R v Zivkovic[2024] QCA 167

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Henry J.
2. [2]
   NORTH J:  I agree with the reasons of Henry J and the order proposed.
3. [3]
   HENRY J:  The appellant was convicted by a jury of the rape of a woman who had fallen asleep after attending his house socially.
4. [4]
   He appeals his conviction on grounds that:

1. the verdict was unreasonable or cannot be supported by the evidence; and
2. the learned trial judge erred in failing to warn the jury about erroneous reasoning.

5. [5]
   The complainant testified that after a late night out drinking and socialising, she and others ended up at the house of the appellant.  She fell asleep.  She awoke gradually the next morning, to discover the appellant was having penile intercourse of her.  Her account went before the jury uncontradicted by any account from the appellant, who elected not to give evidence.
6. [6]
   The defence strategy at trial was to accept that intercourse occurred but to contend the complainant’s evidence she did not consent was unreliable because of inconsistencies in the evidence, including about the complainant’s drug use.  However, the complainant’s evidence that she did not consent was powerfully supported by the undisputed fact that in the immediate aftermath she complained of what had occurred and was in a distressed condition.  None of this bodes well for the first ground of appeal that the verdict was unreasonable or unsupported by the evidence.
7. [7]
   The second appeal ground relates to an exchange in cross-examination which supposedly touched on whether the complainant had a motive to lie in alleging rape.  The evidence was so innocuous it attracted no request for a special direction.  Despite this, it is now contended the trial judge should have given the jury a special direction guarding against erroneous reasoning in connection with motive to lie.
8. [8]
   Neither ground should succeed.  The appeal should be dismissed.

Was the verdict reasonably open to the jury?

9. [9]
   The first appeal ground requires this Court to make an independent assessment of the sufficiency and quality of the evidence at trial and to decide as a question of fact whether, upon the whole of the evidence, it was reasonably open to the jury to be satisfied beyond reasonable doubt that the defendant was guilty.^[1]  It is not suggested there was insufficient evidence to support the verdict here.  It is the alleged quality of the evidence which founds the complaint the verdict was unreasonable.
10. [10]
    The relevant events occurred on a Friday night into a Saturday morning in a rural town.  The complainant worked on the Friday afternoon and early evening.  She finished her shift at 7.30 pm and went home and ate.  She then drove to a local club, arriving about 8 o’clock.  She socialised with other people she knew there, consuming some alcohol.
11. [11]
    In cross-examination defence counsel explored the prospect the complainant had used not just alcohol but illicit drugs that night.  The complainant asserted cannabis was the only illicit drug she had ever used.  She did tell police she tried “coke and gas” when she left school.  In cross-examination she could not recall that past use but conceded it may have occurred.
12. [12]
    The complainant’s memory in cross-examination of her most recent cannabis use was that she had smoked a joint of cannabis before starting her shift that afternoon, that being something she occasionally did to calm her anxiety.  However, she accepted she had told investigating police the last time she had consumed cannabis had been five days before the night, explaining the topic had not been “a big thing”.
13. [13]
    Those inconsistencies between what the complainant had recalled for police about her past drug use and her memory at court are minor.  They also go to factual background which was peripheral and less likely to have attracted the same degree of focused attention to the telling or recording of it in the emotive aftermath as would be expected for the more important and central facts.  The inconsistencies are so inconsequential that a reasonable jury would be unlikely to attribute material weight to them in assessing the reliability of the complainant’s evidence.
14. [14]
    The defence made a more central issue out of evidence suggesting the complainant used methylamphetamine after leaving the club, use which the complainant denied.  It is clear the complainant must in some way, wittingly or unwittingly, have ingested methylamphetamine that night.  That is because it was detected in samples of her blood and urine taken during the following day.
15. [15]
    The doctor who testified about the result, explained the detected quantity in the blood, .24 mg/L, did not indicate how much had been consumed or whether it had been consumed by inhalation or injection or “as a tablet or a capsule or in a drink”.  He opined that passive inhalation of an amount giving such a result from the air vapour in a room in which methylamphetamine is being smoked by others is unlikely, though theoretically possible, depending upon variables like room size and smoke volume.
16. [16]
    The doctor acknowledged methylamphetamine is not a typical drink spiking drug, in that it generally has a stimulant effect.  He did explain the drug may have a subsequent sedative effect with some users becoming sleepy or passing out.  Referring to this as the crash phenomenon, the doctor explained it tended to occur to sleep deprived users as the drug’s effects wear off.  He explained that depending on variables, such as how much drug was consumed, that point may be reached between 5 and 25 hours after consumption.
17. [17]
    That the complainant had somehow consumed methylamphetamine on the night in question tended to diminish the probability of her having been so deeply unconscious as not to have been immediately awoken by sexual contact.  But the variables canvassed by the doctor meant it did not eliminate that possibility, particularly bearing in mind the complainant also consumed alcohol that night.  It remained open to a jury acting reasonably to have accepted the complainant’s account of only emerging from consciousness gradually at a time after the appellant had started to penetrate her.
18. [18]
    At the club the complainant testified she consumed two Vodka shots and four Vodka cruisers.  She had a fifth Vodka cruiser she was drinking from as she left the club around closing time, four hours after she had arrived.  She kept it with her, drinking from it occasionally, during the ensuing events.
19. [19]
    She caught the club’s courtesy bus, getting off the bus with others near the residence of her good female friend.  Her good friend, who was intoxicated, announced she was going to bed.  At that point the complainant and her good friend’s sister, F, were offered a lift by another young lady, who turned up in a vehicle.  They drove to that lady’s house.  After only five minutes the complainant and F decided not to stay.  They left on foot.
20. [20]
    On F’s account both she and the complainant had earlier conversed about going and getting some methylamphetamine and as a result F had texted or called her ex-boyfriend, M.  In cross-examination the complainant denied any interest in consuming that drug or having such a conversation, saying, “maybe her ID not mine” (“ID” may be a mistranscription of “idea”^[2]).  She asserted she had stayed in F’s company because F was a “bit of a handful”, and the complainant had promised F’s sister she would not leave F and would keep her safe.
21. [21]
    In any event, they subsequently came upon M, who the complainant knew of but had not previously met.  M agreed, when it was put to him in cross-examination, that when the two women met up with him “they” had asked him “can we get some methylamphetamine”.
22. [22]
    The complainant testified that after introductions, M took them to the house of the appellant, who was well known to M.  On the accounts of M and F they went to the appellant’s place via another house first, but the complainant had no recollection of that.  That had some significance for each side.
23. [23]
    A reasonable jury would be entitled to think that M and F were unlikely to have fabricated the fact there was a visit, along the way, to another house, and that the complainant would be unlikely to deny it if she had a memory of it.  A reasonable jury would therefore be entitled to infer the complainant’s claimed absence of memory of that phase was genuine.  It could in turn reasonably infer the complainant’s memory of this stage was patchy because she was very intoxicated.
24. [24]
    On the one hand, this raised the need for caution in weighing the reliability of her memory of what followed.  On the other hand, such intoxication was consistent with the complainant’s claim, in effect, of later having lapsed into such deep unconsciousness that she was not immediately awoken when the appellant began to sexually interfere with her.
25. [25]
    On arrival at the appellant’s house M led F and the complainant in, via the back door.  He took them to the doorway of a bedroom where the appellant was seated near a computer at his desk.  The complainant did not know him.  They entered and sat for a while in the room, talking.
26. [26]
    The appellant produced a pipe which he filled with what the complainant understood to be methylamphetamine.  On the complainant’s account, the appellant, F and M smoked the pipe, but she declined when it was offered to her.  She stood up from a position where she was seated with her back against the bed and sat up on the bed, with her legs over the edge of the bed.
27. [27]
    When F was asked who smoked the pipe she responded, “All of us”.  She was “pretty sure” the complainant was sitting next to her when the pipe “was passed around”.  Her evidence was no more specific regarding the complainant’s participation in that process.
28. [28]
    During M’s evidence in chief he merely mentioned himself having a few pipes in the bedroom.  In cross-examination this was quoted as him having said “We were smoking some pipes”.  He answered “yes” when invited to confirm that meant him, the appellant, F and the complainant.  Like F, his evidence was no more specific regarding the complainant’s participation in that process, which he agreed involving the pipe being passed around in a circle.
29. [29]
    The complainant, who had been drinking from her partly-finished Vodka Cruiser stubby, put it on the floor and left the room to go to the toilet.  On her return she finished the rest of her drink and sat back on the bed with her legs up and her back towards the bed and pillow behind her.  She recalls general conversation continued but that she started to get really tired after perhaps 10 minutes, wanting to close her eyes and go to sleep.  She testified:

“And the next thing I know, I must have passed out.  I can’t tell you how.  I don’t remember anything from there until I woke up in the morning.”

On the complainant’s account F and M were still seated in the room at the time she fell unconscious.

30. [30]
    F and M on any view did leave the complainant alone in that room with the appellant.  They went off to a local weir to have sex with each other and returned the next morning.
31. [31]
    According to F when she and M left, she told the complainant, that they were leaving and offered her a lift.  On her account the complainant responded, “No, I’m fine here”.  Those facts were put to M in cross-examination, and he agreed with them.  The complainant squarely rejected those facts when put to her in cross-examination.
32. [32]
    A reasonable jury would appreciate that two people who left their companion alone, with a man who allegedly raped their companion while they were gone, might feel some guilt about those circumstances.  A reasonable jury might be sceptical of their claims of offering a lift and the complainant saying she was “fine here”, entertaining the prospect they were downplaying the appearance they had abandoned the complainant so they could go off alone together.  If the complainant said she was fine to stay there, it is not obvious why they bothered to return as they did.  Nor does it rest easily with evidence given by M that they returned to “check on” the complainant.  Even if not sceptical in that way, a reasonable jury might well think that if F had said something to the complainant about their departure and if the complainant responded at all, it was at a time when she was drifting so close to unconsciousness that the complainant was not fully comprehending what was being uttered to or by her.  These are all reasons why a reasonable jury could conclude this divergence in the evidence as between the complainant and F and M did not materially impact the complainant’s reliability.
33. [33]
    At trial the defence explored, and on appeal still pressed, the significance of three other possible happenings which the complainant could not recall.  The complainant usually wears glasses but had no memory of taking them off or indeed whether she had done so.  There were bobby pins in her hair, and she had no recollection of whether any were removed, but she told police she had a feeling the appellant must have taken them out.  In the morning after she awoke, she noticed her back was sticky, but did not know from what, and was uncertain about the positioning of her bra.  These were all topics of unremarkable uncertainty.  It might be they could have assumed greater significance if the appellant had given evidence that, as the defence tried to imply, there had been some gradually developing consensual intimacy on the bed, involving the removal of glasses and bobby pins and the giving of a back massage.  But the appellant did not give evidence.  A reasonable jury was entitled to conclude the topics were of neutral significance.
34. [34]
    When the complainant regained consciousness in the morning, she described waking up, not knowing where she was and still “coming to”, unable to open her eyes.  She called F’s name two or three times without a response.  She testified it took her a couple of minutes to realise what was going on.
35. [35]
    She was positioned lying face and stomach down on the bed and could feel someone on top of her.  She explained she was still wrapping her head around what was going on as she was coming to.  Her pants, skirt and stockings were down near her knees. The appellant was naked on top of her, penetrating her vagina from behind with his penis.
36. [36]
    The complainant said, “What the fuck are you doing?  Get off me.”  She described pushing him off and him falling to the side, saying, “You weren’t complaining at the time”.
37. [37]
    It was not contended below or on appeal that this comment raised a potential mistake of fact defence.  Of course, the fact the complainant was “not complaining” earlier was consistent with her being unconscious and thus unable to consent or complain.  The appellant’s comment had the quality of an immediate attempt by the appellant to rationalise his misconduct.
38. [38]
    By the time all this was occurring, F and M had returned to the house.  It was about 8 am.  In the defence hunt for inconsistencies, it was elicited at trial that the complainant in giving evidence on an earlier occasion had in one answer described not remembering anything until she woke up at “2 o’clock in the morning” with her skirt around her ankles.  The complainant could not recall having ever said she woke at 2.  Indeed, F’s recollection was that they would not have departed the room until “3 o’clock in the morning maybe, 2”.  It is obviously possible that “2” was said in an isolated error by the complainant or that she said something else but it was wrongly transcribed.  There was no suggestion she ever reiterated that time, it being clear that on her evidence that she only awoke for the first time when it was daylight the next morning.  This was at worst a mere slip of the tongue which a jury acting reasonably would have been entitled to give no material weight to.
39. [39]
    F agreed in cross-examination that on her return with M they had entered the back door after M knocked and the appellant yelled out for them to come in.  M agreed in cross-examination that he could hear male and female voices and “rooting”, though the constituent sounds of this were not explained.  This imprecise evidence was not necessarily inconsistent with the complainant’s account, although a reasonable jury would by this point have noticed M’s willingness to agree to facts favourable to the appellant when put to him in cross-examination despite not having volunteered such facts in evidence in chief.  A reasonable jury may have been rightly sceptical of the reliability of such aspects of his evidence.
40. [40]
    F testified that on her return to the residence with M she went into the room and the complainant said, “He fucked me while I was asleep”.  F explained the complainant had “got up all confused”.  She described the complainant trying to leave, at first walking to the bathroom, and then asking, “How do I get out of here?”  F testified she pointed to the back door and asked, “Do you want me to walk you?”, to which the complainant responded, “No. I just live over there”.
41. [41]
    In cross-examination it was put to the complainant that she was embarrassed in this aftermath at having slept with the appellant.  She denied that categorisation, but defence counsel sought to explore it in cross-examination of F and M.  For instance, after F testified the complainant “didn’t look too good”, defence counsel asked if she looked embarrassed.  F answered, “Embarrassed, Confused. I don’t – yeah.”  M responded to generally similar effect in cross-examination.  A reasonable jury could easily reason that those categorisations of how the complainant appeared were inherently imprecise and, in any event, entirely consistent with the complainant having just awoken in the awful circumstances she described.
42. [42]
    The complainant described running down the stairs of the house onto the street and walking, not knowing where she was.  The complainant did not have her mobile phone with her, having left it at work earlier that night.  She soon came to the street in which she lived and jumped a fence to the home of her female neighbour.
43. [43]
    She knocked on her neighbour’s door and, when her neighbour answered, the complainant told her what had happened.  Her neighbour described that interaction with the complainant in the following exchange in evidence-in-chief:

“And how did she appear to you when she went to your house?--- She was really – really in a mess.  Like, she was singing out, “Let me in, let me in.”  So I took her inside and I sat her down and then she explained what happened.

When you say she’s in a mess, what kind of things was she----?--- Oh, she was just shaking, love.

Now, and what did she say happened?--- And when she got me inside, she told me – when I got her inside, she told me that she woke up and he was on top of her and “my clothes were on the floor”.  And she didn’t have her phone.”

44. [44]
    Her neighbour’s phone was then used by the complainant to telephone her female employer.  The complainant told her employer that she had been sexually assaulted, waking up in a house with her underwear down and a man having sex with her, and had then made her way to her neighbour’s place from where she was calling.
45. [45]
    Her employer went straight to her neighbour’s home where she saw the complainant was distraught, crying and hysterical.
46. [46]
    Her employer telephoned the police and took the complainant to the local police station.  However, while they were waiting out the front, the complainant became ill and vomited.  Consequently, her employer took the complainant to hospital and the police met up with them there.
47. [47]
    DNA samples taken from her revealed the appellant’s DNA was present at the outer lips of her vagina and around her anus.  His saliva was located on the back of her neck.
48. [48]
    The complainant’s run of fresh complaints about the appellant’s misconduct, first to F at the scene and then to her neighbour and her employer was powerful evidence in the prosecution case.  So too was the complainant’s distressed condition, witnessed both by her neighbour and her employer.  A reasonable jury would have been entitled to regard such evidence as tending to confirm that the appellant’s sexual intercourse of her had occurred without her consent.
49. [49]
    In a former era, such evidence carried a particular legal significance as corroboration.^[3]  Judges were once required to warn the jury it is dangerous to convict in sex cases in the absence of corroboration.  That requirement was abolished by s 113 Criminal Law Amendment Act 1997 (Qld), which inserted a new s 632 in the Criminal Code, providing there is no requirement to warn a jury it is unsafe to convict on the uncorroborated testimony of one witness.  The present jury were nonetheless warned in the present case in the form of what is known as a Robinson direction.  The High Court held in Robinson v The Queen,^[4] that s 632 did not abrogate the general requirement that a warning should be given where it is necessary to avoid a perceptible risk of a miscarriage arising from the circumstances of the case.
50. [50]
    His Honour directed the jury the complainant’s evidence was critical and they therefore needed to “scrutinise her evidence with great care” before arriving at any conclusion of guilt.  His Honour explained the jury could act on her evidence but could only do so if convinced as to its truthfulness and accuracy “bearing in mind a number of matters that might have some effects upon her reliability”.  His Honour went on to identify aspects of the evidence already highlighted and discussed in these reasons.
51. [51]
    The above analysis of those aspects demonstrates that none of them compel a conclusion the complainant was unreliable.  In assessing the cumulative force of them it is to be borne in mind that minor or logically inconsequential inconsistencies gain no collectively material weight merely by reason of their number.  The most important points of cumulative weight emerging from the aspects identified are that the complainant was undoubtedly under the influence of intoxicating substances on the night in question and that both may have influenced her behaviour and resulted in her having a patchy and unreliable memory of what occurred.
52. [52]
    Yet, even allowing that, by reason of intoxication, the complainant’s recollection of the events of the preceding night may not have been wholly reliable, she nonetheless exhibited a clear recollection that she regained consciousness the next morning at a time when she was being raped.  It was a forensic challenge for a defence case unaided by evidence from the appellant, that its best fuel to contend for unreliability related to the complainant’s intoxication and arguably unreliable memory of events during the night.  Those aspects did not carry the same impact in respect of the following morning, when the intoxicating effect of substances the complainant had consumed would have diminished.  Moreover, they did not compel a conclusion the complainant was a dishonest witness and thus did not materially undermine the credibility of her description of what occurred the following morning.
53. [53]
    The complainant’s description of waking up the next morning, face down, with her lower clothing moved but not removed, and already being penetrated by the appellant, did not bespeak a consenting sexual encounter.  That evidence bespoke the appellant’s exploitation of an unconscious woman, by moving her clothing sufficiently to effect penetration of her for his own sexual gratification.  It was incompatible with the complainant having been conscious and consenting.
54. [54]
    Furthermore, the complainant’s reaction and conduct in the immediate aftermath, particularly her fresh complaints and distressed condition, all pointed compellingly to her not having consented to the appellant’s penetration of her.
55. [55]
    Assessment of the quality and sufficiency of the evidence before the jury does not expose a doubt which the jury should have experienced.  To the contrary, it shows it was well open to a jury acting reasonably to have been satisfied beyond reasonable doubt of the appellant’s guilt.  The appeal ground that the verdict was unreasonable or cannot be supported by the evidence must fail.

Did the primary judge err in failing to warn the jury about erroneous reasoning?

56. [56]
    The second appeal ground is that the learned trial judge erred by failing to direct the jury about erroneous reasoning regarding the complainant’s motive to lie or absence of motive to lie.
57. [57]
    No such direction was sought.  The ground was thus argued not on the basis of a wrong decision of a question of law but on the basis there was a miscarriage of justice, per s 668E(1) Criminal Code.  The appellant therefore must demonstrate that the direction should have been given and that it is reasonably possible the failure to give it may have affected the verdict.^[5]
58. [58]
    The ground is premised upon what occurred in two exchanges in cross-examination of the complainant.  It is as well to dispense with the second exchange in time first.  It occurred when the complainant was being cross-examined about what she told investigating police who met up with her at the hospital about drug use.  That passage was:

“Then we’ve got, in that conversation – and you tell me if this remembers or recollects anything for you, you made no mention to the drug methylamphetamine at all?--- No.  I told them about the drugs in the house.

At the hospital?--- I don’t know when I---

No?--- ----told him.  At the hospital, on the way to the Bowen Hospital, but I did tell him.

Okay?--- I have nothing to lie about.

And when it comes to [F]; right?  So [F] and her using---?--- Yeah.

---any drugs, in the car trip from Bowen – so from Collinsville Hospital to Bowen, do you remember telling Detective Habib that you did not see her have any drugs?--- I don’t know.  Again, do not recall the whole conversation that we had. …”  (Emphasis added)

59. [59]
    That passage only related to what the complainant told police of drug use.  In that context, the answer, “I have nothing to lie about”, could scarcely have been regarded as a reference to having no motive to make a false complaint of rape.  It was so innocuous in the present context as to require no further consideration.
60. [60]
    It is the first exchange, earlier in cross-examination, which is critical to the complaint now raised by the second ground of appeal.  That passage was:

“Now, you told us earlier that you yelled out at my client, Mr Zivkovic, to “get off me”, something like that?--- Yeah.  And when I turned around, he was on top of me.  He – I said to him, “What the fuck are you doing?  Get the fuck off me.”

I suggest you never said that to him?  [Complainant], is it the case that you were embarrassed that you slept with my client?--- No.  If I slept with someone, I would wear that upon my sleeve, if I slept with someone.  I’ve slept with people in my past.  Like, this has never happened to me.  This is not a consensual sex.  I had never said yes.  I never gave him any – any obligation to touch – undress me, do anything to me.

Did you, [complainant], do something when you were drunk and high on methylamphetamine that you now regret?--- No.  And if I did do that, like, I’m admitting to, like, when I smoke cannabis.  I would tell you.  I have nothing to lie about.  If I had done that, I would tell you.  I would say, “Yes, okay.  I smoked it.”  But I didn’t.  If I did it, I would tell you.

[Complainant], when---?--- I have no reason to lie.

I suggest that Mr Zivkovic had consensual sex with you that morning; do you agree or disagree?--- No, he didn’t.  I never gave him consent to touch me, to go anywhere near me.  I was out. …”  (Emphasis added)

61. [61]
    Again, the complainant’s above assertions she had nothing to lie about and no reason to lie, appear connected with the position she was taking on the topic of drug consumption.  However, the appellant’s counsel emphasises they were proffered while responding to a question about whether she did something she now regretted.  It is also emphasised that question was preceded by a question about whether she was embarrassed at having slept with the appellant.
62. [62]
    The appellant submits that the combination of the defence questioning suggesting embarrassment or regret as motives to lie and the complainant’s assertion she had no reason to lie meant the learned trial judge ought to have directed the jury on the topic of the complainant’s motive to lie.  It is contended the trial judge should have directed the jury to the effect identified in R v Coss,^[6] namely:

“[E]ven if they found no evidence of any motive to lie, this did not establish that such a motive did not exist; if there was a motive the appellant may not know of it; there may be many reasons why a person may make a false complaint; if they found no evidence of a motive to lie, this did not necessarily mean the complainant was truthful; it remained necessary to satisfy themselves that she was truthful.”^[7]

63. [63]
    In the absence of such a direction, the appellant submits there was a real possibility that the jury may have erroneously reasoned the complainant’s evidence was more reliable because there was no apparent motive to lie, which in turn may have affected the verdict.  The submission is unsustainable.
64. [64]
    This is not a case like Palmer v The Queen,^[8] where the prosecutor improperly asked the defendant whether he could suggest any reason why the complainant would invent allegations against him.  Nor is it a case like R v Van Der Zyden,^[9] where the prosecutor improperly asserted in closing addresses that the complainant had no motive to lie, thus elevating the topic of motive to lie “to a matter “central” to the jury’s assessment of the case”.^[10]
65. [65]
    In this case the above passage, from cross-examination, is the only stage in evidence when the topic of motive of lie was arguably ventilated.  From the jury’s perspective there was nothing about the passage which made it especially memorable or important, relative to the balance of a cross-examination which lasted nearly an hour and a half.  Defence counsel’s questions about whether the complainant had been regretful or embarrassed were only advanced in a vague, exploratory way.  Moreover, the references in the complainant’s answers to her having no reason to lie would likely have been understood by the jury as relating to the topic of her drug use.
66. [66]
    In R v Bevinetto,^[11] Sofronoff P identified three erroneous paths of reasoning which may flow from the raising of a suggested motive to lie.  The appellant’s counsel submits the second is relevant here.  In summary, that erroneous path of reasoning is that a defendant’s failure to identify or prove a complainant’s motive to lie tends to prove there is no such motive.^[12]
67. [67]
    The challenge for the appellant here is that the substance of the above exchange fell well short of prompting such erroneous reasoning.  To the limited extent the exchange can be viewed as having raised the topic of the presence or absence of a motive for the complainant to lie about being raped, it did not do so in an obvious way.  Nor was it done in a way suggestive of it being particularly material to the jury’s assessment of the case.  It would not have given rise to a perception in the jury’s mind that it should consider and decide whether the evidence showed the complainant had a motive to lie in alleging she had been raped.  It follows there was no real risk of the jury in turn reasoning in error, that because there had been a failure to prove such motive, there was no motive.
68. [68]
    What followed in addresses fell even further short of prompting the jury to take such a path.
69. [69]
    The Crown prosecutor, addressing first and thus anticipating what might be said, referred to the suggestion made by defence counsel that the complainant was embarrassed about having sex with the defendant.  She then submitted the complainant’s actions were not the actions of someone who was embarrassed.  She reminded the jury of how the complainant promptly engaged in the unpleasant process of successively revealing what happened first to F and then to her neighbour, her employer and the police.  It was submitted, “these are not the actions of someone who engaged in consensual activity”.
70. [70]
    The appellant’s counsel on appeal submitted those submissions “raised an anticipated argument of motive”.  They did not.  It may be those submissions could have served to blunt the force of an argument, if advanced by defence counsel, that the complainant’s embarrassment gave her a motive to lie.  But the Crown prosecutor’s submissions did not suggest defence counsel would raise such an argument.  Nor were they cast in terms which could have prompted the jury to think the Crown prosecutor was implying there was no apparent motive for the complainant to lie.
71. [71]
    Defence counsel did not advance an argument that the complainant was embarrassed or regretful, let alone that this gave her a motive to lie.  His address pursued the theme that the complainant had not been truthful about her drug use but the address did not press for the conclusion the complainant was lying about events the next morning.  Rather, defence counsel submitted that the complainant’s memory of events was unreliable; full of inconsistencies and gaps in memory which the complainant had filled with “the worst thoughts”.  It was submitted the complainant had in confusion developed a rape memory which “she never truly had" and was distressed by it.
72. [72]
    There was nothing in either counsel’s address which could have given rise to a perception in the jury’s mind that it should consider and decide whether the evidence showed the complainant had a motive to lie in alleging she had been raped.  This further diminishes the prospect of there being any real risk of the jury in turn reasoning in error that there had been a failure to prove such motive and that therefore was no such motive.
73. [73]
    It is scarcely surprising that counsel below did not seek a direction of the kind it is now said should have been given.  There were sound forensic reasons why defence counsel would not want to turn the topic, which was not a real issue in the trial, into an issue in the jury’s mind by seeking a special direction which risked doing so.
74. [74]
    By the time of the summing up it was apparent that the topic of whether the complainant had a motive to lie was not a real issue in the case.  There was no risk of the kind of erroneous reasoning which the topic of motive to lie is prone to give rise to, and which a trial judge has a duty to warn against.^[13]  It follows both that there was no need for a special direction and that the absence of it could not have affected the verdict.
75. [75]
    This second ground of appeal must also fail.

Orders

76. [76]
    Both grounds of appeal having failed, I would order:

Appeal dismissed.