R v WCC[2024] QCA 88

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  On 16 November 2023, after a four-day trial before a jury, the appellant was convicted of one count of sexual assault and three counts of rape.
2. [2]
   The appellant had been charged on an indictment with five counts:

   1. count 1: sexual assault by touching the complainant’s breasts;
   2. counts 2 and 3: rape by penetrating the complainant’s vagina with his finger;
   3. count 4: rape by penetrating the complainant’s mouth with his penis;^[1] and
   4. count 5: rape by penetrating the complainant’s vagina with his penis.
3. [3]
   The charges arose out of events at a birthday party held for XYZ, at her house. XYZ was a friend and former work colleague of the complainant.  The appellant was XYZ’s partner.  The complainant became drunk and eventually went to bed in a room at XYZ’s house.  The appellant entered the room and touched her under the sheets.  He admitted he touched her “down there” but denied any other form of touching or sexual acts.  The complainant said he committed the acts in counts 1-5.
4. [4]
   Leave was granted to amend the grounds of appeal to raise:

   1. Ground 1: a miscarriage of justice occurred because the trial judge failed to direct the jury that they must acquit the appellant if they accepted that the appellant’s account in the pre-text telephone call, or his account to his partner XYZ, “might be true”;
   2. Ground 2: a miscarriage of justice occurred because the trial judge failed to adequately direct the jury about the use that could be made of the evidence of the pre-text telephone call;
   3. Ground 3: the verdicts on counts 3 and 5 were unreasonable because they were inconsistent with the acquittal on count 4; and
   4. Ground 4: the verdict on count 5 was unreasonable or cannot be supported having regard to the evidence.

Background

5. [5]
   The appellant’s appeal outline set out a non-contested summary of the evidence at the trial.  What follows draws upon that summary.
6. [6]
   The complainant was a work colleague of the appellant and his partner, XYZ.  On 29 August 2020, the complainant attended XYZ’s birthday party, held at their house.
7. [7]
   During the night, the complainant consumed a considerable amount of alcohol and became intoxicated.^[2]  She went for a swim in the spa, along with other women at the party, including XYZ.  As she had no swimmers she stripped to her underwear before she got in.  She was wearing a black matching set of bra and underwear.  She said:^[3]

“[The appellant] was in the kitchen, I’ve gone into the kitchen … to see [the appellant] who had laid out some shots. He had made a comment … and suggested … I looked okay and motioned his hands to me and kind of, like, a “wow”. … I awkwardly laughed it off but we had a shot together and … it was fine – just took it … as a nice compliment. … I think he stayed around the kitchen … and I’ve walked away … to get into the spa to join the other ladies.”

8. [8]
   Feeling sick, she got out of a spa bath and vomited in the bushes.  She then returned to the spa but felt unwell, so she went to have a shower.  The appellant handed her a towel.
9. [9]
   She removed her wet underwear and had a shower.  She had to sit while doing so as she felt ready to pass out.  She then went to the spare bedroom, intending to stay the night.  Once in the bedroom she closed the door, dropped her towel and laid down under a sheet.^[4]
10. [10]
    Feeling sick, the complainant wrapped a sheet around her, left the spare bedroom, walked down the hallway to a sink, and vomited.  The appellant gave her a bucket to use if she felt sick and then ushered her back to the spare bedroom.^[5]
11. [11]
    The complainant said what happened then:^[6]

“So he’s ushered me back into the bedroom. … I went to lay down in the bed. I kept the sheet around me because … he stayed in the bedroom [indistinct] … I laid down in the bedroom and I just –  kind of, shifted myself to – kind of, get a little bit comfortable but whilst in the situation he stayed standing by the bedside and roughly where – probably the towel was when I first dropped it, from the first time that I got into the bedroom. And I was laying down and I just went to shut my eyes and he decided – I didn’t ask him to but he’s decided to help move the sheet, I guess to help me be more comfortable.  … he started manoeuvring the sheet around to pull away and I guess across from out under me. And in that process he’s been moving the sheet, I’ve started to be exposed because I was still naked underneath the sheet and … in the process where I’ve been trying to keep the sheet up, within a short time he’s placed his right hand on my leg and started feeling up my leg and across my body and across my chest which was starting to be exposed and then he’s continued on to move his hands – his hand down …”

12. [12]
    She said she could not remember if the first bit of touching was above or below the sheet, but “the second bit was definitely below”.^[7]  When the appellant touched her breasts it was “skin to skin”.^[8]
13. [13]
    Whilst rubbing her vaginal area, the appellant asked the complainant if he should stop.  The complainant said:^[9]

“I felt quiet and as if I was out of my body. I didn’t feel like I was in control. I tried to ask where [XYZ] was and … I said that … I shouldn’t be there. I should be at my friends’ house and … when he was rubbing that, … he asked if he should stop and I was silent, it wasn’t consent but I was silent and … he said a couple of times before and he said a couple of times around that point as he … was touching there “you’re not going to tell anyone”. It … wasn’t aggressive. It wasn’t loud. It was just a “you’re not going to tell anyone”. And from that point was then when … he was still using his fingers and he stopped and he left the room.”

14. [14]
    When the appellant said those things his voice was soft, not aggressive.^[10]  The rubbing conduct described above was not charged as an offence.
15. [15]
    The appellant then touched her breasts using the flat of his hand: count 1.  He penetrated her vagina with his fingers: count 2.  He left the room and she fell asleep.
16. [16]
    The appellant returned to the room and again started touching the complainant, putting his hand on her leg and rubbing her vagina.^[11]  This conduct was not charged as an offence.
17. [17]
    The complainant could see that the appellant was wearing the same clothes he had on earlier in the night, namely a blue polo and blue work pants.^[12]
18. [18]
    The next three alleged offences (counts 3-5) occurred one after the other.  The appellant penetrated the complainant’s vagina with his fingers.^[13]  Then the appellant penetrated the complainant’s mouth with his penis.^[14]  Then the appellant penetrated the complainant’s vagina with his penis.^[15]
19. [19]
    The complainant described the acts of penile penetration as follows:^[16]

“When … I faced him, he was clothed but he did have his penis out. He’s put his penis in my mouth. I’ve turned away and I’ve turned into the middle of the bed and I’ve tried to shift myself across. At that point he’s put his penis in my vagina and he thrusted and … so as I was turning, I’ve got … my left leg on the bottom and then my right leg on top. My … right leg has fallen off the bed as I was shifting towards the middle of the bed and trying to move across. And … as I’ve picked my leg back off the bed and gone towards the middle, he’s thrusted again and then … he’s stopped and then he’s left the room and I’ve passed out.”

20. [20]
    The complainant was asked about her leg coming off the bed and where the appellant was at that time:^[17]

“And you said that one of your legs then came off the bed. How did that occur?---As I was moving into the middle, I have slipped on the edge of the bed and that has gone down, and then I have picked that back up to move into the middle again.

And at that point are you able to say how the defendant was positioned?---He was still standing next to the bed.”

21. [21]
    She said that the appellant’s penis was in her vagina only for “two to three thrusts”, and she did not believe he ejaculated.^[18]
22. [22]
    In the morning the complainant spoke to XYZ but did not tell her what happened.^[19]  Later that morning she met her former boyfriend but did not tell him anything.^[20]  She met her friends, DAN and TOH, and made disclosures to them as to what happened.^[21]
23. [23]
    The complainant also had a phone call with XYZ late in the day and made some disclosures to her.^[22]
24. [24]
    The following day the complainant made an appointment with a doctor, whom she saw on Tuesday 1 September, three days after the party.^[23]  She then spoke to police on 17 September 2020.
25. [25]
    In cross-examination the following points emerged:

    1. the complainant agreed that in the phone call with XYZ, XYZ asked what was wrong, and the complainant replied, “[The appellant] was inappropriate with me last night”;^[24]
    2. the complainant could recall that she told XYZ “a couple of things”, but could not recall the details of what XYZ said;^[25]
    3. she agreed that XYZ wanted to know where she was touched, and she responded, “Down there”;^[26]
    4. she denied, when it was put to her, that she did not tell XYZ that the appellant had put his penis in her mouth;^[27]
    5. it was put to her that when she saw the doctor she denied there was oral or anal penetration; she responded that she told the doctor “where things went”, “in my vagina and I wanted to be tested for it”; it was put that she “specifically denied” oral penetration, to which she said, “I didn’t specifically… deny it”;^[28]
    6. she reiterated that she told the doctor she had been “sexually assaulted”:^[29]
    7. she denied telling the doctor that the appellant undressed her, saying she did not have “any clothes to undress”;^[30]
    8. she maintained that she had told XYZ that the appellant had inserted his penis in her;^[31]
    9. it was put to her that the only reason she tried to record a phone call with XYZ after seeing the police was to bolster her case that she had been raped; she answered, “No. I know what happened. I didn’t need her to confirm it for me.”;^[32]
    10. various texts with XYZ were shown to her, in which the complainant asserted that the appellant had put his penis inside her, and XYZ responded to the effect that that was “definitely not at all what I know to have happened…”;^[33]
    11. it was put to her that XYZ denied that she had been told by the complainant on 30 August 2020, that the appellant had inserted his penis; she responded, “Possibly … probably. She didn’t want to believe it.”;^[34]
    12. she explained her comment that she felt an out of body experience; it was a light, dizzy feeling where she felt sick, out of control and just freezing;^[35]
    13. when the complainant had stripped to her black underwear to go in the spa, the appellant’s comment about her appearance was a complimentary reference to the way she looked in her lingerie;^[36]
    14. it was put to her that when the appellant got a bucket for her, she was still in the bedroom, never having left it as she said, and she was naked on the bed; she denied those propositions;^[37]
    15. it was put to her that the appellant, while standing beside the bed, “touched your vagina and put his hand on your vagina”, and asked whether he should stop; the complainant denied she was naked on the bed, and said that the sequence was wrong;^[38]
    16. it was put that the complainant then “knocked his hand off” and the appellant apologised and left; she denied that was how it happened;^[39] and
    17. it was put that at no time did the appellant insert his fingers into her vagina, or insert his penis into her mouth or vagina; she denied those propositions.^[40]
26. [26]
    In re-examination she explained that the reason why she did not yell out, call for help or tell the appellant to get out was because she “was just frozen”.^[41]

Preliminary complaint evidence

27. [27]
    This evidence came from TOH, DAN, the doctor, and Senior Constable Rizzo.
28. [28]
    TOH and DAN testified that they met the complainant, at her request, on the afternoon of 30 August 2020, at which time the complainant told them that the appellant touched her on the vagina and that there had been penile penetration of her vagina.^[42]
29. [29]
    TOH’s account was that the complainant told her: she went to bed with no clothes on; got up to throw up; wrapped herself in a sheet; was assisted back to the room by the appellant who gave her a bucket; the sheet became unravelled when she got back into bed and that was when the appellant touched her inappropriately while saying something like, “Don’t tell anyone”; he left but came back and touched her again; as she turned away the appellant inserted his penis in her vagina and thrusted a couple of times; her leg had fallen off the bed.^[43]
30. [30]
    In cross-examination TOH agreed she was told that the complainant had pushed his hand away.^[44]
31. [31]
    DAN’s account was that she was told: the complainant was assisted after her shower by the appellant; she got into bed and the appellant removed her towel; she was naked under the cover; the appellant touched her vagina and there was penetration of her vagina by the appellant’s penis.^[45]
32. [32]
    On 1 September 2020, the complainant consulted her doctor and told her that:^[46] she went to lie down because she was drunk; the appellant entered the room and touched her; she was too drunk to push him away; he left the room but came back shortly thereafter, and undressed and raped her vaginally in an assault that lasted a few seconds.^[47]
33. [33]
    In cross-examination the doctor agreed that she did not take any oral swabs because the complainant denied any oral penetration.^[48]
34. [34]
    On 17 September 2020, the complainant spoke to SC Rizzo, and told her that:^[49] she had been sexually assaulted; the appellant helped her into bed; she was naked under the sheet; the appellant rubbed her legs, stomach and then vagina and across her chest; he inserted his fingers into her vagina; she asked where was XYZ; he said “You’re not going to tell anyone”; he placed his penis into her mouth; her left leg fell off the bed as she tried to roll away;  he placed his penis into her vagina from behind and thrusted a couple of times; after that, the appellant stopped and left the room but returned and placed his erect penis into her mouth.^[50]

Other witnesses

35. [35]
    Evidence was led from four attendees at the party.  Their evidence was to the effect that: people were drinking; people got into the spa; they did not see any sexual advances made by the appellant towards anyone; those that saw the complainant the next morning made observations as to how she looked and acted.

Police evidence

36. [36]
    Evidence was called from police as to aspects of the investigation, including that it was not viable to look for DNA evidence, and the circumstances of the pre-text call between the complainant and the appellant.

Admissions

37. [37]
    Formal admissions were made as to the text messages exchanged between the appellant and XYZ on 30 and 31 August 2020.  The relevant texts are:

30/08/2020

XYZ: Did you go in there with the intention of doing that

Appellant: No never not in a million years

XYZ: Why did you go in the room

Appellant: I’m sooooo so sorry for hurting you

Appellant: See if she was ok been sick

XYZ: I’m not sure what you mean how were you seeing if she was ok

Appellant: Because she was throwing up

XYZ: I just don’t understand

Appellant: I know I fell like scum

…

XYZ: I just don’t understand

…

XYZ: I wish you hadn’t gone in there.

Appellant: Me 2 something I will have ta live with

XYZ: I’m so sad

Appellant: I know u are I’m so sorry

XYZ: Why didn’t you tell me this morning.

Appellant: I was ashamed I felt dirty and I hate my self for it

…

XYZ: How drunk were you

Appellant: I’d had a lot but that’s no excuse

XYZ: No it’s not I’m just trying to understand why

XYZ: Do you like her

Appellant: As a friend yer that’s it

…

31/08/2020

Appellant: Bet she hates me now

XYZ: Who

Appellant: [XYZ’s friend in Sydney]

XYZ: No

XYZ: I was surprised at her reaction

Appellant: Really I wouldn’t blame her

XYZ: I can understand why she stayed here and had breaky with me sending photos to my phone? She seemed completely fine in the morning.

XYZ:  Can’t*

Appellant: I don’t know

XYZ: Nor can I understand why you’d be walking around someone’s house naked.

Appellant: I agree

The pre-text call

38. [38]
    The pre-text call was played for the jury.  Relevant features of it are:^[51]

    1. the appellant apologised saying “I’m just sorry it happened”;^[52]
    2. when asked if he remembered what happened he said a “bit of it”; he was asked what he remembered and said, “… the touching you and … you pushed my hand away and then I left”;^[53]
    3. he said he could not remember anything else; the complainant asked if he remembered “you actually put your dick inside of me”, and he answered, “No. I don’t, I didn’t do that”;^[54]
    4. this exchange followed the complainant asking if he remembered particular things:^[55]

“COM: You’re saying you don’t even remember everything that happened though.

APP: No.

COM: Hey?

APP: I don’t no.

COM: I remember it, I remember you touching my leg, I remember you touching my vagina, I remember you putting your fingers in my vagina, I remember as I rolled over you put your, you put your penis in me.

APP: I don’t remember that though. I remember touching you and yeah.”;

5. the appellant said he had tried to apologise:^[56]

“…I tried to message you to say I was sorry a couple days after it to you know wanted to apologise, I, like I’ve never done anything like that before, I regret it, doing it, I just felt sick for doing it”;

6. the appellant described the interaction as a “drunken lapse of judgment”.^[57]

The defence case — evidence of XYZ

39. [39]
    XYZ testified in the defence case.  She described the events of the party, and that the women who went into the spa were wearing their “Bra and undies”.^[58]  Later she had a shower, went and got her dogs, saw the appellant in the kitchen, and went to bed.^[59]  She heard the appellant asking someone if they wanted a glass of water.^[60]
40. [40]
    She saw the complainant in the morning.  The complainant said that the appellant had brought her the bucket in the bedroom.  The complainant seemed normal although a bit tired.  The complainant sent some photos of the party to XYZ.^[61]
41. [41]
    She spoke to the complainant during the afternoon of 30 August 2020.  The complainant was “really upset” and when asked if there was anything wrong, the complainant answered that it was the appellant.  Pressed to explain, the complainant told her that the appellant had been “inappropriate last night” and had touched her “Down there”.^[62]
42. [42]
    The complainant did not say anything about penetration by a penis.  The complainant kept saying “sorry”.^[63]
43. [43]
    XYZ said that she confronted the appellant about what the complainant had said, and that he “confirmed what she said”, and that he had “touched her down there”.^[64]
44. [44]
    In cross-examination XYZ denied that she had been told more by the complainant.^[65]  However, when pressed to explain the source of the text comment by her about the complainant walking around the house naked, XYZ said “I don’t remember”.^[66]  She then said, “I was told she was naked”, and then “I was told she was walking around the house with a towel or a sheet on her”.^[67]
45. [45]
    XYZ was then pressed to say what she knew about the incident.  She said she was told:^[68] he had entered the bedroom and the complainant had no clothes on; he had taken a bucket into the bedroom; the complainant asked where XYZ was, and he responded, “In bed”.  She could not say which part came from the appellant and which from the complainant.^[69]
46. [46]
    The appellant did not testify at the trial.

Ground 3 — inconsistent verdicts

47. [47]
    This ground is concerned with the contention that the verdicts on counts 3 and 5 are inconsistent with the acquittal on count 4.
48. [48]
    In R v CX^[70] this Court reiterated the principles applicable to the contention advanced on this ground:

3. “[33]
   A number of matters of principle have been settled about the assessment by appellate courts of claims of inconsistent verdicts by a jury.

3. 1.
   Where inconsistency is alleged as to verdicts of acquittal and conviction on different counts, the onus is on the party alleging that inconsistency to persuade an appellate court that the different verdicts are an affront to logic and commonsense which is unacceptable, and which strongly suggests a compromise in the performance of the jury’s duty, or confusion in the minds of the jury, or a misunderstanding of their function, or uncertainty about the legal difference between specific offences, or a lack of clarity in the instruction on the applicable law. Where that inconsistency rises to the point that the appellate court considers that intervention is necessary to prevent possible injustice, the relevant conviction will be set aside.

3. 2.
   Whether the verdicts are inconsistent as so described is a test of logic and reasonableness; has the party alleging inconsistency satisfied the court that no reasonable jury, who had applied their minds properly to the facts in the case, could have arrived at the various verdicts?

3. 3.
   Respect for the function of the jury requires appellate courts to be reluctant to accept submissions that verdicts are inconsistent in the sense described, and if there is a proper way by which an appellate court can reconcile the verdicts, allowing the court to conclude that the jury performed their functions as required, that conclusion will generally be accepted. It is not the role of an appellate court to substitute its opinion of the facts for one which was open to the jury, if there is some evidence to support the verdict alleged to be inconsistent.

3. 4.
   The view may properly be taken in a criminal trial that different verdicts, claimed to be inconsistent, reveal only that the jury followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count, and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, an appellate court can conclude that a jury took a merciful view of the facts on one or more counts, a function which is open to a jury.

3. 5.
   Verdicts of guilty and of acquittal will show the required inconsistency where a verdict of acquittal necessarily demonstrates that the jury did not accept evidence which they had to accept before they could bring in the verdict or verdicts of guilty which they did; or when it follows that when acquitting on a particular count, the jury must have accepted evidence that required them to acquit on a count or counts on which they convicted the defendant.”

49. [49]
    More recently, in R v Pollard,^[71] this Court, citing MacKenzie v The Queen,^[72] said:

3. “[20]
   The appellant submits that the jury’s guilty verdict on count 2 was unreasonable having regard to the acquittals on counts 1 and 3. Differing verdicts in trials of multiple counts are to be expected. Juries are warned about the dangers of mere propensity reasoning and they take those warnings seriously so that it is common, in cases of multi-count indictments of sex offences in particular, for there to be some verdicts of guilty and some acquittals. To succeed on this ground the appellant must demonstrate, by reference to the evidence, that the different verdicts are irrational, not that they might be. Sometimes, in a case that depends largely upon the evidence of a single complainant, this can be shown by demonstrating that there is no qualitative difference that the complainant has given about each distinct count yet the jury has acquitted on some but not on others. A successful demonstration would show that, having regard to the evidence given, there can be no rational distinction made on the question of guilt. The logic is, then, that, having entertained a doubt on one of the counts, there being nothing to distinguish the cogency of the evidence on each count, the jury should have entertained the same doubt on all counts.”

50. [50]
    In order to succeed on this ground the appellant must demonstrate that the verdicts are irrational.  In my view that cannot be done.  There is an obvious qualitative difference in the evidence concerning count 4 (oral rape) from that for counts 3 and 5 (vaginal rape):

    1. no complaint of oral rape was mentioned to TOH, DAN or the doctor; and
    2. on one view of the pre-text call, the complainant did not mention oral rape in her allegations to the appellant.
51. [51]
    That may well have caused doubt in the jury’s mind as to the complainant’s reliability on that count. This ground fails.

Grounds 1 and 2

52. [52]
    These grounds are concerned with the directions given to the jury in respect of the pretext call and the evidence of XYZ.
53. [53]
    The central contention was that a Liberato style direction should have been given in respect of the appellant’s version of events as revealed in the pretext call and in XYZ’s evidence.  It was submitted that the direction which should have been given was to this effect:^[73]

“(i) if you believe the accused’s account (as per the pre-text call, or to his partner) you must acquit; (ii) if you do not accept that account but you consider that it might be true, you must acquit; and (iii) if you do not believe the accused’s account you should simply put that account to one side. The question remains: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?”

The trial judge’s directions

54. [54]
    In the course of the summing up the trial judge came to the evidence given by XYZ, saying:^[74]

“Moving on to a slightly different topic, and that relates to the fact that you heard yesterday evidence given on behalf of the Defence by [XYZ], as well as the fact that [the appellant] himself has not elected to give evidence himself. Now, you already know that, in a trial, all defendants – all people accused of crimes are presumed innocent and defendants, including [the appellant], do not have to call or give evidence on his behalf or produce any other evidence. That there was evidence given by [XYZ] so, therefore, the defendant chose to call [XYZ] – does not mean that [the appellant] himself has assumed a responsibility of proving his innocence. The burden of proof has not shifted to him.

His evidence – that is, the evidence given by [XYZ] – is added to the evidence called for the Prosecution. As I have said, it is the Prosecution who has the burden of proving each of the elements of the offence beyond reasonable doubt and it is upon the whole of the evidence that you must be satisfied beyond a reasonable doubt that the Prosecution has proved the case before you can convict the defendant.

The proper approach is to understand that the Prosecution case depends entirely upon you accepting the evidence of the complainant, … was true and accurate beyond reasonable doubt, despite the sworn evidence given yesterday by [XYZ]. So the Prosecution must prove beyond reasonable doubt the elements of the offence, and if you are of the view that [XYZ’s] evidence was to cause reasonable doubt about an element, then you would find [the appellant] not guilty of the particular offence that you are considering. So you would, therefore, acquit.

You must not jump from – however, from deciding not to accept [XYZ] so much’s evidence to an automatic conclusion of guilt. Instead, go back to the evidence which you accept and ask yourself if, on the basis of that evidence, the Prosecution has proved that the defendant is guilty beyond a reasonable doubt.”

55. [55]
    The appellant accepted that the directions in the last three paragraphs quoted above amounted to a Liberato style direction in relation to the evidence of XYZ.  However, the direction was said to be deficient in that:

    1. it failed to direct that if the jury thought the appellant’s denials of the allegations in his account to XYZ were true or might be true, then the appellant was entitled to be acquitted on a proper application of the onus of proof; and
    2. it did not refer to the appellant’s account during the pre-text call which also called for a Liberato direction.
56. [56]
    The text messages between XYZ and the appellant were put into evidence before the end of the Crown case, by an admissions document, Exhibit 11.  The document was put on the visualizer for the jury, read out,^[75] and the jury had a copy in the jury room.
57. [57]
    The evidence of XYZ was the last that the jury heard, the day before addresses.  Her evidence consisted of several parts:

    1. general evidence of her relationship to the appellant, her friendship with the complainant, and what happened at the party;
    2. her interaction with the complainant the next morning;
    3. her phone conversation with the complainant that afternoon, where she was told that the appellant had acted inappropriately and touched her “down there”;
    4. her confronting the appellant when he confirmed what the complainant said;
    5. her explanation of her understanding as to what happened at the time she exchanged the text messages (in Exhibit 11) with the appellant; this was done by reference to Exhibit 11;^[76] her understanding, she said, came from the complainant and the appellant and it was that he went into the bedroom and touched her “down there”;^[77] and
    6. the information she had from the appellant was that: (i) he had entered the bedroom; (ii) the complainant had no clothes on at some point; (iii) while he was in the room the complainant asked where XYZ was, and he said “In bed”;^[78] and (iv) he touched her down there.
58. [58]
    In so far as her evidence touching on what happened, there was a unity between her oral evidence, her text messages with the appellant, and what the appellant said in the pre-text call.
59. [59]
    Therefore, in my view, when the trial judge referred to “His evidence – that is, the evidence given by [XYZ]” and “the sworn evidence given yesterday by [XYZ]” in the passage quoted in paragraph [54] above, the jury would have understood that to refer to the evidence given as to the appellant’s version of events.
60. [60]
    Further, the jury were directed that “if you are of the view that [XYZ’s] evidence was to cause reasonable doubt about an element, then you would find [the appellant] not guilty of the particular offence that you are considering”.  In my view that was sufficient to warn the jury that if the evidence as to the appellant’s version of events was such as to lead to a doubt, he was entitled to the benefit of that doubt and a finding of not guilty.
61. [61]
    The directions were then concerned with the information sheet^[79] given to the jury and the various elements that the jury had to consider.  Then, in the context of discussing the defence of mistake of fact, the trial judge reminded the jury of the defence case:^[80]

“[The appellant’s] case is that, although it is common ground that he touched [the complainant] on the vagina, he did not commit any offence as alleged by the Prosecution. More particularly, he says the Prosecution has not established beyond reasonable doubt the elements of each offence and, even if the Prosecution has, the defence of mistake of fact has not been made out. In other words, he says the Prosecution has not proven beyond reasonable doubt the incidents occurred in the manner alleged by the complainant and/or that the Prosecution has not proven beyond reasonable doubt that he did not honestly and reasonably believe that [the complainant] was consenting.”

62. [62]
    The trial judge then turned to the pre-text call:^[81]

“Can I move on to, before the lunch arrives, to – let me deal with the pretext call, please. The Prosecution relies on the phone call between [the complainant] and [the appellant] as supporting its case against him, and you will have that recording with you in the jury room and you can play it as often as you like. It is a matter for you whether, in fact, any confession or admission about the alleged offending was made in that call. And, just a reminder, you have heard [defence counsel] indicate to you that there was – there is no admission about the charged acts, the five acts.

But before you may rely upon the evidence given in the pretext call, you must be satisfied of three things. The first is that [the appellant] did give answers that are attributed to him and that he was thereby confessing to the offence or offences, and that they were true and accurate. So, in other words, it is up to you to decide three things. The first is whether you can be satisfied that anything was said about the actual charge for you to determine, that is, the offence of sexual assault and/or – as it is particularised – and/or rape.

The second thing that you need to decide, members of the jury, is whether it, in fact, indicates guilt for the particular offence or offences. And the third is whether it was, in fact, true. Because if you are not satisfied of each of those matters, you cannot rely on the statements made by [the appellant] as going to prove his guilt. Remember, too, it is accepted that, on the Defence case, [the appellant] was apologising to [the complainant] for touching her on the vaginal area, which is nothing – which has nothing to do whatever to the five specific charges for you to consider.”

63. [63]
    In fact, as was accepted by the appellant on this appeal, the last part of the last sentence (“which has nothing to do whatever to the five specific charges for you to consider”) was an error in the appellant’s favour.  That is because the prosecutor relied on the touching as evidence of the appellant’s sexual interest in the complainant: see paragraph [67] below.
64. [64]
    However, there is another reason why that part of the summing up was in the appellant’s favour.  The defence case was run on the basis that when the appellant admitted he had touched the complainant “down there”, that referred to the complainant’s vagina: see paragraph [68] below.  Two things follow from that acceptance.  The first is that the touching was not as to count 1, which was touching on the breasts.  That does not meet the description “down there” as deployed by the defence.  The second is that the admitted touching was not on the vulva, i.e. the outside of the complainant’s genital area.  Defence counsel cannot be taken to be anatomically naive when making that admission.  Touching on the vagina, an internal part of the anatomy, could have been seen by the jury as relevant to counts 2 and 3, which involved insertion of fingers into the vagina.
65. [65]
    The trial judge then moved to a separate aspect of the evidence when he said:^[82]

“Evidence was also given yesterday by [XYZ] that when she confronted [the appellant] about what she discussed with the complainant, she recalled [the appellant] telling her that he “touched her down there”. Now, there is nothing to do with penetration or anything of the sort. Reasonably, if you accept the defendant’s version given in the pretext call and/or what he said to [XYZ] about his conduct, then you would find him not guilty of the relevant charge.”

66. [66]
    The appellant’s contention was that the highlighted part in the last paragraph above effectively reversed the onus of proof and gave rise to a risk that the jury might have thought that its task was to choose between the complainant’s account and that of the appellant.  The submission was:^[83]

“By not explaining that the direction was specifically referrable to the application of the onus of proof, the jury may well have been left with the impression that it was only if the Appellant’s version in the pre-text call “and/or” what he said to [XYZ] about his conduct was accepted by the jury that he was entitled to be acquitted of the charges.

This risk was exacerbated because the trial Judge had, immediately before that, wrongly told the jury that there were admissions to the charged acts made by the Appellant during the pre-text call which could, potentially, be used against the Appellant – see ground 2. Further, this later direction undermined whatever force the Liberato-style direction may have had in relation to [XYZ’s] evidence.”

67. [67]
    There was no case made by the prosecution that the pre-text call contained admissions as to the charged acts.  What the prosecutor did tell the jury was that there were admissions or acknowledgments in this way:

    1. an acknowledgment by the appellant in the text messages that he was drunk at the time;^[84]
    2. an admission during the pre-text call that he was drunk at the time;^[85]
    3. admissions that the appellant went to the complainant’s room and touched her sexually;^[86]
    4. that amounted to admissions that the appellant had a sexual interest in the complainant;^[87]
    5. an admission in the text messages that he was in the complainant’s room because she was sick;^[88]
    6. the appellant acknowledged that he went into the room and touched the complainant sexually, without her consent, as he knew;^[89]
    7. the appellant admitted sexual touching in the room;^[90]
    8. it was the complainant’s complaint to XYZ that brought about the appellant’s admissions;^[91] and
    9. admissions were made by the appellant as to his sexual interest in the complainant.^[92]
68. [68]
    Defence counsel did not suggest that there were admissions as to the charged acts in the pre-text call.  To the contrary, he told the jury that:

    1. the appellant made “admissions” to XYZ in that he “readily accepted that he touched the complainant’s vagina”, but “That’s not what he’s charged with”, and “that is not a charge”, and “He is not charged with touching of the vagina”;^[93] and
    2. there was no doubt that the appellant made “admissions that he touched the girl on the vagina”; that had been “admitted” to the appellant’s wife in the text messages, and XYZ had given evidence that that admission had been made; and, in the pre-text call the appellant “made admissions, and importantly, he said that she pushed his hand away”.^[94]
69. [69]
    The appellant’s evidence in the pre-text call, that he remembered that the complainant “pushed my hand away”,^[95] is significant.  In the context of the charged acts, and the defence of mistake of fact that was left to the jury, that is some evidence that the jury might consider as going to consent and absence of mistake of fact.  True it is, that in the pre-text call the appellant said he did not insert his penis,^[96] but counts 1, 2 and 3 did not have that as an element.
70. [70]
    It is also true that the appellant only admitted touching the complainant in the pre-text call, but the jury were not compelled to conclude that the “pushed my hand away” comment was confined to that.  After all, the appellant said in the pre-text call, when asked if he remembered what happened, that he remembered “A bit of it”,^[97] and that he did not remember everything that happened.^[98]
71. [71]
    The prosecutor addressed on the basis that the way the appellant described the events in the pre-text call, namely as a drunken lapse of judgment, pointed to lack of reasonable mistake as to consent.^[99]  If the jury accepted that the complainant pushed his hand away, they could reason to the same effect.  But further, in my view, that evidence could go to a conclusion as to lack of consent generally.
72. [72]
    In my view, that explains why the trial judge directed the jury as he did in the first three paragraphs quoted in paragraph [62] above.
73. [73]
    A Liberato direction is not required in every case.  As the High Court said in De Silva v The Queen:^[100]

“The Liberato direction serves to clarify and reinforce directions on the onus and standard of proof in a case in which there is a risk that the jury may be left with the impression that the evidence on which the accused relies will only give rise to a reasonable doubt if they believe it to be truthful, or that a preference for the evidence of the complainant suffices to establish guilt. Subject to statute, a Liberato direction should be given in a case in which the trial judge perceives that there is a real risk that the jury might view their role in this way.”

74. [74]
    To the same effect, in R v SDE^[101] this Court adopted what was said by Buss P in RMD v Western Australia:^[102]

“It is well-established that a Liberato direction is not required as a matter of law. … Such a direction should be given, however, if, in the circumstances of the particular case, there is a real (as distinct from a fanciful) risk that the jury may otherwise have the impression that disbelief of an accused’s evidence, or preference for a complainant’s evidence, means that the State has proved its case beyond reasonable doubt.”

75. [75]
    The impugned passage of the summing up starts with the jury being reminded that the prosecution relied on the pre-text call “as supporting its case against him”, i.e. on counts 1-5.  As explained in paragraph [67] above, that entailed three relevant components:

    1. that the appellant’s admission that he went into the bedroom and touched the complainant showed he had a sexual interest in her;
    2. that the appellant’s admission that he touched the complainant “down there”, which seemed to be accepted on all sides as referring to touching the vagina, showed he was prepared to act on that sexual interest; and
    3. the appellant knew the complainant was not consenting to being touched.
76. [76]
    The jury were then told it was a matter for them as to “whether, in fact, any confession or admission about the alleged offending was made in that call”.^[103]  The jury would have understood that to refer to counts 1-5.  No part of the prosecution case was that touching the vagina was a charged offence.
77. [77]
    The jury were then reminded that the defence case was that no admission was made “about the charged acts, the five acts”.  The jury would have clearly understood that to refer to counts 1-5.
78. [78]
    The jury were then told that they could not rely on anything said in the pre-text call “as going to prove his guilt” unless they were satisfied: (i) the appellant’s answers were about the charged acts, i.e counts 1-5; (ii) that what was said indicated guilt for any or all of counts 1-5; and (iii) that what was said was true.  Plainly the jury would have understood that the trial judge was directing that the pre-text call could not be used to find guilt on any of counts 1-5, unless those conditions were met.
79. [79]
    The jury were then told that it was “accepted that, on the Defence case, [the appellant] was apologising to [the complainant] for touching her on the vaginal area, which … has nothing to do whatever to the five specific charges for you to consider”.
80. [80]
    The trial judge then moved away from the pre-text call onto another topic, that concerned with one thing said by the appellant to XYZ, namely that he touched the complainant down there.  As will be seen this evidence was referred to by the trial judge as “what he said to [XYZ] about his conduct”.  His Honour said:^[104]

“Evidence was also given yesterday by [XYZ] that when she confronted [the appellant] about what she discussed with the complainant, she recalled [the appellant] telling her that he ‘touched her down there’. Now, there is nothing to do with penetration or anything of the sort. Reasonably, if you accept the defendant’s version given in the pretext call and/or what he said to [XYZ] about his conduct, then you would find him not guilty of the relevant charge.”

81. [81]
    The highlighted words made it clear that what was said as to the touching had nothing to do with counts 2-5, each of which had an element of penetration.
82. [82]
    It was in that context that the trial judge said the last sentence.
83. [83]
    In those circumstances, could it be said that there was a real risk, as opposed to fanciful risk, that the jury might have been under be the impression that the evidence on which the appellant relied on, would only give rise to a reasonable doubt if they believed it to be truthful.
84. [84]
    In my view, for several reasons that must be answered in the negative.
85. [85]
    First, the directions contained a Liberato direction which referred to “[XYZ’s] evidence”.  XYZ’s evidence was as to her oral conversation with the appellant as well as the text messages.  Both categories were included in the phrase “the evidence given by [XYZ]” in the passages quote in paragraph [54] above.
86. [86]
    Secondly, the Liberato direction was given only a short time before the impugned passage.  And, the impugned passage was surrounded by directions that the appellant’s touching had nothing to do with the charged acts.  I do not consider that the jury were likely to understand that as displacing what they had just been told about how to deal with the appellant’s evidence.  Rather, it was likely that they understood it as referring to the Liberato direction just given.
87. [87]
    Thirdly, the passage referred to was dealing with one aspect of the evidence in particular.  That is, it was referring to the fact that the appellant accepted he had touched the complainant on her vagina, something which was not a charged act.  He had told XYZ that in the phone call and had said that in the pre-text call.  The last sentence of the passage in paragraphs [63] and [80] above was, in context, an observation only on that aspect of the evidence.
88. [88]
    That this is so, is evident from the next part of the summing up, where the trial judge gave a specific direction as to how that evidence could be used as revealing the appellant’s sexual interest in the complainant.^[105]
89. [89]
    Fourthly, the earlier direction expressly told the jury that the burden of proof did not shift to the defence, and that the question of guilt had to be assessed upon the whole of the evidence, including that from the appellant.  Then, just before the impugned passage the jury were reminded that the burden of proof did not shift to the defence.^[106]  That part of the summing up concluded shortly thereafter with this:^[107]

“You must still decide whether, having regard to the whole of the evidence, the offences charged have been proved to your satisfaction beyond reasonable doubt.”

90. [90]
    Fifthly, it is evident that the trial judge did not perceive such a risk, nor did defence counsel, who did not seek a redirection at the end of that part of the summing up,^[108] nor at the resumption of the summing up after lunch,^[109] nor at completion of the summing up.^[110]
91. [91]
    Sixthly, having obtained such a favourable direction as to the touching issue, namely that it had nothing whatever to do with counts 1-5, one can see why defence counsel would not want any further attention directed to how to use what was said in the texts or the pre-text call.
92. [92]
    This ground fails.

Ground 4: unreasonable verdict on count 5

93. [93]
    The appellant’s case on this ground is that the complainant’s description of the act of penetration alleged in count 5 was so inadequate and lacking in probative force that, in circumstances in which the complainant acknowledged she was heavily inebriated, a jury, acting rationally, ought to have entertained a reasonable doubt about proof of the element of penetration and therefore proof of the appellant’s guilt on that count.  The submission was:^[111]

“Specifically, it is submitted that, taking the Complainant’s evidence at its highest, it was so improbable that an act of penile penetration from behind could have occurred in circumstances where: (a) the Complainant was turning away from the Appellant to the middle of the bed, (b) the Appellant remained standing at the side of the bed, and (c) the Complainant did not describe the Appellant making physical contact with any other part of the Complainant’s body immediately before or at the time of the act of penetration, that the jury ought to have entertained a reasonable doubt about the Appellant’s guilt.”

94. [94]
    The legal principles applicable where the ground in that the verdict was unreasonable are well known.  They were recently restated in Dansie v The Queen.^[112]  Dansie reaffirmed the approach set out in M v The Queen.^[113]
95. [95]
    The Court reaffirmed the relevant task as being that laid down in M v The Queen:^[114]

3. “8
   That understanding of the function to be performed by a court of criminal appeal in determining an appeal on the unreasonable verdict ground of a common form criminal appeal statute was settled by this Court in M. The reasoning in the joint judgment in that case establishes that ‘the question which the court must ask itself’ when performing that function is ‘whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’, that question being ‘one of fact which the court must decide by making its own independent assessment of the evidence’.

3. 9
   The joint judgment in M made clear that ‘in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses’. The joint judgment equally made clear how those considerations are to impact on the court’s independent assessment of the evidence. That was the point of the carefully crafted passage in which their Honours stated:

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

96. [96]
    The High Court also said:^[115]

3. 12
   The authoritative guidance to be gained from the joint judgment in M has not diminished with time. M was unanimously affirmed in MFA v The Queen and again in SKA v The Queen, where it was spelt out that the ‘test set down in M’ required a court of criminal appeal to undertake an ‘independent assessment of the evidence, both as to its sufficiency and its quality’ and that consideration of what might be labelled ‘jury’ questions does not lie beyond the scope of that assessment. Coughlan v The Queen illustrates that an independent assessment of the evidence in a case in which the evidence at trial was substantially circumstantial requires the court of criminal appeal itself ‘to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard’ and in so doing to form its own judgment as to whether ‘the prosecution has failed to exclude an inference consistent with innocence that was reasonably open’.”

97. [97]
    In Pell v The Queen^[116] the Hight Court said:

3. “39
   The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.”

98. [98]
    In R v Miller^[117] this Court said:

3. “[18]
   An appellant who contends that the verdict of the jury was unreasonable or that it was unsupported by the evidence must identify the weaknesses in the evidence and must then also demonstrate that these weaknesses reduced the probative value of the evidence in such a way that the appellate court ought to conclude that even making full allowance for the advantages enjoyed by the jury there is a significant possibility that an innocent person has been convicted. The mere identification of weaknesses in the prosecution case is not enough to sustain the ground. As Brennan J said in M v The Queen, and as criminal practitioners and trial judges know very well, it is a sad but salutary experience of counsel for the defence that the prosecution’s ‘weak point’ is often brushed aside dismissively by a jury satisfied of the honesty of the prosecution witness.”

99. [99]
    The evidence from the complainant was:

    1. she was struggling to keep her eyes open;^[118]
    2. she was facing to the right of the bed, in the direction of the appellant;^[119]
    3. he was standing beside the bed;^[120]
    4. she turned away when he put his penis in her mouth; she “turned into the middle of the bed and I’ve tried to shift myself across”;^[121]
    5. he inserted his penis when she was trying to adjust her position:^[122]

“… so as I was turning, I’ve got my leg under – my – my left leg on the bottom and then my right leg on top. My leg has – kind of, fallen – my – my right leg has fallen off the bed as I was shifting towards the middle of the bed and trying to move across. And I’ve – as I’ve picked my leg back off the bed and gone towards the middle, he’s thrusted again…”

6. the appellant did not sit in or get into the bed at all;^[123]
7. asked to explain her movement on the bed, she said:^[124]

“… I’ve gone from my back and face – and laying on my back to rolling over onto my left side and trying to put my left leg over my right … To move away. … As I was moving into the middle, I have slipped on the edge of the bed and [one of my legs] has gone down, and then I have picked that back up to move into the middle again. … He was still standing next to the bed.”

8. she was “heavily inebriated”.^[125]

100. [100]
     In my view, the contentions on this ground must be rejected.
101. [101]
     First, the complainant’s account would not necessarily be taken by the jury to chronicle fluid movements or a fluid sequence of events.  Her memory was affected by her inebriation that night, and she was struggling to keep her eyes open.  The jury could well have reasoned that she remembered bits of what happened but enough to be satisfied of guilt.
102. [102]
     Secondly, there was no necessary improbability about her account.  She described moving from a position where she was on her back, to one where she was on her side.  She was turning away from the appellant and was naked.  She was trying to move to the middle of the bed but evidently did not achieve that as she slipped, and one leg went off the side of the bed.  She picked up that leg and moved again towards the middle.  The jury could well have reasoned that she did not manage that sequence in one move, nor was she actually in the middle of the bed when penetration occurred.  To the contrary, the jury could conclude that she was on the side of the bed, trying to move, when penetration occurred.
103. [103]
     Thirdly, the jury did not have to proceed on the basis that the appellant was still standing when he inserted his penis in her vagina.  He was standing when the complainant saw him, but she turned away towards the middle of the bed.  Her account does not exclude the possibility that he knelt on the bed in some way to achieve penetration.
104. [104]
     Fourthly, the jury had the advantage, which this Court does not, of seeing and hearing the complainant give evidence.
105. [105]
     Fifthly, contrary to the appellant’s submission, the acquittal on count 4 does not affect the level of doubt on count 5.  That acquittal was likely because of the fact that the complainant did not reveal oral penetration to the doctor, TOH or DAN.
106. [106]
     Sixthly, contrary to the appellant’s submission, the fact that the doctor found no sign of injury or trauma to the vaginal region does not take the matter further.  Penetration of a short duration such as the complainant described would not necessarily result in such a thing.
107. [107]
     In my view, the appellant does not meet the test in Miller.  That is, the appellant does not identify such weaknesses in the evidence that it can be demonstrated that these weaknesses reduced the probative value of the evidence in such a way that the appellate court ought to conclude that even making full allowance for the advantages enjoyed by the jury there is a significant possibility that an innocent person has been convicted.
108. [108]
     Ground 4 fails.

Conclusion

109. [109]
     For the reasons I have expressed above, the appeal should be dismissed.  I propose the following order:

1. Appeal dismissed.

110. [110]
     BODDICE JA:  I have had the advantage of reading the judgment of Morrison JA.
111. [111]
     I agree with Morrison JA that the verdicts on counts 3 and 5 are not inconsistent with the acquittal on count 4.  The lack of initial complaint of oral rape was a telling factor which may have caused the jury to doubt the accuracy of that aspect of the complainant’s account, whilst otherwise accepting the complainant’s reliability and credibility as to the remaining counts.  There was a consistency in her account as to the remaining counts which was supported by the preliminary complaint evidence.
112. [112]
     I also agree that the verdict on count 5 was not unreasonable.  A consideration of the record, as a whole, supports a conclusion that it was open to the jury to be satisfied, beyond reasonable doubt, of the appellant’s guilt of this offence.  Whilst aspects of her evidence may have allowed for a submission as to the improbability of penetration being affected in such a circumstance, nothing in her evidence rendered the account so inherently improbable that it was not open to the jury to be satisfied, beyond reasonable doubt, as to the act of penetration.
113. [113]
     However, I would allow the appeal on the ground that there has been a miscarriage of justice, due to a failure of the trial judge to direct the jury in respect of the use of the appellant’s account in the pre-text telephone call.
114. [114]
     Morrison JA’s comprehensive summary of the evidence and directions, which I gratefully adopt, allows me to briefly state my reasons.
115. [115]
     First, whilst the trial judge gave directions, substantially in accord with a Liberato style direction, the direction given by the trial judge, which is set out at [54], only dealt with the evidence given by XYZ.  The initial reference to “his evidence” at the start of that direction, is unlikely to have alerted the jury to the need to consider the pre-text call, in addition to the evidence given by XYZ, when considering whether they are satisfied beyond reasonable doubt that the prosecution had proved the case against the appellant.
116. [116]
     That conclusion is supported by a consideration of the terms of the direction that immediately followed, namely:

“The proper approach is to understand that the Prosecution case depends entirely upon you accepting the evidence of the complainant, … was true and accurate beyond reasonable doubt, despite the sworn evidence given yesterday by [XYZ].  So the Prosecution must prove beyond reasonable doubt the elements of the offence, and if you are of the view that [XYZ’s] evidence was to cause reasonable doubt about an element, then you would find [the appellant] not guilty of the particular offence you are considering.  So you would, therefore acquit”.

Nothing in that direction directs the jury to give consideration to the contents of the pre-text call, either when considering whether XYZ’s evidence causes them to have a doubt, or separately.

117. [117]
     This conclusion is not altered by the trial judge’s subsequent direction that if the jury accepted the appellant’s version “given in the pre-text call and/or what he said to [XYZ] about his conduct, then you would find him not guilty of the relevant charge”.  That direction did not direct the jury that they would also find the appellant not guilty if his version, given in the pre-text call and/or what was said to XYZ about his conduct, although not convincing, left them thinking it might be true.
118. [118]
     Second, a Liberato direction as to the use of the appellant’s account in the pre-text call was required, as “in the circumstances of the particular case, there is a real (as distinct from a fanciful) risk that the jury may otherwise have the impression that disbelief of the accused’s evidence or preference for a complainant’s evidence, means that the State has proved its case beyond reasonable doubt”.^[126]
119. [119]
     The failure to specifically direct the jury, that they would also acquit if the appellant’s account in the pre-text call, though not convincing, left the jury in a state of doubt as to what the true position was, gave rise to a real risk that the jury may have the impression that disbelief of the appellant’s evidence, or preference for the complainant’s evidence over that evidence, meant that guilt had been proven beyond reasonable doubt.
120. [120]
     That risk was particularly acute having regard to the fact that when the pre-text call was dealt with in directions, the jury were directed that “if they accepted the appellant’s version given in the pre-text call, or what he said about his conduct to XYZ, then they would find him not guilty of the relevant charge” (my emphasis).  Nothing in the summing up directed them as to their verdict, should the appellant’s account in the pre-text call, though not accepted as convincing by them, leave them in a state of doubt as to whether it might be true.

Orders

121. [121]
     I would order:

1. The appeal be allowed.

2. The verdicts of guilty below be set aside.
3. There be a re-trial.

122. [122]
     COOPER J:  I have had the advantage of reading the draft reasons for judgment of each of Morrison JA and Boddice JA.
123. [123]
     I agree with Morrison JA, for the reasons his Honour has given, that each of ground 3 (inconsistent verdicts) and ground 4 (unreasonable verdict on count 5) fail.
124. [124]
     As to ground 1, I agree with Boddice JA that the appeal should be allowed on the basis that there has been a miscarriage of justice.  However, there is a difference in my reasons for reaching that conclusion.
125. [125]
     I have concluded that, due to the statement made by the trial judge in the last sentence of the passage of the summing up extracted at [65] and [80] (impugned statement), there was a real risk, as opposed to a fanciful risk, that the jury may have been left with the impression that the evidence which the appellant relied on would only give rise to a reasonable doubt if they believed it to be truthful.^[127]
126. [126]
     To explain the reasons for my conclusion it is necessary to refer to two aspects of the Liberato style direction (direction), set out at [54].
127. [127]
     First, the direction did not, as has been said to be preferable,^[128] expressly inform the jury of the two situations in which their assessment of the truthfulness or otherwise of the appellant’s version of events might give rise to a reasonable doubt such that the appellant would be entitled to be acquitted: (i) if the jury believed the appellant’s version as to what occurred (given in the pre-text call, or to XYZ in his oral conversation with her or his text messages); and (ii) if the jury did not accept the appellant’s version but considered that it might be true.
128. [128]
     As Morrison JA observes at [86], the jury would have understood that the impugned statement, made only a short time after the direction was given, was referring to the direction.  To my mind, this created a real risk that, absent an express statement in the direction of the sort referred to in the preceding paragraph, the impugned statement would have led the jury to a wrong understanding as to the conclusion they would need to arrive at concerning the truthfulness of the appellant’s account if they were to find that XYZ’s evidence, and/or what was said in the pretext call, caused them to have reasonable doubt about an element of the charged offences.  Further, that wrong understanding may have affected the jury’s assessment of an important aspect of the evidence; namely, that on the appellant’s version he engaged in uncharged conduct by touching the complainant on her vagina, but his conduct went no further than that.  Put more succinctly, there was a real risk that the impugned statement would have led the jury to a wrong understanding on the question of when evidence of the appellant’s version could give rise to a reasonable doubt; that they had to accept the appellant’s version as being truthful.
129. [129]
     Where there is a real risk that the jury reasoned on that basis, it is likely that an incorrect understanding of what was required before evidence of the appellant’s version of events could give rise to a reasonable doubt would flow into and undermine the jury’s understanding of the references to reasonable doubt in the standard directions about the burden and standard of proof which Morrison JA refers to at [89].  In those circumstances, I do not consider that the giving of those standard directions negated the existence of the risk I have referred to.
130. [130]
     The second, and related, aspect of the direction is that, in the final paragraph, the trial judge instructed the jury as to the approach that they should take if they decided not to accept “XYZ’s evidence”.  Accepting the correctness of the point which Morrison JA makes at [85] concerning the content of XYZ’s evidence, I nevertheless consider that, to negate the risk of the impugned statement having the effect I have described, the direction would have needed to contain a clear reference to the approach which the jury should take if they decided not to accept “the appellant’s version” of what had occurred between himself and the complainant.  Without that express reference to the appellant’s version in the final paragraph of the direction, I do not consider it was sufficient to address the effect of the impugned statement.  To the contrary, it was the impugned statement coming shortly after the direction which undermined the effect of that direction to such an extent that a real risk, of the type I have referred to above, existed in the circumstances of this case.
131. [131]
     I have considered the reasons which Morrison JA has given at [85]–[91] in reaching a contrary conclusion on this issue.  In my respectful view, those reasons do not negate the existence of a real risk that the jury might have approached the evidence containing the appellant’s version of events in the way I have described above.
132. [132]
     In summary, I consider that there is a realistic possibility that the jury approached their task on the basis that the appellant’s version of events would not give rise to a reasonable doubt unless they accepted that version as being truthful.  Such an approach would have been wrong in law and likely to have resulted in convictions where, if properly directed, the jury may have acquitted.  The result is that the appellant has suffered a substantial miscarriage of justice.
133. [133]
     I agree with the orders proposed by Boddice JA.