R v BEE[2023] QCA 261

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  I agree with Boddice JA.
2. [2]
   DALTON JA:  I agree with the order proposed by Boddice JA and with his reasons.
3. [3]
   BODDICE JA:  On 24 July 2023, a jury found the appellant guilty of one count of maintaining a sexual relationship with a child (count 1), one count of carnal knowledge with a child under 16 (count 2), one count of indecent treatment of a child under 16 (count 3) and one count of rape (count 4).  The jury found the appellant not guilty of a further count of indecent treatment of a child under 16 (count 5).
4. [4]
   The appellant was sentenced to imprisonment for 5 years on the count of maintaining a sexual relationship, and to lesser concurrent periods of imprisonment for the remaining counts.  His parole eligibility date was fixed at 24 January 2026.
5. [5]
   The appellant appeals his conviction.^[1]  He relies on three grounds.  First, a miscarriage of justice because of the way in which “similar fact” evidence was dealt with at trial.  Second, a miscarriage of justice because of the trial judge’s directions about “admissions” in a pre-text call and Instagram messages.  Third, the verdict on the count of rape was unreasonable and cannot be supported having regard to the evidence.

Background

6. [6]
   The maintaining count was committed between January 2010 and December 2012.  The remaining offences, other than the offence of rape, were committed between January 2010 and December 2010, when the female complainant (A) was aged 13 to 14 years.  The count of rape was committed against A between December 2012 and December 2013, after she had turned 16 years of age.
7. [7]
   The count on which the jury returned a verdict of not guilty was alleged to have been committed between January 2010 and October 2010, in respect of a separate female complainant (B), the older sister of A.
8. [8]
   The appellant knew A and her family through the local sporting club.  He was aged 22 and 23 at the time of the commission of the offences other than rape, and between 25 and 26 at the time of the commission of the rape.

Counts

9. [9]
   Count 1 was particularised as maintaining an unlawful sexual relationship with A, by committing more than one sexual act against her, including any one or all of:

   1. touching A’s vaginal area with his hand or hands;
   2. penetrating A’s vagina with his finger/s;
   3. penetrating A’s vagina with his penis;
   4. penetrating A’s mouth with his penis;
   5. kissing A’s mouth;
   6. one or more of the acts constituting counts 2 and 3.
10. [10]
    That type of conduct occurred when the appellant slept at the family home, approximately every three weeks when the complainant was between 13 and 15 years of age.  On one occasion, it occurred at the appellant’s house.
11. [11]
    Count 2 was particularised as the appellant having penetrated A’s vagina with his penis, in the spare room of her home, when the complainant was under 16 years.
12. [12]
    Count 3 was particularised as the appellant having penetrated A’s mouth with his penis, in the spare room of her home.
13. [13]
    Count 4 was particularised as having penetrated A’s vagina with his penis without her consent, in her bedroom, after A had turned 16 years of age.
14. [14]
    Count 5, the count of which the appellant was acquitted, was particularised as touching B’s vaginal area with his hand and/or fingers.

Trial

15. [15]
    All counts were contained on one indictment.  There was no application for severance of the counts involving the separate complainants.  Further, no application was made to exclude B’s evidence from consideration by the jury, in determining the counts involving A.
16. [16]
    At trial, the Crown contended the evidence in respect of each complainant was admissible on the grounds it was strikingly similar, relevant to negating any suggestion of coincidence.  It was not contended by the Crown that the evidence was admissible on any other basis.
17. [17]
    At trial, defence used the evidence forensically to contend the complainants had concocted the complaints against the appellant.

Evidence

Complainant B

18. [18]
    B first met the appellant when she was 14 or 15 years of age.  At that time, she was living with her family.  She had an older brother and a sister, A, who was two years younger.  The family home, located on acreage, was two-storeyed with the family bedrooms upstairs and a guest bedroom downstairs.
19. [19]
    B said the appellant played sport with her father and brother.  When she first met him in 2009 or 2010, the appellant was around 23 years of age.  B described the sporting club as big drinkers.  Social gatherings were held at her home every week and at other people’s homes three or four times a month.  B and her family would attend those gatherings, as would the appellant.
20. [20]
    B said the appellant would stay at their house almost every Friday or Saturday.  It commenced around the start of 2010.  After B turned 16, it was less frequent, but still regular.  The appellant would sleep in the guest bedroom downstairs.  He would leave very early the next morning.
21. [21]
    B said the appellant was a really close friend; someone who really cared about her.  The appellant was always telling her how much he liked B.  They would communicate over Facebook Messenger almost every day during 2010.  He introduced her to an alcoholic liqueur called Midori.  Whilst in the presence of her parents, they did not talk much, but the appellant would message her later to ask her to come down to his room.  He would say, “I can’t wait to cuddle you” and “You look so beautiful”.  The appellant would also help her with her assignments and when she was having trouble with her family.
22. [22]
    B said she went down to his room many times.  The appellant would tell her to lie down beside him.  He kissed her on about five occasions.  She first went down to his room when she was aged 15 years.  When they would watch movies in the cinema room of her home, the appellant would want to hold her hand under a blanket.  He would also hold her thigh a lot.  On one occasion, the appellant put his hand onto her vagina, on the outside of her track pants.  The appellant moved his fingers up and down her vagina.  After 15 to 20 seconds, B went to the bathroom.  When she returned, the appellant tried to put his hand back, but B grabbed his hand and held it.  This happened when she was 15.
23. [23]
    B said she did not want the appellant to touch her vagina.  Not long after this night, B asked the appellant to go for a walk.  She told him she just wanted to stay friends and did not want to do “that kind of stuff with him”.  The appellant said, “I knew you would do this to me.  I knew you were just going to break my heart, and you’re just leading me on …”.  This conversation took place when she was 15.  After this conversation their relationship changed; the appellant would still message B every now and then, but it was very bland and not as persistent.
24. [24]
    On one occasion, B said she went to the appellant’s house for a couple of minutes when they were driving to the sporting club.  She also attended a big party there on Australia Day, in either 2009 or 2010.
25. [25]
    B moved out of the family home when she was aged 17.  The family still had a relationship with the appellant.  He would come over to drink at the family home.  On occasions, he stayed overnight.  When B returned to the family home at 18 or 19 years of age, the appellant still had a relationship with her family.  It was “just really awkward”.  B moved out again when aged 20 or 21.  She did not have any communications with the appellant after she moved back home the first time.
26. [26]
    In 2020, A moved in with B, renting a room downstairs.  In August 2020, A and B were messaging each other on Instagram.  They were discussing humorous stuff, as well as childhood trauma, when B decided to mention the appellant.  B gave A a little bit of information about what had happened.  A said she had something to tell B.  That was the first time B had mentioned the appellant to anyone in that context.
27. [27]
    When A came upstairs, B told A about all the things the appellant had said to her and how he would ask her to come downstairs.  A said the appellant would do the exact same things to her.  The appellant would say she was beautiful, ask her to come downstairs and that he could not wait to cuddle her.  A said they had sex on many occasions.  In that conversation, A told B that once their mother had put a mattress on her bedroom floor upstairs and she had been told the appellant was sleeping there.  The appellant climbed into her bed and had sex with her.
28. [28]
    B said she had to cut the conversation short as she had an exam that morning.  B called her husband, C, whilst driving to the exam.  She told him little bits and pieces, but not in detail.  Later, A and B went to the police.
29. [29]
    In cross-examination, B said that prior to her discussion with A, she had never spoken about any sexual abuse with A.  They both went to the police station together on 24 August 2020.  B explained the delay by reason of the fact they could not just go to any police station, they had to go to the headquarters in Brisbane.  When B was at the police station discussing her allegations, A was present.  Neither gave full detailed discussions on that occasion.  Each gave a very thorough overview.  B did not discuss what had happened with A between that night and when they went to the police station.  At the time of giving evidence, A still had not told her the full details.  In November 2020, police came back to prepare proper statements.
30. [30]
    B accepted she met the appellant through the sporting club, around the start of the winter sport season, which commences in March and ends in September.  If it was in 2010, she would have been 15.  A few months after the sport season started, she commenced talking with the appellant.  The appellant would single her out.  It did not take long for them to become friends.  She became his Facebook friend in 2010.  B agreed she had a crush on the appellant.  B did not accept the first time the appellant visited her house was August 2010.  He was “pretty much living in our house every weekend” throughout the season.  The appellant would drink with her parents.  He would bring Midori.  Her parents were big drinkers.  It was normal for her to be drinking at these events.
31. [31]
    B said the first time the appellant slept over at the family home was early to mid-sport season.  B was confident it was not as late as October 2010 as her birthday was around that time and she “was really awkward about [the appellant] being there”.  When they would watch a movie, there was often a few people in the cinema room.  Her mother would put a blanket over them.  The night the appellant rubbed her vagina, the appellant was staying over.  It was not a “big sort of drinking party night”.  When she went to the bathroom, no one asked her what was wrong.  When she returned from the bathroom, she sat back on the couch beside the appellant.  She held his hand.
32. [32]
    B accepted that in her Instagram messages to A on 20 August 2020, she said the appellant “used to, like, touch and rub the inside of my thigh literally right next to my fkn vagina.  Like, one centimetre away”.  B said there were times when he would do that, but on that one night, he touched her vagina as well.
33. [33]
    B accepted that in her police statement she said A told her she had sex with the appellant, but did not go into the details.  During their conversation on 20 August 2020, A also mentioned something about the appellant sleeping on a mattress on her floor and that he had crawled up into her bed and had sex with her.  A never told B she was raped.  B did not accept she had been speaking to A about the allegations prior to 20 August 2020.  She denied the Instagram messages were constructed by them together to make it appear the conversation occurred on 20 August 2020.  She denied she had colluded with A.
34. [34]
    B accepted that after the conversation with A on 20 August 2020, she spoke to her partner.  She told him what A had said, but did not tell him what the appellant had done to B.  She told him there was something involving her, but did not go into details until later.  B accepted she had told the prosecutor recently that she did not think she had told her partner anything at that time about what had happened to her.  B said she was a bit emotional that day and could not remember all of the conversation with the prosecutor.  She denied she did not want to talk to her husband about the allegations because she knew they were untrue.  She did not want to talk to her husband because she was on her way to an exam and the allegations were upsetting.
35. [35]
    When B saw the appellant in the spare bedroom, it would be quite late.  She did not ever see A in that bedroom.  B would never go downstairs unless the appellant asked her to come down.  She accepted A and B both had a crush on the appellant.  B accepted she had not provided to police any of those Facebook messages inviting her downstairs.  At the time of giving evidence, she could not access that original Facebook account.  Police told her she had to contact Facebook personally.  Facebook never replied to her.
36. [36]
    B accepted that when she and A were younger, they would drink at family and sporting events.  A also smoked when she was younger.  B last saw the appellant in 2013.  She turned 19 in 2013.  She did not recall seeing the appellant at a bar on the Gold Coast in 2016.  She did not recall putting her phone number in the appellant’s phone that night or dropping him home to his parents’ house.

Complainant A

37. [37]
    A met the appellant through the sporting club, around 2009 or 2010, when aged 12 or 13.  The appellant played in her brother’s team.  A also played in the under 15 girls’ team.  The sporting club was very social.  A would attend those social events with her family.  The appellant also attended those events.  The appellant was aged 22 or 23 when she first met him.
38. [38]
    The social events for the sporting club continued throughout the whole year.  During the sport season, there was always a “Friday, Saturday night sort of drinks”.  In 2010, her family started to have their own parties.  The appellant would usually stay over at their house, sleeping in the spare bedroom downstairs.  For a period, it was pretty well every weekend, then it would drop off for a few weeks.
39. [39]
    A said the appellant was a close friend of the entire family.  He attended family birthdays.  He also came on a family cruise in 2011.  In the early stages, her relationship with the appellant was “Sort of brotherly, family.”  He would support her through any school problems, drama and family feuds.  She was in grade 8 when she started talking to him about those things.  A had a direct line of communication with the appellant through text messages and Facebook Messenger.  They would communicate at least every weekend, maybe every few days.  They started to communicate by text or Facebook when she was 13.
40. [40]
    A said her relationship with the appellant changed to intimate when she was around 13.  The occasions when they would be cuddling together, with a blanket over them, moved to the appellant putting his hand in between her legs and into her underwear.  He would touch her vagina.
41. [41]
    The first time was on the lounge in the living room, when they were watching a movie, under a blanket.  Her mother and father were also in the loungeroom.  The appellant touched her vagina for perhaps a few minutes.  He inserted his fingers into her vagina.  She froze and sat in silence.  This was not the only time the appellant touched her like that in the loungeroom.  It happened multiple times.
42. [42]
    A said their relationship progressed; after everyone had gone to bed, the appellant would message on Facebook for A to come downstairs and talk or cuddle.  She would talk about whatever was stressing or upsetting her; school or family and friends.  Most of the time she would end up upset and crying.  The appellant would then pull her under the sheets and begin kissing her, touching her, and putting his fingers in her vagina.  It would progress to intercourse where he inserted his penis into her vagina.
43. [43]
    A was 13 the first time the appellant inserted his penis into her vagina.  She was asked to suck his penis the first time they had sexual intercourse.  This sort of incident happened nearly every time the appellant stayed over at their house, up to roughly 20 times over a few years.  The appellant would tell her he loved her.  He would say, “I’m always here for you, [A], and you know I really care about you, you’re so grown up for your age.”  They would then cuddle and kiss.  It always ended in intercourse.
44. [44]
    A could not recall how many times she sucked his penis.  She did not think it was only the one occasion.  She would not go downstairs every time he messaged her.  Sometimes she would fall asleep or pretend she did not see the message.  When asked why, she said, “Maybe I hadn’t had enough to drink that night or a part of me knew exactly what was going on and didn’t feel right about it.”
45. [45]
    A said the last time it happened was when she was 16.  They were drinking at home with her family.  When she went to bed, there was a mattress on the floor in her room.  The appellant was on the mattress.  When the lights were turned out, he jumped into her bed.  She felt like she had no control.  The appellant inserted his penis into her vagina.  She did not consent to having sex with him at that time.  This incident occurred towards the end of the year, before her 17^th birthday.  She had moved out of home on New Years Day that year and lived away for approximately 10 months.  She exchanged some Facebook messages with the appellant during that 10 month period, but did not see him.
46. [46]
    A said her relationship with the appellant before her 16^th birthday was friendly.  There was never any discussion about being more than friends, but A would have described it as a relationship; “I don’t have sex with my friends, so I wouldn’t class it as a friendship”.
47. [47]
    A said there was an occasion before her 16^th birthday when they were drinking at the house.  A lay down on the water tanks just below the balcony with her mother and the appellant.  The appellant put his hand under the blanket and into her underwear.  He put his fingers into her vagina for a few minutes.  There was another occasion on Australia Day when there was a party at the appellant’s house.  They were sitting in the spa.  The appellant put his hand under the water, in between her legs and put his fingers into her vagina.  When the bubbles went off, he got out, put the bubbles back on and started again.  There were discussions going across the spa with other people.  That was the only occasion when something happened outside of her own home.
48. [48]
    A said the appellant would ejaculate either onto himself or on his shirt.  He would go to the bathroom, either to rinse his shirt or clean himself up.  Sometimes he would then go straight home, or he would get back into bed and they would go to sleep.  She did not recall him wearing a condom.  On a couple of occasions, her mother had seen them in bed together.  They were fully clothed by then.  She would put her clothes back on before going to sleep.
49. [49]
    A said a few months before her 16^th birthday, the appellant stopped sending her messages to come downstairs.  By that stage, the appellant was staying over less often.  A had stopped responding to his messages and stopped coming downstairs when she was approaching her 16^th birthday.  The last occasion anything happened with the appellant was the occasion in her bedroom, after her 16^th birthday.  After that occasion, their relationship disintegrated quite quickly.  They were still communicating, but they were short answer responses.
50. [50]
    On 25 February 2018, A received messages on Instagram from the appellant.  One message read, “Will you ever speak to me again??  You might not realise, but I’m so sorry for everything.  I not only lost you, but I lost your family.”  A did not reply.
51. [51]
    A said, when she was around 15 or 16, she had mentioned to one friend, an exchange student, what had happened with the appellant.  A had not told anybody else until August 2020, when A and B were messaging each other on Instagram.  B told her what the appellant had done.  A then had a conversation with B upstairs.  This was the first time A became aware that something had happened to B.  A told B everything the appellant had done to A.  They both then went to speak to the police.
52. [52]
    On 20 February 2021, the police asked A to participate in a recorded telephone call with the appellant.  A had no further contact with the appellant after that phone call.  In the pre-text call, A asked the appellant why he kept messaging her.  The appellant replied he had been thinking about it “the other day just trying to see you growin’ up”.  The appellant also said, “I thought we’d spoken about of course I’m sorry, but um, everything – all the things that happened”.  When A said, “using me and then leaving every morning and then never having anything to say in the morning”, the appellant replied, “… I was, was not a good person when I was doing those, but that’s like, I was also, you know, even though I was, I was older, I was immature in a way.  I did that, acted like that, because I see how, I can see, see how that hurt you and that wasn’t my intention”.
53. [53]
    When A said she was 13 or 14, the appellant replied that he “probably need to say sorry about everything”; that he “didn’t ever feel like I didn’t care about you quite the opposite.  But I see how I didn’t show that that”; and later, “I did care about and I still do care about you”. When asked why he would leave every morning, the appellant replied that he was immature, making bad decisions.
54. [54]
    Towards the end of the conversation, the following exchange occurred:

“[A]: I was thirteen, I wasn’t ready to have sex with anyone.  And the fact that you just took that from me without even a second thought and … [h]ave no remorse … [f]or that.

[Appellant]: I completely, I will tell you, I have remorse for that.  I’ll stand up and tell you that.

[A]: Did you think it would just happen, then, what, like what did you think was gonna happen from that?

[Appellant]: I, I don’t know, to be honest.

[A]: Well it led me down a path of self-destruction through multiple partners that didn’t give a fuck about me, because you led me believe that, from an early age, that this is what people that care about you do.  They sleep with you when you’re drunk and then fuck off early hours of the morning just to get their pleasure and fuck off.

[Appellant]: I’m sorry, I truly am.  And I know that’s probably not believable right now in this moment, but I am.  And sorrys don’t come, you know, they don’t come without anything unless you are, can show it and prove it, so if there’s anything I can do to prove that I’m … [s]orry.

…

[A]: Never been good at proving anything, all you’ve done is talk shit.  So, thanks for your apology, but no, it doesn’t, doesn’t mean anything, especially not now.  And I’d appreciate it if you’d stop messaging me.”

55. [55]
    In cross-examination, A said after she discussed the matters with B upstairs, following the Instagram messages, they went to the police station, but were not able to make a report on that day; they had to come back a few days later.  In the period between their first discussion and speaking to police, there were continual discussions; A often spoke to B about the allegations.  Further, when she spoke to police, B was present.
56. [56]
    A accepted she provided a written statement to police on 30 November 2020; a second statement to police on 20 February 2021; and a third statement to police the day before giving evidence (17 July 2023).  A also had a conversation with the prosecutor the previous week.  A had also sent an email the previous week, seeking to amend her written statement dated 30 November 2020.
57. [57]
    A accepted she has a close relationship with B.  They spoke often.  A was estranged from her parents and brother.  A agreed her parents were heavy drinkers.  She would drink in front of her parents’ friends, including the appellant.  Typically, A would drink more than B.
58. [58]
    A accepted she developed feelings for the appellant.  She believed he cared for her.  A accepted she told police, in her first statement dated 30 November 2020, that the first time it happened was near her 14^th birthday, in the loungeroom.  It was possible there were more people in the loungeroom that night than her parents and the appellant.  The appellant used his left hand to put his fingers in her vagina.  Her parents were right beside them.  A blanket was covering them.  She could not remember how long his finger remained in her vagina.  She denied it was impossible to figure it out because she had made it up.  She was not sure whether that night was the same night they had sex for the first time.  She accepted that in her statement to police she suggested it was the same night.
59. [59]
    A said the appellant would message her after everyone went to bed and ask her to come downstairs to talk or cuddle.  She deleted those messages years before she made the complaint to police.  Messages the appellant sent her post-2016 were not deleted.  She provided those to police.
60. [60]
    A denied that on the first occasion she went downstairs and they started to kiss, the appellant asked her how old she was; that she said she was 16; and that she reached into his pants and touched his penis.  She accepted that in her statement to police in November 2020, she stated, “He asked me to suck his dick, which I did, and I was willing to because of how much he cared about me.”  She denied she wanted to give him oral sex.  She denied the appellant asked her whether she was on the pill; that she then told him she was 15, but turning 16 very soon; and that the appellant then said they could not have sex.  She denied the next morning the appellant told her they could not do that again and she apologised.
61. [61]
    A accepted that prior to the trial, she had provided a note to police which said, “I thought I was very grown up and was always told I seemed older than I was.”  She had been told she was very mature for her age.  She denied she wanted to be intimate with the appellant, but agreed she also told police, “I think that made me feel like it was normal and how it was supposed to happen …”.  A accepted that in her first statement to police she stated it always happened the same way, but only referred to one occasion of the appellant placing his finger in her vagina in that statement.  A agreed she had told the prosecutor the week before the trial that the appellant had “fingered” her more than five times.  She denied she was remembering more details.  When asked whether she could recall how many times it happened, she gave an estimate.  It could have been more, it could have been less.
62. [62]
    A accepted that in her recent statement (the third statement), she had said the appellant “fingered” her while she lay next to her mother on a water tank.  It was another event she had remembered after giving evidence the previous day.  She denied she was adding more detail to make it sound more believable.  She accepted that when she spoke to the prosecutor the previous week, she never raised the occasion on the water tank.  A found a note on her phone that she had written while going through other notes.  That happened to be some of the information in one of the notes.
63. [63]
    A accepted that when she went down to the spare room, she never ran into B in his room.  A also accepted that her evidence was that the same thing happened around 20 times, in the same way.  She denied the first occasion was an isolated event.  Part of the reason she did not tell anyone was because she did not want to lose the appellant’s friendship.  A accepted that in her first statement to police, she made no reference to events on Australia Day.  It was in February 2021 (the second statement) when she first mentioned the Australia Day incident.
64. [64]
    A accepted she moved out of home when she turned 16 to live with a boyfriend.  She left a note for her parents, saying she needed space for a while and that her parents were not to bother contacting her.
65. [65]
    A accepted that in her first statement to police, she said the last time it happened with the appellant, she thought she was about 17.  Since providing that statement, she had confirmed she was definitely 16.  With respect to the last occasion in her bedroom, A did not recall how the appellant came to be at the house.  The spare room had moved upstairs, as B was living in the downstairs bedroom.  There was a mattress on the floor of A’s bedroom.  She saw it when she went to bed; she had not seen it prior.  A denied inviting the appellant to sleep in the room; asking the appellant whether he wanted to join her in bed; throwing her bra across the room to him; and having sex with him voluntarily and consensually.  She accepted that in her statement to police she said, “I just know that it was sex.  By that I mean he put his penis in my vagina.”  A said, “I remember feeling like I didn’t want this to happen.  I didn’t want it to happen, is what I wrote – what I said.”  She accepted she did not scream out for help.  She did not run out of the room.  She did not tell her parents.
66. [66]
    A could not recall whether, when speaking to B on 20 August 2020, she used the word “rape”.  A accepted she had started to see a counsellor to address her family dysfunction.  She first made reference to sexual abuse on her ninth session.  That consultation was on 21 August 2020.  At that time, she had confided in B.
67. [67]
    A could not recall telling a general practitioner on 11 August 2020 that she had disclosed sexual abuse to detectives and had been talking to B, who had suffered the same issue.  Prior to 20 August 2020, A said she had not discussed with B anything sexual that she had experienced with the appellant.  The reference to a sister suffering the same issues, was in relation to their parents.  The conversation with the general practitioner was not about the appellant.
68. [68]
    A denied she and B constructed a conversation about the allegations to make it look like the first time they had spoken was 20 August 2020.  She denied she had brought allegations against the appellant because she felt he had used her when she had consensual sex with him after the age of 16.
69. [69]
    In further cross-examination, A agreed that on the first night she said there was sexual interaction with the appellant, she performed oral sex on him.  She denied the appellant ever asked her whether she was on the pill, or whether she was sure she was 16.  Those conversations never happened.  She did not recall a conversation the following morning, in which her mother discussed inviting the appellant to her 14^th birthday.  She denied she was the person who touched the appellant in the spa at the Australia Day party.  She denied that the times she had sex with the appellant were after she had turned 16.  She could not recall being in a taxi and using her hand to unzip his pants and touch his penis on the top of his underwear.  She did not recall having sexual intercourse with him that night, or being annoyed at him for leaving early.  She did not accept she had consensual sex with the appellant in 2015, after the sporting grand final.

Preliminary complaint evidence

70. [70]
    B’s husband, C, gave evidence that in August 2020, he received a telephone call from B.  She said she had had a discussion with A.  B did not tell him anything about what she said the appellant did to her.  It was only a brief conversation.  Later that night, B did tell him what the appellant did to her.  There were “a couple of different stories”.  One was when the appellant stayed over drinking, when B was around 14 or 15.  They were in the cinema room.  B’s mother put a blanket over them.  The appellant put his hand over B’s pants on her vagina.  B pushed him away and went to the bathroom.  B said there was another time when the appellant was over at their house.  B told him she was not after that kind of relationship.  C did not have any conversation with A about what A said happened to her.

Complainants’ parents

71. [71]
    The complainants’ mother, D, gave evidence that she met the appellant in April 2010 through the sporting club.  The family had changed sporting clubs in 2010.  All of the family, apart from D, played for the new club.  The appellant was playing in their son’s team.  The appellant was 22, turning 23 that year.  The sporting club was quite social.  There would be regular drinking events.
72. [72]
    D said the appellant became a family friend.  They would see him outside of the sport.  The first time was near the end of August 2010.  He went to the regional show with D’s family.  D said the appellant would stay at their house overnight, in the guest room downstairs.  He would visit once a fortnight.
73. [73]
    D said when the appellant was staying at the house, there was never an occasion where anyone else was in the guest bedroom with the appellant.  She would make sure the house was locked up and everyone had gone upstairs to their rooms.  Sometimes the appellant would be gone before she got up the next morning.  He remained a family friend for several years.  It petered off after he got a girlfriend and was studying in Brisbane.  The last time she received a text message from him was in 2017.
74. [74]
    D accepted that A ran away from home in 2013, just after turning 16.  She did not return until October that year.  During that period, they still had a family relationship with the appellant.  D agreed her relationship with both A and B was fractured.  She has never had a conversation with A or B about what the appellant did to them.
75. [75]
    In cross-examination, D agreed that she first became aware of the allegations in a telephone conversation with police.  D agreed that, depending on the event, more than one person from the sporting club might stay the night at their house.  If the social gathering was just a one-on-one, it was usually just the appellant.  The appellant was working in hospitality when they first met; he worked weekends and some weekdays.
76. [76]
    D accepted that in 2011 or 2012, the appellant went on a boat cruise with the family.  She did not accept that she invited the appellant onto the cruise.  When the appellant heard they were going on a cruise, he invited himself along.  On occasions, the appellant would ask if he could come over to their house for drinks.  On other occasions, he would be invited over by D.
77. [77]
    D accepted that A left home on New Year’s Day 2013 to live with her boyfriend.  It took her four months to find out where A was living.  A left a note saying, “Over all your shit.  You all knew it would happen soon enough.”  D did not accept that in the lead up to A leaving, their relationship had been strained.  D said there was no argument, she just left.  D accepted A had problems at high school.  She was suspended on one occasion.
78. [78]
    In further cross-examination, D did not recall having any conversation with the appellant about A’s 14^th birthday.  She denied ever suggesting that A could sleep in the spare room with the appellant.
79. [79]
    The complainants’ father, E, gave evidence that he met the appellant in or around 2010.  At that time, he and all three of his children were playing at the same club as the appellant.  The sporting community was very social, mainly during the winter season, between March and August.  Events would be hosted at their house.  The appellant always attended, as did other members of the club.  These events were held in 2010 and 2011.  The family would also attend other social events.  The appellant would be present at those events.
80. [80]
    E described the appellant as a family member.  He would stay over if he had too many drinks.  During 2010, the appellant was at their house most weekends.  He would usually stay no more than one night.  Generally, he was gone by the time E woke up.  That continued for a few years.  There were times when it was not so often.  The appellant would stay in the guest room.  There was an occasion when he attended a family cruise.  He was still coming frequently to their house at least until 2016.
81. [81]
    E said, at one point, their relationship with A and B fractured, with A moving out of home just after her birthday and not returning until October that year.  During that period, they still had a family relationship with the appellant.  The appellant stayed over after A moved back in October.  At the time of giving evidence, E’s relationship with his daughters was estranged.  Neither daughter ever had a conversation with him about what the appellant did to them.  He last spoke to the appellant in 2016 or 2017.  The family relationship with the appellant started to reduce during 2016 when the appellant got a girlfriend.
82. [82]
    In cross-examination, E said when they initially met, he and his son were friends with the appellant.  A few weeks later, the appellant was introduced to the rest of the family.  E thought the first time the appellant stayed over was on his birthday.  He denied A and B were allowed to drink at events at their house.  The appellant would stay more often during 2010 than 2011.  It would be each weekend for a little while and then drop off to some degree.  At some get-togethers they would have other people over from the sporting club.  Most of the time it was just the appellant on his own.
83. [83]
    E agreed that he treated his children more like friends than children.  He accepted that, in those circumstances, the children did drink alcohol at the family home.  They did not drink to the point of intoxication.  A ran away from home after her 16^th birthday.  They came home from a boat trip to a note on her pillow, saying she had left and there was nothing they could do.  They later found out she was staying with her boyfriend.  She did not return until October that year.  He agreed that his relationship with his daughters had been estranged since Christmas 2019.
84. [84]
    In further cross-examination, E did not recall any conversation about asking the appellant to A’s 14^th birthday.  He highly doubted D suggested the appellant sleep on a mattress in A’s room.  D would not allow it and nor would he.

Investigating police

85. [85]
    Sally Thomson was the investigating officer for the complaints until February 2021.  She first spoke to both complainants on 24 August 2020.  Witness statements were not taken on that occasion.  Thomson later took statements from both complainants.  They were taken individually from each person.  She also facilitated a pre-text call between A and the appellant.
86. [86]
    In cross-examination, Thomson accepted that when she first spoke to the complainants on 24 August 2020, she had a lengthy conversation with both of them present at the same time.  Later, in November and December 2020, she obtained further details on their witness statements.  In that initial lengthy conversation, A and B gave her a summary of the allegations.  She gained enough information from each of them for a report to be placed on the system.  During her investigation, she was provided with some screenshots of Facebook messages by A.
87. [87]
    Belinda Goodsell became the investigating officer in 2021.  A had already provided to Thomson some Facebook messages dated after November 2016.  Goodsell did not seize A or B’s telephones in order to determine if there were other Facebook messages.  She also did not subpoena Facebook for the provision of messages from 2010 to 2016.

Admissions

88. [88]
    At the conclusion of the Crown case, formal admissions were made as to the dates of birth of the complainants and the appellant and as to the address of the complainants’ family home.  Admissions were also made that the appellant was the user of a particular Instagram profile and, that on 11 August 2020, A’s general practitioner recorded the following note:

“disclosed to detectives on Friday

is talking to her sister

who suffered the same issue

is talking to her psychologist.”

Appellant

89. [89]
    The appellant gave evidence that he first met A and B around June 2010, when he was introduced to them at the sporting fields; that earlier that year, at the start of the season, he had met their father and brother; that in 2010, he was working casually most Fridays and Saturdays and sometimes Sunday nights in hospitality; and that the relationship with the family developed into a friendship.
90. [90]
    The appellant said the first event outside of the sporting club was when they all attended the regional show in August 2010.  He was invited by D and E to attend the show.  Afterwards, they drove back to their home and had dinner.  He also stayed at their home after E’s birthday party.  About 10 to 15 people attended, including the five members of the family.  Everyone was drinking, including A and B.
91. [91]
    The appellant said there was an evening right before A’s birthday where he was invited over for a few drinks.  It was only the family and the appellant.  A was drinking more than B.  They ended the night by watching a movie in the TV room (not the cinema room).  The appellant was sitting next to A.  On the other side was E.  D was beside E.  During that night, the appellant said A flirted with him.  She mentioned that she wanted to get some advice.  The appellant said he had a hint that A might have had a crush on him.
92. [92]
    The appellant said after everyone had gone to bed, he waited on the couch because A wanted some advice.  After some time elapsed, he thought she may have changed her mind and he went to the guest bedroom.  After 10 or 15 minutes, A walked into the room.  She started to talk to the appellant.  It was a vague conversation about a guy she liked and what she should do.  The appellant inferred it was him.  A then crept up the bed and kissed him on the lips, two or three times.  He stopped her and asked how old she was.  She replied, “I’m 16.”  He took that to be a truthful response.  His interactions up to that date had included observing her smoking and drinking quite heavily.  She also looked over the age of 16.
93. [93]
    The appellant said after A said she was 16, they continued kissing.  A then put her hand into his pants and played with his penis.  He reciprocated and put his fingers into her vagina.  A then pulled his pants down and gave him oral sex.  He did not ask for that; it was just an evolution of what was happening.
94. [94]
    The appellant said the light was still on in the bedroom and the door was open.  He asked her, “Would you like to have sex”.  She replied, “yes”.  As the appellant went to close the door and turn the light off, he said, “Are you on the pill”.  A said “no”.  The appellant then said, “Well I don’t have protection so we are not going to have sex.”  He left the light on and returned to the bed.  He again asked her how old she was, to which A said, “I’m 15 turning 16 actually”.  The appellant said he asked that question because she had shown some sexual immaturity in the way that she had proceeded to give him oral sex and he found it strange that she was not on the pill.
95. [95]
    The appellant said he was rocked by her answer as he was under the assumption she was 16.  He said, “Look, we can’t do these types of things, you know.  You’ve – it’s quite dangerous for me and it’s also quite dangerous for yourself to put yourself in those situations and put me in that situation.”  A left the room not long after that conversation.  The appellant said he went to sleep.  He left mid-morning the next day, after D had cooked breakfast for everyone.  At that point, the appellant learnt A’s real age.  D mentioned that A was going to invite the appellant to her birthday party.  He asked A, “How old are you turning”.  She said, “14”.
96. [96]
    The appellant described B as probably the person in the family he was least friends with; it was more A.  The appellant watched movies with B and other people.  They were her brother’s friends.  Nothing happened between him and B.
97. [97]
    The appellant held an Australia Day party in January 2011.  It was a mid-week party, centred around the pool and tennis court, for around 50 people.  At his invitation, A, B and their family attended that day.  He was in the spa with A and D.  There would have been eight people in the spa; shoulder-to-shoulder.  He went into the spa on more than one occasion that day, but there was only one occasion when he was in the spa with A and D.
98. [98]
    The appellant said when he was sitting in the spa, A grabbed his crotch area.  It made him feel uncomfortable.  He was so surprised he cut his foot on the abrasive surface.  A and her family left mid-afternoon.  E had to work the next day.
99. [99]
    In 2011, the appellant would commute to Brisbane four to five days a week for his university studies.  He spent most of his time working on weekends.  He did, however, interact with A’s family.  The appellant said in the first half of 2011, he had become quite good friends with A, her parents and her brother.  He attended a cruise with them in early March.  A’s parents said there was an extra bed in the brother’s cabin.  They asked if he would like to join them.  Later, he attended a State of Origin party at their house.  It was the first match, around May 2011.  A lot of people from the sporting club were invited to join the party.
100. [100]
     The appellant said he was dating a girl from December 2011 until October 2012.  He moved to Brisbane in February 2013.  In April 2013, he started a relationship with another girl.  He stopped playing at the sporting club in 2013.  He commenced hospitality-style work in Brisbane from June 2013.  He was working, studying and playing sport in Brisbane.  He did, however, retain interaction with the former sporting club in 2014.  At one of the club’s functions, he saw A’s family.  A’s father invited him and others from the sporting club back to their house.  In the taxi, A put her head on his lap and pretended to fall asleep.  Whilst she had her head on his lap, she unzipped his pants and started playing with his penis over his underwear.  He did not try to stop her.
101. [101]
     At around midnight, everyone went to bed.  The appellant slept upstairs on a couch in a room that used to be B’s room.  Whilst he was lying on the couch, A and her mother entered the room.  A said she was not going to sleep in her bed because one of the guys from the sporting club had passed out in it.  D said, “stay in here with [the appellant]”.  The appellant said they had consensual sex.  It picked up quite quickly from where they had left off in the maxi taxi.  The appellant ejaculated on his chest.  He unsuccessfully tried to use his shirt to clean himself off.  He told A he was going to go and try and clean himself up.  He used the upstairs bathroom.  There was nothing to clean himself with, so he walked downstairs, woke up his friend and said, “We need to go”.  They went back to his parents’ house.
102. [102]
     About a year later, the appellant said he had sex with A.  He had travelled down to attend the grand final day, in late August or early September.  Whilst watching the games, he had seen A, her parents and her brother.  He had not seen them for quite some time.  After watching some games, A’s parents and brother wanted to go home.  A invited the appellant back to their house.  Her parents said that was fine.  The appellant said he would drive A back.  On the way back to the house, they stopped to purchase some alcohol.  They had been flirting that day, at the club and in the car.  When they stopped to buy the alcohol, they had a “cheeky conversation” about getting into the back seat of the car, which they did not do.
103. [103]
     The appellant said when they returned to the house, they had a couple of drinks.  They then had dinner.  Whilst at the table, they discussed where he was going to sleep.  A referred to a blow-up mattress that had been in her room from a few nights before when some friends from the sporting club stayed over.  A suggested the appellant stay on that mattress.  A’s mother said that was not a bad idea.
104. [104]
     The appellant said he went to the blow-up mattress.  A took her bra off and threw it across the room at him.  He asked her whether she would like him to come up to her bed.  She said, “yes”.  They ended up having sex.  He reminded her that he was going to have to leave early to get to work.  A got angry, mentioning the last time they had sex about a year before, he just left and never came back.  He said he was sorry, but he had to leave early to get back to Brisbane.
105. [105]
     The appellant said the next morning he woke up, said goodbye and left the house.  There were no further sexual encounters with A after that event in 2015.  He only had sexual intercourse with A on two occasions; once in 2014 and once in 2015.  He did see A twice in 2016.  On one occasion, in about May 2016, they attended a funeral for a mutual friend who had committed suicide.  He went back to A’s parents’ house.  It was quite an emotional night.  He stayed at their house.  The other occasion was when he was catching up with some friends at a nightclub in Surfers Paradise.  He ran into A and B at the nightclub.  He started dancing with B.  They were casually flirting.  She put her number in his phone.  B drove him back to his parents’ house at Nerang.  That was the last time he saw A and B.
106. [106]
     The appellant denied ever touching B’s vagina.  Whilst there was sexual interaction with A, when she lied about her age, the first time they had sexual intercourse was in 2014.  The last conversation he had with A was on Facebook.  He had reached out to A over the years to see how she was going.  He had reached out around 2017 when he found out that D had cancer.  He also reached out to D and E.
107. [107]
     The appellant said he had three surgeries on his right ear to remove a tumour, the first of which was in 2014 or 2015.  It left him deaf in that ear.  It very significantly affects his hearing.  He misses things in conversations.  He missed parts of the pre-text conversation with A in February 2021.  He missed when she spoke about them having sex when she was 13.  He had taken the call outside a townhouse.  There was a dog barking in the background.
108. [108]
     In cross-examination, the appellant said that he was not aware, through his initial interactions with the family, that B was older than A.  He accepted they saw him as family.  He did not accept he started attending the household in early 2010.  It was in June 2010 that he was introduced to A, B and their mother.  He accepted he organised the sporting club pub crawl in 2011 and 2012.  He knew that A and B did not attend, but did not know that was because they were underage.  He was not aware when he met A that she was playing in the under-15’s team.  He was not aware that B was playing in the under-18’s team.
109. [109]
     The appellant agreed he established a Facebook friendship with A in 2010.  He also became Facebook friends with B.  He did not accept that B discussed personal matters with him in 2010.  Likewise, A did not discuss her problems with him in 2010.  He did not provide advice to either of them.  He did not invite either to speak with him in the spare room.  He accepted he attended B’s 16^th birthday.  He was aware both girls were younger than their brother.  He did not accept he stayed virtually every weekend at their house.
110. [110]
     The appellant accepted that when he would stay over in 2010 and 2011, he would sleep in the spare room downstairs.  Generally, he would leave before the family got up.  He denied he stayed at the house prior to E’s birthday party.  He accepted he attended A’s 16^th birthday party.  He was still close friends with A.  He found out subsequently that A left home in 2013.  He was still friends with the family but was not coming over to the house.  He next saw A when she returned home in late 2013.
111. [111]
     The appellant denied messaging B almost every day in 2010; telling her that he liked her, or saying he could not wait to cuddle her; asking her to come down to the spare room; trying to kiss B; and putting his hand on her vagina under a blanket whilst sitting on the couch.
112. [112]
     The appellant denied messaging A every few days; being intimate with A in 2010; and touching her vagina at the end of 2010.  The appellant said on one night when A asked if she could talk to him to seek some advice, she came down to the spare room.  He did not invite her down.  A had been casually flirting with him that night.  They did not discuss personal issues.  He only inserted his fingers into her vagina after she had told him she was 16.  He did not put his penis into her vagina that night.
113. [113]
     The appellant accepted that evening occurred after B’s 16^th birthday and before A’s 14^th birthday, but said he did not know she was 13 at the time.  He thought A was the elder of A and B.  A performed oral sex on him that night.  He did not ask her to do so.  He did not have sexual intercourse with A until 2014.  That was the first time.  He did not put his fingers in A’s vagina whilst lying on a water tank at the Australia Day party, or whilst in the spa at that party.
114. [114]
     The appellant accepted he once slept on a mattress in A’s bedroom.  He slept there at her request.  He did not have sexual intercourse with her on that occasion.  He only had sex with A on two occasions; in 2014 and in 2015.  Both were consensual.  The appellant accepted he reached out to A on social media.  There could have been multiple messages in 2016 and 2017.  He sent a message on 25 February 2018 stating, “Will you ever speak to me again??  You might not realise, but I am so sorry for everything.  I not only lost you, but I lost your family.”  He was not apologising for having a sexual relationship with A when she was 13.  He was apologising for the two times he had consensual sexual intercourse.
115. [115]
     The appellant accepted that his last operation for his deafness was in 2018 and that the deafness was only in his right ear.  He did not wear a hearing aid in that ear.  In the telephone call on 20 February 2021, he heard A say the word “remorse”, but did not hear her say she was 13.  His response, “I completely – I will tell you, I have remorse for that.  I’ll stand up and tell you that” was an apology for what happened when she came into the spare room.  His expression of remorse was not for having sex with her when she was 13.  He accepted there were no occasions during that phone call that he indicated he could not hear A.  He accepted that one of his responses indicated that he took from her voice that A sounded dejected.  He agreed he could pick up on her mannerisms.
116. [116]
     The other references on the telephone call were to the events in 2014 and 2015, when he had sexual intercourse with her.  He accepted he heard her say, later in the conversation, that she was 13 or 14, but denied his response, “I didn’t really do anything for an intention.  I just cared about you … We were close …” was an apology for their sexual relationship between the ages of 13 and 16.  They did not have a relationship in that period.  He was referring to the two occasions in 2014 and 2015.  He did not accept that his response to her question, “Why did you leave…every morning” was a reference to leaving in the morning each time he had sex with her the night before.  That was a reference to the events in 2014 and 2015.

Medical evidence

117. [117]
     Dr Black, a specialist ear surgeon, gave evidence that the appellant had a chronic middle ear condition which rendered him severely deaf in the right ear.  People with unilateral deafness struggle to hear clearly.  Background noise accentuates the problem.  The injury is permanent.  When he last saw the appellant in 2018, his hearing was severely down on the right side.
118. [118]
     In cross-examination, Dr Black said he first diagnosed the appellant with the condition in January 2015.  His situation in 2018 was a fairly profound loss in the right ear.  There was no probability of his hearing improving spontaneously.

Consideration

Ground 1

119. [119]
     The appellant submits that as the evidence of each complainant was admitted on the basis of a coincidence, not tendency, there was a need for striking similarity.  However, there was no striking similarity.  It is submitted the counts in respect of A and B were not strikingly similar and nor were their circumstances.
120. [120]
     There is no doubt that the evidence of each complainant was admitted on the basis of the coincidence of the circumstances of the offending against each complainant, rather than tendency.  As such, there must be “‘striking similarities’, ‘unusual features’, ‘underlying unity’, ‘system’ or ‘pattern’ such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution”.^[2]
121. [121]
     As was observed by Henry J in R v CDA (Mullins P and Bond JA concurring):^[3]

“… in considering the objective improbability of some event having occurred other than as asserted by the prosecution it will not be enough, as it is under iterations of uniform evidence legislation in some other Australian jurisdictions, that the coincidence or combination of circumstances relied upon merely has ‘significant probative value’.  Rather, it must involve features of such a strong degree of similarity, distinctiveness, underlying unity or connection that their probative force compels the conclusion there is no reasonable view of them consistent with the innocence of the accused.” (citations omitted)

122. [122]
     Unlike A’s evidence, B’s evidence contained no allegations of penetrative acts.  However, there was a strong degree of similarity, or underlying unity, in the evidence of A and B as to the initiation of their interactions with the appellant and their content, prior to sexual contact.  That strong degree of similarity and underlying unity included the method of arranging their presence in his room, the provision of comfort and friendship to discuss problems, cuddling and the initial touching in a sexual way whilst under a blanket.
123. [123]
     The similarity in that conduct was of such degree as to provide a strong underlying unity or connection to their evidence, such that its probative force, if accepted by the jury, compelled a conclusion that there was no reasonable view of that conduct consistent with the appellant’s innocence.  B’s evidence, and vice versa A’s evidence, had the requisite probative force to compel the conclusion there was no reasonable view of those events consistent with the appellant’s innocence.
124. [124]
     This conclusion is not altered by a consideration of the differing and more serious nature of the appellant’s offending against A.  The fact that the offending in respect of B ceased after one incident, after she spoke to the appellant, did not detract from the distinctiveness and unity of their evidence.  This is particularly so when the defence made a forensic decision to positively assert collusion.
125. [125]
     The fact that the jury was not satisfied beyond reasonable doubt as to the appellant’s guilt of the offence against B (count 5) also does not alter that conclusion.  The jury were specifically directed that should they not be satisfied as to the appellant’s guilt of the offences in respect of one complainant, they were not to use that evidence in determining the appellant’s guilt in respect of the counts in relation to the other complainant.  There is no reason to conclude that the jury acted other than in accordance with those directions.
126. [126]
     Given these conclusions, the similar fact evidence was admissible on a coincidence basis.  Accordingly, as the appellant recognises, it is unnecessary to the consider the appellant’s remaining submissions on this ground in relation to a failure to make a severance application and the alleged inadequacy of directions given in respect of such evidence.
127. [127]
     There was no miscarriage of justice by reason of the way the similar fact evidence was advanced at trial.

Ground 2

128. [128]
     The appellant submits that a miscarriage of justice was occasioned by the trial judge’s directions as to the use of statements by the appellant in the pre-text call and in an Instagram message.  It is submitted that those statements were used as admissions and, as such, it was incumbent upon the trial judge to direct the jury that they be satisfied of their truth and accuracy beyond reasonable doubt.
129. [129]
     In considering this ground, it is important to identify the use for which the messages were admitted at trial.  Initially, their use related to a statement against interest as to the appellant’s engagement in sexual acts with A, knowing she was under 16.  The admission of the evidence on that basis did not require the jury to be satisfied beyond reasonable doubt of its truth; the statements were not sought to be relied upon as a confession,^[4] and it was not contended the statements were of a nature where the jury had to accept the statements as true and accurate in order to be satisfied of the appellant’s guilt beyond reasonable doubt.
130. [130]
     The Crown, in final address, submitted those pieces of evidence, if accepted, were evidence of admissions of the commission of the offences.  Relevantly, the Crown prosecutor said:

“Now, as you know, there is a recorded phone call which was played to you during this trial and we’ve heard a lot about that phone call.  The Crown says that this call contains statements made by the defendant which constitute admissions to the offending, and by ‘the offending’, those are admissions to sexually offending against [A] from when she was 13 years old and raping her when she was 16.  There is also what the Crown suggest to be admissions in that Instagram message that’s sent in 2018 where the defendant apologises for ‘everything’, and, again, you might think that this amounts to an admission that he was, in fact, apologising for everything, being everything that happened in his relation with [A] between the ages of 13 and 15, and for raping her at 16; that’s what [A] took the apology to mean and she told you that in evidence.

Now specific passages you might consider in the pretext call are that [the appellant] apologised for [A] for all of the things that happened.  He told her he was not a good person when he was ‘doing those’ in response to [A] accusing him of using her and never having anything to say in the morning.  He said that he was older, he was immature, that he was sorry.  You might think that he was apologising for having a sexual relationship with [A] when he was much older.  [A] says to [the appellant], ‘I’m the same age you were now.  I was 13, 14’, to which [the appellant] replies, ‘Sorry about everything.  Not one part in general, everything.  I probably need to say sorry about everything’.  Now you might think the emphasis on ‘everything’ means the multiple sexual acts that occurred when [A] was 13, 14, that he was apologising for.  When asked by [A] why he left every morning, [the appellant] says he was immature and making bad decisions.  You might think he accepts that he left every morning, being early in the morning from the [complainants’] house, after he and [A] had sex in the spare room.  And remember, the evidence from [the appellant] is that he was travelling to Brisbane for university from 2011.  In that call, [A] also says to [the appellant], ‘I was 13.  I wasn’t ready to have sex with everyone and the fact that you just took that from me without even a second thought and had no remorse for that’, to which [the appellant] responds, ‘I completely – I will tell you, I have remorse for that.  I’ll stand up and tell you that’.

Now you’ve heard [the appellant] say that at this crucial part of the phone call, this important call with [A], was the time that there was a dog barking in the background and the noise was so disruptive that he pulled the phone away from his ear and he didn’t hear the start of that statement.  But he didn’t ask [A] to repeat herself.  In fact, he responded directly to the proposition that was being put to him.  He told her he had remorse ‘for that’.  And you might think the ‘that’ that he’s referring to, is [A] saying that he had sex with her when she was 13.  And you might think he has remorse for having sex with [A] when she was 13, because it happened.  And the other offending conducting after she was 13, in 2010, 2011, 2012, it also happened.  You might think that given what they were discussing throughout the entirety of that phone call, that if there was something that the defendant couldn’t hear, you might ask that he would ask her to repeat herself.  Now the Crown suggests that when you consider what was said by the defendant, in this call and in these messages, the context in which he makes those statements and everything around it, you would be satisfied that these do in fact tend to indicate guilt of these offences.”

131. [131]
     The trial judge directed the jury that each of the pre-text call and the Instagram message, if accepted as truthful and accurate, were able to be relied upon as indicating the appellant’s guilt.  His Honour directed the jury:

“I want to say something to you now about the pretext call and the Instagram message in 2018.  The prosecution relies on the things said and not said by the defendant during his call with [A] as supporting its case against him.  Before you may rely on that evidence in that way, you must be satisfied, firstly, that he did give the answers that are attributed to him and that he was thereby making an admission against interest and that they were true.

…

You may have no trouble concluding that the defendant said what the prosecution say he said during the interview, given you have heard it.  You may also consider that the statements made by him amounted to an admission, they indicated his guilt, and, in particular, that he knew [A] was under 16.  You will recall his evidence was that he did not hear this part of the conversation because of his ear condition and impaired hearing in his right ear.

There is also evidence of an Instagram message sent by the defendant to [A] on 25 February 2018 where the defendant offers an apology to [A] for everything.  You may consider that this statement by him amounted to an admission; that is indicated his guilt as to the offending.  You will recall his evidence was that he was apologising for when he says he left early after consensual sex with [A].  If you are satisfied that these statements were indeed made by the defendant and that they indicated his guilt, you must then consider whether the statements that the prosecution relies on as indicating guilt are truthful and accurate statements.

It is up to you to decide whether you are satisfied that those things said by the defendant, which would tend to indicate he is guilty of the offence, were true, because if you are not so satisfied, you cannot rely on them as going to prove his guilt.  In this case, you might consider his explanation as to why he did not say during that conversation that he thought that [A] was 16.  Effectively, that was because he said he could not hear and thought the discussion was about something else, namely the two times he did have sexual intercourse with [A] in 2014 and 2015, which he referred to in his evidence, and of course you will recall [A’s] evidence was that those two occasions did not occur.” (emphasis added)

132. [132]
     Once the jury were directed that they could use the appellant’s statements in the pre-text call and in the Instagram message as statements against interest, going to prove his guilt, it was incumbent upon the trial judge to direct the jury that they must be satisfied as to their truth and accuracy.  The trial judge did so, in respect of each statement.
133. [133]
     Notwithstanding that no such direction was sought at trial, it is submitted that the trial judge was required to direct the jury that they had to be satisfied of the truth and accuracy of the statements beyond reasonable doubt.
134. [134]
     Whether such a direction is required will depend on the circumstances of the case.  As the majority observed in Burns v The Queen,^[5] when discussing the admission of a confessional statement:

“The nature of the direction necessary to be given properly to instruct the jury as to the use of evidence of an alleged confession must depend on all the circumstances of the case.  ‘There is no rule of law or of practice which requires the Judge to caution the jury against acting on such evidence or which prescribes any measure of the comment which it is his duty to make upon it.’  In some cases it may be clear or undisputed that a confession was made and the crucial question may be whether it has any probative value: for example, it may be suggested that the confession had no weight because it was extracted by force or given under a mistake or because the accused when making it was ill in body or disturbed in mind.  In a case such as the present, where the accused person alleges that the confession which he is said to have made is a complete concoction, a reasonable jury, once satisfied that the confession was made, might readily be satisfied also that it was true.  In such a case the absence of a specific warning to the jury that they should not act upon the confession unless they were satisfied of its truth might be of less significance than in a case where it was not in issue that the statement was made, but it was claimed that it was untrue.”

135. [135]
     In Burns, the trial judge had specifically directed the jury that they had to be satisfied not only that the admissions were made, but also that they were truthful and accurate.  The majority held the direction given to the jury was sufficient.
136. [136]
     In R v Booth; R v Combarngo,^[6] Douglas J said, in relation to whether it was incumbent upon a trial judge to give a direction that the jury be satisfied as to the truth and accuracy of statements beyond reasonable doubt:

“[58] There may be differing views as to whether a trial judge should give such a direction in the case of statements against interest as opposed to a full confession.  Such a direction has been described as ‘conventional’ or ‘standard’ in Victoria for ‘cases where the Crown relies in part on statements, made by way of admission or confession, to support its case’.  Much will depend on the circumstances, however, as Burns makes clear.

[59] In Magill v The Queen a majority of the Victorian Court of Appeal regarded it as necessary to make such a direction in a case where there was a live dispute as to whether the appellant was the author of the whole or any part of a relevant text message.  With respect to the opposing view, that conclusion is hardly surprising.  Here, however, there was no challenge to the identity of the maker of the statements or as to their having been made.  They were not confessions but statements against interest.  No direction of the type now sought was requested at the trial although the making of directions about such statements was raised by the trial judge.” (citations omitted)

137. [137]
     In R v Nash,^[7] Martin SJA (with whose reasons Bowskill CJ and Sofronoff P agreed) considered that it was not incumbent upon a trial judge to direct a jury that before they could use a statement by an appellant of “I know” – made in response to a proposition that a complainant was naked – they needed to be satisfied of the truthfulness and accuracy of that statement beyond reasonable doubt.  His Honour referred to the judgment of Douglas J in coming to this view.  The prosecution advanced the words, not as a confession, but merely a statement against interest.
138. [138]
     In the present case, there was no challenge as to the maker of the statements or as to their having been made.  The live issue at trial was whether the statements made by the appellant amounted to admissions to having engaged in sexual conduct with A, knowing she was under 16 years of age.  In considering that issue, the jury were not asked to consider the statements as confessions; they were advanced as admissions against interest, indicating the appellant’s guilt in that he knew A was under 16 at the relevant time.
139. [139]
     The jury were specifically directed, in respect of each of the statements, that they must be satisfied the statement was truthful and accurate.  In the circumstances of the basis for their admission and the live issues at trial, such a direction was sufficient.  That is particularly so when the directions are read in context.  It was at that very point that the jury were reminded of the appellant’s evidence as to what he was referring to in the statement.  Further, at the conclusion of the directions in respect of each statement, the jury were reminded that it was a matter for the jury to decide whether they were satisfied “that those things said by the defendant which would tend to indicate he is guilty of the offence were true; because if you are not so satisfied, you cannot rely on them as going to prove his guilt”.
140. [140]
     There was no miscarriage of justice occasioned by the direction given to the jury in respect of those statements.

Ground 3

141. [141]
     The appellant submits that the jury’s verdict in respect of count 4 was unreasonable, as the evidence led by the Crown was incapable of excluding a defence of honest and reasonable mistake of fact as to consent.  In support of that submission, the appellant relies on A’s evidence of up to 20 occasions of consensual sexual activity with the appellant, in the years prior to the offence of rape, together with A’s evidence that she did not say anything at the time to indicate a lack of consent.
142. [142]
     However, a consideration of the record as a whole supports a conclusion that it was open to the jury, having rejected the appellant’s account of no act of intercourse having taken place at that time, to accept A’s evidence that this act of intercourse took place without her consent and to conclude that the Crown had excluded a defence of honest and reasonable mistake of fact as to consent.
143. [143]
     In respect of this count, the appellant’s evidence was that the event did not happen at all.  Obviously, the jury rejected the appellant’s evidence in respect of this event.  Having done so, the jury were obliged to consider the only other evidence relevant to the event; the evidence of A.  She gave evidence that she did not consent to having sexual intercourse with the appellant at that time.  Whilst she also gave evidence that she did not say anything, or do anything, to give an outward sign of a lack of consent, nothing in her evidence suggested she did any positive act consistent with the giving of consent.  Accordingly, all the jury had to support an honest and reasonable mistake of fact as to consent was a past relationship of consensual sexual acts on about 20 occasions, before she had turned 16.
144. [144]
     That evidence was, however, no more than evidence of a past sexual relationship.  It had to be considered in the context of A’s evidence, and the circumstances that this event occurred after she had recently returned home, having left at the beginning of that year to live with her boyfriend.  It was a matter for the jury whether those circumstances, in the context of a consideration of A’s evidence as a whole, allowed the jury to be satisfied, beyond reasonable doubt, that the Crown had excluded an honest and reasonable mistake of fact as to consent in respect of this act.  The jury were properly directed as to the evidence relevant to that issue.  No complaint is made in respect of those directions.
145. [145]
     The verdict of the jury in respect of count 4 was not unreasonable.

Conclusion

146. [146]
     There was no miscarriage of justice and the verdict of the jury in respect of count 4 was not unreasonable.

Orders

147. [147]
     I would order:

1. The appeal be dismissed.