R v ABL[2024] QCA 110

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  On 25 July 2022, after a five-day trial, the appellant was found guilty on five counts.  He challenges the verdicts on the ground that they are unsafe and unsatisfactory.  He also challenges the sentences that were imposed upon him in respect of those counts and another to which he had pleaded guilty.
2. [2]
   The offences were as follows:

   1. count 1 – deprivation of liberty;
   2. counts 2-5 – four counts of rape; and
   3. count 6 – attempting to pervert the course of justice.
3. [3]
   Counts 1–5 all concerned events on the one day.  I shall deal with the evidence in some detail later, but the following summary is sufficient for present purposes:

   1. the appellant and complainant had known each other for only a few days prior to the offending;
   2. the appellant arranged to meet the complainant on the day prior to the offending; they were going to source some drugs and did so;
   3. the following day the appellant and the complainant ended up at a house^[1] where the appellant discovered the complainant had a Galaxy tablet in her possession; he suspected the tablet had been stolen from a person he knew;
   4. the appellant accused the complainant of stealing;
   5. he ordered the complainant to put her arm out and proceeded to inject methylamphetamine into her arm, using the same needle with which he had, shortly before, injected himself;
   6. he forced the complainant to perform oral sex upon him;^[2]
   7. the appellant forced the complainant to lick his anus, at the same time sticking her finger into his anus;
   8. he then directed the complainant to go into the lounge room where count 3, vaginal rape, occurred;
   9. he ordered the complainant to go to the shower; he was holding a wrench in his hand and using it to coerce her into accepting his offending conduct;
   10. whilst in the bathroom the next count of rape occurred, again by penetration of the vagina;^[3]
   11. then followed another event of rape,^[4] while the complainant was sitting on the edge of the bath; and
   12. the appellant was holding the wrench during most or all of the offending.
4. [4]
   Whilst in jail the appellant made a number of telephone calls^[5] which were recorded.  What the appellant said in those calls was the subject of count 6, the attempt to pervert the course of justice.  In summary, the appellant urged a number of people to contact the complainant and persuade her to withdraw her complaint to the police, or at least get her to tell the police that her statement was wrong.
5. [5]
   The sentences imposed were as follows:

   1. count 1: 18 months imprisonment;
   2. count 2: 3 years imprisonment;
   3. each of counts 3, 4 and 5: 9 years imprisonment;
   4. count 6: 12 months imprisonment;
   5. a parole eligibility date was set at 19 June 2025;
   6. 795 days of pre-sentence custody was declared as time served, relating to the period 19 June 2020 to 23 August 2022; and
   7. however, a period of 847 days, from 22 February 2018 to 18 June 2020, were not declared as time already served; that was on the basis that the appellant was already serving a sentence that had been imposed in 2018, his parole had been cancelled, and he did not commence to serve any time in relation to counts 1 to 6 until 19 June 2020.
6. [6]
   The proposed grounds for an appeal against sentence are that the sentences were manifestly excessive, but were also subject to specific errors.

Appeal against conviction

7. [7]
   The appellant contends that the verdicts cannot be sustained because they are unsafe and unsatisfactory.  In addition, he has made a number of specific complaints about matters at the appeal including:

   1. that he pleaded guilty to count 1 (deprivation of liberty) when he should not have, and was effectively forced to do so by his counsel;
   2. his legal representatives at the trial did not follow the instructions he gave them concerning witnesses to be called; and
   3. he was prevented from giving evidence when he wished to do so.

Legal principles – unreasonable verdict

8. [8]
   The legal principles applicable where the ground in that the verdict was unreasonable are well known.  They were recently restated in Dansie v The Queen.^[6]  Dansie reaffirmed the approach set out in M v The Queen.^[7]
9. [9]
   The Court reaffirmed the relevant task as being that laid down in M v The Queen:^[8]

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

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

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

10. [10]
    The High Court also said:^[9]

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

11. [11]
    In Pell v The Queen^[10] the High Court said:

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

12. [12]
    In R v Miller^[11] this Court said:

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

Evidence at the trial

13. [13]
    The evidence at the trial was relatively constrained in its scope.  The principal witness was the complainant.  There was a number of witnesses who either testified to some of the events, or gave preliminary complainant evidence:

    1. Mr James, a neighbour, gave evidence of hearing screaming and words to the effect of a female screaming “let me go”, and the appellant saying “stay here, just wait”; he also heard an exchange when a Ms [HRO] arrived and was asking why the complainant was there, with the appellant responding “we’re going to do it our way”;
    2. Mr Scott, a police officer who attended at the scene of the offending later in the morning; he produced a video recorded by the body worn camera;
    3. preliminary complaint evidence from: (i) a woman who lived with the complainant (RME); (ii) the complainant’s mother (MUM); (iii) Ms Pafroman, a police liaison officer; (iv) Ms Bezzoli, a Queensland Corrections Officer; and (v) Ms De Burca, a Community Corrective Officer;
    4. SC Carter, the police officer who arrested the appellant;
    5. DS van der Hyden, who interviewed the appellant;
    6. the appellant’s half-brother (BRO); he gave evidence as to driving the appellant and complainant to particular addresses; and
    7. DSC Harris, who took a statement from the complainant when she was incarcerated and obtained records of the appellant’s Arunta calls; she also attempted to get statements from a woman who assisted the complainant on the day of the offending (HRO), a man who was at the house for a time during the offending (DGE).
14. [14]
    The evidence also included formal admissions, none of which are material to the issues on the appeal.
15. [15]
    In addition to oral evidence, the exhibits included photographs of various properties, Facebook messages between the appellant and complainant, transcripts and video recordings of interviews, and transcript and audio recordings of the Arunta calls made by the appellant.

Evidence of the complainant

16. [16]
    The complainant said she was living with RME in February 2018 at an address behind Kmart.^[12]  She was a good friend of RME, having known her most of her life.  She also knew DGE, who was RME’s stepson.
17. [17]
    In February 2018, she was using methylamphetamines, both by smoking and injection.  She had also been a cannabis user since she was 15 years old.
18. [18]
    She met the appellant in February 2018, and they became friends.  They communicated using Facebook messenger.
19. [19]
    On one particular day the appellant and the complainant exchanged messages, planning to meet and hang out.  The appellant picked the complainant up in a car and they went back to where he was staying.  Their intention was to “hang out and pretty much get high together … with methylamphetamines”.
20. [20]
    When she arrived at the house, DGE was there and two other men.  The complainant and all the others were “smoking pipes of methylamphetamines”.  She identified the other two men as being DGE’s drivers.  DGE arranged for his drivers to take the appellant and the complainant to a different house at Kelso.^[13]  This was because DGE’s partner did not want them to remain.
21. [21]
    As they drove from DGE’s house, the complainant said she was in the back seat on the passenger side, and the appellant was behind the driver.  The complainant had an Apple iPad which she had borrowed because she did not have a phone.  She also had a few clothes and other belongings with her.
22. [22]
    When they got to the Kelso house the complainant and the appellant went inside, and the two drivers went upstairs.  The complainant put all of her belongings onto the bed in one of the bedrooms and as she did so DGE’s Galaxy tablet “dropped out of … everything that I’d picked up off the back of the floor of the car”.  The complainant explained that the tablet had been sitting on the middle console in the car and fell off as they were driving.  When she got out of the car she simply scooped everything up and then threw it onto the bed.
23. [23]
    The appellant “just started going off”, saying that the complainant had tried to steal from DGE.  She attempted to explain to the appellant that she did not know that it was there but “he lost it”.
24. [24]
    Then followed a description of the events at the house:

    1. the appellant made her walk upstairs; she had no choice because the appellant was “losing it … and his words to me were, ‘you’re not going anywhere.  Get upstairs now.  I am ringing [DGE]’”;
    2. the complainant had to sit on a couch in the lounge room; the appellant stood in the kitchen with the complainant’s borrowed Apple iPad; she said “I wasn’t allowed to contact anyone, talk to anyone.  He had taken it off me and told me to sit right there and he was ringing [DGE]”;
    3. the appellant seemed to become obsessed with a person called ADU and used the iPad to tell ADU that he had the complainant “held hostage at this house”;^[14]
    4. the appellant telephoned DGE and told him that the complainant was trying to steal from him; soon after that DGE arrived; he was accompanied by the appellant’s half-brother BRO;^[15]
    5. the complainant was still sitting on the couch, and was not able to leave it;
    6. the complainant explained to DGE what had happened with Galaxy tablet; at that time the appellant was still standing in the kitchen, going through the borrowed iPad;
    7. the appellant and DGE went to a bedroom where they had a conversation; meanwhile the complainant remained where she was, “terrified”;
    8. DGE left, having handed the appellant a packet of methylamphetamines in crystal form;
    9. the complainant noticed a car wrench on the bench and went to pick it up, but the appellant told her that she was not going anywhere; he said “you’re not leaving the house”;
    10. the appellant injected himself with methylamphetamines, and then made the complainant get on her knees and put her arm out; he then injected her with the same needle that he had just used; he said “If you want to act like a putrid whore, I am going to treat you like one”;
    11. at that point the appellant was naked having taken off his clothes after injecting himself with methylamphetamines;
    12. the complainant begged him not to inject her and to stop; she explained that she did not want it at that time, “like, not there and then … with everything that had already happened … I didn’t want it … I didn’t even want to be on my knees but I had to”;
    13. the complainant said that the appellant called her a “putrid mutt”, and that “if I wanted to act like a putrid mutt, he’s going to treat me like a putrid mutt”;
    14. at that point the appellant put his penis in her mouth and “made me give a … head job”; the appellant “just kept telling me to suck it”; she told him that he did not have to do it, and that he could just let her go and she would not tell anyone; she just “begged him not to” but the appellant was holding the wrench up near her head and “just making me do it”;
    15. the appellant stopped because he wanted her to do something else; he told her that she “had to lick his asshole” and to “stick my finger in it while I was … licking it”; she was still in the kitchen on her knees; she did what he asked;
    16. the appellant then made her get up and go to the lounge room; she was then naked, having been told she had to take her clothes off; the curtains in the lounge room were then shut, having been wide open before;
    17. the appellant made her go into the bedroom and get on all fours; he used the word “dog” when telling her to do so; in the bedroom was a single mattress on the ground, with nothing on it;
    18. the appellant inserted his penis in her vagina and started having sex with her;
    19. the complainant said she “just wanted it to be over” and did not do anything with her body;
    20. the appellant stopped and told her to get into the shower; she got up and walked, with the appellant walking behind her with the wrench; she said the wrench “never left his hand, pretty much”; when in the shower the appellant told her to get up onto the part where people washed their hands, told her to open her legs and then inserted his penis in her vagina and stared having sex again;
    21. while he was doing that he was “getting me to, like, kiss him, like grabbing my – yeah, it was just yuck”;
    22. the complainant told the appellant that she “just wanted it to be over”, asking him to stop;
    23. the appellant then made her get into the shower and started soaping himself and the complainant; he then got her to sit on the ledge of the bath and to lift her leg; he then inserted his penis in her vagina; she was telling him to stop;
    24. the appellant ceased when he heard a noise; he ran out of the bathroom and into the lounge room, then came back with her clothes and threw them at her, telling her to get dressed;
    25. he then told her to sit on the couch again, but “this time he wanted me to lay down on the couch with my face in the couch”; at that point HRO arrived; the complainant was sitting on the couch; she was scared, because she had told him to stop and he did not listen, and if she told him she wanted to leave, “that wasn’t going to happen”;
    26. when HRO walked into the room, the appellant said to her, “I am holding her hostage for [DGE] because she tried to take [DGE’s] Samsung Galaxy”; at that point HRO “lost it”, and “she went off” and started yelling;
    27. the appellant kept repeating that the complainant had tried to steal from DGE and “so I’m holding her hostage”;
    28. while the appellant and HRO were yelling at each other, the complainant was sitting on the couch and crying; HRO told the appellant that she was not leaving the house without the complainant, and was taking the complainant down to help wash her car; they went downstairs but the appellant followed them, telling HRO that the complainant “wasn’t go anywhere”;
    29. the complainant smoked some marijuana, sitting on the stairs in front of the house; she described herself as “stressed”, and “emotions running wild”;
    30. the complainant did not think she would be allowed to leave the house; at that point a police van went past and the appellant stood in front of her saying “just don’t move, cunt”; he still had the wrench in his hand; he said “Don’t move, cunt, because, if you do, I’ll hit you”; and
    31. HRO and the appellant had an argument about whether HRO would take the complainant with her; HRO and the complainant got into a car and the appellant jumped into the backseat; they drove for a while and then the appellant jumped out of the car, taking the Apple iPad with him, the complainant did not see the appellant after he had jumped out of the car.
25. [25]
    The complainant identified Facebook messages between she and the appellant prior to the events described above.  She also identified some Facebook messages that had been sent by the appellant but pretending to be her.  Finally, she identified a message from the appellant, sent on 24 February 2018, asking if the iPad could be returned to its owner.
26. [26]
    The complainant said she told a number of people, including:

    1. RME, on the day the complainant got home; she told RME that she had been held hostage and that the appellant had raped her; she said she “explained the details as to what [the appellant] made me do to him”;
    2. the complainant also told the owner of the borrowed iPad (ONR); she said she “pretty much told [ONR] everything as well”;
    3. she told her mother and said she went into detail with what she told her;
    4. she spoke to Pafroman, a police liaison officer, and told her what happened; and
    5. she also told her female parole officer that she had been held hostage and raped.
27. [27]
    In cross-examination a number of propositions were put to the complainant and steadfastly denied by her:

    1. ONR was staying at an address in Cranbrook at the time the complainant met the appellant;
    2. contrary to what she had said, she did not live with RME in February 2018;
    3. two days before the alleged offending, the appellant had gone to DGE’s house to obtain methylamphetamine which the complainant and ONR had consumed; the complainant disagreed, saying that it was RME from whom they were getting their drugs;
    4. on the morning of 17 February 2018, the complainant said to the appellant, “Can I suck you off for a shot?”; the complainant said “those words never once came out of my mouth”;
    5. she did in fact perform oral sex on the appellant, the complainant said that was “a load of crap”;
    6. on 20 February 2018 the appellant collected her and together they drove to Charters Towers;
    7. when driving away from DGE’s house, the car had pulled up at a service station and at that time the Galaxy tablet was on the front floor of the car;
    8. while the appellant was out of the car at the service station, the Galaxy tablet found its way to the back of the car with the complainant;
    9. when they arrived at the Kelso house, the appellant had to put fuses in the fuse box because there was no electricity upstairs;
    10. the appellant called her upstairs, at which point she went upstairs;
    11. she had gone towards the couch which was where the property had fallen out (including the Galaxy tablet);
    12. DGE made it known he wanted to assault the complainant for what she had done by taking the tablet; the complainant said that DGE had made a threat of getting his sister;
    13. the appellant stepped in before DGE assaulted her, and pushed DGE along the hallway;
    14. “from that point on you and [the appellant] continued to argue about the stealing of the tablet”;
    15. the appellant told her “to stay on the couch and not move”;
    16. at one point she walked towards the kitchen from the couch, and the appellant told her “Get the fuck back on the couch and don’t move”; the complainant said that she did not walk to the couch until the appellant told her to get up; and
    17. her account of what had happened after DGE left “simply did not happen”; as it was put, there was no sexual activity whatsoever between the appellant and the complainant, no punishment for having taken the tablet, no drugs dropped off by DGE, and no injection of drugs by the appellant.
28. [28]
    Other salient points to emerge were as follows:

    1. the complainant was referred to messages sent on 20 February 2018, and accepted that she asked the appellant for one point of methylamphetamine; his response was that he did not have any at the moment;
    2. she accepted that there were messages on 20 February 2018 between them, in which they suggested meeting, and she asked for some methylamphetamine; she explained one message she sent to him, namely “You’ll need to be my doctor as well, if that’s okay”, as signifying that whilst she was a methylamphetamine user, she did not know how to self-inject, so she was requesting the appellant to inject methylamphetamine into her;
    3. she agreed that some messages after 6.44 pm on 20 February 2018 consisted of the appellant suggesting that the complainant could go with him, and her agreeing;
    4. as at 22 February 2018, the complainant accepted that she was a user of drugs, her drug of choice was methylamphetamine, and she was an addict of methylamphetamine; she also accepted that she tried to source methylamphetamine from the appellant;
    5. she accepted that she had previous convictions for possession of dangerous drugs, stealing and uttering counterfeit money; and
    6. it was put her that the appellant told her he was going to ring DGE, and did so; the complainant agreed, explaining that she remained on the couch, and the only time she got off the couch was when she was made to go into the kitchen.

Evidence of James

29. [29]
    James was in a house next door to that where the offending conduct took place.  He knew the appellant, HRO and DGE.  He was familiar with their faces and their voices.  He explained that he had “lived there long enough and dealt with many other situations other than this one, that I really knew who they were”.
30. [30]
    He could recall a day in February 2018, which stood out because of a female screaming.  When it started he moved out to his deck “and really focused in and listened to what was actually going on”.  He recognised two of the voices he heard, the appellant and DGE.  He did not know who the female was.
31. [31]
    The female was screaming words to the effect of, “let me go”, and the appellant was yelling at her saying, “stay here, just wait”.
32. [32]
    During the arguments and the yelling, HRO arrived.  She was saying, “who is she?”, and “what are you doing?”, and “why is she here?”.  The appellant responded saying, “we’re going to do it our way”.  The female, “was definitely screaming … she was screaming throughout and then when [HRO] came home she was still screaming … it was out of control basically”.
33. [33]
    The yelling ended when they got in the car and drove away.
34. [34]
    James provided an online complaint form for the police in respect of the incident.  He did this because on previous occasions when he had raised matters with the police he felt as though he had not been listened to.  His description of the incident was as follows:^[16]

“What is occurring?  Im not calling triple zero anymore about this address as i have called frequently and feel im wasting time so i will provide information here.  I have overheard, as i live next door, persons talking about keeping a female hostage due to stolen goods the main offender goes by the name of [DGE] if heard correctly.  the second person involved is a [the appellant] who was keeping her at [the address] while [DGE] was driving around. … [HRO] has come home at the address yelling at [the appellant] asking who she is why she is here.  To then hear [the appellant] saying we are dealing with it our way.  I have just witnessed police arrive at 9.16 am and [HRO] leaving in a gold rav4 possibly with the female.”

35. [35]
    James said that he filled the form in when the incident “had just finished because I was listening to it pretty closely the whole time and once it had finished I made sure that as soon as I was ready I put it straight in”.
36. [36]
    In cross-examination he said he could recall the appellant speaking on the phone about someone heading to that address; and he accepted that the description of people screaming did not appear in his police form.

Evidence of SC Scott

37. [37]
    Senior Constable Scott attended at the address where the offending happened on 22 February 2018.  He arrived at about 10.24 am.  He identified the body worn camera footage taken that day,^[17] and from that, various features of the house.  There were a number of bedrooms upstairs, but he could not accurately say if they had furniture in them, with the exception that he knew one bedroom had a large fish tank in it.

Evidence of RME

38. [38]
    RME knew the appellant for between 15 and 17 years, and the complainant for about 10-12 years.  She recalled a conversation with the complainant in 2018 when the complainant was having a shower and invited RME to come in.  The complainant was crying and said that something bad had happened to her.  The complainant then started to tell her that the appellant “had done some things to her and made her do things that she would never do beyond doing it to him … she told me he had made her do sexual things to her and that he raped her”.  Pressed for precision, she said:

“She said he had made her … he put his penis in her mouth and made him do terrible things and make her stick things … in himself and … I think, I am not sure it was to her as well”.

39. [39]
    RME could not remember exactly what words were used by the complainant.  However, the complainant used the word “rape”, and identified the appellant by his full name.
40. [40]
    In cross-examination she agreed that the complainant had also said that the appellant had hit her a few times.

Evidence of MUM

41. [41]
    MUM is the complainant’s mother.  She gave evidence of the complainant’s development of a drug habit in her teenage years, leading her to leave home when she was about 14.  She could recall the conversation with the complainant about having been raped while in a house she was staying in behind Kmart.  What the complainant told her was:

    1. “I was held hostage in a house.  I was set up by [DGE].  Me and a friend were there to score”;
    2. her friend left and she was left there on her tablet trying to get a lift;
    3. as DGE walked out of the door, he smirked at the complainant, and she knew “that something was up”;
    4. the appellant had held her hostage and raped her; she wasn’t allowed to wear any clot hing and made to lay face down on the couch every time someone came to the door;
    5. every time the appellant raped the complainant, he made her have a bath;
    6. the appellant would “constantly stick needles in her arm and while doing that she was made to suck him off”; and
    7. a girl, HRO, came to the house and said “she wasn’t going to let this go down” and got her out of the house.
42. [42]
    Pressed for more precision, she said the complainant said she was raped, then the appellant would make her have a bath, and raped her in the bathroom.

Evidence of Pafroman

43. [43]
    Pafroman was a police liaison officer who had known the complainant for about 14 or 15 years.  In the first week of July 2018, she recalled calling the complainant to check on her, when the complainant said she needed to get something off her chest.  The complainant then told her:

    1. the appellant had picked her up so that they could go get their next hit; she had only met the appellant a couple of days prior to that;
    2. they went to a house where there was a person named DGE, and then they went to another house and once they got inside there was argument over something which they accused of her taking;
    3. the complainant was told to go straight into a room and sit on the bed, which she did; at that time the appellant and DGE had a conversation which she could not hear;
    4. as DGE walked out of the room and left the appellant there, DGE smirked at her, and she knew something was not right;
    5. the appellant told her to get undressed and to suck his penis; he was holding something like a wheel spanner the whole time, and said if she did not do what he had asked, he would hit her on the head;
    6. the appellant was calling her names like “filthy slut” or “dirty slut”;
    7. he performed different sex acts on her over a period of about 30 minutes, during which the complainant was saying “no”, and did not give consent; the complainant said she was scared the whole time because of the weapon he had in his hand;
    8. a car pulled up which made the appellant stop; he told the complainant to get dressed and sit on the lounge and then a female [HRO] walked in; and
    9. Ayres asked, “what are you doing?” and the appellant replied, “I am holding her hostage”; at that HRO “had gone off” at the appellant and swore at him; HRO said she was taking the complainant with her; they got into a car, the appellant getting into the car as well.
44. [44]
    Asked for more precision about what was said concerning the sexual acts, Pafroman said the complainant said “on all fours and there was one part in the shower”.
45. [45]
    Following that conversation Pafroman called the Child Protection Investigation Unit and asked for advice, and then she went to speak to a detective.

Evidence of Bezzoli

46. [46]
    Bezzoli was a Queensland Corrections Officer.  On 25 June 2018 she met the complainant.  Bezzoli took notes during the conversation with the complainant.  The complainant was concerned about her safety, and specifically stated that she had been held hostage and raped.  She mentioned the appellant’s name.
47. [47]
    Bezzoli said the complainant “specifically stated that she had been drugged and raped”.  The complainant did not specify the type of rape at the time.

Evidence of De Burca

48. [48]
    De Burca worked at Community Corrections.  In 2018 she came to know the complainant.  She saw the complainant on 3 July 2018, having become aware of a rape complaint by the complainant.  She spoke to the complainant about that and took notes.  The complainant said she had been raped by the appellant.  She could only recall basic things such as that she had been raped, and it happened over a period of days.  The complainant said she was not able to leave that location.
49. [49]
    She did not press the complainant for more details because the complainant was upset.

Evidence of Senior Constable Carter

50. [50]
    SC Carter attended at the arrest of the appellant.  He identified the body worn camera footage of the arrest.^[18]

Evidence of Sergeant van der Hyden

51. [51]
    Sergeant van der Hyden attended upon the appellant while he was in jail in order to interview him.  She identified the resultant record of interview conducted on 19 June 2020.^[19]

Evidence of BRO

52. [52]
    BRO was the appellant’s half-brother.  For a time he and HRO (his partner), and the appellant, lived at the same address.  He knew the complainant briefly, through Facebook messages between the complainant and the appellant.
53. [53]
    He could recall a time when he picked up the complainant and the appellant, stopped at DGE’s house, then went on to another address.  At DGE’s house he took some drugs, saying that was the place where they would usually sit and “shoot up”.  He did not see if the appellant used drugs.  When he left DGE’s house, the complainant and the appellant went with him.
54. [54]
    In cross-examination he agreed that the appellant had told him, “just drugs, drugs, drugs, drugs, is all she cares about”, referring to the complainant.

Evidence of Detective Senior Constable Harris

55. [55]
    DSC Harris took a statement from the complainant in October 2018.  She recorded the statement because at the time the complainant was in jail and it was therefore impossible to obtain a sworn statement.  The sworn statement was ultimately provided on 11 June 2020.
56. [56]
    She identified screen shots of Facebook messages,^[20] taken from the complainant’s Facebook pages.  The messages were between the appellant and the complainant.  She also identified a number of Arunta calls made by the appellant to various people while in prison.^[21]  There were eight calls in total.^[22]
57. [57]
    DSC Harris gave evidence of the steps she took in the investigation including obtaining statements and conducting interviews.  She also gave evidence about an intercepted letter from the appellant to a person called Nick Nack.^[23]  The text of the letter reads:

“What I need, bro, is after all this happened is that no one was using and she also said [DGE] gave me a bag a gear which is a load of shit.  She turned up to [DGE’s] and told you that I did this and you caught her out lying to you and [HRO] about what happened that day.

Bro, you got my word.  I am going to do the right thing with it when it’s all finalised.  We’ll be right, bro.  I am telling you.  Now, we’ll never be without you, my bro, after this.  I am hanging up the gloves, bro, and going legit.”

58. [58]
    In cross-examination, the questions focused on the efforts DSC Harris had taken in respect of the investigation, and in particular the complainant.  Questions also focused on the length of time the investigation took.

Evidence from the appellant

59. [59]
    The appellant neither gave nor called evidence.

The Arunta calls

60. [60]
    The transcript of the Arunta calls^[24] was provided to the jury.  They were told that the transcript was not evidence, but instead what they heard was the relevant evidence.  For the purposes of the appeal, it is appropriate to have regard to the transcript.  In each case I intend to refer to the date as identifying the phone call, and the salient parts of the call.

12 March 2018

61. [61]
    In the course of this call the appellant said that a person called [ONR] was the owner of “that iPad I took off that girl that morning”, and could the person he was speaking to ring HRO and “get it back to her for me please”.

2 April 2018

62. [62]
    On this call the appellant told the other caller:

    1. that the complainant had been “playing me the whole time” and “she’d downloaded a spyware app onto my phone so … they knew what I was doing the dogs”;^[25]
    2. referring to the complainant, “she just happened to steal something off a mate of mine and I fucking found it.  Rang our mate and I said here, this things here at home.  It was just a fucking Galaxy tablet …”;^[26]
    3. again referring to the complainant, “So I said here I’ve got the bitch held up hostage at home here cause I found … the shit all over my phone”; he then explained that he and Nick Nack hooked up the phone to a laptop and “we knew that she had set me up”.^[27]

6 May 2018

63. [63]
    In this call the appellant told the other person:

    1. referring to the complainant, “I had this bitch at home … And she was messaging … found all of these deleted messages of ‘em on my phone”; “I cut off contact like, took everything off her like iPad, my phone.  Wouldn’t let her fuckin’ near an iPad or phone …”;^[28]
    2. the other caller told the appellant that the complainant said “you held her hostage” … “[the appellant] is holding me hostage”; the appellant responded, “Well, fuckin’ that was all because of the fact that she was messaging [a named person] … Off my phone and that and fuckin’ tryna set me up”;^[29]
    3. referring to the complainant, the appellant said, “…‘cause [DGE] gave me a big bag … I said … you wanna a shot get over here and suck me off for one you fuckin maggot … this bitch came over, jumped on her fuckin’ knees and started reachin’ for my cock with her lips …fuckin’ maggot”;^[30] and
    4. the appellant then said, “Well … I’ll give her a shot… she was like telling… [HRO and Nick Nack] that I … tried to you know, rape her”.^[31]

19 June 2020

64. [64]
    In this call the appellant told the other person that the complainant, whom he referred to as a “dumb packity dog”, had made a statement saying he did something to her when he did not.^[32]  The appellant told the recipient that the complainant “needs to be told to … go in and retract that … statement”.^[33]  He repeated those requests in this form:

    1. “[S]he needs to be told that this is … my parole up.  Either retract the statement or … there’s gonna be hell to pay over it. … Like, so she needs to go and pull her head in and … retract that statement”;^[34] and
    2. giving the other person the complainant’s name, he asked the other person to contact a named third person and “tell him … try and get it sorted.  He’ll find her on Facebook and that … But he’s gotta be careful how he says shit”.^[35]

19 June 2020

65. [65]
    On this call the appellant spoke to BRO.  He complained that the complainant^[36] had made a statement to the police and “it … needs to get … knocked on the fuckin’ head”.^[37]  The appellant then told BRO:

    1. “Something needs to be said to this dumb dog like”;^[38]
    2. “All that needs to be said to her is that she needs to … go and drop that complaint … that’s all that needs to be said to her on Facebook … you need to drop that complaint”;^[39]
    3. when BRO protested that he could not be threatening anyone, the appellant said, “she just needs to know that she needs to go in and … drop that … complaint”;^[40]
    4. the appellant gave BRO the complainant’s name, and said, “something needs to be … said to her bro, to … drop this shit”;^[41]
    5. “Something needs to be done about it, bro … like somethin’ really needs to be done… say, listen you need to … go and drop that shit against old mate”;^[42]
    6. “Just say listen … you need to go in and drop that complaint like, as soon as … possible”;^[43]
    7. that he did not need anyone threatening the complainant, but “all that needs to be said is you need to drop that complainant against old mate”;^[44]
    8. “I mean it … somethin’ needs to said … She needs to go and drop that complaint”;^[45] and
    9. Having given BRO the complainant’s name, “… just make a dodgy account, dodgy email and … flick her a message and say, you need to … drop that complaint”; and using a dodgy account “doesn’t mean it’s coming from us”.^[46]

23 June 2020

66. [66]
    The person the appellant called told him that she had not been able to get hold of the complainant.  The appellant urged her to keep trying.  The appellant described the complainant as “a lying little … putrid … dog”.^[47]  The appellant then explained that he could not have anyone “really threatenin’ her”, but “… just it needs to be sorted out the right way … We need to be careful with what’s getting said …”.^[48]
67. [67]
    The appellant responded to the complainant’s allegations by saying no-one touched her and he stopped DGE from bashing her.^[49]

4 July 2020

68. [68]
    The same person as in the previous call told the appellant that she had seen “your mate” and told her “… you better go and … make things right and just tell the truth”.^[50]  The caller told the appellant that the complainant “reckons she is tellin’ the truth”.^[51]
69. [69]
    The caller also told the appellant that the police had approached HRO who told them that she did not want to be part of it.^[52]
70. [70]
    The recipient told the appellant that she had been speaking to the complainant, and had told her that if what she said was true then the appellant “deserves what he gets”, but if he “didn’t do it he shouldn’t … have that on his name”.^[53]  The appellant urged the recipient, “… any time you have contact with her can you just try and get her to fuckin’ say it didn’t happen on recording or something”^[54]

24 July 2020

71. [71]
    In this call the appellant told the recipient the complainant’s name, and asked the recipient to call the jail and find out if she was in that jail.  He explained, when asked why he needed to know if the complainant was in jail or not: “like I need to know if she’s locked up because if she’s locked up then I’m gonna feed someone into her … say hello to her down there”.^[55]

The appellant’s police interview

72. [72]
    In the police interview the appellant denied that there was any physical contact between himself and the complainant, and no sexual activity whatever.  He denied most of the complainant’s account of what occurred.  He did accept that he had told the complainant to sit on the couch and stay there, but he said he did that because he suspected her of being a thief and did not want household items disappearing.

The plea of guilty to count 1

73. [73]
    The appellant contended that he should not have been allowed to plead guilty to count 1 (deprivation of liberty).  His contentions centred on the fact that at a time prior to the trial a not guilty plea had been entered to all counts.
74. [74]
    The difficulty confronting this contention is that the appellant accepted before this court that:

    1. he had received advice from his barrister that he ought to enter a guilty plea;
    2. he understood that advice and followed it, even though he did not welcome the advice;
    3. he was in court when his barrister foreshadowed that the plea of guilty would be entered in front of the jury; and
    4. when called on in respect of that count, he answered for himself by entering a guilty plea.
75. [75]
    There is no basis to consider that the plea of guilty to count 1 was otherwise than the result of a decision made by the appellant, on advice, and of his own free will.^[56]  The plea was entered in open court by the appellant, a person of full age, apparently of sound mind and understanding, and as a matter of free choice based on legal advice.
76. [76]
    The second aspect of the appellant’s contentions in relation to the plea of guilty on count 1, was that the appellant should not have been permitted to enter the plea because doing so would have supported the prosecution’s case otherwise in the eyes of the jury, thereby denying a fair trial and allowing a miscarriage of justice to occur.
77. [77]
    There are problems confronting this contention.  The first is that the plea of guilty was entered on the advice of counsel.  The same counsel has been involved in the pretrial hearing the day before the trial commenced on an application to set aside the plea of guilty to count 6 (attempting to pervert the course of justice).  That plea had been entered some 10 weeks earlier, on 5 May 2022.  The basis of the application included the fact that there were no signed instructions to enter a plea of guilty to count 6, whereas there were signed instructions to enter a plea of not guilty to the remaining counts.
78. [78]
    In the pre-trial hearing, one aspect upon which defence counsel addressed was the impact of a plea of guilty on count 6, and how the Crown might use that plea in relation to counts 1-5.  It was put, and accepted by the Crown, that as a matter of principle the pleas were inconsistent.  The plea was set aside and a plea of not guilty recorded instead.
79. [79]
    In those circumstances, defence counsel must have been keenly aware of the impact of pleading guilty on one count but not guilty on the balance.  Yet, as the appellant conceded, he received advice from his counsel that he should enter a plea of guilty to count 1 (deprivation of liberty), accepted that advice and acted on it.
80. [80]
    Secondly, in circumstances where the Arunta calls were going to be before the jury, as well as the police interview, the jury were likely to conclude that there was considerable support for the complainant’s version of events on that count.  That still left the possibility of urging the jury to see the plea of guilty as not affecting the remaining counts, on the basis articulated in the police interview.  That was, in effect, that the appellant was concerned that the complainant might steal things other than the Galaxy tablet, and the direction to stay on the couch was for that purpose.  Taking that approach accepted the high likelihood of a finding of guilt on that count, with the possibility of quarantining its effects.
81. [81]
    The principles set out in Meissner proceed on the basis that a plea might be entered for a variety of reasons and can be maintained even in respect of an offence that was not committed.  This plea was entered by the appellant, on advice and, I would infer, well aware of the consequences.
82. [82]
    Thirdly, part of the affidavit material relied upon to set aside the plea of guilty in relation to count 6 was an affidavit explaining that not only were there was no signed instructions in relation to pleading guilty on count 6, but at no stage was advice given that the Crown may seek to use the evidence in respect of count 6 as an admission as to the truthfulness of the evidence on counts 1 to 5.  That being the case, I would infer that such advice was given to the appellant by the time he reversed his plea in respect of count 1.  That reinforces a conclusion that the plea should not be set aside.
83. [83]
    In my view, it would follow that no miscarriage of justice can be demonstrated.
84. [84]
    There is no merit in this part of the appeal.

Count 6 – attempt to pervert the course of justice

85. [85]
    The appellant contended that there was no basis upon which he could have been convicted of count 6.
86. [86]
    The content of the Arunta calls provided the jury with an ample factual foundation to be satisfied of the appellant’s guilt on this count.  In the course of the calls – see paragraphs [60] to [71] above – the appellant urged more than one person to contact the complainant directly, or to have someone else contact the complainant directly, to persuade her to retract her statement in total or in substance.  Those efforts persisted in the face of some of the recipients resisting that request, one recipient saying that she had contacted the complainant who said she was telling the truth, and concern being expressed as to the wisdom of that course.
87. [87]
    The appellant’s effort to make the complainant withdraw her complaint extended to trying to see if she was in jail, in which case the appellant would organise someone to contact her there.
88. [88]
    There is no merit in this contention.

Appellant’s failure to give evidence

89. [89]
    Before this court the appellant contended that he always wished to give evidence at the trial and was prevented from doing so.  Inferentially, the appellant contended that there had been a miscarriage of justice in that he was denied a fair trial by not being able to give evidence on his own behalf.
90. [90]
    The insurmountable problem confronting this contention is that the appellant confirmed to this court that he had received advice from his counsel that he should not give evidence, and had followed that advice even though, as he said, it was advice he did not like.  In those circumstances there is no legitimate complaint that arises from his failure to give evidence.
91. [91]
    Further, it could not seriously be contended that any competent defence counsel would have permitted the appellant to enter the witness box.  His criminal history would have been exposed to cross-examination, as well as cross-examination on his Arunta calls, and the denials in his police interview that he was ingesting drugs at the time of the offending.  As it was, his denial of any sexual activity was before the jury in the form of the police interview.  Things could have only got worse if he was cross-examined.
92. [92]
    This ground lacks merit.

Prosecutor’s misuse of evidence

93. [93]
    The appellant submitted that the prosecutor provided falsified transcripts to the jury in relation to one of the Arunta calls.  The relevant call was that on 4 July 2020 between the appellant and a woman (AWP) -  see paragraphs [68] to [70] above.  That is the call where AWP said she had made contact with the complainant, who maintained that she was telling the truth.  AWP also revealed that HRO had been asked if she would give evidence, and “she doesn’t wanna be a part of it”.  Immediately following that response was this, recorded in the transcript:^[57]

“Appellant:  Yep.  I know but the thing is like fuckin’ ‘cause they questioned me, and I said nuh it was just me and her at the house … and there was only about ten, five to ten minutes where we were alone.  And like [INDISTINCT] you know what happens, [AWP] ya know? Like fuck ….”

94. [94]
    The appellant’s contention was that the transcription “and you know what happens, [AWP]” was wrongly recorded and should have read “and it never happened [AWP]”.
95. [95]
    I have listened to the Arunta call and on this aspect the recording is not so clear that that one can confidently say the appellant’s version is correct.  However, even if the appellant is right there are difficulties confronting this contention.
96. [96]
    First, when the Arunta calls were played before the jury, they were instructed that the transcript that they would be given was not the evidence upon which they should proceed, but rather an aid to understanding.  They were carefully directed that the evidence was what they heard on the recording.  That direction was repeated in the summing up.  Therefore, it was a matter for the jury to decide what was actually said.
97. [97]
    Secondly, it is by no means obvious how a mis-transcription could have led to a miscarriage of justice.  The jury understood they were to rely on what they heard, not what the transcript contained.  In context the impugned comment related to the deprivation of liberty count.  There were many other statements by the appellant in the Arunta calls concerning that issue.  Examples appear in paragraphs [62](c), [63](a) and [63](b) above.
98. [98]
    Further, that was a charge to which a plea of guilty had been entered.  The difference in the transcript, particularly given it went to the deprivation of liberty count, would have had no impact.

Unsafe and unsatisfactory verdicts

99. [99]
    The central contention advanced by the appellant is that the evidence was full of inconsistencies or lies such as to show that the jury could not have accepted the evidence of the complainant.  In making that contention the appellant must confront what was said by this court in Miller – see paragraph [12] above.
100. [100]
     The first point made by the appellant was that the preliminary complaint witnesses^[58] all provided different versions in the story given to them by the complainant or inconsistent with the complainant’s evidence in other respects.  Given that this aspect of the evidence was merely preliminary complaint, an inconsistency between what the complainant said actually occurred, and what she related to others, goes only to her credit, and not a central issue as to the actual events.  As such any such inconsistency is a matter for the jury to weigh in deciding whether to accept the complainant’s evidence.
101. [101]
     Many of the matters raised by the appellant fit into that category.  They amount to discrepancies or inconsistencies between a preliminary complaint and the complainant’s evidence of actual events.  As such they are simply an inconsistency raised for the jury to consider.  Many of them were the subject of addresses, and some were mentioned in the summing up, and some were left to the jury to consider.  They are quintessentially matters for the jury.  Into that category are:

     1. discrepancies as to where the complainant said she was living at the time of the offending, and who was living with her;^[59]
     2. the evidence of where the complainant was when she made a complaint to RME;^[60]
     3. RME’s evidence that the complainant told her that the appellant had made her stick things in the complainant;^[61]
     4. RME’s evidence that she had been told the appellant had hit the complainant a few times;^[62]
     5. MUM’s evidence that the complainant told her that the complainant and a friend were there to score, the friend left and the complainant was left trying to get a lift;^[63]
     6. MUM’s evidence to effect that the complainant told her that every time she was raped the appellant made her have a bath, and that every time someone came to the door, the appellant made the complainant lie face down on the couch;^[64]
     7. MUM stated she was told by the complainant that the appellant was constantly sticking needles into the complainant’s arm;^[65]
     8. the evidence of Pafroman that the complainant told her that when the appellant picked her up, DGE was in the car;^[66]
     9. Pafroman’s evidence that the complainant told her that she was told to go straight to the bedroom and sit on the bed;^[67]
     10. Pafroman’s evidence that the complainant told her that the appellant was calling her filthy names, and this had gone on for thirty minutes;^[68]
     11. Pafroman’s answer when asked where in the house she was told the complainant was made to do these things;^[69]
     12. Bezzoli’s evidence that the complainant told her she had been drugged but did not specify what drug it was;^[70]
     13. De Burca’s evidence that the complainant told her that she was held hostage over a period of days and not allowed to leave the location;^[71] and
     14. RME’s evidence as to where she was when the complainant spoke to her about what happened.^[72]
102. [102]
     The “who resided where” inconsistency arose with MUM’s evidence as well.  Her evidence was that RME was not living at B,^[73] but was not sure where the complainant was living.^[74]  The discrepancy is inconsequential, but each counsel raised those questions when addressing the jury.
103. [103]
     The item^[75] concerns the evidence of BRO, who said he had picked up the complainant and the appellant from where they were to staying and took them to an address I will refer to as C.  He said the complainant stayed the night at C and that on the fourth time he met the complainant he dropped drugs off to her in the driveway at C.  By contrast the complainant gave evidence that she had never been to C prior to 22 February 2018.
104. [104]
     That inconsistency exists on the evidence.  BRO deposed to picking up the complainant and the appellant and taking them to C, but just when that occurred is not clear on the evidence.^[76]  It is an inconsequential discrepancy in the sense that there was little discussion of it during closing submissions.  Plainly neither counsel thought it mattered.  It is simply an inconsistency that goes to the credit of the complainant.  It does not prove she is a liar nor does it compel rejection of her evidence entirely.  This is another matter for the jury to weigh in deciding whether to accept the complainant’s evidence.
105. [105]
     The next item^[77] concerns BRO’s evidence that he did not see the appellant use any kind of drugs when he was on parole.  This is said to be inconsistent with the complainant’s evidence that the appellant was “fried” while out of jail.  The two are not inconsistent.  BRO deposes that he did not “actually” see the appellant “physically use” drugs.^[78]  That any relevant inconsistency was inconsequential is demonstrated by the fact that it was not the subject of discussion in closing addresses.
106. [106]
     In the same category, falls the evidence of BRO as to who was present at DGE’s house that afternoon.^[79]  Likewise, BRO’s evidence that when they left DGE’s house they went to get fuses as the landlord of the property at C had taken them.^[80]  That there is no inconsistency that can be seen from the fact that the complainant stated she could not remember the appellant putting fuses in the power box.  It does not mean it did not happen, nor does it make the appellant a liar, nor call for the wholesale rejection of the complainant’s evidence.
107. [107]
     The next set of items do not involve inconsistencies with other witnesses.
108. [108]
     The first contention concerns the complainant’s evidence that the appellant injected himself with methylamphetamine, and then the complainant as well with the same dirty needle.^[81]  The point made is that if this was true then “no doubt the complainant would have caught hepatitis-c as at that time … I was positive for hepatitis-c”.  A medical record was attached to the appellant’s outline in supposed proof of the fact that he had Hepatitis-C.
109. [109]
     There are two problems with the contention.  One is that the document was never produced at trial, nor was anything said about the appellant having Hepatitis-C.  The second is that even it was true, it does not necessarily follow that the complainant must have contracted Hepatitis-C in the event she described.
110. [110]
     The next contentions concerns the complainant’s evidence of what was said to her by the appellant.^[82]  On her first occasion she said the appellant referred her as a “putrid whore”, whereas on the second occasion the phrase was “putrid mutt”.  The two are not necessarily inconsistent.  No one at the trial explored whether one phrase meant something different from the other phrase.  It amounts merely to a variation in her evidence, rather than an inconsistency.  In both cases she has the appellant making a derogatory comment about her prefaced with word “putrid”.
111. [111]
     The next item concerns the complainant’s evidence that there was car wrench on the bench which she went to pick up.^[83]  The appellant attacks the implausibility of the complaint’s evidence that the appellant had the wrench in his hand when he injected her methylamphetamine and committed the rapes.
112. [112]
     The implausibility of holding the wrench while injecting drugs was addressed in defence counsel ‘s closing address.^[84]  It was also referred to in the summing up.^[85]
113. [113]
     Defence counsel put it to the jury that the injection into the vein of the complainant, while holding a wrench, was implausible.  He told the jury that he would explain that as he went in the address.  Counsel did so^[86] by contrasting what was said to have occurred, an intravenous injection of methylamphetamine, while holding the wrench, with what the jury might have watched on medical shows on TV or experienced when blood was taken from them.  Counsel described it as “somewhat of an art form”, referring to finding a vein and the process taking effort and precision.
114. [114]
     The only reference to this issue in the summoning up was in the summary of counsel’s addresses.
115. [115]
     In my view, the jury were not compelled to find the complainant’s account so implausible as to necessitate the rejection of her evidence.  Neither the Crown nor the defence explored whether the wrench was actually in the appellant’s hand at the time he injected the methylamphetamine.  The sequence of the evidence was this:

     1. the complainant mentioned the wrench being on the kitchen bench when she went to pick it up, but was prevented from doing so;^[87]
     2. in her account of being injected, she does not say the wrench was in the appellant’s hand;^[88]
     3. in her account of him mixing water with the crystal methylamphetamine and then drawing it into the needle, she did not mention that he had a wrench in his hand at that time;^[89]
     4. at the point of his sticking his penis in her mouth, she mentioned he had a wrench in his hand, holding it up near her head;^[90]
     5. she next mentioned the wrench at the point where they were in the bathroom;^[91] she was asked if he had the wrench with him in the bedroom^[92] and she answered: “yeah, ... it never left his hand, pretty much”;^[93]
     6. when they went down the stairs he still had the wrench;^[94]
     7. in cross-examination it was put to her that the story she recalled was one while she was heavily influence of methylamphetamine;^[95]  she answered “regardless of whether … I was heavily under drugs or not, I said no”; an objection was taken to the complainant being cut off in her answers and then followed this exchange:^[96]

“His Honour: Yes.  Yes? --- Regardless of whether I was under drugs or not, I said no.  I begged for him not to do what he did to me, and he still did it.

Mr Malcolmson: Okay? --- With that wrench in his hand.

Okay, well ---? Showed regardless of how fried or how high I was for how many days, no means no.”

8. the only other cross-examination with regard to the wrench was to put to her that there was no wrench in the home, at no stage did the appellant pick up a wrench and no threats were made whilst holding a wrench; the complainant disagreed with all of these propositions.

116. [116]
     Thus, the jury were faced with the fact that there is no precise evidence that the appellant, in fact, had the wrench in his hand when he carried out the injection.  The complainant did not say so expressly, and it was left to be inferred from her response to a question asked in the context of the bathroom, “yeah, … it never left his hand, pretty much”.  The jury may well have considered the qualification in the words “pretty much” meant there was some doubt as to whether it was in his hand at the time of the injection.  It is true that defence counsel addressed on the basis that the wrench was in his hand while the injection was carried out, but as the review of the evidence above shows, there was a lack of precision about that, which was never clarified in cross-examination.
117. [117]
     Further, there was no exploration in the evidence as to the shape, size or weight of the wrench.  Calling it a “car wrench” adds nothing.  Nothing was put to the complainant to the effect that the appellant could not hold the wrench and inject her at the same time.  And, there was no exploration of the way in which the injection occurred, either as to the mechanics of the movement, the speed or lack of it, or the precision involved or lack of it.  No evidence was adduced about how such an injection might be done in a medical setting.
118. [118]
     There was, therefore, no evidentiary basis upon which the jury could reject the complainant’s account.
119. [119]
     The next matter relied upon by the appellant concerns her evidence that in the bedroom where she was raped, there was nothing but a mattress on the ground.^[97]  The appellant refers to the video footage from the police officer which showed a desk with a glass fish tank on it.  This is said to be an inconsistency or a discrepancy in the evidence.  In my view, the jury could take the view that there was no necessary inconsistency, let alone one which was destructive of the complainant’s credit.  The complainant’s answer focused on the bed, not the furniture.^[98]
120. [120]
     The next item concerns the complainant’s evidence that she was raped while being made to sit on the edge of the bathtub.^[99]  The contention is that this is physically impossible due to the height of the bathtub.  No such issue was explored at the trial.  Likewise, no issue was explored at the trial of any inconsistency between that account and what was said in her first police statement.
121. [121]
     The next item concerns the complainant’s evidence that she was raped four times.^[100]  The appellant contends that if that was true then the complainant would have contracted the sexually transmitted disease chlamydia, as he was positive for that disease on 22 February 2018.  A medical record to that effect is attached to his outline.  That record was not put forward at the trial, nor was any evidence adduced of the fact, if it be true, that the appellant had contracted chlamydia at that time.  Further, there was no evidence that if sexual intercourse happened with a person who had chlamydia, that transmission of the disease would necessarily follow.
122. [122]
     The next item concerns messages sent by the complainant in which she referred to being held hostage but said nothing about the rapes.^[101]  The fact that the rapes were not mentioned does not render the complainant a liar, nor destroy her credit.  She made preliminary complainant concerning the fact that she had been raped, to a number of people.  The fact that she did not to one particular person means little.
123. [123]
     The next item concerns the complainant’s evidence that RME was supplying drugs.^[102]  The appellant seeks to challenge this as a lie, but not by reference to any evidence at the trial.  It can be put to one side.
124. [124]
     The next item concerns an alleged inconsistency between Facebook messages and the complainant’s evidence that she was asked to “be out the front ready to go”.^[103]  There is no relevant inconsistency, as it refers to a matter peripheral to the evidence of the offending conduct.
125. [125]
     In my view, almost all of the matters raised by the appellant are mere inconsistencies which were matters for the jury to weigh in their consideration of whether they accepted the complainant’s account of what happened.  In every case the appellant has complained that the particular inconsistency resulted in a miscarriage of justice.  But in no case does the appellant satisfy what this court said in Miller,^[104] namely that an appellant trying to satisfy this ground must identify weaknesses in the evidence and must then also demonstrates that those weaknesses reduce the probative value of the evidence in such a way that the appellate court ought to conclude that, even making full allowance for the advantage enjoyed by the jury, there is a significant possibility that an innocent person has been convicted.
126. [126]
     The mere identification of weaknesses in the prosecution case is not enough to sustain the ground.  In my view, that is all that the appellant has done.  He has identified alleged inconsistencies or discrepancies but cannot demonstrate that they are of such a nature that, even making full allowance for the jury’s advantage, there is a significant possibility that an innocent person has been convicted.  All of those inconsistencies were matters for the jury to consider, and many of them were the subject of both addresses and summoning up.  They were quintessentially matters for the jury.
127. [127]
     I am unable to reach the conclusion that the case meets the tests laid down in M v The Queen, and recently restated in Dansie.  Put another way, and in the words in Miller, I do not consider there is a significant possibility that an innocent person has been convicted.
128. [128]
     This ground fails.

Application to adduce evidence

129. [129]
     The appellant sought leave to adduce further evidence.  For the reasons which follow that application should be refused.
130. [130]
     Part of the evidence consisted of pathology reports from Pathology Queensland Forensic and Scientific Services which referred to the applicant having positive results for chlamydia and Hepatitis C, which appears to have been the case at the time of his offending.
131. [131]
     The other evidence is described as:

“Any evidence that can be presented from these witnesses named below that could be presented to the courts whether on my behalf or on behalf of the complainant.

[HRO], [a man (DRV)] who was one of the people known to be a drug runner or a driver for [DGE] and [DGE] himself.”

132. [132]
     The pathology reports appear to have been available prior to the trial.  Therefore, there are no exceptional circumstances which support the admission of the reports or that a miscarriage of justice occurred^[105] for the reasons outlined in paragraphs [108]-[109] and [121] above.
133. [133]
     As to the witnesses who were not called at trial (HRO, DGE and DRV), the appellant agreed that one of the reasons they were not called at trial was that police did not locate them and therefore did not question them.  The appellant agreed in the course of the appeal that: (i) he did not know what they would say; and (ii) he was aware of the witnesses at the time of the trial and that they were not to be called.  Officer Harris also gave evidence at trial that HRO would not co-operate with police to give a statement and that they could not locate DGE.  According to the appellant, he raised his wish for them to be called with his counsel.  Indeed, his counsel cross-examined Officer Harris about the timing of the police seeking to contact HRO.
134. [134]
     There is nothing provided by the appellant to suggest that even if the witnesses were called to give evidence that anything they had to say could have led the jury to reach a different verdict.

Application for leave to appeal against sentence

135. [135]
     The appellant was sentenced nearly a month after his convictions, to the following terms of imprisonment:

     1. Count 1: 18 months;
     2. Count 2: 3 years;
     3. Counts 3-5: 9 years; and
     4. Count 6: 12 months.
136. [136]
     Pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld), 795 days of pre-sentence custody was declared to be time already served under the sentence.^[106]
137. [137]
     The sentences on counts 1-6 were ordered to be served cumulatively upon sentences imposed in the Townsville Magistrates Court on 11 June 2018.  A total of 847 days spent in custody between 22 February 2018 and 18 June 2020 was not declared as time served.

Approach to the sentences

138. [138]
     The learned sentencing judge outlined the basis upon which the appellant was being sentenced, including the following:

     1. after the appellant accused the complainant of stealing the Galaxy tablet from DGE, he coerced the complainant in putting her arm out, and injected her with methylamphetamine;
     2. he used the same needle that he had used to inject himself;
     3. he spoke to the complainant in derogatory terms using the phrase “putrid mutt”;
     4. by the time the complainant had been directed into the bathroom, the appellant was holding a wrench in his hand, and it was “part of your actions that day that coerced the complainant to acquiesce to your offending upon her”;
     5. the circumstances of the rape were degrading;
     6. the appellant had forced the complainant to lick his anus while sticking her finger into it; that of itself was a degrading feature to the offending;
     7. the appellant had “an appalling and atrocious criminal history”, though none of the previous convictions were for sexual offences;
     8. the appellant’s drug addiction went back many years, pre-dating an occasion when he was sentenced in August 2010;
     9. in 2010 the sentence imposed was the subject of an immediate release on parole, but the appellant reoffended within days of being released;
     10. that brought the appellant back before the District Court in August 2011 when he was sentenced for a number of offences including burglary; he was sentenced to three years imprisonment with a fixed parole released date on 28 February 2013;
     11. the appellant was next sentenced in the Townsville Magistrates Court on 18 December 2017; the sentence was six months imprisonment, with a parole release date on 18 February 2018;
     12. two months following the imposition of that sentence the appellant reoffended four days after his release on parole;
     13. that took the appellant back before the Magistrates Court on 11 June 2018 when he was sentenced to three years imprisonment, with a parole eligibility date set at 14 June 2019; and
     14. the offending subject of this matter occurred some six days after he was granted parole.
139. [139]
     The sentencing judge observed that the appellant had been in pre-sentence custody for 1,644 days, from 22 February 2018 to the date of sentencing.  His Honour noted a submission on behalf of the Crown that the appellant should not be given the full benefit of that entire period.  His Honour observed that the majority of the pre-sentence custody had been because the appellant was serving out the balance of a three-year term of imprisonment imposed in the Magistrates Court.  As a consequence, the appellant had “served or accrued now approximately 14 months in pre-sentence custody solely in respect of the offences which I am now sentencing you for”.
140. [140]
     The Crown’s submission was that the sentencing judge give consideration to declaring, as pre-sentence custody, the period from 19 June 2020 until sentencing.  This was for the reason that the current offending was committed on 22 February 2018, but the appellant was not charged for more than two years after the offending, namely on 19 June 2020.
141. [141]
     His Honour said:

“There is no satisfactory explanation for the delay in the police investigation.  It seems, as I understand the evidence adduced at trial, that that more reflected tardiness on the part of the investigating officer to progress the complainant’s complaint against you, and therefore the delay of some two years and four months between when you offended against the complainant, and when you were ultimately charged, is in no way attributable to you.  Nevertheless, as a consequence of being charged, that meant that any prospect you had of gaining parole in respect to the sentence of three years imposed upon you in the Magistrates Court effectively evaporated, and you have continued to remain in custody, serving out both the balance of the earlier sentence as well as accruing some 14 months in pre-sentence custody for the offending for which I am now sentencing you.”

142. [142]
     The sentencing judge then noted the competing submissions about how to deal with the pre-sentence custody, the Crown contending for 795 days, and defence counsel contending for the whole of the time spent in pre-sentence custody.  The sentencing judge then referred to the issue of totality, applicable where an offending has accrued pre-sentence custody, some or all of which cannot be declared.  In such circumstances the sentence should take into account that factor when arriving at a sentence which was just in all the circumstances.
143. [143]
     The sentencing judge then turned to the personal circumstance of the appellant, noting the following:

     1. that he was 31 at the time of offending, and 35 at sentence;
     2. he had suffered a terrible upbringing, being diagnosed with ADHD at an early age, and being the victim of sexual abuse when he was about nine; the sexual abuse had “devasting consequences” for him;
     3. the result was that the appellant was expelled from various schools, became a troubled young man at an early age, exhibited behavioural issues, and was eventually referred for professional assistance;
     4. he had been assessed as having developed a significant post-traumatic stress disorder, as well as attention deficit hyperactivity disorder, a secondary major depressive disorder, and secondary polysubstance use disorder;
     5. he commenced drug use at the age of 12, progressing to methylamphetamine; and
     6. the pre-sentence report suggested that he had spent so much time in jail that he was now “essentially institutionalised”.
144. [144]
     The sentencing judge then referred to the difficulties the appellant faced trying to address his offending behaviour, and addiction to illicit substances.  His Honour found that was “some glimmer of hope” in the materials indicting that he had been undergoing a drug intervention program.
145. [145]
     The sentencing judge noted the Crown submission, based on various comparative decisions, that a range of nine to 10 years would be open.  Defence counsel submitted that the range did not extend to 10 years but rather fell in the range of eight to nine years.  His Honour then noted the competing submissions as to whether, if the sentence was below 10 years, nonetheless a serious violent offence declaration should be made.
146. [146]
     The sentencing judge referred to the principles applicable to the imposition of a sentence which is just and appropriate in all the circumstances, referring to R v Lacey.^[107]  His Honour also referred to R v Degn^[108] and R v Leighton.^[109]
147. [147]
     His Honour then expressed his conclusion as to the head sentence:

“So the task of sentencing you is a particularly complicated one by reason that your offending occurred at a point in time where you are on parole for an earlier sentence.  You have served out the balance of that earlier sentence and you have commenced to accrue pre-sentence custody specifically in relation to the offending for which I am now sentencing you for, at the expiration of your earlier sentence.  You have been back in custody now, as I have referred already, for some four and a-half years, and so I must carefully weigh that up as well.  Having carefully considered all of those matters, ultimately, I am persuaded, taking into account questions of totality, that an overall head sentence of nine years is appropriate in all the circumstances here.”

148. [148]
     The sentencing judge considered whether the sentence in respect of count 6 should be made accumulative upon the other sentences.  This was because count 6 was a discrete offence, and a similar approach had been taken in R v BDR.^[110]  However, his Honour decided not to follow that approach “carefully weighing up the substantial time that you have already been in custody, questions of totality, and other matters relied upon in mitigation”.  His Honour determined that the sentence on count 6 would be concurrent with the others, but, following the approach in R v Nagy,^[111] the head sentence would reflect all of the offending.
149. [149]
     His Honour concluded that he would not make a serious violent offence declaration, noting that while there were features that might justify that course, the significant period that had already accrued since the appellant returned to custody weighed against that approach.  Further, the absence of manifest physical violence was a factor persuading against the imposition of such a declaration.  However, his Honour was of the view that a parole eligibility date somewhat beyond the halfway point was appropriate, “to take into account not only the circumstance of your offending, but also your appalling criminal history and the other matters that I have referred to”.
150. [150]
     The sentencing judge noted that he had to be mindful of not imposing a sentence that was too crushing.  Weighing all matters into account his Honour determined to calculate the parole eligibility date at, effectively, “at the five-year point from when I intend to declare your pre-sentence custody to commence”.  His Honour said that the point at which the parole eligibility date was to be effective, “will mean that you will have served approximately two years and four months beyond that, serving out the balance of your earlier sentence”.
151. [151]
     In terms of the declaration of time served by way of pre-sentence custody, his Honour said:

“… I have had regard to section 159A of the Penalties and Sentences Act.  It confers upon me a discretion to declare pre-sentence custody, and in circumstances here, where the bulk of the pre-sentence custody that you have accrued has been served by you in relation to you cutting out your earlier sentence.  I am not persuaded in the circumstances that you should be given the benefit of all of that time.

For the reasons contended for by Ms Sheppard on behalf of the Crown, I am prepared to make a pre-sentence custody declaration reflecting that period from the date that you were first charged with the present offending, again, that being the 19^th of June 2020.  I am otherwise not persuaded to make a full pre-sentence custody declaration, and more specifically, where the period the 22^nd of February 2018 to the 18^th of June 2020, that being a period of 847 days, you were serving the sentence that had been earlier imposed upon you, your parole having been cancelled, and did not commence to serve any time in relation to the present offending until the 19^th of June 2020.  In those circumstances, I will not make a pre-sentence custody declaration for the earlier period.”

The appellant’s submissions

152. [152]
     The appellant challenges the sentences on the basis that they are manifestly excessive in all the circumstances.  The matters raised by him are as follows:

     1. he should have been charged with the offences when the complaint was first made to the police; had that occurred he would have had the benefit of the prior sentence of three years running concurrently with the present sentence of nine years; as it is, he has been forced to serve out the remainder of the prior sentence with no parole;
     2. an issue of totality arises because the 847 days in pre-sentence custody was not taken into account;
     3. the sentence should have been backdated to the date of the alleged offence or the date the complainant first made her complaint to the police in October of 2018;
     4. therefore a sentence of nine years with a non-parole period of five years was manifestly excessive; and
     5. the sentence imposed has a crushing effect.
153. [153]
     The appellant contends that the sentence which should have been imposed was six to seven years, with the full amount of pre-sentence custody taken into account (including 847 days that were not declared), and parole eligibility effective from the date of the appeal hearing.

Consideration

154. [154]
     The principles appropriate to consideration of manifest excess in a sentence are well established.  In R v Pham^[112] the High Court said:

“Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.”

155. [155]
     At the sentencing hearing the Crown proposed an appropriate sentence of nine to 10 years, whereas the defence proposed eight to nine years, and no serious violent offence declaration.  The defence also submitted that the parole eligibility date could be delayed beyond halfway in that event.^[113]
156. [156]
     As to the pre-sentence custody the following matters assist an analysis of its impact:

     1. the appellant was sentenced in the Townsville Magistrates Court on 11 June 2018, for two unrelated offences committed later on the same day as the present offences;
     2. he received a sentence of three years imprisonment with a parole eligibility date 14 June 2019; that was the product of having committed those offences while on parole for other offences;
     3. while in custody the appellant was interviewed by police on 19 June 2020, at which time his parole had just been granted;
     4. therefore the period in custody between 11 June 2018 and 19 June 2020 could be said to be entirely attributable to the previous sentencing in the Magistrates Court;
     5. the appellant was given a notice to appear on the present charges on 19 June 2020, and was not released on parole; and
     6. the previous sentence expired on 11 June 2021.
157. [157]
     As revealed by the sentencing remarks and approach referred to above, the sentence imposed was the result of the instinctive synthesis approach.^[114] The sentencing judge balanced a number of sentencing considerations, having regard to the submissions made by both sides, the yardstick authorities, the appellant’s prejudicial upbringing and the competing views on that as such as whether to declare the time in pre-sentence custody and if so, how much.
158. [158]
     The appellant submits that the three-year jail sentence given in 2018 should have been made to run concurrently with the sentences imposed after the trial.  On that basis he contends that all of the time in pre-sentence custody should have been taken into account, and deemed time served.
159. [159]
     There are a number of difficulties confronting acceptance of that submission.
160. [160]
     First, contrary to the appellant’s submission, the offending which was the subject of the sentence in 2018 was not linked to the offences the subject of this application.  True it is that all of the offences were committed on 22 February 2018, but not as part of one event.  The 2018 offences were of unlawful use of a motor vehicle and burglary.  By their nature they were quite distinct offences.
161. [161]
     Secondly, it was not open to the sentencing judge to order that the 2018 sentences be concurrent with the present ones.  The sentencing judge explained that s 156A of the Penalties and Sentences Act 1992 (Qld) applied because the offences, the subject of these proceedings, occurred whilst the appellant was on parole, serving out the earlier sentence.  Therefore, any sentence to be imposed would have to be cumulative on those in 2018.
162. [162]
     Thirdly, by the time the convictions were entered in respect of the present offences, the appellant had already served out the sentence imposed in 2018.  Thus, the sentencing judge pointed out that the practical effect was that the appellant was serving a sentence of imprisonment which was cumulative on those imposed in 2018.  As his Honour pointed out, even if s 156A did not have the effect it did, nonetheless:

“… by reason of you already serving out the earlier sentence, and you having commenced accruing pre-sentence custody for your present offending, the effect is the same, that you, in effect, are serving a cumulative sentence upon that which you have already served out.”

163. [163]
     The appellant submits that there was unfairness in the fact that the police delayed between the time the complainant first disclosed the offending until when he was charged in June 2020.  Particularly in his oral submissions the appellant complained that the delay meant he had been denied the parole that had been granted to him, and subjected to a continuous term of imprisonment comprising the term set in 2018 and that set under the present sentences.
164. [164]
     This point has no merit.  Had the present offences been charged earlier in time, there would have been no prospect of obtaining parole in respect of the 2018 sentences given his criminal history and the serious nature of the charge.  In practical terms the result was the same.
165. [165]
     The appellant contends that the pre-sentence custody declared as time served should have been the entire period, commencing at 22 February 2018, or from the date the complainant made her first recorded statement to police.  The appellant points out that it was no fault of his that the appellant was not spoken to until some years after the event.
166. [166]
     I reject the appellant’s submissions in this regard.  The terms imposed for the present offences had to be made cumulative upon those that the appellant was serving in respect of the 2018 sentences.  As his Honour recognised, that led to questions of the totality principle and the need to take care that the sentence ultimately imposed was not disproportionate to the offender’s overall criminality.  By reference to R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited^[115] the sentencing judge recognised that where an offender was sentenced for offending while on parole and had been returned to custody to serve out the balance of an existing sentence, the duration of continuous incarceration was a relevant consideration in arriving at the appropriate sentence.
167. [167]
     The sentencing judge was alert to the need to ensure that the total period of imprisonment, both in terms of the full-time discharge date and any eligibility date for release on parole, was not crushing.
168. [168]
     As a consequence, his Honour moderated the head sentence, declined to declare that the offences were serious violent offences, made the sentence on count 6 concurrent and set the parole eligibility date at a point five years from when the declared pre-sentence custody commenced.  All of those factors reflected a deliberate and moderate approach within the sentencing discretion, and taking account of the questions of totality.
169. [169]
     It is in that context that his Honour considered what portion of the pre-sentence custody should be declared as time served.  As his Honour recognised, s 159A of Penalties and Sentences Act 1992 (Qld) conferred a discretion as to what portion was declared.  His Honour took the view that the bulk of the pre-sentence custody had already been served by the appellant in serving out the earlier sentence.  For that reason the sentencing judge only declared the 795 days, being the period between 19 June 2020 when the appellant was charged, and 23 August 2022.  His Honour pointed out that the period of 847 days between 22 February 2018 and 19 June 2020 was time which was being served under the 2018 sentence.  The appellant did not commence to serve any time in relation to the present offences until 19 June 2020.
170. [170]
     In my view, the approach taken by his Honour in respect of declaring the pre-sentence custody was one open to him within the discretion reposed under s 159A of the Penalties and Sentences Act 1992 (Qld).
171. [171]
     The appellant proposes that his sentence be reduced to six – seven years, the full 1,644 days of pre-sentence custody declared as time served, with a new parole eligibility date set.  In my view, such a sentence would exceed the bounds of the appropriate exercise of a sentencing discretion.
172. [172]
     There is no basis upon which to set aside the sentences imposed.

Conclusion

173. [173]
     I propose the following orders:

1. Applic ation for leave to adduce further evidence, refused.
2. Appeal against conviction dismissed.
3. Leave to appeal against sentence refused.

174. [174]
     DALTON JA:  I agree with the orders proposed by Morrison JA and with his reasons.
175. [175]
     BROWN J:  I agree with the reasons of Morrison JA and the orders proposed by his Honour.