it gave me no pleasure to do that, but she was clearly – knew that the game was up when I – when she – when she saw that [the video]. It was awful but at the end of the day, it means that this man did not do the things that he is alleged to have been done. If there’s any doubt about it, in my submission, that video is simply the nail in a long-dead – in the coffin of a long-dead Crown case and if there’s anything worse, it’s these photos. She is not a good actress and to be appallingly frank with you, in these photos which is just after her 18^th birthday, she does not look like a rape victim. She looks more like a blushing bride…”

82. [82]
    The trial judge’s summing up directed the jury that:

“Now, while still on the topic of the possible use you might make of actions by [the appellant] outside of the charges, I want to say something about the bedroom video. That is exhibit 9, which was produced in the cross-examination of [the complainant]. There is no evidence identifying that incident as one of the charges. The defence put the recording to [the complainant] to contradict her claim that all occasions of sexual intercourse were the result of the accused using force and fear. The prosecution argues that that recording is worthless for that purpose: it does not show the woman’s face; there is no sound and it was only a portion of the original recording with critical parts removed, such as how the accused and [the complainant] came to be on the bed together and how the accused got from beside [the complainant] to being on top of her with her arm around him.

You have that video. You can examine it as much as you like for yourself. You also have the evidence of Mr Hall. What you make of the video is entirely a matter for you. If you do not reject it as having been manipulated, then you need to consider what it actually shows. If you think that it is credible evidence of [the complainant] being a consenting party to that incident, then it would undermine [the complainant’s] credit overall and it would support the accused’s claim that there had been a consensual affair.

It is also open to you to conclude that the video could not be relied on to reliably indicate whether [the complainant] was or was not consenting on that occasion and, if that is your conclusion, then you must disregard the video. You need to put it to one side and focus on the evidence in this trial which you find to be credible. What you cannot do is use the video as evidence of guilt. Even if it has been edited, it is not evidence of any offence.”

Ground 1 – the “original” video

Evidence on the appeal

83. [83]
    In order to understand and deal with ground 1, it is necessary to refer to the evidence of the appellant, relied upon for the purposes of the appeal.
84. [84]
    In an affidavit signed by the appellant on 28 January 2023,^[5] he explains how the video that became exhibit 9 at the trial came into existence.  The appellant had a video camera set up in his room at his house in Goodna.  When using this camera, he saved the video recordings to a memory card.  On an unspecified day, he says he recorded himself and the complainant having sex.  He says he did this because:

“[the complainant] had become a bit funny with returning my calls, and I had been told by friends that she may make a false allegation against me to her mother.  I took the video to show her mother if I needed to that our relationship was fully consensual.”^[6]

85. [85]
    The appellant said that much of the video appeared black, because the complainant had asked for the light to be turned off.  So when he looked at the footage he “cut the dark parts (the black parts) because you couldn’t see anything at all”.  He said the “video that I ended up with showed only foreplay and was about 5 or 6 minutes long”.
86. [86]
    The appellant said he saved that on a USB memory stick – adding that “I think it was a silver memory stick or silver memory pen drive” – and never did anything with it.
87. [87]
    The appellant was arrested on 2 May 2019.  He says that when he was in jail (on remand) “incest was mentioned”.  This seems to have been in a letter sent to the appellant by Legal Aid.  The appellant says another inmate read the letter, and that consequently he was beaten up, and had hot water poured on him, by other prisoners.
88. [88]
    The appellant was released on bail on 12 July 2019.  After being released on bail, he says he returned home and saw that the police had not taken the memory drive that had this recording on it.  He says “I was worried the police were trying to set me up and I wanted nothing to do with it any more, and I was scared after what had happened to me in jail, so I deleted it”.
89. [89]
    The appellant then says that he “did not realise that the video would help my defence until I spoke to my trial barrister some time later in 2020”.  He says, “[w]hen I spoke to the trial lawyers about my trial I realised that the video would help my case, because she had consented”.
90. [90]
    He says he tried to recover the video from the memory drive, but could not.  He took it to a “video tech place” in a Brisbane suburb, but they would not help him because “they didn’t do sex tapes”.  So, the appellant says, he “sent it to a video tech person overseas in Sri Lanka, a person called Pugal, to recover it”.^[7]  In another affidavit, sworn about 5 months later, the appellant says in fact he sent the USB drive (and another USB drive, that he had also deleted a recording from) to a relative in Sri Lanka, named Vasantha, and that Vasantha told him that he had given them to a man named Pugal who was a video technician.  The appellant said he was in contact with Pugal, via WhatsApp and a program called “TeamViewer”, prior to his trial.^[8]
91. [91]
    The appellant subsequently received “the video file” from Pugal.  He says he gave Pugal access to his computer using the “Team Viewer” program, which allows a user to give another user remote access to their computer.  Using that program, Pugal accessed the appellant’s computer and downloaded the video directly onto the appellant’s computer as an MP4 file.  The appellant says he did not receive the USB drive(s) back from Pugal before his trial.^[9]
92. [92]
    The appellant says that:

“When I got it to play it [that is, the video file downloaded onto his computer by Pugal], when I tried to play it, and get a copy for my trial lawyers, it was corrupted.  I did not know why it would not play properly.  It had no sound on it.  It would not play and would freeze for extended periods.  I copied it by playing it on my computer and activating the recording on my computer whenever it played.  I used the short cut keys to record when it played and stop when it froze or stopped playing then recommencing the recording when it would play again…

What I was able to record was what only some 30 seconds.  This is what I gave to my trial lawyers a week or two before my trial started.”^[10]

93. [93]
    This 30 second recording is what became exhibit 9.
94. [94]
    The appellant’s evidence confirms that Mr Hall’s analysis was correct – exhibit 9 was a “recording of a recording”.  In his evidence for the purposes of the appeal, the appellant also agrees that this “recording of a recording” was made on 21 May 2020 (the date identified by Mr Hall).^[11]
95. [95]
    The appellant says that he deleted that video file from his computer, and only kept the 30 second “recording of a recording”.
96. [96]
    The appellant says he was told in December 2022, by his appeal lawyers, that an expert needed that “original file” that he used to create the 30 second video, even if it was corrupted and would not play for him.  He says that he provided his appeal lawyers “with the details of the person from whom this could be obtained”, although does not say who that person was.  He then says the appeal lawyers told him in a conference in January 2023 that they had “received a USB that had the original video footage” – this is a video recording that runs for five minutes and 36 seconds.^[12]
97. [97]
    The solicitor for the appellant, Ms Harendran, gives evidence that at a conference with the appellant and her supervising solicitor, Mr Daniel Taylor, in June 2022, Mr Taylor told the appellant the original footage of the video played at the trial needed to be obtained for the meta data to be collected.  The appellant said “he would do his best to get the video”.  This request was repeated at a conference, this time with Ms Hillard of counsel, in December 2022.  Ms Harendran does not refer to any steps that she took to contact anyone to obtain the original footage, but rather says that, after the conference in December 2022:

“I reviewed my records of correspondence and things received in relation to the Appellant’s matter.  It was my understanding that the Appellant obtained the video by contacting a video technician by the name of Pugal in Sri Lanka.  At some time I was contacted by Mohandas Vellupillai and a USB was posted to me.  When Ms. Hillard asked for the original USB, on reviewing what the Appellant had said, the USB was located in our possession here at the law firm where I work.

I viewed that footage and it was some 5 minutes duration.”

98. [98]
    It is not clear from Ms Harendran’s affidavit where the USB she found on the file came from.  The attempt, in the affidavit of Mr Benjamin Taylor, one of the counsel acting pro bono for the appellant, to overcome this deficiency^[13] is ineffective because it is inadmissible.
99. [99]
    Ms Harendran annexes to her affidavit, as exhibit “NH1”, a “photocopy of that USB”, saying that Ms Hillard has the “original”.  I infer what she means is that exhibit NH1, which is a USB drive, has a copy of the file that was on the USB she found on her file.
100. [100]
     Curiously, the file path for the movie file on this USB bears the date 26/12/2018; whereas according to Dr Sorrell,^[14] the meta data indicates the file was created on 10 April 2018.  The movie file is five minutes and 36 seconds duration.  At the start of the video, all one can see is a bed, viewed from the side, with what appears to be a door behind it.  At about (timestamp) 02:01, muffled voices can be heard in the background, then a door closing, and a person comes into view on the left hand side momentarily – a woman, wearing a coral pink polka dot dress.  She disappears from view, and again muffled voices can be heard.  The woman and a man reappear at 03:48.  The woman stands next to the bed, and then the man encourages her to lie down on the bed, and is seen embracing her on the bed.  He appears to be coaxing her, trying to get her to put her arms around him, and she appears to be resisting doing that.  At one point, the woman sits up (04:32) and appears to be trying to push him away.  Her face becomes visible only briefly, for about a second (at about 04:32-04:33).  The look on the woman’s face is one of dismay, even fear.  The man manages to get her to lie down again.  He lies on top of her, and continues to try to get her to put her arms around him.  The woman puts her arms around him, in what can only be described as reluctance, before moving them down to her side again (04:51).  They move positions, so that the man is lying on his side (facing the camera) and the woman has her back to the camera (facing the man).  When the man puts his hand on her thigh, as though to move her dress, she pushes his hand away (05:10).  The man looks directly at the camera at about 05:18, as he continues to touch the woman.  On the basis of the appellant’s evidence, and the complainant’s evidence at the trial, it is the appellant and the complainant who appear in this video.
101. [101]
     The 30 second video (exhibit 9 at the trial) comprises snippets from this longer five and a half minute video.  The snippets are out of order (that is, the video starts with the scene which can be seen at about 05:10, and then cuts to the earlier scene, where the woman has her arms around the man for a short period of time (just before 04:51), and do not include the parts which show her reluctance in doing that, or putting her arms back down at her side.  Nor does it include the one portion of the video where the complainant’s face can be seen.
102. [102]
     For completeness, on the appellant’s evidence on this appeal, there is also another video recording that he surreptitiously made, of himself and the complainant having sex.  On this occasion, though, he used his phone to make the recording.  This was also subsequently deleted, after his release on bail, and later recovered.  He says it (the recovered file) was placed on a black USB pen drive and given to the lawyers who represented him on his sentence following the trial.  Ms Harendran is one of those lawyers.  It appears from the transcript of the sentencing hearing, on 30 August 2021, that Ms Harendran sought to tender four videos, one of which was said to be “a seven-minute video, which is a sex video”, that was not available at the trial but was able to be recovered on 19 July (2021).  This video was clearly able to be viewed by Ms Harendran, because she made detailed submissions about it to the sentencing judge, including by reference to a written transcript that had been prepared.  However, this video has now disappeared, apparently.^[15]  There was no explanation about this provided at the appeal hearing.
103. [103]
     At the appeal hearing, Ms Hillard attempted to have the appellant give evidence that a particular silver coloured USB “pen drive”, handed to him in court, was the USB drive that he had sent overseas, and which had been returned from overseas.  Given that there was not said to be anything which uniquely identified the “pen drive”, and that in any event it was not sent back to the appellant, the appellant’s purported affirmative answer to that is not accepted as credible.
104. [104]
     The five and a half minute video, which is on the USB which is “NH1” to Ms Harendran’s affidavit, is the “original video” that is the subject of ground 1.  How that video came into the possession of Ms Harendran remains somewhat of a mystery.
105. [105]
     However, as will become clear from the reasons that follow, one thing is apparent – the appellant had access to that video prior to his trial.
106. [106]
     The appellant’s trial lawyers were Ms Young, then a solicitor with Cridland & Hua Lawyers, and Mr Fenton of counsel.  Together, Ms Young and Mr Fenton had seven conferences with the appellant prior to the commencement of the trial, on 28 April 2021.  All of these conferences were conducted with the assistance of a Tamil interpreter.
107. [107]
     Ms Young had in fact acted for the appellant from an earlier time, first contacting him prior to his release on bail in July 2019.  The appellant did not provide to Ms Young the video footage he says had at that time.  As already mentioned, his evidence is that he deleted that footage when he was released on bail, because of what had happened to him in jail when the charge of incest was mentioned.
108. [108]
     The first trial conference was held on 20 February 2020.  Ms Young’s notes of this conference record that the appellant told his lawyers that he had sex with the complainant for six months, from March to August 2018, and that this was with her “full consent”.  He was asked when he first started “being romantic” with the complainant and he said January 2018.  As to how it started, the appellant said he received a phone call from the mother, saying she was trying to commit suicide.  He went to her home.  The mother was not there, she had been taken to hospital by her son; but the complainant was home.  He gave her his phone number.  A few days later, he said, the complainant started to send him Facebook messages.  The notes make it clear that Mr Fenton asked the appellant about those messages, and emphasised the importance of providing them.  The notes record the appellant saying there would be nothing on the phone the police took; that the messages were on an old phone that he took back to Telstra.  Mr Fenton also advised him to go back through the accounts themselves, even though he no longer had the old phone, to find any messages.  Mr Fenton is recorded as saying that will be “vitally important”.  Ms Young is recorded as suggesting the appellant re-download the app and put in his old number, to try to get any messages.  Although the appellant undertook to do that, he did not at any stage provide any further information to Ms Young or Mr Fenton.^[16]
109. [109]
     The second conference was on 25 February 2020.  It was at this conference that the appellant told Mr Fenton and Ms Young that he “took videos of her in his house” and had “sent them to Sri Lanka”.  Ms Young’s notes record that Mr Fenton asked what was on the video, and that the appellant said “it shows them cuddling on the bed”.  When asked if the complainant knew the video was being taken, the appellant said no.  When asked why he didn’t let her know he was taking the video, the notes record the appellant said he was taking precautions; it was proof that it was happening.
110. [110]
     When cross-examined at the appeal hearing, the appellant agreed that he recorded a video of himself with the complainant because he was concerned the complainant might make a complaint against him.  He said that in terms of his Tamil culture, “there can be speculations that I might have done something”.  He made the video(s) as a precaution, so that he could tell the complainant’s mother, if it became necessary “that there was no force involved and everything was done with consent”.  He agreed that was because he was concerned there might be speculation or accusations of some force being involved.
111. [111]
     The appellant did not give a satisfactory answer to the next question asked of him in cross-examination, namely, if that was the reason for making the video(s), wouldn’t the whole video of the entire incident, pictures and sound, be important for him to keep?  He said he only needed “this particular portion” to show her mother “in case”.  I do not accept as reliable his evidence about what he did with the videos he made.  If answering a claim that he forced the complainant to have sex with him was his purpose, it is rational to expect that, having been charged with rape (in May 2019), he would wish to produce the videos, in answer to the charge – rather than delete them.  The appellant’s explanation, that he did not realise he had been charged with rape when arrested in May 2019, is disingenuous.  He says he “thought the relationship I had with the family was the reason behind my arrest, not just because of the relationship I had with” the complainant.  The bench charge sheets^[17] make it clear he was charged with sexual assault, incest, rape, procuring a sexual act by threat or intimidation, attempted rape and common assault.  What is more, the mother had accused him of forcing himself on the complainant, in the phone call on 28 April 2019.  If he did delete the video recordings (which is doubtful), it is more likely he did so because he had been charged with rape, and wanted to destroy evidence of his sexual encounters with the complainant.
112. [112]
     Another possibility is that he did not delete the videos at all, but obfuscated, being concerned that the contents of the video would or could work against him; and only produced what suited him at the time.  That is certainly the picture that is painted by the exchanges between the appellant and his trial lawyers, in the lead up to his trial; and by the appearance of the five and a half minute video, when the present appeal lawyers advised him it was in his interests to produce the “original” video.
113. [113]
     Mr Fenton’s notes of the conference on 25 February 2020 include the words “we need that film”.  The appellant agreed that Mr Fenton was clear with him, that he needed to see the video.  The appellant did not tell his lawyers that he had deleted the videos, after being released on bail.  His evidence, in cross-examination at the appeal, that he “did tell that to the interpreter”, but does not know whether the interpreter conveyed that to the lawyers, is, I find, dishonest.
114. [114]
     Mr Fenton’s evidence, which I accept, is that after he was told about the existence of a video recording, he asked the appellant at every conference to produce a copy of the recording.  As Mr Fenton said, it “was very strange that he had material which would appear to exonerate him, and he would not provide us with [it]”.  The appellant continued to obfuscate about that, changing his story, saying he would provide the video, but not doing so until 22 April 2021.
115. [115]
     The next conference in time was on 6 March 2020.  Ms Young’s notes of this conference record that the appellant was wondering if he said certain things, if those things would be used again him, and that his main concern was him taking a video of the complainant without her knowledge.  The notes record Mr Fenton asking if he has a copy of the video; and the appellant saying he has, but not here.  Mr Fenton persists, asking “can we get a copy of the video”, and saying the lawyers can’t advise him if it’s good or bad until they see it.  Mr Fenton is recorded saying “can we get this video or not?”, and the appellant saying yes, but that he was not sure when he would be able to get it.  Mr Fenton’s notes of this conference record that the “video of them is in Sri Lanka – he packed up and sent his stuff back”.
116. [116]
     The appellant said nothing to Ms Young or Mr Fenton about the elaborate steps he says he had taken, from the time he was released on bail, first to delete the video(s) and then to try to recover the deleted footage.
117. [117]
     On the evidence, the 30 second video which was eventually provided was created by the appellant on 21 May 2020.
118. [118]
     There was another conference on 22 June 2020.  In this conference, the lawyers discussed with the appellant the recorded phone call between the mother and the appellant that took place four days before his arrest, in particular, the possibility of taking steps to have the phone call, and transcript, excluded from the trial.
119. [119]
     That application was heard and determined on 1 September 2020, resulting in some parts of the transcript of the call being excluded; but others not.
120. [120]
     In October 2020, the matter was listed for trial in the week commencing 26 April 2021.
121. [121]
     The next conference appears to have been on 7 April 2021.  This took place on the morning of an application initiated by the prosecution to revoke the appellant’s bail (in circumstances where he had made contact with the mother, in breach of his bail conditions).  That application was dismissed.
122. [122]
     The appellant met again with his trial lawyers on 13 April 2021, for them to obtain further instructions and discuss the trial process.  At this conference, Ms Young’s notes record that she gave him the “trial statement” and told him that they needed to know before the trial if there was anything wrong in that statement.  Mr Fenton is recorded as asking the appellant whether he understands he has a right to give evidence at the trial; it is his decision if he tells his story or not; but “we advise that it is best for him to say nothing i.e. not give evidence”.
123. [123]
     At the next conference, on 19 April 2021, Ms Young’s notes record that the interpreter took the appellant through the “personal statement” that had been prepared (the trial statement).  It is apparent from Ms Young’s notes that the appellant made comments about various paragraphs in that statement.  There is a copy of a trial statement exhibited to both Ms Young’s and Mr Fenton’s affidavits.  Although this was not addressed at the hearing of the appeal, I infer from reading the notes of the conference on 19 April 2021 that the typed “trial statement” which is exhibited, and which has been signed by the appellant, incorporates the changes he asked to be made (that is, it is not the version provided before the appellant provided comments about things to be changed).  This appears from the fact that the “point” numbers in Ms Young’s notes do not match up with paragraph numbers in the “trial statement” and from the fact that the things noted in relation to each point are incorporated into the typed version of the “trial statement”.  That is, the changes the appellant requested have been made to the typed document that he signed.
124. [124]
     On that basis, I infer that the earlier version of the trial statement, at paragraph 51, must have recorded the appellant’s previous instructions about sending the video back to Sri Lanka (consistent with the earlier notes).  The notes made on 19 April 2021 record the appellant correcting this, and saying:

1. “–He never sent the video back to Sri Lanka
2. –He says that he has the video.
3. –Did he tell [the complainant] about the video? – No.
4. –He wanted to keep the video for him.
5. –We want to see the video.  We need the video.
6. –He will email me the video.
7. –He will do this tomorrow.”

125. [125]
     What appears, in paragraphs 49 to 51 of the trial statement is:

1. “49.
   When [the complainant] was in my room, I took some a video of us together. The video is of us cuddling on the bed.  She did not know that the video was being taken.
2. 50.
   We were not wearing clothes in this video.^[18]  I still have this video on his phone.  I will send this to my solicitor.
3. 51.
   I didn’t tell her about the video as I was taking precautions.  I wanted proof that this was happening.”

126. [126]
     At the end of this conference, the appellant was asked if he understood his right to give evidence, and said yes.  He was told the lawyers’ advice was not to give evidence, but that it was his choice and that “we will do what he tells us to do”.  The notes record further discussion about this, in terms of the benefits of giving evidence or not.  The notes end by recording the following:

“The reason we think he shouldn’t give evidence, because the Jury will think it’s immoral to have sex with the step daughter.

Is he happy with that?  Yes

We will get him to sign the instructions that the interpreter has read out to him – we’ve made the required amendments.”

127. [127]
     The next conference took place on 22 April 2021.
128. [128]
     It is at this conference that the appellant finally produced the video to his lawyers – that is, the 30 second recording.
129. [129]
     Mr Fenton’s notes of this conference record “pink/coral with white dots frilly collar”, which I infer is a note of what the woman in the video is wearing.  Her face cannot be seen in the video.  The appellant instructed that it definitely was the complainant in the video.  He instructed that the camera was on top of a cupboard, and that the complainant would not have noticed.  Mr Fenton’s notes record that the appellant said he “did it to keep for future notice, to keep to prove that she did it willing”.
130. [130]
     Ms Young’s notes record Mr Fenton asking “why is the video so short?” (noting it is only 30 seconds long), and that the appellant said he didn’t want to keep the other one; he wanted to have a small clip for future purposes in case he needed to use it.  When Mr Fenton asked what he meant by that, Ms Young records the appellant saying that “at any point, if she [the complainant] complains about him forcing her to do certain things, in that case he wanted to disclose that she always wanted him”.  Mr Fenton asked whether the video had been edited, and the notes (Mr Fenton’s and Ms Young’s) record that the appellant said the video was not edited, but that he kept this bit and “deleted the other things”, “similar things like this”.  Ms Young asked if he could “get it back” and the appellant’s answer is recorded as “no, all destroyed”.  Mr Fenton asks why there is no sound, and the answer recorded is that the camera won’t record the sound.
131. [131]
     Again, the appellant did not tell Ms Young or Mr Fenton any of the things he says in his affidavit prepared for this appeal (about the video file being received from this person named Pugal in Sri Lanka, which was corrupted and wouldn’t play, and that he just recorded what he could from his computer screen to make the 30 second video).  Although the appellant said, in his evidence, that he was not asked questions which would prompt that information being provided, that is not credible.  It is apparent from the contemporaneous conference notes that the appellant was asked questions which, if answered honestly, would readily have elicited that information.  Nor is his evidence that he “really wanted to provide the original to [Mr Fenton] rather than providing the screen capture”, and therefore delayed giving his trial lawyers anything, while he tried to recover the original.  As already discussed, the 30 second video is not only a “recording of a recording”, but it captures snippets of the original, in a different sequence.
132. [132]
     The notes of the 22 April 2021 conference record Mr Fenton asking the appellant if he has any photos of the complainant wearing the dress shown in the video.  The appellant says “everything got taken by police”.  There is a discussion about what might be on the phone(s) seized by police, with the appellant saying any messages between him and the complainant had been deleted; and that he is not sure whether there would be any photos of the complainant, because the mother always checked his phone and she deleted things also.  The appellant instructed the lawyers to request that the police use their software to complete a download from the phone, in order to see if there was an image of the complainant wearing the same clothing as can be observed in the video.
133. [133]
     In relation to the video, the appellant is recorded by Ms Young as asking if showing the (30 second) video at the trial will look bad, and Mr Fenton is recorded as saying “potentially” – essentially saying that if he puts the video to the complainant in cross-examination, and she accepts that it is her that would be good, but if she says no, that would be bad.  Mr Fenton’s notes record that the appellant “instructed me to use it” and also that he told the appellant “it closes off giving evidence because he will look like a creep for surreptitiously filming her” and that “his explanation for filming was that he wanted to see off a rape complaint”.
134. [134]
     Ms Young acted on the appellant’s instructions, regarding the phone, and the following day, on 23 April 2021, the Office of the Director of Public Prosecutions (ODPP) disclosed a disc containing a partial download of some of the material on the appellant’s phones seized by police.  She gave that disc to Mr Fenton.
135. [135]
     Mr Fenton said that the disc provided to him would not play on his computer.  So he contacted the ODPP and arranged to view the downloaded information there.  He was specifically looking for an image of the complainant in the dress that can be seen in the video.  He did not look for, or at, any messages from the phone(s) – because of the appellant’s instructions that there would be no messages between him and the complainant on the phone(s) seized by the police, because he had deleted them all.
136. [136]
     Shortly after the conference on 22 April 2021, the appellant provided a still photo which showed himself and the complainant lying on a bed together (exhibit “JWJF3” to Mr Fenton’s affidavit).  As to how he came to have this still photo, the appellant said at the appeal hearing that the lawyers asked him to find a photo of the complainant, showing her face, where she was wearing the same dress.  He said he tried to find one, but was unable to, so he “told someone in my country to find one”, going on to say “[a]nd then Pugal’s talked to the relatives, and he managed to get a screenshot”.
137. [137]
     The screen shot the appellant provided is a still shot of one second of the five and a half minute video, where the complainant’s face can be seen (at time stamp 04:33).  The inevitable conclusion is that the appellant did have access to that footage, in April 2021, prior to the commencement of his trial, because he was able to obtain a screen shot from that video, in April 2021.  It defies belief that, as the appellant contends, at this time the rest of the video was “not playable”, but just that one second could be recovered.
138. [138]
     Mr Fenton says in his affidavit that he was of the opinion that “a juror upon examination of the photograph, [ie the still / screen shot] was likely to conclude that the expression on the complainant’s face was consistent with an absence of consent as she appeared dismayed and resisting the Appellant’s apparent embrace”.  Mr Fenton says he advised the appellant and made the tactical decision as defence counsel not to put the photo in front of the jury.  On my observation of the still shot, that was an objectively rational decision.^[19]  In my view, and as will be discussed further below, seeing the portion of the original video footage from which the still of the complainant was taken, only magnifies that impact.
139. [139]
     The evidence before this Court strongly supports the inferences that the appellant created a short video that suited his purposes – that is, to show the complainant “cuddling” him on a bed.  He gave that to his trial lawyers for use at his trial, when he was satisfied that, provided she identified herself, it would be good thing for him.  He had the longer video in his possession, or at the very least had access to it, prior to the commencement of his trial in April 2021.  He made deliberate choices about what he would, and would not, provide to his trial lawyers, based on his perceptions then about how things might look, and what might damage his case at trial.

Determining ground 1

140. [140]
     It follows from the analysis above that the so-called “original video footage” – that is, the five and a half minute video, from which the appellant created the 30 second video that became exhibit 9 at the trial – is not “fresh evidence”.  Fresh evidence is evidence which either did not exist at the time of the trial or which could not then with reasonable diligence have been discovered.^[20]  For the reasons already addressed, the appellant either had that original footage in his possession, or had the ability to obtain it, prior to the trial.
141. [141]
     The original video footage is new evidence – as it was available prior to the trial, or could with reasonable diligence – or, more relevantly in this case, if the appellant had been forthcoming with his lawyers – been discovered.^[21]  As McMurdo P said (with the agreement of Fraser JA and Wilson AJA), in R v Spina [2012] QCA 179 at [32]:

“…The distinction between fresh and new evidence is sometimes blurred but it should remain significant for two reasons. The first is because the community has an interest in ensuring that defendants charged with criminal offences ordinarily have only one trial at which they have an opportunity to put forward all the available evidence upon which they rely. It is not in the public interest for defendants to hold back evidence so that, if they are unsuccessful at trial, they can use the withheld evidence to appeal and obtain a new trial.”^[22]

142. [142]
     The evidence on the appeal strongly supports the conclusion that the appellant held the original footage back from his trial lawyers.
143. [143]
     Of course, even in the case of evidence that was available at the time of the trial, the Court retains a residual discretion to allow an appeal, if that is necessary to avoid a miscarriage of justice.^[23]
144. [144]
     Even if it could be said the original video footage is fresh evidence, a miscarriage of justice would only be established if there were a significant possibility that the jury acting reasonably would have acquitted the appellant had that evidence been available to it.^[24]
145. [145]
     In my view, there is no possibility that, if the original video footage were placed before a jury, taken with the evidence at trial, a jury acting reasonably would have acquitted him.  The still shot of the complainant’s face paints a powerful picture – of dismay, reluctance and fear.  Seeing that as a moving image, as part of the longer video, only serves to magnify the impact of that look on her face.  Contrary to the appellant’s counsels’ submissions on this appeal, that video would have entrenched the jury’s conclusions of guilt; rather than undermined them.  Indeed, I find it incomprehensible that the appellant’s appeal lawyers could submit that the original video footage would have been of “obvious benefit” to the appellant’s defence case.  In my view, it would only have had a detrimental effect.
146. [146]
     There is no basis to the contention of incompetence of trial counsel, in the manners contended for under ground 1.^[25]  First, it is said that a reasonably competent barrister would have advised the appellant about the need to obtain a defence expert report and, having so obtained a report, “known to ask for the device on which the original video footage was recorded (the Silver USB Pen Drive)”.  Secondly, it is said a reasonably competent barrister would have “asked for the Silver USB Drive on which the original video recording was taken”.  There are a number of faults in this line of reasoning, including:

     1. the barrister did ask for the video footage at every conference held with the appellant from February 2020;
     2. as I have found, the appellant must have had the original footage in his possession, or at least had the ability to obtain it, prior to the trial;
     3. the appellant obfuscated, and delayed in providing any footage to his trial lawyers, until six days before the trial commenced, on 22 April 2021 – and, even after that, did not provide the original footage (despite being able to obtain a screen shot of the complainant from it);
     4. when asked specific questions about the 30 second video he did eventually provide to his trial lawyers, the appellant was dishonest in his instructions – for example, telling his lawyers the video was not edited; that he only kept this one short bit, and deleted other similar things; that he could not get those deleted parts back; and the reason there was no sound was because the camera would not record sound (see paragraph [130] above);
     5. the appellant was not candid with his trial lawyers about how he had created the video that became exhibit 9;
     6. the trial lawyers acted on the appellant’s – their client’s – instructions;
     7. in order to obtain a “defence expert report”, the appellant’s trial counsel would have to have had a factual basis – which he did not have, because the appellant was not forthcoming about how the video that became exhibit 9 was created;
     8. this line of reasoning leads only to the original video footage going into evidence – which, for the reasons already set out, would not have been to the advantage of the appellant.  As also already discussed, trial counsel’s reasons for deciding not to place the still shot (of the one second of the longer video when you can see the complainant’s face) before the jury are objectively rational, and apply with even greater force to the moving image of the complainant in the original video footage; and
     9. in any event, the ground is misconceived because the footage cannot have been “recorded” or “taken” on a USB drive.

Ground 2 – the report of Dr Sorrell

147. [147]
     In advancing this appeal, the appellant’s lawyers requested that Dr Matthew Sorrell analyse the video that became exhibit 9, the original footage that became available after the trial, as well as Mr Hall’s evidence.
148. [148]
     Dr Sorrell’s affidavit (which attached his report) was admitted into evidence on this appeal, for the purpose of determining the appeal.  Consistently with Mr Hall, the opinion of Dr Sorrell is that exhibit 9 is “a screen capture video”.  Since Dr Sorrell was provided with the original (longer) video footage, he was able to compare them, side by side.  Just as I have done, he was able to identify segments of the longer video footage that appear in exhibit 9, by reference to timestamps (para 5.9 of his report).  He also observes, as I have, that these segments are not in sequential order (para 5.10 of his report).
149. [149]
     Despite that, Dr Sorrell also says that whilst the abrupt changes or discontinuities that appear in exhibit 9 can be from editing (as Mr Hall opined) he thinks it is more likely that “file corruption” accounts for this rather than intentional manipulation to remove sections (para 10 of his affidavit).  To my mind, filming segments of a longer video on a computer screen, and putting them in a different order, is the very definition of “intentional manipulation”.
150. [150]
     However, Dr Sorrell was not cross-examined on the appeal, and this is not the occasion for detailed interrogation of his analysis.
151. [151]
     The report of Dr Sorrell is fresh evidence, as it was not in existence at the time of the trial.  Had the appellant been candid in his instructions to his lawyers it may have been available at trial.  But more likely, had he been candid, there would not have been any use of the 30 second recording; no evidence from Mr Hall, and so no need for an expert report from the defence.  There are however more fundamental reasons why this ground of appeal must fail.
152. [152]
     Applying the relevant test, there is again no possibility that, if that evidence had been available at the trial, the jury acting reasonably would have acquitted the appellant.  The admission into evidence of Dr Sorrell’s report:

     1. would necessitate the appellant giving evidence, to provide his explanation of the provenance of exhibit 9, which is the subject of Dr Sorrell’s analysis; and
     2. would see the original video footage put into evidence.
153. [153]
     I have already dealt with (b) above.  That is a sufficient answer to this ground 2.
154. [154]
     As for (a), in my view, the reasons given by Mr Fenton, for advising the appellant that it was not in his best interests to give evidence at the trial, remain prudent and rational, in the light of Dr Sorrell’s report.  Mr Fenton said in his affidavit relied on by the respondent on this appeal:

1. “38.
   I did not advise the Appellant to give evidence at his trial because to do so was more likely to lead to a conviction than an acquittal.
2. 39.
   The Appellant’s defences to the rape and assault charges, as a 40 year old step father, were that the complainant, as his 18 year old step daughter, had consented to sexual relations taking place at the family home where he resided with the complainant’s mother as his de facto wife for about a year.
3. 40.
   The difficulty with the Appellant’s defence is that, while such conduct on his version does not constitute criminal offences, it may be considered by the jury of right minded people, to be at best a gross breach of trust and more likely to be viewed as immoral, dishonest and wicked conduct.
4. 41.
   At the conference on 22 April 2021, I carefully questioned the Appellant as to the reason and motives for making the recording.
5. 42.
   The Appellant told me that he made the recording in a secret manner to ensure that the complainant would not know that she was being filmed during their sexual encounter.  He did so to create evidence that the complainant was a willing participant in the sexual encounter and to disprove that he was raping the complainant.
6. 43.
   If the Appellant gave evidence he would inevitably be asked why and how he made the recording.
7. 44.
   I was of the view that a jury would perceive a person who secretly films themselves having sex with another, even if the sex is consensual, as being discreditable and of low moral character.
8. 45.
   His instructions were that he predicted that a false complaint of rape would be made against him.  The jury would perceive his explanation for making the recordings, that is, to prove his young step daughter was consenting to sex was both ludicrous and ridiculous.
9. 46.
   My advice to the Appellant was that he should not give evidence because once the recording was used then he would inevitably be asked to give his immoral and ridiculous explanations as to how and why he made the recording by the prosecutor.
10. 47.
    My advice did not change throughout the trial.  Although his trial instructions left open the question of giving evidence, there was no serious reconsideration as to whether he should give evidence once I had cross-examined the complainant and she had agreed that she was in the video.”

155. [155]
     For the reasons already expressed, that position would only have been compounded, had the jury been shown the original video footage, incorporating as it does the despairing image of the complainant.
156. [156]
     Further, in relation to ground 2, the contentions of incompetence of trial counsel are without foundation.
157. [157]
     As to the contention that trial counsel ought to have objected to the prosecution’s expert evidence on the grounds of unfairness, Mr Fenton said, in his evidence at the appeal, that he did not object to the evidence on this basis because he did not think it was unfair.  He said: “we produced that video and used it in a manner where we exploited the rules to ambush the Crown.  The Crown were not at fault for the lateness of the report, so in my view, it would’ve been hopeless in front of the trial judge to have asked for a[n] adjournment on the grounds of unfairness”.  That was a rational decision on the part of trial counsel.  An objection was taken to Mr Hall’s evidence, on appropriate grounds, and was overruled by the trial judge.  There has been no appeal against that ruling.
158. [158]
     As to the contention that trial counsel ought to have advised the appellant that a defence expert report should be obtained, and to apply for an adjournment of the trial, or a mistrial, to enable that to occur – as already discussed (a) the appellant had provided no factual foundation for doing so, and (b) if the appellant had been candid there would have been no need for any expert evidence.
159. [159]
     It follows that there is no basis to the next contention, at paragraph E of ground 2, that trial counsel ought to have advised the appellant that he could give evidence about the “artefacts” on exhibit 9.  The appellant was not forthcoming, in fact in my view was dishonest, in his instructions to his trial lawyers.  He did not tell his trial lawyers, honestly, how the video that became exhibit 9 was made.  Mr Fenton’s articulated reasons for advising that the appellant should not give evidence are compelling.  This court on the appeal has had the opportunity to see the appellant give evidence.  He did not present as a credible or reliable witness, having regard to both his sworn affidavit evidence and his oral evidence given at the hearing.  Far from providing the appellant with a greater opportunity for acquittal, his chances of an acquittal would have been even less had he given evidence.^[26]
160. [160]
     There is no substance in the contention at paragraph G of ground 2 – that trial counsel should have advised the appellant “against admitting that Exhibit 9 was produced by him”, for the following reasons:

     1. the ground misstates the admission that was made – the admission made was that exhibit 9 “was produced by the defence during the complainant’s cross-examination”;
     2. both elements of that part of the admission are entirely correct – the video was produced by the defence – that is the defence side of the case – during the complainant’s cross-examination;
     3. the trial judge had told the jury those facts, in answer to the question they asked (see paragraph [70] above).
161. [161]
     The appellant’s submission is that somehow the jury could have been confused by this admission, and read it as an admission that the defendant had produced (meaning made) the video.  Taken with the evidence of Mr Hall, which included suggestions that the video was manipulated, it is submitted this admission was damaging to the defendant’s case at trial.  In my view, there is no basis to the contention.  That would involve ignoring the words of the admission – “produced by the defence during the complainant’s cross-examination”.
162. [162]
     That leaves paragraph F of ground 2 – which is the contention that, following the voire dire, and the ruling made admitting Mr Hall’s evidence, trial counsel should have revisited the appellant’s instructions on not giving or calling evidence.  The evidence is that the appellant signed his written instructions, in relation to not giving evidence, on the morning of 7 May 2021, in conference with his trial lawyers before court commenced.  The written instructions were “explained” by an interpreter, who was on the phone during the conference.^[27]  The voire dire in relation to Mr Hall’s proposed evidence took place during the morning of 7 May, and then the proceedings were adjourned just after 1 pm.  The trial resumed the following Monday, 10 May, with argument in relation to the admissibility of Mr Hall’s evidence, and the trial judge’s ruling.  Mr Hall commenced giving his evidence before the jury the following day, Tuesday, 11 May.  The Crown closed its case shortly before 9.40 am the following day, 12 May.
163. [163]
     The signed instructions from the appellant, about not giving evidence, were not expressly revisited after 7 May 2021.  Mr Fenton says, however, that he remembered talking to the appellant throughout the trial, with the interpreter; and also observes that the evidence of Mr Hall was given in the appellant’s presence, with the interpreter there, both in the course of the voire dire and then in front of the jury.  He says that no instructions or concerns were raised by the appellant at the end of Mr Hall’s evidence.
164. [164]
     Trial counsel ought to have formally confirmed with the appellant that his instructions remained unchanged, after the further evidence of Mr Hall had been given.  However, no miscarriage of justice can be said to have arisen as a result of the failure to formally do that.  Mr Fenton’s advice did not change; and so the appellant’s instructions would not have changed.  Indeed, in his evidence on the appeal the appellant acknowledged – in relation to the five and a half minute video the subject of ground 1 – that if his lawyer’s advice had been to the effect that, playing that video (before the jury) was a bad idea and would hurt his trial, he would have taken that advice.  As it was put by Holmes JA (as her Honour then was) in another case, R v Skondin [2015] QCA 138 at [53]:

“Not calling the appellant to give evidence was, objectively speaking, an entirely rational and prudent decision.  His testifying would have done nothing to improve his prospects; quite the reverse.  His not giving evidence did not result in any unfairness in the trial.”

Ground 3 – the phone data

165. [165]
     Ground 3 contends that the communications between the complainant and the appellant, contained on the appellant’s phone(s) seized by police, and disclosed to the defence on a disc prior to the trial, is new evidence, the absence of which at the trial deprived the appellant of the possibility of an acquittal.
166. [166]
     As discussed above, the disc was disclosed to Ms Young (the appellant’s trial solicitor) on 23 April 2021, following Ms Young’s request.  Prior to 23 April 2021, the defendant’s trial lawyers did not have the downloaded material from the seized phones – that is, it had not been disclosed by the prosecution.  It might be inferred from this either that the phones had not previously been downloaded (although this seems unlikely, as the disc was produced on or about the same day as the request was made) or, alternatively, that the prosecution did not consider the downloaded material attracted the disclosure obligation – in the sense that it was not material the prosecution proposed to rely on, and was not material that would tend to help the case for the accused.^[28]
167. [167]
     The purpose of the request being made at this stage was to see if any photographs of the complainant could be found, amongst the information downloaded from the appellant’s phone, for the purpose of demonstrating that it was the complainant in the 30 second video which had just been provided by the appellant to his lawyers the previous day.
168. [168]
     The appellant’s instructions to his trial lawyers, prior to this, had been that there were no messages between himself and the complainant to be found, because he had deleted them all.  Mr Fenton’s evidence is that he viewed the downloaded information, at the offices of the ODPP, looking for a photograph of the complainant, but did not look for any messages, because of the instructions the appellant had given.
169. [169]
     Contrary to the instructions he gave his trial lawyers, according to Ms Harendran “[b]efore Ms Hillard was briefed, the Appellant told me that there was important information on his phone that he believed was important for his appeal”.
170. [170]
     For the purposes of this appeal, Ms Harendran reviewed the phone data, and affirmed an affidavit describing the material, as well as annexing to her affidavit printed versions of the call or message “logs”.  An analysis of that material reveals the following.
171. [171]
     First, Ms Harendran says that a particular file “shows some 55 points of contact between the Appellant and [the complainant], via viber and Facebook messenger”.  She annexes the call log, as exhibit NH7 to her affidavit.  This call log seems to show communications from 21 January 2018 up to 28 March 2019.  There is no content (of the communications) – just dates and durations.  The appellant’s solicitor assumes the communications are between the appellant and the complainant.  She does not identify any basis for that assumption.  The evidence at the trial did not include evidence of who used which mobile phone numbers.  The evidence at the trial did include evidence that the complainant’s mother frequently checked the complainant’s mobile phone; and the evidence on the appeal also demonstrates the mother used the complainant’s phone.
172. [172]
     Next, Ms Harendran says that another file shows Viber communications between the appellant and the complainant.  Ms Harendran says this log (log 37) “shows some 98 messages from the complainant”.  She says that some of these messages are in Tamil, but as she is fluent in Tamil she translates them in the body of her affidavit.  There is a problem with Ms Harendran’s evidence in this regard.  The messages that she identifies as being “from” the complainant, are not.  They are from the appellant – although, confusingly, in the log which is reproduced, the messages are shown as being “To: Seelan” (Seelan being an abbreviation for the appellant’s first name).  This puts a quite different complexion on the picture otherwise sought to be painted by Ms Harendran.  Rather than it appearing that the complainant has sent the appellant a “happy birthday” message,^[29] it is the other way around; and rather than it being the complainant sending the appellant messages saying “If you really love me, please talk to me on the phone…”,^[30] it is the other way around.
173. [173]
     Otherwise, what these messages seem to show is that the complainant communicated from time to time with the appellant using this means; she may have sent images, or links to images, and he may have done the same (although it is not known what images or links were sent, other than it seems some of the images the appellant sent may have been photographs of the complainant^[31]); he called her “kuddi” once (which Ms Harendran says means “small” in an affectionate way in Tamil) and “makal” once (which Ms Harendran says means “daughter” in Tamil); she told him she was on the train once, and in response to his message “when arrive”, said “I don’t know”; and on another occasion when he said “call me I pick up”, she responded “noo”.^[32]
174. [174]
     What is also known is that the appellant was living with the complainant and her family, from about August 2018; having stayed over regularly prior to that, from about January 2018.  He was in the position of stepfather to the complainant; she was asked to call him “dad”, and he apparently called her “daughter”.  On his evidence on the appeal, “[t]hey were relying on me for the accommodation, for their food.  I was the one who was paying for – paying their rent.  I was the one who is taking care of their expenses”.  That there would be communications between them is not surprising.  In 2018-2019, that these communications would be by text message of some kind is also not surprising.  Far from this being evidence which would support a consensual sexual relationship between the complainant and her stepfather, the appellant; it is evidence of no more than communications between people living in the same household.
175. [175]
     The next item considered by Ms Harendran is the log of messages using something called Duo App.  Exhibit “NH9” to Ms Harendran’s affidavit is a log of messages from October 2017 to July 2018.  A few things may be observed about this message log:

     1. it is not complete – in the sense that it shows only incoming messages, and no outgoing messages;
     2. consistent with the evidence that the complainant’s mother sometimes used the complainant’s phone, it demonstrates the use of the particular phone number by more than one person (evidenced by the user sometimes identifying who they are – using the complainant’s, or her mother’s, name^[33]);
     3. it demonstrates the reference by the complainant to the appellant as “uncle” (in October 2017) and then “dad” (from January 2018).  Although counsel for the appellant made the submission that a message beginning “Hi dad dad dad…” was “flirtatious”, that submission is rejected;
     4. it shows the occasional use of an “emoji” (smiling face, laughing face, thumbs up), which was heavily emphasised by counsel for the appellant – but as this is a 17 then 18 year old young woman, communicating by text message, the use of emojis is unremarkable.
176. [176]
     Exhibit “NH10” is another call and message log, which seems to cover the period from 8 September 2018 to 15 March 2019.  This log is uninformative of anything other than perhaps as indicating that the appellant was communicating with somebody using a phone number saved in the complainant’s name, and perhaps that the appellant, complainant and the mother may have had a “group chat”.  There is no content to any of the messages.
177. [177]
     Exhibit “NH11” is a message log, the dates of which are unclear, but could perhaps be March 2019.  This log includes messages saying “Hey”, “Wake up”, “Mum is mad” and “Turn off the oven”.  I reiterate that the appellant was at this time living with the complainant and her family, in the position of stepfather to the complainant.
178. [178]
     Exhibit “NH12” is another message log, spanning dates from 8 October 2017 to 30 March 2019.  I infer that this log duplicates some of the earlier logs annexed to Ms Harendran’s affidavit (because the text is the same – just to give some examples, the identification, by name, of either the complainant or her mother when sending a message; the message “dad dad dad…”; and the message “Turn off the oven”).  It is unnecessary to say any more about the contents of this exhibit.
179. [179]
     Ground 3 is put on two bases.  The first is that the phone data is new evidence, the absence of which before the jury deprived the appellant of the possibility of an acquittal.  The second is that the failure on the part of trial counsel to review the phone data, and then put the messages to the complainant, or into evidence in some other way, was incompetent, and resulted in a miscarriage of justice on the same basis – that the appellant has been deprived of the opportunity of an acquittal that was fairly open.  These bases are necessarily intertwined.
180. [180]
     As to whether it was incompetent for trial counsel not to review the phone data, in terms of the language used in the cases,^[34] the answer to that must be no – in the circumstances of this case, it was not flagrantly incompetent not to review all of the phone communication data on the disc disclosed on 23 April 2021.  There was a rational explanation for the scope of the review undertaken by trial counsel.  The phone communication data had not previously been disclosed by the prosecution; from the outset, the appellant’s instructions were that there would be no messages to be found, between himself and the complainant, on any device seized by the police, because they had all been deleted; and the only purpose for (a) requesting the phone data and (b) reviewing that data, was to see if a photograph of the complainant could be found, which could be used to identify her as the woman in the 30 second video.
181. [181]
     Having said that, however, once the disc was disclosed, ideally trial counsel ought to have looked at all the contents of it.  As it is, it seems that Mr Fenton spent some hours, on the weekend, viewing the contents of the disc (looking in particular for a photograph).  In fairness to Mr Fenton, the conference notes support his evidence that he asked about the phones and whether there would be any messages between the appellant and the complainant at the first conference, on 20 February 2020.  The appellant did not at any stage produce anything (for example, as a result of having accessed his accounts in another way, as suggested by the trial lawyers) and consistently instructed his lawyers that there were no messages to be found, because they had all been deleted.
182. [182]
     But for the purposes of the appeal, the question is not why the phone communication data was not reviewed and put before the jury in some way.  The question is whether the absence of this as evidence in the trial resulted in a miscarriage of justice.  As Gummow and Hayne JJ said, in Nudd v The Queen (2006) 80 ALJR 614 at [24]:

“As four members of this Court explained in TKWJ v The Queen,^[35] describing trial counsel’s conduct of a trial as ‘incompetent’ (with or without some emphatic term like ‘flagrantly’) must not be permitted to distract attention from the question presented by the relevant criminal appeal statute, here s 668E of the Criminal Code (Qld). ‘Miscarriage of justice’, as a ground on which a court of appeal is required by the common form of criminal appeal statute to allow an appeal against conviction, may encompass any of a very wide variety of departures from the proper conduct of a trial. Alleging that trial counsel was incompetent does not reveal what is said to be the miscarriage of justice. That requires consideration of what did or did not occur at the trial, of whether there was a material irregularity in the trial, and whether there was a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial.”^[36]

183. [183]
     Having regard to the substance of the phone data, annexed to Ms Harendran’s affidavit, there is no reasonable, let alone significant, possibility that the failure to put this material into evidence in some way affected the outcome of the trial.  The material is incomplete, confusing to understand, in some respects misleading (in terms of who is sending messages) and otherwise benign, as demonstrating nothing more than electronic communications between persons living in a family environment at the time.  At best, these messages could have been used at trial to put to the complainant that she did continue to communicate with the appellant, contrary to her evidence, for example, that, after the first incident in early to mid-March 2018, her interactions with him changed, and she did not talk to him; and that after the family moved to the new suburb, she no longer talked to him.  In that regard, the material may have provided another avenue for attack upon the credit of the complainant.  But looked at in the context of all the evidence at the trial, I am not persuaded that it can realistically be concluded that the failure to put this material to the complainant deprived the appellant of the possibility of an acquittal that was fairly open.
184. [184]
     In cross-examination, the complainant did not completely deny having some contact with the appellant, including by phone, although described this in terms which both the appellant’s counsel and the respondent’s counsel said was of a “father daughter” type.^[37]  The fact that the complainant communicated, by text message, with the man who was living in her home, as her stepfather, is not inconsistent with that same man having forced the complainant to have sex with him, against her free will.  As is now well-accepted, there is no standard way in which a victim of sexual offending reacts to the perpetrator of that offending, or behaves following the offending; particularly is that so where the offending occurs in the context of the family home and the offender is for all intents and purposes a member of the family, as was the case here.^[38]  Defence counsel made the points that were available to be made in defence of the appellant.  Given the unsatisfactory state of the phone data evidence, its introduction at the trial would not, realistically, have had any impact favourable to the appellant.

Ground 4 – Google map timelines

185. [185]
     Ground 4 relates to printouts from Google maps which are said to show movements of the appellant’s car at various times.^[39]  He provided these to his trial lawyers.  On this appeal, the appellant says he believes these printouts are important because “they show that I would not always got to [the complainant’s] house straight away, that I would park nearby first, and that she would contact me and I would go there”.
186. [186]
     Ground 4 is without merit.  There is no basis on which to conclude that, had the printouts been in evidence at the trial, the jury, acting reasonably, could have reached a different result.  Therefore, it cannot be said that the absence of this evidence at the trial – whether put to the complainant during cross-examination, or put into evidence in some other way – leads to the conclusion that the convictions should be set aside to avoid a miscarriage of justice.  The documents themselves are meaningless on their face.  To the extent they may show where the appellant’s phone travelled at particular times, that proves nothing about where he was, or whether he was with anyone else, or whether anyone called him before he travelled somewhere else.  And, as Mr Fenton says in his affidavit, “[t]he Appellant was part of the family that included two young people without driver’s licences.  He drove the family around from time to time.  This aspect sheds almost no light on the central question in the trial, namely whether or not he raped her or had a consensual sexual relationship with her”.
187. [187]
     Independently, it would have been almost impossible to prove the Google maps documents without calling the appellant to give evidence.  It would have been impossible to prove the alleged significance of the documents without calling him.  As discussed at several points above, to have done so would have increased the chance that the jury would have convicted him.

Ground 5 – other evidence

188. [188]
     Under ground 5, the appellant contends that the absence of the following new evidence, when considered with the original video footage, the phone data and/or the Google Maps printouts, was such as to have deprived the appellant of the possibility of an acquittal, such that his trial miscarried:

     1. the video of the complainant’s 18^th birthday;
     2. the evidence of the appellant’s purchase of gifts to the complainant of a ceramic rose and a teddy bear;
     3. the evidence of the appellant’s purchase of a lock for the complainant’s bedroom door; and
     4. the video of the complainant’s 19^th birthday.
189. [189]
     This ground also is devoid of merit.
190. [190]
     The video of the 18^th birthday is uncomfortable to watch.  It opens on a set up “scene” showing an arch of balloons, with a cake on a table.  The appellant is the first to appear on the screen; he then indicates as if to say to the person he appears to be communicating with, that they should join him.  The complainant comes into view shortly after (at about timestamp 00.26), and the appellant puts his arm around her.  He kisses her on the cheek, and she smiles at the camera, but immediately gets herself away from him, and walks around the table towards the camera to leave the scene (00.34).  As she passes the table, and so there is some distance between herself and the appellant (00.36), the look on her face speaks volumes in terms of her discomfort about what has just happened.  The video then cuts and restarts with the same scene, but this time showing the complainant and her mother in view, with the cake and now two presents on the table (a flower and a small teddy bear) (00:45).  The appellant re-joins the scene, standing on the other side of the complainant (so that the complainant is in between him and her mother).  The remainder of the video involves the candles being lit and blown out by the complainant, followed by a somewhat awkward process of the appellant and the mother feeding the complainant cake, and the complainant then feeding the appellant cake.
191. [191]
     The still photos taken from this video, which were shown to the complainant during cross-examination (exhibit 5) show the appellant with his arm around her, and then kissing her, while she smiles.  So what the jury did not see is the look of discomfort and dismay on the complainant’s face, seconds after this, as she walked away.  The still photos were plainly more favourable to the appellant than the video.
192. [192]
     Mr Fenton had the video prior to the trial.  He made the conscious tactical decision not to use the video at the trial, because, as he says:

“In that video the Appellant approaches the complainant and kisses her without warning.  I considered that video very carefully.  My view was that it looked to be non-consensual and the complainant looked shocked and dismayed when he kissed her.  I showed it to the secretaries on level 8 of the Inns of Court to see what their reaction would be and they agreed.”

193. [193]
     To my observation, that is an accurate description of the 18^th birthday video.  The appellant did not lose the chance of an acquittal by its absence; he was far better off without it.
194. [194]
     The 19^th birthday video shows much the same scene (of balloons and a table with a cake).  Only on this occasion there is no opportunity for the appellant to touch the complainant, because in this scene the complainant’s brother and mother are on either side of her, with the appellant standing on the other side of the mother.  Once again the “cake feeding” ritual takes place, involving them all.  The still photos taken from this video, which were put to the complainant during cross-examination (exhibit 6) show, first, the image of the four family members and, next, two shots only of the complainant feeding cake to the appellant, with the mother and brother in the background.  What the video also shows is that this cake feeding ritual involves the complainant also feeding cake to her brother and her mother.  If anything, seeing the whole video would have put these still photos into context.  Seeing only the photos makes it appear as though this “feeding” ritual was only between the complainant and the appellant.  Again, the appellant was better off with the jury not seeing the video, than if they had.
195. [195]
     As for the gifts of a ceramic rose and teddy bear that the appellant purportedly gave the complainant for her 18^th birthday, as Mr Fenton says in his affidavit “[s]uch evidence is at best barely relevant.  He might have bought her gifts because he had a consensual sexual relationship with her.  He might have bought her gifts because he had a deviant sexual interest in her and had raped her.  It says nothing about whether the complainant had a sexual interest in him”.  I would add that, given the timing, the gifts could be said to be more consistent with grooming than evidencing a consensual intimate relationship between the appellant and the complainant.
196. [196]
     As for the evidence of the appellant putting a lock on her bedroom door, the appellant’s evidence on this appeal is that he bought the lock for the door in early 2018 because the complainant was afraid that her mother and brother would catch her, and so wanted the door to have a lock.  It is relevant to keep in mind the complainant was sharing a bedroom with her mother at this time; and that the appellant stayed in that room, with her mother, when he stayed over at their house.  Mr Fenton observes that the appellant’s written instructions did include information about the lock, and that he did not cross-examine the complainant about this.  He believes he made a deliberate decision not to do so.  Although he does not now recall specifically why, he says:

“It may be that I [chose] not to cross-examine on the issue because it would to some degree highlight the deeply immoral nature of his instructions.  That is, that he was locking himself in a room with his step-daughter who was half his age so that he could have his way with her.

It may be that I [chose] not to cross-examine on the issue because it was to some degree consistent with rape.  That is, that he deliberately imprisoned her by locking her inside her bedroom so that she couldn’t escape so that he would rape her.”

197. [197]
     On either analysis, that was a sound, tactical approach to have taken.  The absence of evidence of the lock on the bedroom door cannot be said to have deprived the appellant of the possibility of an acquittal; the presence of the evidence would surely have added to the strength of the Crown’s case.

Ground 6 – other errors

198. [198]
     Ground 6 contends the trial miscarried from “one or more of the following cumulative errors”:

     1. the trial judge allowing the return of MFI “B” (that is, the 30 second video, put to the complainant during cross-examination, later marked as exhibit 9) to the Crown; and/or
     2. the absence of provision to the jury of a corrected exhibit 8 (the transcript of the translation of the pre-text phone call) and/or the transcript of the evidence of the expert interpreter; and/or
     3. the trial judge failing to correctly direct the jury by reference to the evidence concerning preliminary complaint; and/or
     4. the trial judge failing to correctly, or properly, refer to the expert interpreter’s evidence concerning the meaning of “ruin” when directing the jury.
199. [199]
     There is no substance in ground 6.
200. [200]
     In relation to (a), there is no sensible basis on which the trial judge should have refused to provide MFI “B” to the Crown.  It was a document (video) shown to the complainant during cross-examination of her.  And, in any event, it is apparent from the transcript of the proceedings that defence counsel provided a copy of the video which became MFI “B” to the prosecutor – as was entirely appropriate in the circumstances.^[40]
201. [201]
     In relation to (b), the detail of the interpreter’s evidence is set out at paragraphs [51] to [61] above.  There was no need for the jury to be given a “corrected” version of exhibit 8.  The changes made by the interpreter during his evidence were minimal, and the jury were well able to have dealt with that, on the basis of exhibit 8 and that oral evidence.  Likewise, there was no need for the transcript of the interpreter’s oral evidence to have been provided to the jury (and no request made for that to be done at the time, in any event).
202. [202]
     As to (c), the argument is that in giving the jury a direction about how they could use the evidence of what the complainant told her mother and her brother, about the offending, before she spoke to the police, the trial judge failed to articulate specifically what that evidence was, and therefore to identify specifically what the inconsistencies were.
203. [203]
     The direction given by the trial judge was as follows:

“I am moving now to another topic, if I may. It concerns the evidence of things that [the complainant] said to her family. Now, you might recall that during parts of the evidence, witnesses were stopped from repeating private conversations because they were hearsay. As a general rule, conversations had out of Court, things said out of Court, are not admissible in the trial because they are second-hand. Witnesses need to give their version of events for themselves to the Court directly. They have to give their evidence in person. No one else can give that evidence for them. But when a complainant, like [the complainant], has given evidence, the evidence of – what she said about the things in the charges, before she went to the police, may become admissible.  That is why her mother and her brother were allowed to testify from their memory about things that she had told them. Those conversations, what she said to them, are not proof that it actually happened to her, that the accused actually did those things.  The only use that can be made of them is in consideration of her credibility.

When you consider this part of the evidence, the things her mother and her brother recalled her saying, you need to keep in mind they were relying on their memory of what was said and – these were conversations held two years ago. They were not purporting to give a precise word for word playback of what was said.

If, after considering the evidence of what she said to her family, you found that [the complainant] had been inconsistent in her allegations of the rape counts, that may cause you to have doubt about her overall credibility. Alternatively, if you find that she was consistent in those accounts of rape – if she was consistent, you can take that consistency into account because it can bolster her credit. Of itself, it does not prove anything but if she was consistent, it may make it more likely that her evidence to the Court was true. I am talking about– if there was consistency in what she said to them and what she said to the Court.”

204. [204]
     That direction adequately instructed the jury as to the use which could be made of the evidence of complaints made to the mother and the brother.  That is what is required, lest the jury “treat that evidence as confirmatory proof of the facts which the Crown alleged”.^[41]  There is no general requirement for a trial judge to summarise the preliminary complaint evidence in detail, nor to articulate specifically any inconsistencies.  Whether there were inconsistencies was a matter for the jury to determine.  The direction given conveyed the important point to be made, as to the limited use to be made of this evidence.^[42]
205. [205]
     As to (d), in my view there is no reasonable basis for criticism of the trial judge’s summary of the interpreter’s evidence as to the meaning of “ruin”.  On this point, what her Honour said, in summing up, was:

“The interpreter, in addition to going through the translation that he had made of the phone call, was asked about specifically about the meaning of the word “ruined” in Tamil. And he said that ruined is a word that depends upon its context. Mostly it means spoiled or destroyed. It can mean ruin a woman’s chastity. There is a remote possibility that in a context it can mean rape.

206. [206]
     The summary was succinct and accurate.

Conclusion

207. [207]
     The case against the appellant was a relatively strong and compelling one and defence counsel did the best that could be done on behalf of his client.  In so far as the original video is concerned, the appellant was selective in what he chose to give, and tell, his trial lawyers, and having done so cannot now have a “second go”.  In any event, the original video would have bolstered, rather than undermined, the case against the appellant.  Since the expert evidence of Dr Sorrell leads to the original video being before the jury, and would necessitate the appellant giving evidence, that too would not have been favourable for him.  The absence at the trial of the remaining new evidence put forward on this appeal is not such that it can reasonably be concluded the appellant was denied the opportunity of an acquittal that was fairly open.  No miscarriage of justice has been shown.  The appeal against conviction ought to be dismissed.
208. [208]
     MORRISON JA:  I agree with the Chief Justice.
209. [209]
     DALTON JA:  I agree with the order proposed by Bowskill CJ and with her reasons.

APPENDIX

AMENDED GROUNDS OF APEPAL

1. “1.
   The Original Video Footage on the Silver USB Pen Drive, to be adduced with leave by the Appellant on appeal, from which the video that was tendered at the trial as MFI#B (and later tendered as Exhibit 9) originated from:

1.  Is fresh evidence, sufficient to cast doubt on the jury verdicts, the absence of which deprived the Appellant of the possibility of an acquittal such that his trial miscarried;

2.  Alternatively, is new evidence, where the absence of this evidence deprived the Appellant of the possibility of an acquittal such that his trial miscarried;

3.  Further in the alternative, the Appellant’s trial miscarried due to the conduct and incompetence of his Trial Counsel, in that a reasonably competent barrister would have:

A. Advised the Appellant concerning the need to obtain a defence expert report, and having so obtained a report, known to have asked for the device on which the original video footage was recorded (the Silver USB Pen Drive), or

B. Have asked for the Silver USB Drive on which the original video recording was taken.

1. 2.
   The contradictory expert evidence, to be adduced with leave by the Appellant on appeal, in the report and affidavit of Professor Matthew Sorrell:

1.  Is fresh evidence, sufficient to cast doubt on the jury verdicts, the absence of which deprived the Appellant of the possibility of an acquittal such that his trial miscarried;

2.  Alternatively, is new evidence, where the absence of this evidence deprived the Appellant of the possibility of an acquittal such that his trial miscarried;

3.  Further in the alternative, the Appellant’s trial miscarried due to the conduct and incompetence of his Trial Counsel, in that a reasonably competent barrister would have:

A. Objected to the admission of the prosecution expert evidence on the ground of unfairness to the Appellant after the trial had already commenced; and/or

B. Advised the Appellant that a defence expert report and evidence should be obtained to contradict the prosecution expert, and/or

C. Advised the Appellant to apply and sought instructions from him to apply to adjourn the trial for sufficient time to obtain a defence expert report and evidence (and make such an application), and/or

D. Advised the Appellant to apply and sought instructions from him to apply for a mistrial of the trial to obtain a defence expert report and evidence, so that evidence could be used on a retrial (and make such an application), and/or

E. Advised the Appellant that he could give evidence and adduce evidence to explain the artefacts on Exhibit 9 and to provide evidence of the corruption of the video file tendered as Exhibit 9; and/or

F. On the prosecution voir dire being conducted of the prosecution expert, and the subsequent ruling made admitting the prosecution expert evidence, Counsel should have revisited the Appellant’s instructions on not giving and calling evidence prior to him being called on, and in doing so, advised the Appellant of any or all of the above matters at A to E, and/or

G. Advised the Appellant against admitting that Exhibit 9 was produced by him.

1. 3.
   The communications between the complainant and the Appellant (namely the Viber contact, Duo App use, messages, videos, calls, emails, emojis, images and texts) contained on the Appellant’s mobile phone/s seized by police on 2 May 2019, and disclosed to the defence on blue ray disc prior to trial on 21 April 2021 (“the Phone Data”):

1.  Is new evidence, where the absence of this evidence deprived the Appellant of the possibility of an acquittal such that his trial miscarried;

…

3.  Further in the alternative, the Appellant’s trial miscarried due to the conduct and incompetence of his Trial Counsel, in that a reasonably competent barrister would have:

A. Viewed the Phone Data prior to the commencement of the pre-recorded evidence of the Complainant, and/or before the commencement of the Appellant’s trial; and

B. Cross-examined the complainant as to the content, dates and details of the Phone Data; and/or

C. Cross-examined the arresting police officer as to the Phone Data;

Further, if the above matters at B or C were not done, or were not accepted by the witnesses, a reasonably competent barrister would have done any or all of the following:

D. Sought to have the Phone Data tendered by the Crown as other exhibits had already been tendered by the Crown for the benefit of the Appellant’s Defence; and/or

E. Advised the Appellant that he could seek admissions for the Phone Data evidence to be placed before the jury (and done so); and/or

F. Advised the Appellant that he could give evidence and adduce the Phone Data evidence himself; and/or

G. Advised the Appellant that an expert could be sought to give defence evidence about the Phone data and its contents.

1. 4.
   The Google Map Timeline print outs (“the Maps”) obtained from the Appellant’s Google Account on his device that the Appellant provided to his solicitor prior to his trial is:

1.  New evidence, where the absence of this evidence deprived the Appellant of the possibility of an acquittal such that his trial miscarried;

…

3.  Further in the alternative, the Appellant’s trial miscarried due to the conduct and incompetence of his Trial Counsel, in that a reasonably competent barrister would have:

A. Viewed the Maps and considered (or obtained) the Appellant’s instructions concerning the Maps; and/or

B. Considered and viewed the Maps against the Phone Data disclosed on the blue ray disc prior to trial and identified the Phone Data evidence consistent with the Appellant’s Defence case.

Further, a reasonably competent barrister having done any or all of the above matters at A or B would have:

C. Cross-examined of the complainant as to the Maps;

D. Cross-examined the complainant as to the Maps and Phone data communications consistent with the Appellant’s Defence case;

E. Cross-examined the arresting police officer as to the Phone Data communications, and knowledge of the Maps contents, and evidence consistent with the Appellant’s Defence case;

Further, if the above matters at C, D or E were not done, or were not accepted by the witnesses, a reasonably competent barrister would have done any or all of the following:

F. Sought to have the Maps tendered by the Crown as other exhibits had already been tendered by the Crown for the benefit of the Appellant’s Defence; and/or

G. Advised the Appellant that he could seek admissions for the Maps evidence to be placed before the jury (and done so); and/or

H. Advised the Appellant that he could give evidence and adduce the Maps evidence himself; and/or

I. Advised the Appellant that an expert could be sought to give defence evidence about the Maps and their contents; and/or [sic]

1. 5.
   In respect of the following new evidence on appeal, when considered with the Original Video Footage, Phone Data and/or Maps adduced on appeal, the absence of any one or more of the following items of evidence, the absence of which deprived the Appellant of the possibility of an acquittal such that his trial miscarried:

1.  The video of the complainant’s 18^th birthday; and/or

2.  The evidence of the Appellant’s purchase of the gifts to the complainant of the ceramic rose and teddy bear; and/or

3.  The evidence of the Appellant’s purchase of the lock for the complainant’s bedroom door; and/or

4.  The video of the complainant’s 19^th birthday.

1. 6.
   The Appellant’s trial miscarried from one or more of the following cumulative errors:

1.  The learned trial Judge allowed the return of MFI#B to the Crown; and/or

2.  The absence of provision to the jury of a corrected Exhibit 8 transcript and/or transcript of the evidence of the expert interpreter (Mr Mezhiselvam Ponnusany); and/or

3.  The learned trial Judge failed to correct direct the jury by reference to the evidence concerning the preliminary complaint evidence; and/or

4.  The learned trial Judge failed to correctly, or properly, refer to the expert interpreter’s evidence (Mr Mezhiselvam Ponnusany) concerning the meaning of “ruin” when directing the jury.”