R v BEN[2024] QCA 179

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA:  I agree with the reasons for judgment of Dalton JA and with the orders proposed by her Honour.
2. [2]
   DALTON JA:  The appellant stood trial in the District Court on five counts of rape and one count of choking said to have taken place in the early morning of 13 June 2021.  He was 41 years old.  The complainant was his girlfriend, who was 31 years old.  All the offending was alleged to have taken place as one series of events in their bedroom in a share-house.
3. [3]
   The jury’s deliberations were not entirely straightforward.  After about five hours of deliberation they sought directions as to what would happen if they could not agree on verdicts.  Later that afternoon the bailiff reported that one of the jurors had stayed behind and asked about how to contact a court counsellor.  The next morning, when dealing with an issue raised by the jury, the judge told them that he could hear their deliberations from another part of the courthouse and asked them to be respectful of one another’s views.
4. [4]
   On the first afternoon of their deliberations the jury returned to the courtroom to say that they had agreed verdicts in respect of five of the counts.  It probably would have been better to take those verdicts then, and ask the jury to continue deliberating the next day.  That was not done, but nothing turns on that.  The jury returned the next day and continued their deliberations.
5. [5]
   Later that day the jury reported that they were still unable to agree on one count.  Eight hours had passed, so that under the relevant legislation, the judge was able to explain to the jury that he could take a majority verdict if they were able to give one.  The jury deliberated for another two hours before coming back and returning verdicts of acquittal on all the counts of rape, but a majority verdict of guilty on the choking count.
6. [6]
   The appellant raises three grounds of appeal.  The first is that the verdict on the choking was unreasonable.  The other two raise difficulties with the trial judge’s directions to the jury which are said to have caused miscarriages of justice.  In accordance with dicta in AK v Western Australia^[1] I determine the unreasonableness ground first.

Ground 1: Unreasonable Verdict

The Evidence Below

The Complainant’s Evidence

7. [7]
   The complainant is Korean and gave evidence through an interpreter.  She met the appellant when they both lived in the same share-house.  They moved out of the share‑house into another rental property together, in about October 2019.  They then rented one of the bedrooms to another woman called SZ.
8. [8]
   As at June 2021, the complainant and the appellant shared a bedroom.  On the evening before the offending, she had invited some friends to the house.  She, the appellant and the friends sat in the kitchen and drank from about 7.00 pm until about 10 or 11.00 pm, when the complainant went to bed.  She had four cans of mixed spirit and “a bit of Soju” (Korean whisky) before she went to bed.  She said she was “a little bit tipsy”, but not drunk.  She said that the appellant drank at least one can of spirit and cola.  She did not really know how much he drank.  He did not go to bed at the same time she did, but stayed behind to clear the table.
9. [9]
   She fell asleep and woke up to find that he had inserted his penis in her vagina and was having sex with her.  She had gone to bed wearing the clothes she wore during the day.  When she woke up, her pants were off, but her top was still on.  She asked the appellant to stop having sex with her.  The physical movement caused her to feel nauseous.  Nonetheless, he continued and she vomited next to the bed.  Then she went to the toilet and vomited again.  She thought the sex lasted for about three minutes.  This was the subject of count 1.
10. [10]
    After this the appellant cleaned up some of her vomit, and then she and the appellant began arguing.  There was a hallway connecting the bedroom to a walk-in wardrobe and they were arguing inside the wardrobe.  She also vomited in there.  The appellant became angry.  The complainant cleaned up more vomit and went back to the bedroom.  The appellant told her to suck his penis but she refused.  She then said that, “And he wrangled my neck and then he inserted his penis one more time”; “with one hand he was – he grabbed my neck, and one hand he grabbed my arm, and I felt like I couldn’t breathe”.  This occurred on their bed.  She said, “I could not breathe, so I thought to myself whether I would die … It was about 20 to 30 seconds, but I tried to breathe so I remember taking short gasps of air”.  The appellant said, “You deserve this”.  The choking was count 2, and the second penile/vaginal rape was count 3.
11. [11]
    After this the complainant ran to the toilet.  She took her phone with her as she wanted to begin recording what was happening on the phone, but the appellant followed her into the bathroom and started smoking.  Eventually the complainant did turn on the recording function on her phone.  She made a short recording some few minutes in length.  She thought the recording was made between 2.00 am and 3.00 am and before she began sending messages to her friends asking for help.
12. [12]
    She said that this recording, which was exhibit 7, recorded what occurred when she and the appellant returned to their bedroom and were on the bed.  It might be thought the recording makes more narrative sense as something recorded in the bathroom before the appellant and complainant returned to bed.  That was a matter for the jury.  In the recording the following conversation occurs:

“APPELLANT: You alright?

COMPLAINANT: Oh shit.

APPELLANT: Don’t.

COMPLAINANT: You do some, don’t [INDISTINCT] on me. Oh, don’t come around me. I said don’t come around. What, what, what do you want from me? Hey please--

APPELLANT: Hey, treat yourself. Don’t fuck with me.

COMPLAINANT: What?

APPELLANT: You got no idea who I am. Two hundred men down laying job killed. Two hundred plus. I’m a fuckin’ marine soldier who has done more for this country than you’ve ever done for yours and this one. Don’t question my integrity, don’t even question my intentions.

COMPLAINANT: Let me--

APPELLANT: I don’t want to hurt you. I don’t want to cause any problems.

COMPLAINANT: All we c--

APPELLANT: All I’m after is for your compliance and your enjoyment. And--

COMPLAINANT: I will do it--

APPELLANT: [INDISTINCT ] stinks. I don’t care.

COMPLAINANT: I will do it.

APPELLANT: Just go to bed, just go to bed.

COMPLAINANT: Please, I will do it.

APPELLANT: I don’t want you to, I don’t want you to.

COMPLAINANT: Because you always said to me you [INDISTINCT], I will do it, it’s okay. Baby please, please, you said you don’t, you don’t like this smell. I will do it--

APPELLANT: I’m gonna fuckin’ give you don’t like the smell in a minute. Fuck off to bed right now. Now, you have two choices, suck my dick, or fuck off to bed ’cause I'm fuckin’ smash that arse in a minute if you don’t. Good night. Turn the light off [INDISTINCT].

[END OF RECORDING]”

13. [13]
    The complainant said that the reference to “I will do it” was her agreeing to “suck his dick”.  Her evidence was that after the recording the appellant choked her again whilst threatening her, “You don’t know how scary I am.  All I need is your compliance.  Don’t cry.  Don’t say a word.”  Then he inserted his penis into her vagina; told her to suck it, and then he inserted it into her anus.  They were standing up next to her bed and then they were on her bed.  During the time she was following his direction to suck his penis, “He held my head and kept my mouth in that position until I started gagging”.  The vaginal/penile rape was count 4; the oral rape was count 5, and the anal rape was count 6.
14. [14]
    After that the complainant went to the toilet again.  She made a second recording on her phone which seems to have started after this second return from the toilet (exhibit 8).  In this recording the appellant directs the complainant to get into bed several times.  The complainant at one point says, “No.  Baby, please.  Plea-, don’t.”  Soon after she reproaches the appellant for not loving her, to which the appellant replies, essentially, that he must love her or he would not want to “stick my dick in you”, and then demands of her, “Do you want it? Or do you not”.  The recording continues:

“APPELLANT: No, shh. Yes or no. Do you want my dick or not?

COMPLAINANT: [INDISTINCT], please.

APPELLANT: Do you want it not?

COMPLAINANT: I love yourself but not like this.

APPELLANT: Hey? Hey?

COMPLAINANT: I love you but baby.

APPELLANT: But what?

COMPLAINANT: Please, not like this.

APPELLANT: You’ve got two choices, be real quiet ’cause I’m at the end of my tether in [INDISTINCT] noise. Alright?

COMPLAINANT: Okay, okay--

APPELLANT: So, I’m of two minds. Where I’m about to go next is either two ways, very qui--

[END OF RECORDING]”

15. [15]
    There was a third recording which the appellant made (exhibit 9).  This was audiovisual.  The complainant’s evidence was that he made it after the choking, which was the subject of count 2, while she was cleaning vomit from the floor.  On the recording the appellant starts commentating on what he can see.  He is sarcastic or passive‑aggressive.  The complainant makes sarcastic comments about the appellant manufacturing evidence by recording.
16. [16]
    The complainant makes repeated reference to being choked.  The combination of the emotion involved, the complainant’s limited ability in English and, I suspect, the effect of alcohol, makes the context in which some of these comments occur difficult to understand.  However, the recording contains numerous assertions by the complainant that the appellant choked her.  She says, “You just push here”, and then a little later, “You push here and I, I couldn’t breathing and you think, why you want to hear?”  At another point the complainant says, “You just choke my neck and you fucking whore or something, I remember.  Baby, can you just … Go your bedroom please?  I’m scared, can you go?”  The appellant asks, “To my bedroom?” and the complainant responds, “Yeah, just please go, please go”.  These comments are interspersed with her assurances that she will clean up the vomit and allegations that he is making the recording to portray the fact that she is very drunk.  At another part of this recording the complainant says, “You choke here.  You choke here, that’s it.  You choke my neck.  Go away, please.  I’m scared.”  The appellant asks, “Of what?” and the complainant responds, “You choke my neck”.  The appellant says he will go and the complainant tells him, “No … That’s not your bed any more.  You choke my neck. … That’s it.  You said … to me, I’m a whore and you choke my neck.  That’s it.  If you wanna make the-- … Video, have your evi- , whatever you want.”  The appellant says that he just wants to help her and makes similar assurances, but she continually tells him to go away.  He does not deny that he choked her, and at one point says something which may or may not be an acknowledgment that he did choke her.
17. [17]
    The complainant said in her evidence that the appellant made the recording after her first recording (exhibit 7) but before her second recording (exhibit 8).  That could not be correct: the appellant’s recording is longer than the interval between the end of exhibit 7 and the start of exhibit 8, and the recordings do not overlap.  It was a question for the jury, but the appellant’s recording may have been made after both the complainant’s recordings.
18. [18]
    The complainant’s evidence was that she rang her friend NJ.  She could not really remember whether she rang more than once.  She told her to pick her up as soon as possible.  She made this call when she was still inside the house so she did not say anything about the appellant.  At some point after that she ran out of the share‑house with her laptop, but without any shoes.  She went and stood on the opposite side of the road, outside an aged care home.  NJ came and picked her up in a car with another friend, SS.  She thinks that she waited outside the aged care home for three to five minutes.  The complainant was upset and told NJ to drive as far away as possible.  The appellant knew where NJ lived so the complainant did not want to drive to NJ’s house.  They drove around; then they saw a police car, so they pulled over and began talking to the police officer in the car.
19. [19]
    After that they went to the Gympie Police Station in the police car.  The complainant said she was so flustered she could not speak properly and that the police measured her blood pressure.  After “some time” she told them what had happened to her.  The police made a recording of that conversation at the police station (exhibit 11).  The recording was tendered as a preliminary complaint.  In it the complainant said that she was drinking with friends and partner and then was asleep.  “He asked for sex.  I told him I didn’t want it, and I threw up once.”  It was her boyfriend who asked for sex.  And then she was asleep.  “He kept on waking me up and asked for it with force … choking me … and then he said, while choking me … ‘you deserve it’.”  She was so scared she ran away and then turned on a recorder.  “He then doing that again, choking me. … I was doing anything he was asking for … and he … he said he could kill me if I didn’t.”  She said she, “did sex … I sucked anything he asked me to suck … while I was being choked”.  She says that after this he did “the same thing he did before”.  Throughout the police tape-recording the complainant has to be encouraged to speak and explain.  She is sobbing and at one point she says, “I am too ashamed”.
20. [20]
    At about noon the complainant was taken to the hospital.  In evidence she identified photographs of bruising on her neck taken by staff at the hospital.
21. [21]
    In cross-examination the complainant denied she met the appellant when she was working as an escort, although the jury might have thought that some of the comments the appellant made on his audiovisual recording might have been a reference to this.  The complainant said she was working at the meatworks, notwithstanding she was on a holiday visa.  During Covid she stopped working at the meatworks and decided to study so that she could get a student visa.  She fell pregnant to the appellant and he bought her an engagement ring, but they agreed to have an abortion instead.  She went to see an immigration lawyer and was advised that it would assist her to have a joint account with the appellant and to get her name onto the lease of their house, so she did that.
22. [22]
    The complainant first denied that she was quite drunk on the night concerned, but later agreed that she was “very affected by alcohol”.  The jury might well have concluded that the latter statement was more truthful.  She said she had pyjama pants on when she went to bed, but when it was put to her that her police statement said she had on a jacket but no pants, she said she did not remember.  She said she went to sleep straight away because drinking made her sleepy.  She could not recall being on the couch during a Facebook video call with the appellant and his friend, while wearing some yellow clothing.  She said that when she ran out of the house she had pyjama pants on and she remembered being embarrassed about that when she got to the hospital.  She said the pyjama pants were light blue.  Then she was shown exhibit 11 which showed that she had on yellow pyjama pants at the police station.  After that she conceded she might have been wearing those pants, but said she did not remember.
23. [23]
    She could not recall being on the couch in the living room during a Facebook video call between the appellant and one of his friends between 1.00 am and 1.43 am, and when pressed, suggested she was sleeping at that time.  She said she remembered waking up in bed.  She said that she fell asleep after she said goodbye to her friends.  She did not remember whether she fell asleep on the couch and then later got up and went to her bed.  She said what she accurately remembered is that she woke up, opened her eyes and the appellant was “on top of me” and she wanted to vomit.  She rejected the suggestion that she had gone to bed with the appellant and begun consensual sexual activity.  She said that the appellant asked her for sex many times but she kept rejecting him on the basis that she was tired.
24. [24]
    Some details of consensual sexual activity were put to the complainant.  She rejected most of them but did accept that some part of the detail might have been correct.  She rejected the proposition that, on other occasions she and the appellant had engaged in choking during consensual sexual activity and that they had a safe word.  She accepted that after she first vomited it was the appellant who began cleaning up the mess.  She rejected the idea that in the first recording she was referring to her cleaning up the vomit when she said, “I will do it”.  It was suggested this made sense because the appellant in the recording says, “I don’t want you to”, so that the conversation was about cleaning up the vomit.  She rejected this and reiterated that the appellant was talking about her sucking his penis.  She maintained this even when taken to the next part of the recording where she says, “I will do it.  I will clean everything”, and further on, “I will clean it”.  She asserted that by using the phrase “clean it” she meant “suck it”.  A similar exchange took place about the part of the recording which said: “you said you don’t like this smell … I will do it … I will do it, it’s okay.  Baby please, please, you said you don’t like this smell.  I will do it.”
25. [25]
    There are other parts of the cross-examination in which the complainant contradicted the sequence of events which she had given in evidence-in-chief.

Other Crown Evidence

26. [26]
    The Crown called NJ.  She is also Korean and had been in Australia since 2017.  She met the complainant in around 2019 because they worked together.  At the time of the alleged offending she lived about two minutes by car from the complainant and the appellant.
27. [27]
    NJ said that she received a telephone call from the complainant on the morning of the alleged offending.  The complainant was crying and asking NJ to help her.  About 10 minutes later NJ arrived at the complainant’s house and saw the complainant in front of her house.  She described her as “extremely nervous and … shaking”.  She was wearing pyjamas and was barefoot.  She was wearing a jumper and was carrying her MacBook and her phone.  Before the telephone call which NJ picked up, she had missed 14 calls from the complainant.  Her evidence was she was asleep when she became aware that her phone was ringing and took the call from the complainant.
28. [28]
    SS said that she was asleep at home in a house she shared with NJ on the morning of the alleged offending.  NJ woke her up that morning and she went with NJ to the complainant’s home.  They arrived just before 4.00 am.  SS said that they texted the complainant just before they arrived and the complainant ran out.  She remembered that the complainant was barefoot and looked “extremely sad and scared”.
29. [29]
    SZ gave evidence that she rented a room in the same house as the complainant and appellant at the relevant time.  Her bedroom was on the other side of the hallway from the bedroom shared by the appellant and complainant; she estimated it was around 1.5m away.
30. [30]
    On the day before the offending she came home from work about 7.00 pm.  At some point after that, “dinner time”, friends of the complainant arrived at the house and she joined them.  The complainant cooked and they were together in the dining room eating and drinking.  She spent around 30 or 40 minutes with them, perhaps between 8.30 pm to 9.00 pm, and then left the table.  She went to her room about 10.00 pm.  They were drinking Korean beer, a bottle of whisky and some spirit mixers in cans.
31. [31]
    The complainant’s friends left about 11.00 pm.  After that she thought the complainant and appellant were in their bedroom talking peacefully, but at some point in time they raised their voices, arguing.  This was perhaps 15 minutes after the complainant’s friends left.  She could hear the complainant crying and the appellant trying to comfort her.  She thought the complainant was refusing the appellant access to the bedroom, saying that she did not want him in the bedroom.  She thought perhaps the complainant was vomiting and that the appellant was comforting her.  They walked out to the dining room and continued arguing.  She thought that after midnight things started to get quiet.  After midnight she thought the appellant was in the dining room talking on the phone with one of his friends quite loudly and there was music playing in the dining room.  Everything went quiet about 1.00 am.
32. [32]
    In cross-examination SZ said that when she went to bed the complainant seemed “a little drunk in that her speech was a little bit funny and her face looked a little red”.  She could remember the appellant and complainant arguing in the dining room around midnight and then the complainant going to their bedroom, but the appellant remaining in the living room.  It was after that she heard the appellant speaking on his phone.  She thought she could hear the complainant vomiting and then the appellant outside their bedroom offering her help, but the complainant refused help and was asking him to go.
33. [33]
    Doctor.  The police took the complainant to the hospital where she was examined by a particular doctor.  Unfortunately that doctor did not give evidence at trial, but another doctor did.  The doctor who gave evidence had read the witness statement of the doctor who did examine the complainant.  From that statement she was able to say that the doctor who examined the complainant noted left anterior neck petechial bruising.  There was no evidence as to what this term meant, or about what it might indicate had occurred.  A CT of the complainant’s neck was carried out, but there was no abnormality.  In cross-examination this doctor said that the bruising could have been caused in a number of different ways and was not able to give an opinion on which was more likely in this case.  Poor quality copies of the photos of the bruising were tendered.
34. [34]
    The police officer who had been on patrol and approached by NJ, SS and the complainant in the early hours of the morning gave evidence that the complainant was “very upset, crying, distressed” at the time of that interaction.  He noticed that there were red marks on the complainant’s neck.  He recalled that the complainant complained to him that she had been anally raped.

The Appellant’s Evidence

35. [35]
    The appellant gave evidence that he had met the complainant in 2019 when she was working as an escort.  She was living in a brothel.  After that, she was introduced as a housemate into a share-house where he lived.  At some point moved in together in “a full-time relationship”.  At some stage she became pregnant and although the appellant was happy to marry her, she opted to have an abortion, against his wishes.  The complainant’s name was on the lease and they had a joint account because she had received advice from an immigration lawyer that that would assist her in obtaining a de facto relationship visa.  At some point SZ had moved in.  The two people who had been visiting over drinks and food on the day prior to the offending were looking to possibly move in as well.
36. [36]
    He recalled the complainant’s friends coming to visit shortly after lunch.  There were five bottles of Korean whisky, Soju; 20 cans of spirit mixers; a bottle each of vodka, tequila and rum, and a carton of beer.  Everyone was drinking and in particular, everyone was drinking a glassful of beer with a shot of Korean whisky in it and skolling this drink.  There was a Korean barbeque for dinner and the friends left around 11 o’clock.
37. [37]
    The complainant went to have a shower.  The appellant went out to “tidy up the shed and get a few things done”.  When he came in from the shed they continued drinking together while watching television on the couch.  She was wearing yellow pyjamas.  He called one of his friends on Facebook video-time and a screenshot from Facebook showing that chat as lasting 53 minutes, ending at 1.45 am on 13 June 2021, was tendered.  During this time the appellant was still drinking, vodka from the bottle.  He said he was very drunk.  He said the complainant was as drunk as him, “if not drunker”.
38. [38]
    At some point the two went to their bedroom.  They began kissing and cuddling.  He performed oral sex on her, then they had vaginal intercourse, and through all of that the complainant appeared to be consenting.  Then at some stage the complainant thought that he had tried to have anal sex with her and she objected.  In response he lay face‑up on the bed and she positioned herself on top of him; they continued having vaginal intercourse.  The movement caused her to vomit.
39. [39]
    He went to the bathroom to clean himself and then came back to the bedroom and started to clean up vomit.  He did not realise that the complainant was recording him.  While cleaning, and being recorded (exhibit 7), he quoted, or attempted to quote some lines from the movie that they had been previously watching on the television about a character who had been a marine soldier.  Coincidentally, vomit had featured in the movie.  He explained, “I was just drunk and rambling”.
40. [40]
    The recording has him telling the complainant to go to bed and her saying, “I will do it”.  He replied, “I don’t want you to”.  That conversation was about who would clean up the vomit.  The reference to, “I’ll smash that arse in a minute if you don’t” was drunken nonsense, and the reference to compliance and enjoyment was a reference back to a conversation that they had had earlier that evening.
41. [41]
    The complainant moved to the walk-in wardrobe and began cleaning up some more vomit and he began taking a recording of her.  At some point after that recording, they had had an argument about his children and he had told her that if she did not want to be with him, then she needed to move out.  He went to the kitchen to have a cigarette and then went outside to the shed.  When he came inside she had gone.  He tried to find out where she was and rang her several times, but there was no answer.  He continued drinking until he passed out “later on that morning”.
42. [42]
    Through all the sexual activity that went on that night, he was never given any indication by the complainant that she was doing anything other than consenting to what had gone on.  He did not forcibly have sex with her, force his penis into her mouth or choke her.  He did not rape her anally.
43. [43]
    In cross-examination he denied that the part of the recording in which he said to the complainant that he wanted her compliance was in relation to sex.  I think it is fair to say that there was no explanation for that or many other things recorded, except that he was drunk.  He denied that he was lying about quoting from a movie in relation to the marine soldier comments, and denied that he was trying to intimidate the complainant so he could have sex with her.  He denied that he made the audiovisual recording because he knew he had “stepped over the line” and that the matter may be referred to the police.  He said he made the recording because there was an ongoing issue in their relationship regarding her drunkenness and he wanted to show her the video when she was sober.

Other Defence Evidence

44. [44]
    The appellant’s counsel called the friend with whom the appellant had had the Facebook video-time conversation.  He confirmed that he had a conversation with the appellant at about the time recorded on the Facebook screenshot.  During the video call he could see the appellant in the loungeroom.  He could see the complainant in the background lying on the couch.  She was wearing a yellow top.  He assumed the complainant was sleeping.

Argument on Unreasonable Verdict

45. [45]
    Section 668E(1) of the Criminal Code (1899) is to the effect that this Court shall allow an appeal against conviction if it is of the opinion “… that the verdict of the jury should be set aside on the ground that it is unreasonable, or can not be supported having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice …”.
46. [46]
    The most common argument advanced in support of an appeal which asserts that a verdict is unreasonable is based on M v The Queen: that on the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.^[2]  The High Court in M v The Queen recognised that unreasonableness may be demonstrated in other ways: “A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside” – p 493.  Another relatively common argument advanced to establish unreasonableness is inconsistency of verdicts.
47. [47]
    Here the appellant’s counsel does not submit that the verdict on count 2 was unreasonable according to the test in M v The Queen, nor did he contend that the verdict was inconsistent according to the test in MacKenzie v The Queen.^[3]  Instead he advanced features drawn from both these cases and relied upon Jones v The Queen^[4] as authority for the proposition that together those features were sufficient to establish unreasonableness, with the consequence that this Court should acquit his client on count 2.
48. [48]
    While I accept that the categories of unreasonableness are not closed, I doubt that Jones is authority for the approach advanced on this appeal.  But I need not decide such a large proposition.  Instead my decision is that the collection of factual matters urged by the appellant in this case do not convince me that the verdict of the jury on count 2 was unreasonable.  In explaining why, I will first look at the principles to be taken from the cases.
49. [49]
    The High Court in MacKenzie v The Queen^[5] cited English authority to the effect that an appellant wishing to have a conviction set aside on the grounds of inconsistency, “must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion”.  Inconsistency of verdicts is thus a species of unreasonable verdict which, if established, will result in an appeal court quashing an inconsistent guilty verdict and usually, but not invariably, entering a verdict of acquittal.  Consistently with the idea that there is no appeal against a jury verdict of acquittal, it is assumed that where inconsistency is established, the jury verdicts of acquittal are the correct verdicts, and it is the guilty verdicts which must be set aside.^[6]
50. [50]
    As the High Court in MacKenzie acknowledged, due to their constitutional function, and the respect which the law pays to juries, if a court can logically and reasonably reconcile verdicts which are different, “allowing it to conclude that the jury performed their functions as required”, it will not interfere with the verdicts – p 367.  It is not the role of an appellate court to substitute its opinion of the facts for one which was logically and reasonably open to the jury.  As part of that process, the law recognises that sometimes jurors apply a certain amount of mercy or amelioration.  An appellate court will proceed practically and sensibly, recognising that sometimes there may be a departure from strict logic.  “Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty”.^[7]  If “the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice”, the relevant conviction will be set aside.^[8]
51. [51]
    MacKenzie was decided in 1996.  In 1994 and 1997 respectively, the High Court decided M v The Queen^[9] and Jones v The Queen.^[10]  They were both hard cases in the aphoristic sense.  The former has stood the test of time; it must be recognised that the latter has not.  The test in M now determines the great majority of cases where a verdict is said to be unreasonable:

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself 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.” – p 493.

52. [52]
    In Jones the evidence met the test in M: the complainant gave evidence of three sexual assaults; there was nothing inherently unreliable about her evidence.  There was a delay in her making a complaint, and the Crown case on all three counts depended upon her evidence.  It was contradicted by the defendant, his wife and one of their employees.  The jury returned a verdict of acquittal on one count, and verdicts of guilty on the other two.  There was nothing to account for the difference in verdicts.  That is, they could not be reconciled in the way spoken of in MacKenzie.  Nonetheless, the High Court did not analyse the case as of one of factual inconsistency, in accordance with the principles in MacKenzie.  Instead it set aside the two guilty verdicts and entered verdicts of acquittal on a modified M basis.  The joint judgment said:

“The jury’s finding of not guilty on the second count damaged the credibility of the complainant with respect to all counts in the indictment … the jury’s rejection of the complainant’s account on the second count diminished her overall credibility.  The only reasonable conclusion is that the jury were not satisfied beyond reasonable doubt of the truth of her evidence concerning the incident the subject of the second count …

It is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts.  There is nothing in the complainant’s evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count.” – p 453 per Gaudron, McHugh and Gummow JJ.

53. [53]
    Brennan CJ joined in the orders made in Jones, but his reasons were very much tied to the facts, including the absence of a Longman direction, pp 445-446.  Kirby J dissented; he thought the jury verdicts should have been affirmed, p 456.
54. [54]
    Five years later in MFA v The Queen^[11] the Hight Court said that it appeared:

“…that some judges have taken Jones as authority for the proposition that where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility.  That view is erroneous. … Jones is not to be understood as establishing a set of legal propositions, separate or different from the test formulated in M, which must be applied in deciding whether a conviction on one or more counts of sexual offences, when the accused was acquitted on other counts, is unreasonable, or cannot be supported, having regard to the evidence.” – p 618 per Gleeson CJ, Hayne and Callinan JJ.

55. [55]
    As Simpson J remarked in R v TK, perhaps the real criticism of courts trying to follow Jones is that they interpreted it in an over-literal sense.^[12]
56. [56]
    MFA was another sex offending case.  The jury returned verdicts of acquittal on seven of nine counts.  The High Court refused to interfere.  The judgments were based on the reasoning in MacKenzie.  Although the appellant had been convicted on only two of nine similar sexual offending counts, there was a factual differentiation in relation to the two verdicts of guilty: there was independent evidence from a third participant in the sexual offending which was the subject matter of those two counts.  While the jury might not have disbelieved the complainant in relation to the other seven counts, the High Court thought that it was open to the jury to be satisfied beyond a reasonable doubt only in relation to the two offences where there was some independent corroborating evidence.
57. [57]
    Before the decision in MFA, the New South Wales Court of Appeal decided R v Markuleski.^[13]  The Court sat a bench of five because of difficulties which courts all over Australia had in interpreting Jones – [30].  The case concerned six counts of sexual offending and the result was largely dependent upon what the jury made of the evidence of the complainant and the appellant.  The jury returned verdicts of guilty on five counts and acquitted on the sixth.  The ground of appeal was that the guilty verdicts were unreasonable in light of the not guilty verdict; reliance was placed upon Jones.
58. [58]
    Spigelman CJ started with the proposition that Jones applied the law in M and MacKenzie, [5]–[7], and then said:

“It is against this background, that the test for an unreasonable verdict – whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty – must be applied to the whole of the facts and circumstances of a particular case.” – [10] (my underlining).

59. [59]
    The underlined words are broader than those used in M.  They involve the appellate court looking at “the whole of the facts and circumstances of a particular case”, not just “the whole of the evidence”, cf the test in M, above.  In the event, the New South Wales Court of Criminal Appeal disposed of Markuleski on the basis that there were factual matters concerning the sixth count (acquittal verdict) which pertained only to that count, and thus found the verdicts reconcilable in terms of the traditional MacKenzie test – [140]–[146].
60. [60]
    The broader formulation from Markuleski was used in one of the judgments in MFA, [34].  After MFA, in R v TK Simpson J^[14] wrote that the test at [10] of Spigelman CJ’s judgment in Markuleski was distinct from the M test leading to a wider enquiry than that which was established in M – [126]–[128].  The argument on unreasonable verdict in this case adopted that approach.  The submission amounted to an assertion that a species of “Jones unreasonableness” was made out notwithstanding that the different verdicts given by the jury in this case could be reconciled in terms of MacKenzie, and that there was evidence before the jury upon which they could have reasonably convicted in accordance with the test in M.
61. [61]
    The formulation of the test in Markuleski at [10] was in the context that the relevant law to be applied was found in M and MacKenzie.  Unreasonableness is a protean concept.  The appeal in M centred on the evidence before the jury, and that in Markuleski centred on the evidence and verdicts below.  The words used by Spigelman CJ at [10] of Markuleski are not, in my view, a statement of a new principle, but the adaptation of the principle in M to encompass the grounds of appeal in Markuleski.  The words were used by some of the judges in MFA where again the appeal was based on the evidence and verdicts below.  This usage was in a context where the High Court in MFA significantly confined the statements in Jones and applied the MacKenzie inconsistency test to determine the case where there were significant credibility and reliability issues.
62. [62]
    In the present case, according to the principles in MacKenzie, the verdict on the choking count was not factually inconsistent with the verdicts of acquittal on the rape counts; the different verdicts can be accounted for in a logical and reasonable way.  First, it is obvious to say that the choking count was an allegation of violence, rather than sexual violence, and in that way was different in its nature from the rape counts on the indictment.  Although there was some suggestion in the evidence that the complainant and appellant had, throughout the course of their relationship, engaged in risky sexual activity, and had a safe word, there was no evidence that they engaged in consensual choking as part of sexual activity or that the factual basis for count 2 was a choking as part of sexual activity.  In those circumstances the jury had to consider whether or not the appellant had a reasonable, honest but mistaken belief in relation to consent to the sexual activity charged.  However, they had no occasion to consider that same defence in relation to the choking.
63. [63]
    Secondly, there was some objective evidence which was capable of being used as support for the choking offence having taken place which did not have an equivalent in relation to the sexual offending.  In particular, photographs were tendered of marks on the complainant’s face and neck, and evidence was called from a doctor in relation to those marks.  Properly instructed (see below), the jury might have come to the conclusion that these photographs showed injuries consistent with having been choked and that there was, therefore, objective evidence which supported the complainant’s case in relation to the choking, but not in relation to the sexual offending.
64. [64]
    Thirdly, in the audiovisual recording made by the appellant, there was a great emphasis by the complainant on having been choked.  While the timing of the recording was somewhat uncertain, it likely was made after count 1 (vaginal rape), count 2 (choking) and count 3 (vaginal rape).  The jury may have considered it was made after all the offending alleged by the complainant.  In these circumstances the jury may have found it curious that, if the complainant had just been raped on two (or five) occasions, her predominant and repeated complaint to the appellant was that he had choked her.  The jury might have thought that at one point in the recording the appellant conceded that he had choked the complainant.  Certainly the recording gave the jury evidence that, despite the repeated allegation of choking from the complainant, the appellant did not deny it.  This evidence might have been found by the jury to raise a reasonable doubt in relation to the sexual offending, but bolster the complaint in relation to the choking.  Again, there was a need for proper directions as to this evidence, as to which see below.
65. [65]
    The case of Williams v R^[15] was discussed in Markuleski at [87] and [88].  It was a MacKenzie inconsistency case, and factually similar to the case here.  In Williams the appellant was charged with six sexual offences committed within a single three-and-a-half hour period.  The jury returned unanimous guilty verdicts on the first and sixth counts (indecent assault and vaginal rape) but acquitted on the remaining counts (digital penetration, oral rape and two counts of vaginal rape).  One of the acquittals was unanimous; the other three acquittals were by majority.  The appellant had admitted the facts comprising the indecent assault, but denied an absence of consent.  His case was that none of the other events occurred at all.  The Full Court of the Tasmanian Supreme Court found that there was a likely explanation for the differentiation in verdicts, namely, the absence of satisfaction as to the occurrence of all the acts to the requisite standard of proof.  In this respect, there had been no recent complaint of digital or oral rape, or of several (as opposed to one) vaginal rapes.
66. [66]
    Equally, I am not persuaded that the appellant has shown that the jury’s verdict was unreasonable in accordance with the test in M.  The complainant’s evidence at trial was internally inconsistent as to how much she had to drink on the night before the alleged offending; what she did after her friends left on the night before the offending, and what she was wearing on the night before the offending and the day of the offending.  In cross-examination she conceded that she did not remember things she had previously given evidence about.  There were differences between her account and the witnesses NJ, SS and SZ.  When her cross-examination is compared to her evidence-in-chief, there are inconsistent details as to the sexual activity which took place on the day of the offending.  As well, it was open for the jury to think that her evidence about the recording as to “I will do it” and “I will clean it” was at least not reliable.  As noted above, her failure to complain of rape in the audiovisual recording and her repeated complaints about being choked, insulted and not loved in that recording were capable of founding a reasonable doubt in the jury’s minds as to the counts of rape.
67. [67]
    That the jury might have had a reasonable doubt as to the complainant’s evidence in relation to sexual offending, or even disbelieved her account of sexual offending, does not mean that the jury could not be satisfied beyond reasonable doubt of the choking offence on the whole of the evidence (M v The Queen), or upon the whole of the facts and circumstances (including their conclusions about the sexual offending) of this case – MFA v The Queen.
68. [68]
    In my opinion, ground 1 must fail, when the argument is analysed in accordance with MacKenzie, M and MFA.

Ground 2: Inadequate Directions re Choking

69. [69]
    Section 4A(2) of the Criminal Law (Sexual Offences) Act 1978 (Qld) allows a preliminary complaint made by the complainant “about the alleged commission of the offence by the defendant” to be admitted into evidence.  The words “the offence” in that subsection must be interpreted as meaning a sexual offence, having regard to s 4A(1).  That in turn is defined as “any offence of a sexual nature”, s 3 of the same Act.  Once admitted, the complaint is only relevant in an assessment of the complainant’s credibility, ie, it is not evidence of the truth of the complaint.^[16]  The statutory provision creates an exception to the common law rule that a prior consistent statement is not admissible in evidence.
70. [70]
    Here, the appellant was charged with five sexual offences (rape) and one count of choking.  I think the appellant is correct in saying that the choking was not a sexual offence as defined, and did not become a sexual offence as defined because it was alleged to be committed in the course of five sexual offences, or because the Crown case was that the choking happened in order to cause the complainant to submit to sexual offending.  There was some suggestion in the appellant’s case at trial that he and the complainant consensually engaged in choking as part of consensual sexual activity, but that suggestion did not go so far as to assert that what the complainant relied upon as a factual basis for count 2 was part of a sexual activity.  Thus on the evidence in this case, the choking was not a sexual offence as defined, and the complainant’s preliminary complaints as to being choked were not admissible.
71. [71]
    The trial judge gave the jury a direction as to preliminary complaint.  He introduced it by saying, “Now, can I move on to the topic of preliminary complaint for all of the counts except for the choking in a domestic setting …” (my underlining).  The broad effect of the direction as to preliminary complaint was that if the jury thought that it affected their view of the complainant’s credibility, they could use it in assessing her credibility.
72. [72]
    The appellant submitted that the jury might have understood there was a restriction on the use of preliminary complaint, as to sexual matters, meaning that they could use them only as to credit, but could use preliminary complaint as to choking in an unrestricted way.  Perhaps, theoretically, reading the transcripts of the judge’s direction, that misunderstanding was possible.  The fact that experienced defence counsel, who heard the oral direction as it was delivered to the jury, took no point about it at the trial is an indication that the possibility is only theoretical.  In that respect, I note that the appellant’s case was run competently below and that trial counsel for the appellant was aware of this very point, having raised it with the trial judge earlier in the trial^[17] and when directions to the jury were being discussed (t 3‑34-36).
73. [73]
    Consistently with the passage at [71] above, while the trial judge was discussing preliminary complaint with the jury he said, “Likewise, any inconsistencies between the account of Constable Turner and the body-worn camera footage of the complainant’s complaint of any sexual offending and the complainant’s evidence may cause you to have doubts about the complainant’s credibility or reliability” (my underlining).
74. [74]
    I do not think that there was any real possibility that the jury were left in a state of confusion about this matter.

Ground 3: Inadequate Directions about Unanimity for Choking

75. [75]
    The appellant was charged with only one count of choking (count 2).  However, the complainant gave evidence that he choked her on a second occasion.
76. [76]
    The offence is defined at s 315A of the Criminal Code:

“315A  Choking, suffocation or strangulation in a domestic setting

1. A person commits a crime if—

1. the person unlawfully chokes, suffocates or strangles another person, without the other person’s consent; and

2. either—

1. the person is in a domestic relationship with the other person; or

2. the choking, suffocation or strangulation is associated domestic violence under the Domestic and Family Violence Protection Act 2012.

Maximum penalty—7 years imprisonment.

2. An assault is not an element of an offence against subsection (1).”

77. [77]
    The indictment showed that s 315A(1)(a) and (b)(i) were the parts of the section relied upon by the Crown.
78. [78]
    In summing up, and in a written document given to the jury as part of the summing up, the trial judge referred to count 2 as “choking in a domestic setting”.  The jury was told that the act of choking required that the appellant hindered or restricted the breathing of the complainant.  It did not require proof that breathing was completely stopped, but required some detrimental effect on the breathing of the complainant.  In relation to this element, the judge told the jury that the complainant had given her evidence about this, in particular “she said in her evidence when discussing this issue that with one hand the defendant grabbed her neck and, ‘I felt like I couldn’t breathe’.  It is a matter for you what you place on that to inform you, perhaps, of the first element.”
79. [79]
    No issue is taken with the accuracy of that direction.  The difficulty is that in her evidence the complainant said that she had been “choked” on two occasions.  It is true, as the Crown pointed out on this appeal, that it was only in relation to the first of those occasions that she was specifically asked, and gave evidence, that her breathing was restricted.  The passage referenced by the trial judge was of this occasion.  However, as the jury listened to the entirety of the evidence in the trial, there was nothing to alert them to the fact that to amount to a choking at law, breath must be restricted.  In fact, to the contrary.
80. [80]
    In remarks made to the jury before the evidence began, the trial judge said:

“The second type of offence that you have to consider is that – deals with the offence of choking in a domestic setting. And there are four elements that you must be satisfied beyond reasonable doubt, and that is that the defendant unlawfully choked the complainant. The second element that you must be satisfied beyond reasonable doubt is that the choking was unlawful. The third element that you must be satisfied beyond reasonable doubt is that the complainant did not consent to the act of choking. And the fourth element that you must be satisfied beyond reasonable doubt is that both the complainant [and] the defendant were in a domestic relationship with each other.”

81. [81]
    These remarks did not alert the jury to the importance of evidence about restricted ability to breathe.
82. [82]
    In opening the case to the jury the prosecutor took a chronological approach.  He outlined the facts of count 1 and then continued the narrative saying that the Crown’s case was that the appellant was “angry with her and grabbed her by the throat with both hands and push her – and pushed her onto the bed.  When he grabbed her with his hands, he put his hands around her neck, and she wasn’t able to breathe, and that is count 2 on your indictment.  He told her, ‘You deserve this,’ … During this time, he had his hands around her throat for some time, but released his hands and grabbed her arms and pinned them down to the side.”  In opening these events the prosecutor did not open the uncharged act of choking of which the complainant gave evidence.
83. [83]
    The prosecutor handed a copy of the indictment to the jury during his opening.  That referred to count 2 as “choking in a domestic setting”.  He gave written particulars of the count to the jury that, “the defendant put his hand/s around the complainant’s neck and squeezed” (my underlining).  Neither the indictment nor the particulars drew the jury’s attention to the requirement that there be an interference with the complainant’s breathing in order to constitute the choking.  Furthermore, the prosecutor opened that the offence of choking was undertaken with two hands, but the choking which was said to constitute count 2 was, on the complainant’s evidence, caused by the defendant putting only one hand around her neck.  Then, her evidence was that the second uncharged occasion was alleged to involve two hands.
84. [84]
    While the prosecutor did open the complainant’s evidence that she could not breathe during the choking, it was not clear that this was any more important than any other part of the narrative.  In fairness, it seemed that the prosecutor did not expect that the complainant would give evidence of a second instance of choking.
85. [85]
    All of this took place before the judge told the jury that to constitute a choking as defined, it was necessary that breath be restricted.  Untutored, there is no reason the jury would have listened to the evidence with this legal requirement in mind.
86. [86]
    There were other difficulties.  The complainant used the word “choking” in relation to the second occasion in her evidence; so did the prosecutor in his address.  Difficult questions arose as to whether the photographs tendered by the Crown could be said to show marks in relation to the first choking only.  Lastly, the audiovisual recording made by the appellant refers time and again to choking, but not necessarily to the choking which was the subject of count 2, as opposed to uncharged acts of choking of which the complainant gave evidence.
87. [87]
    In these circumstances I think it was necessary for the trial judge to make it clear to the jury that although there was evidence that the appellant had choked the complainant, there was only one charged act of choking.  He needed to factually define what that was; tell them of the legal requirement as to restriction of breath; remind them what the evidence was in relation to both the occasions the complainant had given evidence about, and warn them that, in considering evidence which bore on the choking offence, such as the photographs and the references in the audiovisual recording, they had to be sure that the evidence supported the charged, rather than uncharged, act of choking.
88. [88]
    In discussing directions to be given to the jury, counsel for the defence raised the point which is now raised on appeal.  He asked the judge to tell the jury that they needed to be satisfied about the same act if they were to convict the appellant of the charged act – t 2-87.  As discussed, a little more was needed by way of direction than that.  In response, counsel for the prosecution said that there was only evidence of restriction of breath in relation to one of the chokings, that was count 2 – t 2-88.  The issue was raised a second time in discussions between the trial judge and counsel at the end of evidence.  Again the prosecutor submitted that the second choking technically was not an uncharged act because there was no evidence of any restriction of breathing.  Defence counsel accepted that and accepted that it was just part of the narrative, so that he withdrew from what he had proposed the day before – t 3-32-33.  Consistently with that, no complaint was made by trial counsel for the appellant when the judge did not give the type of instruction now contended for.
89. [89]
    The prosecutor should have joined in the defence request to ensure that the charged act and the evidence about it was properly explained to the jury.  While defence counsel at trial acquiesced in what was said to the jury, I cannot see that this overcomes the difficulty that what was said was inadequate, and that in the circumstances just discussed, a fulsome direction was needed for the jury to return a safe and satisfactory verdict.  In my view then, ground 3 is made out and the verdict on count 2 must be set aside.

Orders

90. [90]
    While s 668E(2) of the Criminal Code provides that this Court shall in general enter a verdict of acquittal if it sets aside a conviction, very often when a conviction is set aside because there has been a difficulty with directions a new trial is ordered.^[18]  However, as discussed in Rabey v R,^[19] there can be other considerations, which mean that a new trial is not ordered.  As Wickham J said in that case, “Once justice has miscarried it is not always easy to maintain the scales in precise equipoise on a second occasion”.  In considering a similar provision the High Court has said:

“The power to grant a new trial is a discretionary one and in deciding whether to exercise it the court which has quashed the conviction must decide whether the interests of justice require a new trial to be had. In so deciding, the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, for if it was not it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case. In the present case, the admissible evidence given at the trial satisfies this test. Then the court must take into account any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused. …”^[20]

91. [91]
    Here it seems to me that there could not fairly be another trial, because the choking was so bound up in all the other alleged offending, that to lead evidence only of the choking would produce a very artificial narrative, which is unlikely to be convincing, even if it were possible to achieve.  On the other hand, there are great difficulties in giving the full context in which the choking was said to have occurred to the jury, for to do so would be to introduce evidence of matters which significantly prejudiced the jury against the appellant and otherwise complicate the trial.  Furthermore, while this Court has not concluded that there was insufficient evidence for a jury to convict on count 2, there are real difficulties with the Crown’s evidence in that there seems nothing which ties the bruising on the complainant’s neck, or her allegations of choking in the audiovisual recording, to the charged act of choking, rather than the subsequent act.
92. [92]
    In my view, the verdict on count 2 ought to be set aside and a verdict of acquittal entered in substitution therefore.  The orders I propose are that:

1. The appeal is allowed.
2. The verdict of guilty on count 2 be set aside.
3. A verdict of acquittal is entered on count 2.

93. [93]
    BODDICE JA:  I agree, for the reasons given by Dalton JA, that the appeal be allowed and the verdict of guilty on count 2 be set aside.
94. [94]
    I do not, however, agree that a verdict of acquittal be entered on count 2.  In circumstances where this Court has concluded that the verdict of the jury was not unreasonable and the verdict is being set aside on the basis that the directions given to the jury caused a miscarriage of justice, I would not exercise the discretion not to order a new trial and enter a verdict of acquittal in respect of that count.
95. [95]
    I accept that the factors identified by Dalton JA, at [91], favour a conclusion that any new trial would be beset with difficulties.  However, matters as to whether the evidence can be led fairly, whilst giving the appellant the due benefit of his acquittals of the counts of rape, are properly to be addressed by Director of Public Prosecutions, in determining whether it is in the public interest to proceed with a further trial of the count of choking.
96. [96]
    I would order:

1. The appeal is allowed.

2. The verdict of guilty on count 2 is set aside.
3. A new trial is ordered.