R v LBK[2025] QCA 111

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I have made my own independent assessment of the evidence adduced at the trial and, for the same reasons given by Crowley J, I am satisfied that the verdicts of guilty returned by the jury were not unreasonable.  I otherwise agree with Crowley J.

1. [1]
   BODDICE JA:  I agree that the appeal against conviction and the appeal against sentence should be dismissed.

2. [2]
   Crowley J’s comprehensive summary of the evidence, directions and relevant law, which I gratefully adopt, allows me to briefly state my reasons.
3. [3]
   First, the verdicts of the jury were not unreasonable.  An independent assessment of the record as a whole supports a conclusion that it was open to the jury, having seen and heard the witnesses, to accept as credible and reliable, the complainant’s account of having repeatedly asserted that she did not want to participate in any sexual activity with the appellant.  That account was consistent throughout her evidence.  The account was also consistent with the preliminary complaint evidence.
4. [4]
   Once the complainant’s account was accepted as credible and reliable, it was open to the jury to reject the appellant’s account to police as unreliable and for the jury to be satisfied beyond reasonable doubt that the complainant did not consent to any of the charged sexual acts and, further, that a claimed mistaken belief on the part of the appellant to the contrary, was not reasonable.
5. [5]
   Second, for the reasons given by Crowley J, there was no miscarriage of justice caused by the trial judge’s directions, or by the improper remarks of the prosecutor.
6. [6]
   Third, for the reasons given by Crowley J, there is no error established as to the basis upon which the appellant was sentenced for the offences.  The sentencing judge found facts consistent with the jury’s verdict.
7. [7]
   I agree with the orders proposed by Crowley J.

8. [8]
   CROWLEY J:  The appellant was found guilty by a jury of an offence of aggravated sexual assault and of two offences of rape.  He appeals his convictions and also seeks leave to appeal the sentences imposed upon him for those offences.
9. [9]
   The complainant was a young woman whose boyfriend at the time was good friends with the appellant.  The Crown case was the appellant committed the offences when he was visiting at their apartment one evening.  It alleged that the complainant’s partner propositioned the complainant to participate in a “threesome” with the appellant and himself and that although she refused, they would not take “no” for an answer.  The Crown alleged that the two men subsequently forced the complainant to participate in non-consensual sexual acts with them.
10. [10]
    The aggravated sexual assault offence involved the appellant licking the complainant’s vagina.  The rape offences involved the appellant penetrating the complainant’s mouth, and then vagina, with his penis.
11. [11]
    There was no issue at trial that the sexual acts had taken place.  The matters in dispute concerned the issue of consent.  The appellant had participated in a police interview in which he admitted to doing the acts but maintained they were consensual, or at least that was his belief at the time.  The appellant’s case at trial therefore was that the complainant willingly participated in the threesome and consented to each of the sexual acts alleged or, if she had not consented, that he honestly and reasonably, but mistakenly, believed that she had.  The Crown case ultimately depended upon the jury accepting the complainant’s account of what had happened beyond reasonable doubt.  The appellant did not give or call evidence.
12. [12]
    By its guilty verdicts, the jury necessarily accepted the complainant’s evidence that she did not consent to any of the sexual acts and was satisfied that the defence of mistake of fact had been excluded by the Crown.
13. [13]
    The appellant advances three grounds of appeal in respect of his convictions.^[1]  First, he contends the verdicts are unsafe and unsatisfactory, against the weight of evidence.  Second, he contends a miscarriage of justice arose from the trial judge’s directions to the jury.  Third, he contends that the jury was led into error by improper comments made by the Crown prosecutor in his closing address, which were not rectified by the trial judge’s directions.
14. [14]
    With respect to his proposed sentence appeal, the appellant contends that the exercise of the sentencing discretion was infected by specific error, namely that the sentence proceeded on a factual basis not supported by the evidence to the standard required.

Conviction appeal

Ground 1: Verdicts unsafe and unsatisfactory against the weight of evidence

The complainant’s evidence

15. [15]
    The complainant gave the following evidence in chief.
16. [16]
    In 2021 she was living in an apartment at Beenleigh.  The appellant was an old school friend of her boyfriend.  She met the appellant through him.
17. [17]
    On 22 June 2021, she had been at work.  She finished at around 5.30 pm and came home to her apartment.  Her boyfriend was there with the appellant, and they were having some drinks on the balcony.  She had a shower and joined them.  She estimated she had a total of about four or five alcoholic pear cider drinks out on the balcony.
18. [18]
    At some point her boyfriend went to bed.  She and the appellant stayed on the balcony talking and drinking.  At one stage, she and the appellant had some MDMA that she offered to him.  They talked for about an hour.  During that time, the appellant, “… kind of was getting a bit flirty” and saying things to her like she was “hot” and that if she and her boyfriend were not together, they could be together.  She attempted to brush off the comments.  At one stage the appellant tried to put his hand on her leg, but she moved it off.
19. [19]
    Later, she and the appellant went inside to the loungeroom and watched a movie for about 10 or 15 minutes.  She then went to her bedroom and lay down next to her boyfriend.  She was wearing a T-shirt and pants at the time.  He did not have any pants on but was wearing a T-shirt.  He asked her if they could have sex, but she said “no” as she was tired and bloated and did not want to.  The bedroom door was open at the time and the appellant was out in the loungeroom on the couch.  After about 15 minutes the appellant came into the room and laid down on the bed.  She was on the right side of the bed, her boyfriend was in the middle and the appellant was on the left side.
20. [20]
    Her boyfriend tried to touch her and then said something along the lines of, “Let’s have a threesome”.  She initially laughed and thought he was joking and then said “No”.  She pushed his hands away and pulled her shirt down and said, “No.  Stop”.  The appellant then leaned over and her boyfriend said to her, “Let’s do it.  I’m not joking.  I’m giving you an opportunity here.  Just do it”.  Both he and the appellant tried to touch her.  She again said “No” and that she did not want to do it and tried to make excuses, mentioning that the appellant had a girlfriend and stating that she had not shaved.  She pushed their hands off and pulled her shirt down.  The appellant was not saying much at this time but was agreeing with her boyfriend and saying, “Let’s do it”.  She kept saying “No” and told them numerous times to stop and that she did not want to do it.  She became frustrated and felt overwhelmed and vulnerable.
21. [21]
    As the men were not really taking no for an answer, she asked if she could get up and have a shower.  They initially said “No”, so in response she then said, “I’ll get up and have a shower and have a shave”.  They then agreed and got off her and let her up.  She went into the ensuite in the bedroom, locked the door and sat in the shower on the floor.  She heard the men banging on the door.  She told them to stop and to wait.  She continued to shower as she sat on the shower floor.  She did not shave as she did not need to.  She said the reason she had told them that before was because, “I had already said other excuses like ‘[appellant], you have a girlfriend’, ‘I don’t want to do this’, and they weren’t getting off me, so I said something that would … they would let me go”.
22. [22]
    She then heard the appellant telling her boyfriend that he wanted to shave as well.  The men continued trying to open the door.  She was in the ensuite for about 15 to 20 minutes before she got out of the shower, wrapped a towel around herself and asked her boyfriend to come to the door so she could talk to him.  When she opened the door though, the appellant was standing there and both men were wearing nothing.  The appellant pushed the door open all the way then walked up to her and tried to kiss her.  She walked backwards until she was standing against the wall.  The appellant tried to kiss her, but she pushed him away and said “No” and “Stop”.
23. [23]
    She pushed past the appellant and walked from the ensuite through the bedroom, back into the main living area, and then to the laundry, to get some clothes.  Both men followed her to the laundry.  Her boyfriend then came over to her and said, “Let’s just do it.  Let’s have a threesome”.  She begged him, again saying “No” and “I don’t want to do this.  Stop” and also “You’re my boyfriend, can you please listen to me right now.  I don’t want to do this”.  At that time, the appellant was in the loungeroom, but within earshot nearby.  She continued to refuse, but her boyfriend said, “Just do it.  Don’t be a pussy.  I’m giving you an opportunity to fuck someone else”.  She again said she did not want to.
24. [24]
    Her boyfriend then walked away and the appellant came to the laundry and tried to kiss her again.  She continued to tell him to stop and that he had a girlfriend and that she did not want to do this.  He grabbed her face and kissed her.  She pushed him away and tried to get some clothes.  She then walked back to the bedroom.
25. [25]
    When she got back to the bedroom, her boyfriend was already on the bed.  She had her clothes in her hand and was holding the towel around herself.  She sat on the corner of the bed to put her pants on.  The appellant then came into the room and pulled open the side of her towel exposing her bottom half.  He then started performing oral sex on her.  She said “No” and tried to move back on the bed to get away.  As she did, she continued saying “Stop” and “No”.  Her boyfriend was lying naked on the bed at the time, as the appellant was “performing oral”, using his tongue to lick her vagina.  She did not consent to him licking her vagina.  She kept saying “No” and “Stop” numerous times.  Her boyfriend then inserted his penis into her mouth.  She was on her back at the time and he had gone to the side of her head to put his penis in her mouth.  This went on for about five minutes.
26. [26]
    Her boyfriend then flipped her over and took his penis out of her mouth.  He went to the other side and put his penis in her vagina.  She was then on her stomach or her hands and knees.  The appellant then moved to the top where her head was and put his penis in her mouth.  She did not remember anything being said at this point.  She did not consent to him putting his penis in her mouth.  He did that for a few minutes.
27. [27]
    When her boyfriend took his penis out of her, he lay back on the bed masturbating while the appellant went behind her and put his penis inside her vagina.  She did not consent to him doing that.  As this was happening, she looked over at her boyfriend and shook her head.  She was angry and upset.  He asked her, “What?”, and she said, “You know what”.  He then told her to open her mouth and turn her head so he could ejaculate in her mouth, but she turned her head away.  He went to the shower after he ejaculated.
28. [28]
    At that time, the appellant still had his penis inside her from behind.  A few minutes later he flipped her over onto her back and put his penis back inside her.  He was then positioned on his knees.  When asked how it ended, she said:

“Well, towards the end of it, I started moaning in an effort to get him to finish, and – um – I think I said something along the lines of ‘Daddy’, because that’s what I said with [complainant’s boyfriend] when he finished and in order – in an effort to end it.”

29. [29]
    She said she did those things because she wanted it to be over and just wanted it to be finished.  The appellant ejaculated inside her, then left the room.  She got up to have a shower.  After she showered, she got dressed and went back to bed.  She did not see where the appellant went but thought he went back out onto the couch in the loungeroom.  After a while, her boyfriend started being a little bit mean to her, saying it was her fault and asking her why she had let it happen.
30. [30]
    After a few minutes, the appellant came back into the bedroom and lay down on the left side of the bed, closest to the wall.  She was again on the right-hand side and her boyfriend was in the middle.  The appellant left for work the following morning at about 5.00 am and her boyfriend left not long after.
31. [31]
    After they left, she spoke to her best friend on the phone.  She told her she was upset and said, “I think I got raped”.  She told her friend, “[complainant’s boyfriend] was over and his friend [the appellant] was there, and they had sex with me, but I didn’t want it, and I told them I didn’t want it, and I said, ‘No’, numerous times”.
32. [32]
    The next day she flew to Gladstone to look after her father’s partner’s children for a few days.  When she returned, she went straight from the airport to the Beenleigh Police Station to make a complaint about what had happened.
33. [33]
    When cross-examined, the complainant gave the following evidence.
34. [34]
    Throughout her relationship with her boyfriend, he had shown signs of jealousy.  When she was on the balcony having drinks alone with the appellant, he was at one stage standing there watching them from inside.  She formed the view he was getting jealous of her and the appellant.  While still on the balcony she sent a text message to her boyfriend, stating, “I’m horny”.  He replied, “[the appellant’s] keen”.  She responded, “Fuck off” but the message was autocorrected to “Duck off”.  She could not remember if she was feeling horny at the time, but agreed she was sending the message to her boyfriend in a flirty way.  She could not recall if that was before she had consumed the MDMA.  She did not know and did not agree that MDMA was a drug that enhanced sexual experiences.
35. [35]
    She had been on the balcony with the appellant for about an hour before going back inside.  At some stage after she had messaged her boyfriend, “I’m horny”, she received a message from him saying, “Before you cheat on me, can you put a load of laundry on?”.  She thought he was just being worried and jealous, as usual.
36. [36]
    She agreed it was strange when the appellant walked into the bedroom, but did not say to him, “Hey, what the hell are you doing in my room? Go sleep somewhere else”.  She did not say that because she did not expect what was about to happen.  She did not have any sexual attraction to the appellant that night.  She did not ask him what he was doing because she was with her boyfriend and felt safe at that time and did not need to say anything.  When the appellant got in the bed with them, her boyfriend was naked.  She did not ask him what he was doing in the bed.  She felt comfortable at that time as she was in the house with her boyfriend and felt safe enough that she did not have to say anything at that exact moment.
37. [37]
    Before her boyfriend said, “Let’s do a threesome”, the appellant had not said anything.  She reiterated that she had said in response, “No”, and had said that the appellant had a girlfriend and that she had not shaved.  She repeated that her boyfriend was leaning on top of her at the time and the appellant was on the other side of him.  After saying, “I have to have a shave”, she got off the bed.  She agreed she was not being pinned down then but said the men were leaning over the top of her and were in her face.  Both of the men were talking to her, suggesting they have a threesome.  She said “No” to both of them.
38. [38]
    She maintained the only reason she went into the bathroom was to get away from the men.  She locked the door when she went in.  She did not have her phone with her at the time.  She repeated that she was in the shower for about 15 minutes and did not shave.  She sat on the shower floor to buy some time.  She agreed that when she made her statement to police, she did not tell them that she did not shave in the shower.  When asked whether she agreed that the first time she had told police or prosecution that she did not shave in the shower was only five days ago, she said, “No-one had asked me prior to that”.  She disagreed that she had actually shaved in the shower.  She disagreed that was the reason she went into the bathroom, maintaining that she said that to them so she could get off the bed and go have a shower.
39. [39]
    She recalled the appellant had said that he also better have a shave too.  She did not know whether he did that but accepted that he could have and that when she heard the banging on the door it could have just been her boyfriend.  She repeated that when she came out of the ensuite the appellant was naked.  She disagreed that she was the one who started kissing him.  She said he tried to kiss her, and she was moving her head out of the way.
40. [40]
    When the appellant was performing oral sex on her, she was repeatedly saying “No”.  Her boyfriend was then leaning over the top of her and put his penis in her mouth.  Her mouth was closed at the time, but he had shoved it in.  When asked further how he had done that, she said “I guess after he put his dick in my mouth, I opened my mouth”.  She could not remember if she had turned her head away from his penis.  She did not agree that she had actively given him a “blow job”.  She could not remember where her hands were but agreed she was not pushing him off her mouth.  She maintained that she was not an active participant in what was happening.
41. [41]
    She agreed that both the appellant and her boyfriend had sex with her in “doggy style” position while she was on her hands and knees.  She said she was on her stomach at one point but got up when they flipped her over.  She agreed with the suggestion that she actively had to stay in position on her hands and knees for the men to have sex with her.  She agreed that she did not roll out of the way and did not kick them off.  She maintained, however, that she was repeatedly saying “No”.
42. [42]
    She again said the appellant went to the front of her and put his penis in her mouth.  She could not remember if she closed her mouth before his penis went in or whether she turned her head away.  When it was put to her that she was actively giving the appellant a “head job”, she said, “No.  I would have – disagree with that”.
43. [43]
    When asked whether she moved her head away when the men had put their penises in her mouth, she said:

“After it had started taking place, I had already said no numerous times.  I said no at the start, the entire time.  I was – I didn’t want any part of this.  By the time it had happened, I – I was just laying there.”

44. [44]
    She agreed though that she had actively turned her head away later when her boyfriend was about to ejaculate.  She said that when the appellant had his penis in her mouth, he was at the top of the bed and that he was thrusting it in.  Her hands were on the bed at the time as she was in doggy style position.  She said she did not want his penis in her mouth but agreed she did not push him away or bite down on him to get his penis out of her mouth.  She assumed that she would have turned her head away.  After he had his penis in her mouth, he then came behind her while she maintained doggy style position.  She agreed she was aware at that stage that it was likely that he was about to penetrate her.  She accepted no-one was pinning her down and she was still holding herself in position.  When it was put to her that the appellant had to get off the bed to walk around to get behind her, she said:

“There was a lot … going on.  There were two men there.  I can’t remember what he – every single – I – I don’t know what I was thinking at the time.  I didn’t consent to it.”

45. [45]
    After her boyfriend had ejaculated and went to the shower, she was then alone with the appellant.  She agreed she ended up on her back, having missionary sex with him.  She agreed that she called him “Daddy”.  She denied saying something to the effect of, “Your dick feels so good”, and denied that he had said to her, “Your vagina feels so good”.  She reiterated that she said “Daddy” once, to try to make the whole thing end.
46. [46]
    She maintained she had been saying “No” repeatedly to everything leading up to the point that the appellant was having doggy style sex with her, whilst her boyfriend lay on the bed masturbating.  She agreed that it was a massive surprise to her when she was glaring at him and he said, “Why are you looking at me like that?”.
47. [47]
    She agreed that it was her evidence that the appellant was having non-consensual sex with her, and she had communicated to him many times that she did not want him to do that.  She accepted however, that she did not tell him to pull out before he ejaculated, adding, “I didn’t know he was about to ejaculate inside of me, but, no.  I did not”.  She agreed that she did not say to the appellant, “Please, don’t finish inside me”.  When it was put to her that she did not get angry with the appellant when he did finish, she said, “No.  I was glad it was over”.  She agreed she did not say to him, “Why did you do that?”, and did not express any concerns about him ejaculating inside her.
48. [48]
    After the incident the three of them were in the bed together.  When it was put to her that she then fell asleep next to the man that she said raped her, she said, “I didn’t really sleep, but we were in the same bed.  Yes”.  She agreed that she did not ask him to go sleep somewhere else and that she did not go to the second bedroom but could have.
49. [49]
    She denied the suggestion that the way her boyfriend had treated her afterwards, by blaming her for what had happened, had somehow influenced her memory of the night.  She maintained that she remembered what had happened.  When it was put to her that she had later started reconsidering whether she had actually consented to the night at all only after her boyfriend was saying terrible things to her, she said “No.  I knew I didn’t consent”.

Other evidence

50. [50]
    Apart from the complainant, there were only two other witnesses called in the Crown case: the arresting officer and the complainant’s friend whom she had spoken to the day after the incident.
51. [51]
    In addition to producing the appellant’s record of interview, the arresting officer gave evidence that the complainant’s boyfriend had been charged in relation to the matter.  She said that she had asked him if he would provide a witness statement and had been told that someone would contact her to confirm whether he would.  She confirmed that no-one actually contacted her back about the matter and that no statement was obtained from him.  She said she had not made any further attempt to obtain a statement from him.
52. [52]
    The arresting officer also confirmed that police had obtained the appellant’s telephone and had downloaded its entire contents.
53. [53]
    The complainant’s friend gave preliminary complainant evidence.  She said she woke up on 23 June 2021, at about 5.00 am, and she saw a message on her phone from the complainant that had been sent earlier at about 12.00 to 12.30 am, asking if she was awake.  She replied, asking, “What’s wrong”, and the complainant then messaged her back, stating that, “something had happened”, but that she did not know if she wanted to tell her specifically what had happened.  The friend said that after some prompting, the complainant had then further messaged, “I think that I’ve been raped”.  She said she then called the complainant on a video call, via Facebook Messenger, around 5.30 am.  She said the complainant sounded flat and very disappointed and sounded upset but was not crying.  She said the complainant repeated that she thought she had been raped and explained, “her partner at the time and a friend had sex with her, and that she didn’t want to do that”.  She said the complainant further told her that her partner had suggested a threesome, which she did not want to do, that she went into the bathroom and then came out in a towel, that she then went to the laundry and one of them followed her and kept asking her about a threesome and she kept saying, “No.  I’m not interested”.  The friend said that she told the complainant that it would be best if she did not have any more contact with either of them.  The friend further said that after the call she did not see the complainant until the next week or so, as the complainant had a pre-planned trip to go to Gladstone to babysit her father’s girlfriend’s children.  She said that when the complainant came back, she went to the police station.
54. [54]
    The Crown did not call the complainant’s boyfriend to give evidence at the trial.  In the absence of the jury, the Crown prosecutor informed the trial judge that he had also been charged and had already pleaded guilty and been sentenced.  The trial judge later directed the jury not to speculate about what he may have said had he been called as a witness.

The appellant’s interview

55. [55]
    On 1 July 2021 the appellant was interviewed by police.  A recording of the interview was tendered by the Crown and played to the jury.
56. [56]
    At the outset of the interview, the appellant was told by police that they wished to question him about a rape and that the alleged victim in the matter was the complainant.  The appellant told police he could detail the whole night.  He then proceeded to provide police with his account, during which he admitted to the threesome and engaging in various sex acts with the complainant, largely consistent with the complainant’s own account.  The appellant maintained however that at all times he believed the complainant was consenting.  Amongst other things, he told police the following matters.
57. [57]
    After finishing work on 22 June 2021, he went around to the apartment to have some beers with the complainant’s boyfriend.  They were sitting on the balcony when the complainant came home with dinner.  She joined them and was drinking as well.  Sometime around 7.00 pm, the complainant asked him if he wanted any MDMA.  Her boyfriend had gone to bed by that stage.  He stayed on the balcony talking to the complainant.  After a while her boyfriend came out and they all gradually moved into the room and were lying on their bed watching a movie.  He was almost about to fall asleep when her boyfriend asked, “Do you want to have a threesome?”  The complainant said, “Oh, let me have a shower first”.  She then got up and went to the shower to freshen up and shave and then came out.
58. [58]
    He and the complainant’s boyfriend were waiting on the bed when the complainant came back.  He started “going down on her” and she was “sucking … [the complainant’s boyfriend] off”.  They then swapped and “carried on for a bit”, with the complainant performing oral sex on him and her boyfriend having intercourse with her from behind.  Her boyfriend then finished and went to the shower.  He and the complainant then “had a bit of one on one” for another minute or two and then he finished.  Afterwards he got a towel for her, and she went in to have a shower.  While she was in the shower, he and her boyfriend “were just laying there, like kinda just like what, what the hell just happened?  Like, is that real?”.  They then lay back in bed and all three of them fell asleep.
59. [59]
    At about 3.00 or 4.00 am in the morning, he heard the complainant’s boyfriend talking to her, saying that he could not believe that they had done that and asking her why she would have done that.  The complainant then went outside to the loungeroom.  He fell back to sleep and then woke up before his alarm, which he had set for 5.30 in the morning.  He walked outside and saw the complainant sitting out there and asked her if she was okay.  She said she was, and that her boyfriend was just being an idiot.  She said to him, “He’s the one that asked for us to do that and then it happened”.  She said she did not know why he was so mad about it.  She then went back into the room with her boyfriend.  He stayed in the loungeroom, then later went to work.
60. [60]
    He told police that after that night he knew that the complainant and her boyfriend were not going to stay together.  Three or four days then went by and her boyfriend had been pretty depressed because the complainant had not spoken to him about anything.  He said her boyfriend rang him yesterday at work and told him that she was saying all this “crazy stuff, like saying that we raped her and stuff over the phone.”  He said he was “freaking out” and asked, “Why would she ever say that we’ve raped her when she was like, fully into it.  Like, we never forced her to do anything.”  He told police that the complainant was not speaking to her boyfriend now and said he told him to just give her some space.  He said he had not really thought anything further about it until he came to speak to the police about the matter.
61. [61]
    When further elaborating on the details, the appellant told police that when the complainant came out of the shower, she was in her towel and she then came towards the bed, then lay back and that was when they started.  He estimated she had been in the shower for about five minutes while they waited in the room.  When she came to the bed, he walked up to her, and she looked at him and they started kissing a little bit.  She walked back on the bed and laid back down.  He then picked her legs up and then started “going down on her”.  The complainant was sucking her boyfriend off while that was happening.  Not long after, the complainant then rolled over and got up into a doggy position.  He continued “lickin’ her out and stuff” and she was saying, “I’m coming”, and started moaning and screaming out loud.  That was when he and her boyfriend swapped over.  He said, “I walked, I like, crawled around the bed.  And then she started suckin’ me off and then [complainant’s boyfriend] started having sex with her from behind”.  He said that would have gone on for maybe two minutes until her boyfriend finished, got up and went to the shower.
62. [62]
    He explained that he and the complainant then had “one on one” in normal missionary style.  They had sex for about a minute or two, during which he was saying to her, “Oh, your pussy’s so good”, and she was saying, “Your dick feels so good”.  He then finished inside her.  They then lay there for a second before he asked her if she wanted him to get something.  She asked for the towel, and he picked it up and gave it to her and “that was it”.  He confirmed that neither he nor her boyfriend wore a condom.
63. [63]
    The appellant further told police that the initial plan that day was that he was going to spend the night at the apartment and just sleep on the couch.  He said he ended up in the bedroom because they were just watching television together.  He said he and the complainant’s boyfriend were pretty close, so it did not feel weird at all to go in there and do that with them.
64. [64]
    He told police he was “baffled” by the suggestion that he had raped the complainant, stating:

“If she feels like she got raped like, I’m sorry that she felt like that, but like, from what I was gathering from the situation, I never got pushed off or anything.  If she pushed me off and said no like, don’t do that, why the hell would I stay on her, you know.

…

Like, she never ever indicated that she didn’t like it the whole time.

…

She never said anything.  Never pushed me off.  Never anything, once.”

65. [65]
    When police put to the appellant things from the complainant’s statement, he denied that she had said “No” at any time.  He said the complainant had not pointed out that he had a girlfriend at any stage.  He said that when the complainant was in the shower he also went into the other bathroom to shave.  He denied that they were banging on the bathroom door when she was in the bathroom.  He denied that he pushed the door open when the complainant opened it a bit and said, “There was no way.  I was layin’ on the bed the whole time”.  He reiterated, “If she said no in any way, I would never have done any of this…Like, seriously…She didn’t say no at all.  Like, if anything, she like, encouraged it, you know”.
66. [66]
    He further denied pushing the complainant backwards and trying to kiss her in the ensuite.  He denied that there was any conversation between the complainant and her boyfriend in the laundry in which she had again said “No”.  He denied hearing her boyfriend saying he would give her a chance to fuck another guy.  He denied kissing the complainant when she was in the laundry or that she had pushed past him to go to the bed and he had pushed her back onto the bed.  He said:

“It was just natural things.  Like, there was no resistance.  There was no no’s.  There was no nothing like that … it was just like, normal.  Well, not normal, but like what would happen in that situation, you know”.

67. [67]
    He agreed that he had started performing oral sex with the complainant and maintained that she did not say “No” at all.  He said she was moaning straight away.  He denied that the complainant was upset and that her boyfriend had said something like “Why are you looking at me like that?”.
68. [68]
    When it was put to him that the complainant had said that she had called him “Daddy” in an attempt to get him to ejaculate and finish, he said:

“I definitely don’t remember that.  I would remember it if she called me daddy.  Like, all I remember was like, the words we said to each other when I was like, ‘Your pussy feels good’.  And she’s like, ‘your dick feels so good inside me’.  And that was it.  She didn’t call me daddy.”

69. [69]
    When asked if he had anything further to add the appellant said:

“… I wouldn’t have done it if she said no, but like everything went forward and like, so that’s not a no to me.  You know, if she went no, then that’s no.  But she got in the bed.  She did like, everything, like we all did it all together.  And then, I don’t know, I just thought it was just like, I thought it was normal.  No one was forced.  No one was pushed down.  No one was anything like that at all.  That’s why I’m like, confused.”

Consideration

70. [70]
    In the language of s 668E(1) of the Criminal Code, by this ground of appeal the appellant contends that the verdicts are unreasonable or can not be supported having regard to the evidence.
71. [71]
    In determining such a ground, the task of the appellate court is well-settled.  In accordance with M v The Queen,^[2] the court must undertake its own independent assessment of the sufficiency and quality of the whole of the evidence.  The court must ask itself 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.  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.
72. [72]
    Notwithstanding the requirement for an appellate court to undertake its own independent assessment of the whole of the evidence, it must be borne in mind that such an assessment takes place in an adversarial context.  It is therefore incumbent on the parties to identify the evidence that the appellate court must review and assess and the features of that evidence that support their respective cases on appeal.  The appellate court does not determine the grounds of appeal by simply reconsidering the parties’ respective cases at the trial.  The parties are required to address those aspects of the evidence adduced at trial that are said to warrant the conclusion that the verdict was unreasonable or can not be supported having regard to the evidence.^[3]
73. [73]
    Despite this obligation, that was not done by the appellant in this case.  At the hearing of the appeal, the appellant’s counsel only made oral submissions with respect to Ground 2 and advised the Court that he otherwise relied on his written submissions.  While that can be an efficient and appropriate course for counsel to take in many instances, the difficulty here is that the written submissions said very little at all about Ground 1.
74. [74]
    Although not clearly articulated, from what I can glean from the written submissions the appellant contends that the jury should have entertained a reasonable doubt about his guilt on each of the charges as the Crown simply could not prove beyond reasonable doubt that the complainant had not consented to the sexual acts, or exclude beyond reasonable doubt the possibility that the appellant had honestly and reasonably but mistakenly believed that she had consented.
75. [75]
    The definition of consent in s 348 of the Criminal Code and the defence of mistake of fact in s 24 of the Criminal Code, unaffected by legislative amendments brought about by the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024 (Qld), which commenced on 24 September 2024, applied in the appellant’s trial.
76. [76]
    Thus, ss 348 and 348A relevantly provided:

3. “348
   Meaning of consent

3. (1)
   In this chapter, consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent.

3. (2)
   Without limiting subsection (1), a person’s consent to an act is not freely and voluntarily given if it is obtained—

3. (a)
   by force; or

3. (b)
   by threat or intimidation; or

3. (c)
   by fear of bodily harm; or

3. (d)
   by exercise of authority; or

3. (e)
   by false and fraudulent representations about the nature or purpose of the act; or

3. (f)
   by a mistaken belief induced by the accused person that the accused person was the person’s sexual partner.

3. (3)
   A person is not to be taken to give consent to an act only because the person does not, before or at the time the act is done, say or do anything to communicate that the person does not consent to the act.

3. (4)
   If an act is done or continues after consent to the act is withdrawn by words or conduct, then the act is done or continues without consent.

3. 348A
   Mistake of fact in relation to consent

3. (1)
   This section applies for deciding whether, for section 24, a person charged with an offence under this chapter did an act under an honest and reasonable, but mistaken, belief that another person gave consent to the act.

3. (2)
   In deciding whether a belief of the person was honest and reasonable, regard may be had to anything the person said or did to ascertain whether the other person was giving consent to the act.

3. (3)
   In deciding whether a belief of the person was reasonable, regard may not be had to the voluntary intoxication of the person caused by alcohol, a drug or another substance.

77. [77]
    The concept of consent therefore had two relevant aspects in the appellant’s trial.  First, there must in fact have been “consent” as a state of mind held by the complainant, meaning a willingness on her part to engage in the sexual acts with the appellant.  Second, that state of mind had to be “given” freely and voluntarily by the complainant.^[4]  The Crown of course bore the onus of proving beyond reasonable doubt that the complainant did not consent.
78. [78]
    In remarks that are apt to repeat here, in R v Sunderland,^[5] Sofronoff P relevantly observed:

“The giving of consent, in the context of a charge of a sexual offence, involves the making of a representation by one person to another, to the effect that the first person agrees to participate in the sexual act that would otherwise be an offence. Such a representation might be made by words or by actions or by a combination of both. Sometimes the words or actions cannot be understood apart from the surrounding circumstances. In cases where the complainant has communicated neither consent nor dissent by words or actions, the inaction cannot be considered in a vacuum. It too must be considered with all of the relevant circumstances surrounding the sexual act. The circumstances involve matters both past and present. So, inaction in the context of prior acts or words might mean that the complainant has previously given consent which remains operative until withdrawn. This might be established by evidence of relationship or previous interactions between the complainant and accused. So too, inaction, when taken with the other circumstances, may be a manifestation of unwilling submission rather than consent. Indeed, continued or sustained inaction for the duration of a sexual act may be a strong indicator of submission rather than consent.”

79. [79]
    Given the dual requirements for consent that applied in the appellant’s trial, the question of the appellant’s belief for the purposes of a defence of mistake of fact under s 24 of the Criminal Code also had two aspects, namely whether the appellant believed that the complainant had a particular state of mind (i.e., consent) and whether he also believed that the complainant had freely and voluntarily given that consent in some way.^[6]  As the defence was raised on the evidence for the jury’s consideration, it was for the Crown to negative it beyond reasonable doubt.
80. [80]
    The arguments put at trial, and presumably embraced on appeal, were that it was unclear on the evidence when the complainant had said “no” or “stop” or otherwise voiced her dissent, and that she may well have said such things to her boyfriend but did not say them to the appellant, or she did not say them in such a way that he may have heard; that by her behaviour before, during and after the incident the complainant had not indicated by her actions that she did not consent, and in fact had given quite the opposite impression; and that the jury might well consider that the complainant had been grudgingly pressured into having a threesome by her boyfriend, and later came to regret her decision, and have second thoughts about the hesitant consent she had given, when he subsequently sought to blame her for what had happened when he said to her the following morning things like, “why did you let this happen?”.
81. [81]
    Furthermore, the appellant’s counsel at trial had pointed to various features of the complainant’s behaviour said to be inconsistent with an absence of consent, including that she had flirted with the appellant on the balcony; that she had offered him MDMA and the pair had consumed some of the drug; that she had voiced no concerns when he entered the bedroom and got into the bed with her and her partially naked boyfriend; that she had said, “I need to shave”, and had gone to the bathroom when the idea of a threesome was proposed to her; that she came out of the bathroom in a towel, and was not dressed; that she did not physically resist and stayed in doggy-style position when having sex; that it was implausible that she had not willingly opened her mouth when the men inserted their penises; that she had been moaning and talking dirty to the appellant, and on her own account had called the appellant “Daddy” to encourage him to finish; that she did not express any resistance, concern or disgust when the appellant ejaculated insider her; and that she stayed in the room and did not leave the bed after the incident.  The appellant’s trial counsel had argued that if the jury applied common sense to the evidence, it must necessarily conclude that the Crown case could not be proven beyond reasonable doubt and would acquit the appellant.
82. [82]
    In his written submission in support of Ground 1, the appellant pointed to the answers he had given to police in his interview about his belief that all sexual acts were consensual, and submitted the matters concerning the complainant’s behaviour before, during and after the incident were “unusual and remarkable features in relation to the potential for a genuine mistake of fact in this matter”, particularly her having said she needed to shave and going to the bathroom for that evident purpose before engaging in the sexual activity, and her saying “Daddy” to the appellant during sex.
83. [83]
    Having undertaken my own independent assessment of the evidence adduced at trial, I am satisfied that it was open to the jury, on the whole of the evidence, to find the appellant guilty of each of the charges.
84. [84]
    On the issue of consent, the complainant had given evidence that she repeatedly and clearly made plain that she did not consent to what was proposed or what then happened.  Her evidence was that she said, “No”, “Stop” and “I don’t want to do this” numerous times before any sexual acts occurred.  Further, she gave evidence that she said these things directly to the appellant.  The jury had the opportunity of seeing and hearing the complainant give her evidence.  It was open to the jury to accept her evidence in this respect and to find, beyond reasonable doubt, that she did not consent to the sexual acts, irrespective of what behaviours she may have exhibited at any stage before, during or after the incident.  Her explanations as to why she said she needed to shave and went to the shower, why she had remained in positions during sex, and why she had started moaning and had said “Daddy” to the appellant to make him finish were not so inherently implausible or glaringly improbable that they were incapable of belief and could not rationally have been accepted by the jury as being inconsistent with the appellant having the state of mind of consent or freely and voluntarily giving her consent to the appellant.
85. [85]
    On the issue of mistake of fact, I consider it was open to the jury to find that the Crown had excluded the defence beyond reasonable doubt.  Again, the jury was entitled to accept the complainant’s evidence and to reject those parts of the appellant’s account in his record of interview that were in conflict.  In circumstances where the complainant had given evidence that she repeatedly voiced her dissent, including telling the appellant “No” and “Stop” when he tried to kiss her in the bathroom and the laundry and when he had pulled her towel away in the bedroom and again when he commenced performing oral sex upon her, it was open to the jury to conclude that the Crown had excluded beyond reasonable doubt the possibility that the appellant genuinely believed the complainant was consenting and, even if he did hold such a belief, that it was objectively reasonable in the circumstances.
86. [86]
    On my assessment, Ground 1 is not made out.

Ground 2: Miscarriage of justice caused by the trial judge’s directions

87. [87]
    This ground of appeal relates to the directions given by the trial judge in accordance with the relatively new provisions of Part 6B, Division 3 of the Evidence Act 1977 (Qld), in particular the directions given in purported compliance with ss 103ZT and 103ZY.
88. [88]
    These provisions have not yet been considered by the Court in any detail.  It is therefore necessary to spend some time tracing their origin and identifying their purpose and effect.

The legislative provisions

89. [89]
    Part 6B was inserted into the Evidence Act by s 59 of the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act, which enacted a raft of criminal law amendments that, amongst other things, created new coercive control offences, overhauled sexual offence consent laws, and introduced a new regime of evidentiary provisions and directions that apply in criminal proceedings for a sexual offence.
90. [90]
    Division 3 of Part 6B, (ss 103ZO to 103ZZB), which deals with jury directions related to sexual offences, commenced operation on 23 September 2024, the day before the commencement of the appellant’s trial.^[7]Subdivisions 3 and 4 of Division 3 prescribe a range of jury directions that must, or may, be given in trials involving sexual offences.  Subdivision 3 contains provisions for directions about the circumstances in which non-consensual sexual activity occurs (s 103ZS), responses to non-consensual sexual activity (s 103ZT), lack of physical injury violence or threats (s 103ZU), responses to giving evidence (s 103ZV), the behaviour and appearance of the complainant (s 103ZW) and mistake of fact in relation to consent (s 103ZX).  Subdivision 4 provides for a number of directions about differences in the complainant’s account (s 103ZY), lack of complaint or delay in making complaint (s 103ZZ) and evidence of post-offence relationship (s 103ZZA).
91. [91]
    The Explanatory Note to the relevant Bill for the proposed legislative amendments,^[8] noted that the policy objectives of the Bill included progressing further amendments to abolish or reform particular jury directions that had been the subject of recommendations made by the Royal Commission into Institutional Responses to Child Sexual Assault, (Royal Commission), in light of further reforms recommended by the Women’s Safety and Justice Taskforce, (Taskforce) in its second report, ‘Hear her voice – Report Two – Women and girls’ experiences across the criminal justice system.’  Recommendation 77 within that report stated:^[9]

“The Attorney-General and Minister for Justice, Minister for Women and Minister for the Prevention of Domestic and Family Violence progress amendments to the Evidence Act 1977 providing for jury directions to be given that address the following misconceptions about sexual violence:

1. –the circumstances in which non-consensual sexual activity occurs

1. –responses of a victim to non-consensual sexual activity when it occurs

1. –lack of physical injury to the victim-survivor, violence or threats made by the accused person

1. –victim-survivor responses to giving evidence about an alleged sexual offence at trial

1. –behaviour and appearance of a victim-survivor at the time of an alleged sexual offence

1. –perceived flirtatious or sexual behaviour (such as holding hands or kissing) implying consent to later sexual activity

Commencement of the Bill containing the amendments should be delayed for a period that is sufficient for the Director of Public Prosecutions’ ‘Director’s Guidelines’ (recommendation 47) and the Supreme and District Courts Benchbook (recommendation 73) to be updated to reflect the new provisions and for training of lawyers and judicial officers to take place.”

92. [92]
    The Taskforce also noted the following in its report:^[10]

“…the Taskforce has found that despite improved understanding of violence against women, some in the community still hold concerning and harmful views and attitudes that enable rape myths and harmful beliefs about women and violence to perpetuate. Research commissioned by the Taskforce found that community members struggled to apply the correct principles about sexual consent to real-life scenarios, and that there was evidence of common myths influencing their understanding. These are the jurors that interpret evidence and decide sexual offence matters on a daily basis.

The Taskforce has heard that myths about sexual violence are continuing to influence criminal justice processes, including trials. The Taskforce has heard from victim-survivors, support services, and even a prosecutor, that social media messages on dating apps and the appearance of victim-survivors are being used to invoke common misconceptions in the minds of jurors and cast doubt on the testimony of the complainant.

The Taskforce has concluded that jurors need to be better directed in complex criminal trials, and in relation to common misconceptions about sexual violence, to neutralise the extent to which this influences their deliberations and decisions. The Taskforce supports introducing jury directions on misconceptions about sexual violence, in similar terms to recommendation 78 of the VLRC report.”

93. [93]
    The “VLRC report” referred to by the Taskforce was the Victorian Law Reform Commission’s report, Improving the Justice System Response to Sexual Offences.^[11]  Recommendation 78 within that report stated:

“New jury directions should be introduced in the Jury Directions Act 2015 (Vic) to address misconceptions about sexual violence on:

3. a.
   an absence or presence of emotion or distress when reporting or giving evidence

3. b.
   a person’s appearance (including their clothing), use of drugs and alcohol, and presence at a location

3. c.
   behaviour perceived to be flirtatious or sexual

3. d.
   the many different circumstances in which non-consensual sexual activity may take place, including between:

3. i.
   people who know one another

3. ii.
   people who are married

3. iii.
   people who are in an established relationship

3. iv.
   a consumer of sexual content or services and the worker providing the content or services

3. v.
   people of the same or different sexual orientations or gender identities

3. e.
   ounterintuitive behaviours, such as maintaining a relationship or communication with the perpetrator after non-consensual sexual activity.”

94. [94]
    The enacted provisions of Part 6B of the Evidence Act implement the Taskforce’s recommendation 77.  However, it is to be noted that the recommendation did not suggest any particular legislative amendment should be made to deal with the matter now dealt with by s 103ZY (direction on differences in complainant’s account).
95. [95]
    Following the Evidence Act amendments, s 103ZO now provides that Part 6B, Division 3 applies to the trial of a charge of a sexual nature.  Under s 103ZQ(1), a trial judge must give one or more of the directions set out in subdivision 3 if there is good reason to give the direction, or if a party to the proceeding requests the direction, unless there is good reason not to give the direction.  Where a direction under subdivision 3 or 4 is to be given, s 103ZQ(2) provides that it must be given at the earliest time in the proceedings that the judge determines is appropriate.  Under s 103ZQ(3) and (4), any such direction given may be repeated at any time, including before any evidence is adduced or in the judge’s summing up to the jury.  Section 103ZQ(5) expressly provides that a judge is not required to use a particular form of words in giving a direction under subdivision 3 or 4.
96. [96]
    Consistent with the stated policy objectives of the Bill, ss 103ZT and 103ZY now provide:

3. (i)
   people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time; and

3. (ii)
   trauma may affect people differently, including affecting how they recall events; and

3. (iii)
   it is common for there to be differences in accounts of a sexual offence; and

3. (iv)
   both truthful and untruthful accounts of a sexual offence may contain differences; and

3. (b)
   that it is up to the jury to decide whether or not any differences in the complainant’s account are important in assessing the complainant’s truthfulness and reliability.

3. (3)
   In this section—

3. difference, in an account, includes—

3. (a)
   a gap in the account; and

3. (b)
   an inconsistency in the account; and

3. (c)
   a difference between the account and another account.”

97. [97]
    The Explanatory Note to the Bill contained little discussion of ss 103ZT and 103ZY, beyond repeating their proposed content.  However, more generally the Explanatory Note relevantly stated:^[12]

“Jury directions – sexual offences

The Taskforce found that despite improved understanding of violence against women, some in the community still hold concerning views and attitudes that enable common misconceptions about sexual violence (‘rape myths’) and harmful beliefs about women and violence to perpetuate. The Taskforce heard that these rape myths continue to influence criminal justice processes, including trials.

Consistent with the Taskforce’s recommendation (recommendation 77 of Report Two), the Bill introduces jury directions for sexual offences, in similar terms to the directions contained in the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW) and recommendation 78 of the Victorian Law Reform Commission report, Improving the Justice System Response to Sexual Offences.

The Bill inserts new Part 6B, Division 3 into the Evidence Act.”

98. [98]
    When introducing the Bill into the Legislative Assembly, the Minister for Women stated:^[13]

“The taskforce found that sexual offence laws are often misunderstood, and rape myths and stereotypes, including narratives of implied consent, still feature very heavily in trials. The bill amends the Evidence Act to introduce jury directions for sexual offence trials…

…

The bill inserts jury directions related to sexual offences which address common misconceptions about sexual violence, including that victims will make a complaint at the first reasonable opportunity, or that people contribute to their own victimisation by what they wear, by being intoxicated or by flirting with a defendant. The new directions will apply to trials for sexual offences whether conducted in front of a jury or by a judge alone.”

99. [99]
    In accordance with usual practice, the Bill was then referred to the Legal Affairs and Safety Committee for consideration.  In its subsequent report to the Legislative Assembly,^[14] the Committee recommended that the Bill be passed.  The Committee’s report contains no detailed discussion of either ss 103ZT or 103ZY.
100. [100]
     As identified by the Explanatory Note, the amendments to the Evidence Act were modelled on equivalent New South Wales provisions, which are now to be found in Part 5, Division 1, subdivisions 3 and 4 of the Criminal Procedure Act 1986 (NSW), dealing with evidence in sexual offence proceedings.  The Queensland provisions are in virtually identical terms to the New South Wales provisions.  Sections 103ZT and 103ZY of the Queensland Evidence Act are the respective analogues of ss 292B and 293A of the New South Wales Criminal Procedure Act.
101. [101]
     I also note that the recommendations contained in recommendation 78 of the VLRC report Improving the Justice System Response to Sexual Offences were subsequently adopted in Victoria and led to consequential amendments to the Jury Directions Act 2015 (Vic), which inserted a new Division 1A, containing provisions in subdivision 3, (ss 47A to 47H), which predate, but are also in similar terms to, the provisions that now appear in Part 6B, Division 3, subdivision 3 of the Evidence Act.^[15]
102. [102]
     Although in Queensland the relevant amendments to the Evidence Act that are now contained in Part 6B, Division 3, subdivisions 3 and 4, concerning jury directions in sexual offences, were all introduced at once by the same amending legislation, it is pertinent to note that was not the case with respect to relevant amendments made to the Criminal Procedure Act in New South Wales or to the Jury Directions Act in Victoria.
103. [103]
     In New South Wales, each of the relevant provisions of subdivision 3 of the Criminal Procedure Act (ss 292 to 292E) were introduced by the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW), which commenced operation in that jurisdiction on 1 June 2022.^[16]  However, s 293A, which appears within subdivision 4, had been earlier inserted by Schedule 4, item 10, of the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW), which commenced on 1 December 2018.^[17]  That earlier amendment was made in response to recommendation 70 made by the Royal Commission in its Criminal Justice Report, which proposed that each state and territory should conduct a consultative process in relation to judicial directions concerning educative information about children and the impact of sexual abuse with a view to settling standard directions and introducing legislation as soon as possible to authorise and require the directions to be given.  In making this recommendation, the Royal Commission further noted:

“…The National Child Sexual Assault Reform Committee’s recommended mandatory judicial directions and the Victorian Government’s proposed directions on inconsistencies in the complainant’s account should be the starting point for the consultation process….”^[18]

104. [104]
     During the second reading speech in support of the Criminal Legislation Amendment (Child Sexual Abuse) Bill (NSW), the Attorney-General said of the proposed amendment that later became s 293A of the Criminal Procedure Act:^[19]

“…Schedule 4 [10] amends the Criminal Procedure Act 1986 to provide for a new type of jury direction. It will allow a judge to provide a jury with educative information to prevent a jury making incorrect assumptions as a result of inconsistencies in a complainant's account of a sexual offence. These inconsistencies may arise within a complainant's in-court evidence, or between their evidence in court and their out-of-court statements. The direction will allow the judge to tell the jury that experience shows that people may not describe a sexual offence in the same way each time, that it is common for there to be differences each time a person gives an account of an offence, and that trauma may affect how people recall events. The direction aims to prevent a jury from assuming that these sorts of inconsistencies mean the complainant is lying.”

105. [105]
     Similarly, in Victoria s 54D of the Jury Directions Act, the equivalent of Queensland s 103ZY of the Evidence Act, was introduced much earlier in time by the Jury Directions and Other Acts Amendment Act 2017 (Vic), which inserted a new Division 3 of Part 5 into the Jury Directions Act.  Section 54D is the enacted provision on inconsistencies in a complainant’s account that had been the Victorian government’s proposed directions endorsed by the Royal Commission in recommendation 70 of its Criminal Justice Report.  In discussing those proposed directions in its report, the Royal Commission noted a report from Victorian Department of Justice and Regulation^[20] contained the following explanation of the proposed amendments:^[21]

“Division 1 of Part 5 of the Jury Directions Act addresses common misconceptions about delay in complaint, or lack of complaint, in sexual offence trials. Another common misconception in sexual offence trials is that a ‘real’ victim would remember all the details of an offence and be consistent in how they describe that offence whenever they are asked to do so.

Research shows that people retain and recall memories differently and that a traumatic event may affect these processes. Research also shows that accounts of a sexual offence often contain differences (i.e. gaps or inconsistencies) and that differences may arise in both truthful and untruthful accounts.

The Bill will reflect this research in a ‘corrective’ direction that aims to assist jurors to approach a complainant’s evidence neutrally, rather than with preconceived notions about ‘real’ victims.”

106. [106]
     With respect to the proposed amendment that later became s 54D of the Jury Directions Act, the Attorney-General speaking in support of the Bill on the occasion of its second reading in the Legislative Assembly, said:^[22]

“Defence counsel often use differences in accounts to discredit the complainant's credibility or reliability. Research shows that people retain and recall memories differently, and that truthful accounts often contain differences. For example, an August 2016 report published by the Royal Commission into Institutional Responses to Child Sexual Abuse found that in the sample study, defence counsel raised inconsistencies within the complainant's own evidence in more than 90 per cent of cases. Trauma can also exacerbate the normal variability of memory. However, these issues are not commonly understood. Instead, it is a common misconception that a ‘real’ victim would remember all the details of an offence, and describe that offence consistently each time, to any person, in any context.

The bill will allow trial judges to address this misconception in appropriate cases. The direction will include that people may not remember all the details of a sexual offence or describe an offence consistently each time, and that it is common for there to be differences in accounts. However, the direction will also emphasise that it remains up to the jury to decide whether any differences are important and whether they believe some, all or none of the complainant's evidence.

In line with the current directions on delay and credibility, the direction would address the risk that a juror will make an unwarranted assumption about differences in a complainant's account. It would encourage jurors to consider the complainant's evidence with an open mind, while not restricting the ability of defence counsel to argue how differences in the particular complainant's account may affect their credibility or reliability.”

107. [107]
     The Explanatory Memorandum to the Jury Directions and Other Acts Amendment Bill 2017 also relevantly noted:^[23]

“Research demonstrates that people make and recall memories differently, and that differences in accounts of an alleged sexual offence are common. For example, an August 2016 report (Powell, M., Westera, N., Goodman-Delahunty, J., and Pichler, A.S., "An Evaluation of how Evidence is Elicited from Complainants of Child Sexual Abuse") published by the Royal Commission into Institutional Responses to Child Sexual Abuse found that in the sample study, defence counsel raised inconsistencies within the complainant's own evidence in more than 90% of cases.

Research further demonstrates that the normal variability of memory can be further exacerbated by the impact of trauma, such as that experienced by victims of sexual assault. However, these issues are not commonly understood, and instead, juries may be under the misconception that a true victim will always give a complete and consistent account of a sexual offence.

Research also indicates that both truthful and untruthful accounts may contain differences. For example, a 2006 study (Zajac, R., and Hayne, H., "The Negative Effect of Cross-Examination Style Questioning on Children's Accuracy: Older Children are Not Immune") found that children changed over 40% of correct responses during cross-examination style questioning.

New Division 3 does not prevent defence counsel from arguing how differences may affect the credibility of a particular complainant. However, where there are differences in accounts, this Division aims to ensure that that [sic.] the jury deals with those differences on an informed basis, by addressing these common misconceptions by way of a "corrective" direction.”

108. [108]
     Beyond the bare references to the effect of the provision in the Explanatory Note to the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Bill 2023, I have not found any other relevant reference in any extrinsic material produced in this jurisdiction that assists to explain the origin of what is now s 103ZY of the Evidence Act.  I do however note that in its fifth annual progress report on the recommendations of the Royal Commission, the Queensland Government recorded in respect of recommendation 70 of the Criminal Justice Report that its position was “noted” and its status was “complete”.  The accompanying implementation summary note read:

“In consultation with ODPP, the judiciary and relevant stakeholders, the Queensland Government considers that this issue is most appropriately left to the discretion of judges as informed by the facts and circumstances of individual proceedings.”^[24]

109. [109]
     It appears therefore that when proposing the amendments to the Evidence Act that became the new Part 6B, Queensland largely adopted what had previously been implemented in New South Wales.  That included the introduction of s 103ZY, which mirrored s 293A of the New South Wales Criminal Procedure Act, which in turn replicated existing s 54D of the Victorian Jury Directions Act.
110. [110]
     I am not aware of any cases which have authoritatively considered the equivalent New South Wales and Victorian provisions for ss 103ZT and 103ZY and the parties did not identify any such case.
111. [111]
     I finally note that since the introduction of the new Part 6B Evidence Act provisions, Chapter 66A has been inserted into the Queensland Supreme and District Courts Benchbook.^[25]  The chapter provides guidance to trial judges on the new legislative provisions and required directions.  It relevantly contains the following suggested direction:^[26]

“The reactions of people who allege they have been offended against will inevitably vary. Different people may behave differently in response to the same circumstances. The same person may be affected differently at different times by similar circumstances. There is no rule book dictating how a person will be affected if offended against. Despite this, in sex cases people sometimes apply pre-conceived expectations about how the Complainant should react, behave and be affected. You should of course apply your own wisdom and knowledge of the human condition in considering the facts of this case. However, it is important that you do not judge the case based on pre-conceived expectations about how an alleged victim of a sexual offence should or should not react, behave or be affected. To guard against that risk, I give you the following direction[s] of law.

[Direct in accordance with the provisions of subdivisions 3 and 4, listed above in 66A.1 Legislation, to the extent they apply to the case].” (emphasis added)

The trial judge’s directions

112. [112]
     In accordance with ss 103ZQ(2) and 103ZT of the Evidence Act, the trial judge gave the jury the following instructions immediately after the complainant had completed her evidence:

“Before we move on to the next piece of evidence, I’m just going to give you a direction, members of the jury, which I’ll be repeating in my summing up. It’s simply part of the ultimate directions I’ll give you. My direction is this. There is no typical or normal or proper response to non-consensual sexual activity. People may respond to non-consensual sexual activity in different ways, including by freezing and not saying or doing anything. You, the jury, must avoid making assessments based on preconceived ideas about how people respond to non-consensual sexual activity.” (emphasis added)

113. [113]
     At the conclusion of the evidence, and in the absence of the jury, the trial judge raised with counsel the directions that would be sought and required under the newly commenced Part 6B Evidence Act provisions.  In response, the Crown provided a list of the relevant directions it contended ought to be given, including a direction in accordance with s 103ZT.  The introductory section of the proposed directions contained the precise wording of the suggested direction in Chapter 66A.3 of the Benchbook set out above.  The proposed direction in respect of responses to non-consensual sexual activity repeated the exact terms of s 103ZT.  No reference was made to s 103ZY.  The trial judge later raised the necessity for such a direction of her own volition.
114. [114]
     In response to the Crown’s proposed s 103ZT direction, defence counsel suggested that the trial judge might omit the reference to a person “freezing”, as that situation did not arise on the evidence.  The trial judge agreed that the case was not strictly one involving a “freeze response” and proposed, consistent with the complainant’s account, that the freezing example could instead be replaced with “acquiescing or submitting or giving in”.  Both counsel agreed that was appropriate.  Both also agreed that a direction in terms of s 103ZY should be given as indicated by the trial judge.
115. [115]
     At the commencement of her Honour’s summing up, the trial judge gave the jury the following general instruction:

“Many factors may be considered in deciding what evidence you accept. I am going to talk now about just some general considerations that might help you when you are assessing the witness’s evidence. You bring your common sense and life experience to that task, but I will mention some general considerations that might help you, and these again are directions I routinely give juries.”

116. [116]
     Later, when summing up to the jury, after identifying for the jury that the central issue in dispute in respect of each charge was the question of consent, the trial judge gave the following directions.  For convenience, I have added notations to indicate the apparent source of the directions given:

“I am going to turn now to some other directions, which are relevant to your assessment of the complainant’s evidence particularly.

The reactions of people who allege that they have been sexually offended against, and I am talking here about the reactions of a complainant, in this case, [complainant’s name], will inevitably vary. Different people may behave differently in response to the same circumstances. The same person may be affected differently at different times by similar circumstances. There is no rulebook dictating how a person will be affected or will behave if they are sexually offended against. Despite that, in sex cases, sometimes people wrongly apply preconceived notions or preconceived expectations about how a complainant should react or should behave or should be affected. It is very important that you do not judge this case based on preconceived notions or expectations about how an alleged victim of a sexual offence should or should not act or react or behave or be affected.

In order to guard against that risk of you bringing preconceived notions to this question, I have to give you, and I am going to give you, certain directions of law. These are directions of law which you must apply. [Benchbook Chapter 66A.3 suggested direction]

You must bear in mind that nonconsensual sexual activity, so for example, rape or sexually assaulting someone without their consent, can occur in many different circumstances and between different kinds of people, including between people who know one another who might be just friends and between people who are in an established relationship with each other, for example, between boyfriend and girlfriend. You must not act on the basis of any preconceived ideas you might have or that you might have heard about concerning whether nonconsensual sexual activity can occur as between different kinds of people. For example, you cannot assume that rape can only occur by a stranger. That would be completely wrong. It can occur between people who know each other. [ss 103ZS]

You must also bear this in mind. You must avoid making an assessment about whether or not the complainant, [complainant’s name], consented to the sexual activity the subject of the charges on the basis of any preconceived ideas you might have about how people would respond to nonconsensual sexual activity. As I said, there is no typical, normal or proper response to nonconsensual sexual activity. People may respond to nonconsensual sexual activity in different ways. Some people might fight back. Some people might freeze. Some people might acquiesce or submit or give in and not say or do anything. There is no correct response. There is no typical response. And you will recall I earlier told you that a person does not consent to an act just because they do not do or say anything to communicate that they are not consenting. [s 103ZT]

…

I further direct you that when you come to consider the complainant’s evidence, if you consider, or when you consider, for example, submissions made by defence that there may have been inconsistencies in the complainant [the complainant’s name] account or differences in her account – and when I say inconsistencies or differences, I mean, for example, a gap in the account or an inconsistency in the account, or a difference between the account given on one occasion and an account given on another. I direct you as follows: experience and research shows that people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time that they are asked to re-tell what happened.

Experience shows that trauma may affect people differently, including affecting how they recall events. Experience shows that it is common for there to be differences in accounts of a sexual offence, and that both truthful and untruthful accounts of a sexual offence may contain differences. It is up to you, the jury, to decide whether or not any differences in the complainant [complainant’s name] account are important in assessing her truthfulness and reliability. [s 103ZY]

With respect to the evidence of what happened immediately after the sexual conduct (because you have heard evidence about that), that is, about interactions between the complainant and the defendant immediately after the sexual activity before he left the unit later that morning, I direct you as follows. You must bear in mind, as I said before, that people may react differently to non-consensual sexual activity and there is no typical normal or proper response to non-consensual sexual activity.

Some people who are subjected to non-consensual sexual activity will immediately attempt to leave that place and may never contact the other person who subjected them to the activity again; while others may remain in the same place with the person or continue to communicate with that person. And there may be good reasons why a person who is subjected to non-consensual sexual activity may do those things, remain in place or otherwise continue to communicate with that person.

So, for example, where the place is the home of the complainant or the person said to be subjected to the activity, that might be one matter you might take into account. Another might be if there were some confusion about what had occurred in the mind of the complainant. You may think there are other reasons why. In any event, you must not act on the basis of any preconceived notions you may have, or you may have heard, about how people respond to non-consensual sexual activity. [ss 103ZZA and 103ZT]

The final direction I am going to give you about avoiding preconceived notions is about the timing of when the complainant went to police and made a complaint about this. I direct you that – and in this case there is a short delay. It is not a lengthy delay, but it is of some days between when the alleged offending occurred and when the complainant spoke to police. You will recall there is evidence that in the intervening period she travelled on a pre-planned trip to Bundaberg to visit her family and was away for the weekend and then returned, and on her return went to the police station.

I direct you that delay in complaining does not of itself indicate that the allegation that the sexual offence was committed is false. I direct you that there may be good reasons why a person who does not consent to a sexual activity may hesitate in making a complaint about a sexual offence.

That is all I am going to say about that set of directions with respect to avoiding preconceived notions, and those directions are really directed towards the risk of you reasoning on the basis of some preconceived notion or myth that might actually have no evidentiary basis.” [s 103ZZ] (emphasis added)

117. [117]
     As is apparent from the highlighted portions of the above excerpt from the summing up, the trial judge variously used the phrases “preconceived idea”, “preconceived expectation”, “preconceived notion”, and “preconceived notion or myth” as if they were essentially synonymous.
118. [118]
     At the conclusion of her Honour’s summing up, defence counsel took issue and made the following submissions about the above directions:

“I’ve never heard the full suite of the new directions read out before, for obvious reasons. I was left with a concern that there was significant emphasis, which there must be, on avoiding preconceived notions, but I’m very concerned that the start of the bench book directions 66A that – that says you should, of course, apply your own wisdom of the human condition in considering the facts of this case – that that really gets lost in the shuffle for all the repeating of the preconceived notions…

…

…The issue in this case is one of the things that was addressed in my closing submission is that – and I fully embrace that concept in my closing address, but the point at which the complainant is saying “Daddy” on one version or, “Your dick feels so good” on the other – that may very well come to a point where a jury reasonably could rationally assess that as being that is inconsistent with someone in non-consensual activity verse consensual, and that’s not a preconceived notion of how someone should behave.

And I’m not asking for your Honour to identify that with any fidelity. I’m just simply asking for a redirection to the terms of, ‘You must avoid relying on preconceived notions; however, I remind you that you should still apply your own wisdom and knowledge of the human condition in considering the facts of this case.’’

119. [119]
     After further discussion, the trial judge ultimately redirected the jury:

“Members of the jury, you will remember earlier I was giving you directions about avoiding preconceived notions about how people who allege they have been sexually offended against would or should behave or react in a particular situation.

I remind you, of course, that you should apply your own wisdom and knowledge of the human condition in also considering the facts of the case. And you must assess all of the evidence with those directions I gave you in mind.”

120. [120]
     No issue was taken, and no redirection was sought, in respect of the s 103ZY direction given.

Submissions

121. [121]
     The appellant submits that either in combination, or individually, the directions given by the trial judge in purported compliance with ss 103ZT and 103ZY occasioned a miscarriage of justice.
122. [122]
     With respect to the s 103ZT directions, he argues that the various phrases used by the trial judge departed from the statutory language of “preconceived idea”, which made the directions convoluted and confusing for the jury.  He submits that the concept of a “preconceived idea” was one that the jury would have found difficult to understand.  He says the trial judge ought to have used the exact phrase within s 103ZT, and should have defined the meaning of a “preconceived idea” and provided an example, as her Honour had done with some of the other subdivision 3 directions given.  He further says there is an obvious tension between a direction that the jury is to avoid making an assessment based on preconceived ideas about how people respond to non-consensual activity, yet at the same time jurors are expected to apply their own common sense, life experience, wisdom and knowledge of the human condition to the evidence.  In that respect, he contends that the initial directions given by the trial judge cannot be reconciled with the further directions given after the request for redirection.
123. [123]
     As for the s 103ZY direction, the appellant complains that the trial judge’s reference to “experience and research” showing that people may not remember all the details of a sexual offence, or may not describe a sexual offence in the same way each time that they are asked to re-tell what happened, was an unnecessary and impermissible gloss on the legislation, amounting to a misdirection.  He argues that the trial judge was effectively telling the jury, as a matter of law, that her Honour was aware of research that proved the point.
124. [124]
     The respondent submits that the directions given did not cause a miscarriage of justice.  It argues they were not confusing and were consistent with the suggested direction in the Benchbook and the wording of the legislation.  It argues that there is no tension or contradiction between the s 103ZT direction and a jury being instructed to use their experiences of everyday life and human behaviour.  It further argues that it would be of no assistance to any defendant for a trial judge to descend into providing examples of what preconceived ideas people may have, as that would often involve descriptions consistent with the way a complainant had been cross-examined or other evidence in the trial and would therefore be unfair to a defendant.

Consideration

125. [125]
     Although the focus in this case are the directions given by the trial judge in purported compliance with ss 103ZT and 103ZY, the matters that I will discuss here may have general application to other directions given in accordance with subdivisions 3 and 4 of Division 3, Part 6B of the Evidence Act.
126. [126]
     The first point to address is the changing terminology used by the trial judge.  While it is prudent for a trial judge to use the statutory language of the provisions of Part 6B when giving directions to a jury in accordance with subdivision 3 or 4, a miscarriage of justice will not be demonstrated simply because a trial judge has used different words which are to the same effect.  As s 103ZQ(5) makes plain, a judge is not required to use a particular form of words in giving a direction under subdivision 3 or 4.  What matters is that the substance of the required directions is conveyed to the jury by the trial judge in a way that will achieve the purpose of the directions, irrespective of the form of words used.
127. [127]
     I see no problem with the language used by the trial judge here in giving the jury directions in accordance with s 103ZT.  Although the trial judge used different expressions, such as “preconceived idea”, “preconceived expectation” and “preconceived notion”, throughout this section of her Honour’s summing up, they were all to the same effect.  Conceptually, there is no material difference between the various phrases.  I also observe that when giving the full directions in accordance with s 103ZT, the trial judge actually used the exact words from the section, “preconceived ideas”.  I do not consider the jury may have been confused or misunderstood the directions because of the use of different terminology at times by the trial judge.
128. [128]
     Although the phrase “preconceived idea” only appears in s 103ZT, it is apparent from the trial judge’s summing up that her Honour repeated the phrase, or its equivalents, several times when directing the jury in accordance with other provisions of subdivision 3.  Whilst it was not strictly necessary to do so, I see no difficulty with a trial judge doing that where it is considered appropriate or necessary.  Such an approach would of course be consistent with the underlying purpose of many of the jury directions contemplated by Part 6B.  The directions are intended to challenge and correct misconceptions about the circumstances in which sexual offences are committed and the behaviour of victims of such offences.  The addition of phrases such as those used by the trial judge here, when giving the other relevant directions in accordance with provisions of subdivision 3, served to emphasise the point and purpose of the directions and did not make the directions unnecessarily convoluted, confusing or somehow unfair.  Subject to statutory requirements and the observance of authoritative statements of legal principle, the precise form and content of judicial directions is always a matter for a trial judge to fashion and deliver according to the exigencies and circumstances of the particular case.  Section 103ZR makes plain that the provisions of Division 3 of Part 6B of the Evidence Act do not limit the matters the court may direct the jury about.
129. [129]
     In my view, it was not necessary for the trial judge to provide the jury with a definition of a “preconceived idea” or to further explain what the phrase meant.  They are ordinary words and their meaning, in context, is obvious.  Similarly, I do not consider it was necessary for the trial judge to provide further examples of the kinds of preconceived ideas that the jury might have about how a person might respond to non-consensual sexual activity.  A trial judge might appropriately do that in a particular case to illustrate the point of the directions given, but it is not essential.  Care would need to be taken to ensure that any example did not unfairly cut across the case legitimately put and run by a defendant.  Irrespective, the general kinds of preconceived ideas that the jury must avoid are to an extent already identified by the terms of the directions that are required to be given.  For example, a direction given in accordance with s 103ZT(a) tells a jury that there is no typical, normal or proper response to non-consensual sexual activity and a direction in accordance with s 103ZT(b) stipulates that people may respond to non-consensual sexual activity in different ways, including by freezing or not saying or doing anything.  Jurors given directions in such terms, together with a direction in accordance with s 103ZT(c), would readily understand that any pre-existing idea they may have that a “real victim” of non-consensual sexual activity would respond in a particular way would be a preconceived idea that they must avoid.
130. [130]
     I stress once more that the evident purpose of directions of this kind is to ensure that where a complainant attests to the fact that the subject sexual activity was non-consensual, a jury does not assess the complainant’s evidence of what occurred and what they did or did not do, by reference to outdated, but perhaps still commonly held, misconceptions and stereotypical assumptions about how sexual offences are perpetrated and how a “real victim” of a sexual offence would behave or respond to non-consensual sexual activity.  The directions achieve this purpose through their educative and corrective content and by a judicial instruction that prohibits assessments based on preconceived ideas.
131. [131]
     Whether there is illogicality and tension between giving directions of this kind, while at the same time informing the jury that they are entitled to use their “common sense” and “experience of everyday life” or their own “wisdom and knowledge of the human condition” to evaluate the evidence, requires closer examination.
132. [132]
     In most sexual offence cases there are no eyewitnesses.  The only persons present at the time of the commission of the alleged offence are the complainant and the defendant (or defendants).  Invariably, when the matter comes to trial the complainant’s reliability and credibility are put in issue, whether with respect to the question of consent or the happening of the act itself, or both.  Proof of the charge usually comes down to whether the jury believes the complainant.  Expressed more accurately and appropriately in a criminal trial context, where the Crown bears the onus of proof, it is often the case that the prosecution’s charge cannot be proven to the requisite standard unless the complainant’s account of what took place is accepted beyond reasonable doubt.  Whether the jury is prepared to accept the complainant as a truthful witness is thus central.  Whilst remaining cognisant at all times that the Crown has the burden of proof, it is commonplace in cases of this kind for a defendant to challenge a complainant’s account on the basis that their version of events cannot be accepted because it is impossible, implausible or inconsistent.  “Impossibility” here refers to a suggestion that a complainant’s account cannot be true because the alleged sexual act simply could not have occurred at the time and place or in the circumstances related by the complainant.  Such an outcome might be demonstrated by contrasting the complainant’s evidence with other evidence adduced at trial or by assessing the complainant’s evidence against the kinds of commonly accepted facts of which a court may take judicial notice without formal proof.  “Inconsistency” here refers to a suggestion that a complainant’s account cannot be believed as it is either internally inconsistent with the complainant’s own evidence or inconsistent with other evidence adduced in the trial.  Whether that is so is a matter that may be assessed according to the evidence adduced at trial.
133. [133]
     Whilst “implausibility” might well be employed by a defendant in a general sense to describe the idea that the complainant’s account cannot be accepted, I am here using the term in a more confined sense, where the defendant suggests that the complainant’s evidence cannot be true as it is so inherently unlikely, improbable or lacking in credibility that it is incapable of belief.  Whether that is so may or may not be a matter that can be assessed according to the evidence adduced at trial.  Often times, an argument about whether the supposed occurrence of an act or omission in question is implausible will seek to appeal to “common sense” or what jurors supposedly know about matters such as “everyday life”, “human behaviour” or “the human condition”.  Such an argument may be valid, but only if its underlying premise is valid.  In cases involving sexual offences, directions of the kind contemplated by Part 6B of the Evidence Act have been enshrined in legislation because of the real risk that jurors may wrongly assess a complainant’s account of non-consensual sexual activity on the basis of invalid assumptions derived from so-called “common sense” or their supposed knowledge or experience of “everyday life”, “human behaviour” or “the human condition”.  The directions are designed to counteract such invalid assumptions.
134. [134]
     It is important to bear in mind however that directions given by a trial judge to a jury are not a judicial instruction about what facts the jury should find.  The directions required by Part 6B are designed to ensure that when jurors assess the evidence, they do not deliberately or unwittingly reason in an illogical or impermissible way.  But that is not to say that jurors may not use their common sense, wisdom and experience of the human condition when evaluating the evidence.  They may, and indeed must, do that as the representatives of our community charged with determining whether the Crown has proven its charge beyond reasonable doubt.^[27]However, the legislature has determined that in cases of this kind, the collective, common sense, wisdom and experience of the human condition that jurors bring to bear upon the issues raised at trial cannot be deployed without guidance.  That is because the lived experience of victims of sexual offences, results of dedicated research and the accumulated curial experience of cases like the present shows that without such instruction, juries may wrongly assess matters on the basis of “rape myths” or misconceptions about how they think victims of sexual offences should behave, despite having no actual knowledge or direct experience of such matters to draw upon.
135. [135]
     The present case illustrates the distinction that I am striving to make.  Directions of the kind given here in accordance with s 103ZT tell the jury that it must avoid making assessments based on preconceived ideas about how people respond to non-consensual sexual activity. The directions did not tell the jury that the evidence of the circumstances of the alleged offence and of the complainant’s behaviour before, during and after the alleged sexual act, were irrelevant and were not probative of the issue of consent.  What the directions told the jury was that it must not assess the complainant’s evidence on the basis of any prior general assumption as to the circumstances in which sexual offences are perpetrated and how a person should, or would, respond or behave if they were in fact a victim of a sexual offence.
136. [136]
     Where there is evidence that the complainant did, or did not, respond or behave in a particular way, that may be relevant and probative of a fact in issue such as consent.  For example, in this case, the evidence that the complainant must have opened her mouth when the men inserted their penises, that she held herself in position and did not physically resist when subjected to intercourse, and that she called the appellant “Daddy” just before he finished, were of course relevant to the issues of consent and mistake of fact.  Such matters were for the jury to evaluate and assess as part of its duty to determine the case according to the evidence, and only the evidence, in discharging its function as the tribunal of fact.  However, what the jury in a trial like this must not do, and what the Part 6B directions are designed to guard against, is to evaluate and assess the evidence against any general misconceptions or stereotypes that the jury may have about a person who makes such a complaint.  In other words, the directions are a judicial instruction to the jury that such matters are not legitimate matters of “common sense” or “wisdom” or the full range of the “experience of the human condition” and that jurors must not assess a complainant’s evidence, and the crucial question of whether they are telling the truth, as if they were.
137. [137]
     For these reasons, I do not consider there is any illogicality or tension between the various directions the trial judge gave to the jury.
138. [138]
     With respect to s 103ZY, there is no substance to the appellant’s complaint.  While the section does not refer to “research”, the trial judge’s mention of that matter when giving the directions in accordance with s 103ZY did not give rise to any miscarriage of justice.  As the context and purpose for the inclusion of s 103ZY in the amendments made to the Evidence Act set out earlier above shows, the intention of a direction given in accordance with that section is to enable a jury to better assess the evidence given by a complainant by alerting the jury to matters that have been shown by experience, supported by research, to be within the accepted range of behaviours exhibited by victims of sexual offences, but which would likely lie outside the individual and collective experience of jurors.  That is why the words “experience shows” have been included in the language of s 103ZY and are to be used in a direction given in accordance with that section.  It is another example of a corrective and educative direction.  In that way, the direction seeks to ensure that the jury can give proper consideration and weight to any inconsistencies in a complainant’s account.
139. [139]
     While it would have been preferable for the trial judge to have avoided adding the word “research” and to adhere to the statutory language when giving the direction in this case, the addition of that word on one occasion was harmless and did not amount to a misdirection.  Although I accept that the word “research” is not synonymous with the word “experience”, in the context of the origin and purpose of s 103ZY it was not entirely inapt to refer to “research”.  In any event, in my view it is most unlikely that the use of the word would have been understood by the jury as adding anything more to what the trial judge had directed, let alone some degree of scientific validity to the direction.  Even if it did, it could not have distracted the jury from their fundamental task as the full content of direction made plain that it was for the jury to decide whether or not any differences in the complainant’s account were important in assessing the complainant’s truthfulness and reliability.
140. [140]
     Finally, I again note that s 103ZQ(5) provides that no particular form of words is required when giving directions in accordance with subdivision 3 or 4.
141. [141]
     In my view, this ground of appeal fails.

Ground 4: Miscarriage of justice caused by the prosecutor’s closing address

The prosecutor’s address

142. [142]
     In his closing address, the Crown prosecutor made the following submissions to the jury:

“…There were some suggestions by my learned friend that she actively stayed in position for them to have doggy-style sex with her and, ladies and gentlemen, it is well recognised, and her Honour has already told you this and will tell you this again, that there is no typical, normal or proper response one is to have to non-consensual sexual activity and people may respond to non-consensual sexual activity in different ways. And remember that a person does not consent to an act if the person does not say or do anything to communicate consent and you, as the jury, must avoid making assessments based on preconceived ideas about how people should respond to non-consensual sexual activity.

In cross-examination, my learned friend suggested that she didn’t turn away, she didn’t move away, she stayed put when they were having sex with her, that she didn’t push him away. The two males who were having sex with her, and you saw [the complainant] and you can see [the appellant] behind me, do you think it’s reasonable to suggest what my learned friend has suggested, that she should’ve fought back and she should’ve done more? He even went as far as to suggest that she should’ve tried biting their penis. Is that really the defence case here?

Well, ladies and gentlemen, as her Honour will tell you, the law recognises now that it isn’t appropriate anymore to suggest that someone should’ve done or said something to stop what was happening as my learned friend tried to suggest to [the complainant]. On multiple occasions during his cross-examination of her, he suggested to her that her lack of fighting back, her lack of pushing them away, somehow means that she was now consenting. That just simply isn’t the law, ladies and gentlemen. Because she didn’t bite his penis when it was in her mouth, she’s now somehow magically consenting. Does that accord with your own common sense? And remember, she was being confronted by two men in a small room. What is she supposed to have done when they were doing that to her? Your Honour will tell you that stereotypes and myths about how a person should respond in these situations have no place in this trial and have no place in society anymore.

So how does that fit with my learned friend questioning [the complainant] on what she should’ve done, what she should’ve said, and how she should’ve reacted? My learned friend said to her, “You didn’t tell him to pull out. You didn’t tell him to not ejaculate inside of you. You didn’t tell him afterwards that he shouldn’t have done that. You didn’t say anything to him after.” And we have moved as a community far away from this type of myth and stereotype and what my learned friend was focusing on with [the complainant] and what she didn’t do to stop what was happening to her. Why is this about what [the complainant] did and why isn’t it about what [the appellant] did? Because after all, ladies and gentlemen, this trial is about [the appellant]. He is on trial, not [the complainant].” (emphasis added)

143. [143]
     In his closing address to the jury on behalf of the appellant, defence counsel took issue with the prosecutor’s comments and rejected any suggestion that the way he had conducted the defence case was somehow improper.  He urged the jury not to abandon common sense.
144. [144]
     Defence counsel did not otherwise make any complaint to the trial judge, or seek any directions be given, about the prosecutor’s comments.
145. [145]
     After both addresses, the trial judge volunteered for the record that the prosecutor’s comments about the way in which the complainant had been cross-examined were not inappropriate or intemperate remarks and, in her Honour’s view, they did not cause any unfairness to the appellant in a way that had occasioned a miscarriage of justice.

Submissions

146. [146]
     The appellant submits that the prosecutor’s comments were unjustified.  He contends that they must be considered in light of the “nebulous” distinction between proper jury wisdom and “preconceived notions”.  He says not only did the prosecutor make no attempt to draw a distinction between these concepts, he went further and repeatedly insisted that his statements carried the imprimatur of the courts and the law.
147. [147]
     The appellant submits the situation was further compounded by the trial judge’s “preconceived notion directions”, being those I have already discussed above, such that there is a real risk that the jury would have been left with uncertainty as to how, or even if, they could utilise the evidence concerning the complainant’s actions in assessing the central disputed issues of consent and mistake of fact.  He says that in all the circumstances the jury would have been left with the impression that they simply could not consider the complainant’s actions and words as indicating consent, as that would be to act upon a preconceived notion, and that defence counsel was acting in some underhanded or improper way in his conduct of the appellant’s case.
148. [148]
     The respondent submits that the prosecutor’s comments were not inappropriate and were justified in the circumstances.  It says there were numerous occasions in the cross-examination where the questions were necessarily premised on a preconceived notion of how the complainant should have reacted if she was not consenting, and it was legitimate for the prosecutor to draw those matters to the jury’s attention in the way he did.  The respondent further submits that the prosecutor’s comments about the cross-examination by defence counsel and the conduct of the defence case were reasoned submissions made in the context of making factually and legally correct arguments to the jury.

Consideration

149. [149]
     Neither the trial judge’s observations, nor the fact that defence counsel failed to object or seek any direction to deal with the prosecutor’s address are determinative of this ground.  The question for this Court is whether in all the circumstances a miscarriage of justice was occasioned by the prosecutor’s comments.
150. [150]
     It is well-established that the conduct of a prosecutor may result in the trial of an accused being unfair, thereby causing a miscarriage of justice.^[28]  That may occur where a prosecutor makes improper comments to the jury in a closing address.  However, the ultimate question in such a case is not whether the prosecutor’s comments were improper but whether they resulted in a miscarriage of justice.^[29]  Whether that will be so in any particular case is a question of degree and will depend on the nature and extent of the prosecutor’s conduct and comments, viewed in the context and circumstances of the trial.
151. [151]
     In R v Smith,^[30] this Court observed:

“The role of prosecuting counsel is one of institutional significance in the criminal justice system.  It differs from that of an advocate representing an accused person in a criminal matter or a party in civil litigation.  A prosecutor represents the state.  They should make any evidence which could be in the interests of an accused person available to the accused person or their counsel.  Their duty is not to obtain a conviction by all or any means.  It is to fairly and impartially place before the jury all relevant reliable evidence.  They should then address the jury as to how to use this evidence according to law when they deliberate to consider their verdict so that the jury can carry out their function of administering justice according to law and reaching a true verdict on the evidence…Prosecuting counsel must not adopt tactics that involve an appeal to prejudice or amount to an intemperate or emotional attack upon the accused person.  That does not mean that in properly carrying out the role the prosecutor's cross-examination and jury address must be bland, colourless and lacking in the advocate's flourish…

In determining whether to allow an appeal on the basis of an inflammatory jury address by a prosecutor, the critical question is not whether the prosecutor's remarks were improper but whether they may have improperly influenced the jury so as to cause a miscarriage of justice…Central to that question is the underlying right of an accused person to a fair trial according to law.”

152. [152]
     In R v Livermore,^[31] the New South Wales Court of Criminal Appeal noted that whilst a formulaic approach was not to be adopted when determining whether a prosecutor’s address had exceeded proper bounds, common examples of prosecutorial conduct which, either alone or in combination, had consistently been held to justify censure by the courts were:

     1. A submission to the jury based upon material which is not in evidence.
     2. Intemperate or inflammatory comments, tending to arouse prejudice or emotion in the jury.
     3. Comments which belittle or ridicule any part of an accused’s case.
     4. Impugning the credit of a Crown witness, where the witness was not afforded the opportunity of responding to an attack upon credit.
     5. Conveying to the jury the Crown Prosecutor’s personal opinions.
153. [153]
     In my view, the submissions from the prosecutor’s address that I have emphasised in the above excerpt should not have been made.  I consider they were inappropriate.
154. [154]
     The rhetorical question, “is that really the defence case here?”, after referring to that part of the cross-examination of the complainant where defence counsel had asked her if she had bitten the penis of either man when it was in her mouth, was to my mind an attempt to belittle or ridicule the appellant’s case.  Viewed in isolation it was perhaps innocuous enough.  More problematic however was the prosecutor’s submission to the jury that “the law recognises now that it isn’t appropriate anymore to suggest that someone should’ve done or said something to stop what was happening as my learned friend tried to suggest to [the complainant]”.  That comment misstates the law and erroneously elevated factual matters that were properly for the jury’s consideration to matters of law.  The danger posed by such submissions was that the jury might think the matters defence counsel had cross-examined the complainant about were improper, irrelevant or unable to be considered when assessing the complainant’s evidence and the issue of consent as they were contrary to the law.
155. [155]
     I repeat, the directions that are to be given in accordance with Part 6B of the Evidence Act do not instruct a jury to ignore the facts and circumstances of the case at hand, and the evidence as to what a complainant did or did not do, when considering issues such as consent.  As previously discussed, the direction in s 103ZT(c) prohibits the jury from making assessments based on preconceived ideas.  Other directions in subdivision 3 and 4 serve to reinforce that direction by informing or educating the jury about matters relevant to enabling the jury to properly understand and assess the complainant’s behaviour before, during and after the alleged sexual offence and the manner in which the complainant gave evidence about such matters in court.  Whilst a jury must avoid assessments based on preconceived ideas about how a “real victim” of a sexual offence would respond, the jury must still consider the evidence of the responses, or non-responses, of the particular complainant in the trial before it.  It remains necessary for the jury to assess that evidence, together with the other evidence in the trial, when considering whether the Crown has proven its case, including proving an offence element such as absence of consent, beyond reasonable doubt.  The jury must of course do so in accordance with the directions given by the trial judge, including those given in accordance with Part 6B of the Evidence Act.
156. [156]
     In short, I do not think it is impermissible for defence counsel to test the evidence of a complainant by putting a proposition to them that they did not react or respond in some particular way when allegedly subjected to non-consensual sexual activity.  The new directions to be given in accordance with Part 6B of the Evidence Act do not change that position.  Consequently, it is not permissible for a prosecutor to suggest that defence counsel had done something contrary to the law by conducting the defence case in that way.
157. [157]
     The final part of the above excerpt from the prosecutor’s address, containing the comment, “we have moved as a community far away from this type of myth and stereotype and what my learned friend was focusing on”, again suggested impropriety on the part of defence counsel, and thereby on the part of the appellant.  While the underlying premise that in contemporary society there has been a positive change in beliefs and attitudes associated with sexual offending and the victims of such crimes is accurate, the vice here is that by saying, “and what my learned friend was focusing on”, the prosecutor sought to portray defence counsel’s cross-examination of the complainant as examples of the outmoded myths and stereotypes that the trial judge would direct the jury it must avoid when assessing the complainant’s evidence.  That was wrong and unjustified.  In my view, gratuitous comments of that kind should not be made by a prosecutor.
158. [158]
     Notwithstanding the criticisms and the concerns I have expressed, I ultimately do not consider the prosecutor’s address occasioned a miscarriage of justice.  The comments that sought to belittle or ridicule the defence case were brief, made in passing and were not repeated.  The problems with the comments that misstated the law were effectively corrected, not compounded, by the trial judge’s “preconceived notions” directions.  The trial judge did not direct the jury that the law now recognised that it was not appropriate anymore to make suggestions to the complainant of the kind defence counsel did in cross-examination about what she did or did not do or say.  As requested by defence counsel, the trial judge reminded the jury to apply their own wisdom and knowledge of the human condition when considering the facts of the case.  No further direction was sought in respect of the prosecutor’s address.  The jury were bound to follow the trial judge’s directions on the law.  It must be assumed that they understood the directions given and that is what they did.^[32]
159. [159]
     In my view, the prosecutor’s comments that suggested impropriety by defence counsel were adequately met by defence counsel in his closing address.  The absence of any complaint or request for a curative direction strongly suggests that, within the atmosphere of the trial, defence counsel did not consider anything further was required to protect the appellant’s interests.  Further, it is pertinent to note that the trial judge did not repeat any of the impugned parts of the prosecutor’s address but did fully remind the jury of the defence arguments about the complainant’s actions and inaction as being inconsistent with non-consensual sexual activity, when summarising the rival contentions, thereby making clear that those were matters the jury would need to consider.
160. [160]
     In my opinion, this ground of appeal is not established.

Conclusion

161. [161]
     As none of the appellant’s grounds of appeal succeed, his appeal against his convictions must be dismissed.

Sentence appeal

Ground 5: Specific error – factual basis not supported by the evidence

162. [162]
     The sentencing judge imposed concurrent sentences of six years and six months’ imprisonment for each of the two counts of rape and four years’ imprisonment for the aggravated sexual assault.  Her Honour declined to fix a date for parole eligibility.
163. [163]
     In the course of sentence submissions, the Crown prosecutor had contended that on the facts established by the evidence at trial, the offending was very serious and amounted to a “gang rape” by two males of a young female, committed in her own home.  The Crown prosecutor submitted that the evidence established that the complainant had clearly said “no” on multiple occasions, attempted to move away from the men and initially attempted to pull her clothes down, but she was ignored.
164. [164]
     Defence counsel submitted that although the appellant had been found guilty, it was open for the sentencing judge to conclude that the jury did not entirely accept the complainant’s version of events.  He submitted that this followed from the “undisputed evidence” that there had been flirtatious behaviour on the balcony, that the complainant had said she would shower and shave and went to the bathroom, that the complainant then came out only in a towel, and that the complainant had said “Daddy” to the appellant during the act of penile rape.  Defence counsel also pointed to the things that the appellant had said in his interview with police, which grounded his belief as to consent.  Thus, he submitted, it was open to the sentencing judge, applying s 132C of the Evidence Act and the Briginshaw standard,^[33] to make a finding that the appellant had honestly and mistakenly believed the complainant was consenting to the sexual acts, albeit such a belief was not reasonable in the circumstances.
165. [165]
     In reply, the Crown prosecutor submitted that the sentencing judge would not accept that the appellant had an honest and mistaken but unreasonable belief that the complainant had consented.  She submitted that the appellant’s interview was self-serving and completely at odds with the complainant’s version and was obviously rejected by the jury.  She submitted that the finding urged by defence counsel was simply not open.
166. [166]
     In dealing with this submission when sentencing the appellant, the sentencing judge stated:

“I sentence you on the basis that the complainant made it clear to you, both in your presence and within earshot, repeatedly, by her words and her conduct, that she did not consent to your sexual conduct towards her. I am satisfied to the requisite standard of that. In my view, by its verdict, the jury rejected your account given in a police record of interview as credible and reliable, and accepted the complainant’s evidence as credible and reliable. I am comfortably satisfied to the requisite standard that you were aware that she was not consenting but that you proceeded with the sexual conduct despite the clear manifestation of her lack of consent.”

Submissions

167. [167]
     The appellant contends that the sentencing judge erred in rejecting the factual basis for sentence put forward by defence counsel on his behalf.  He submits that the jury’s guilty verdicts were incapable of supporting a conclusion that the jury wholly rejected his version of events, particularly in light of the open path of reasoning relating to an honest but unreasonable mistake.  He further submits that in the event that the Court is satisfied that the sentencing judge erred as contended, the appellant would be resentenced to a lesser head sentence falling between four to four and a half years’ imprisonment.
168. [168]
     The respondent argues that the sentencing judge’s findings of fact were the only facts that reasonably reflected the verdicts of the jury, and no error is demonstrated.

Consideration

169. [169]
     While the sentencing judge was required to sentence the appellant in accordance with the jury’s guilty verdicts, it remained a matter for her Honour to determine the facts for sentence consistent with the jury’s verdicts.^[34]It did not automatically follow from the guilty verdicts that all aspects of the complainant’s evidence were to be accepted, nor that all aspects of the appellant’s interview were to be rejected.  By its verdicts, the jury necessarily found beyond reasonable doubt that the complainant did not consent to the sexual acts.  It would be consistent with the guilty verdicts that the jury may have found either that the appellant knew that the complainant had not consented or that he had honestly and mistakenly but unreasonably believed she had. But that did not mean that the sentencing judge had to sentence the appellant on the version of the facts most favourable to him.
170. [170]
     The contention that it was open for the sentencing judge to find that the appellant had an honest and mistaken but unreasonable belief that the complainant had consented to the sexual acts was an allegation of fact that was challenged.  The Crown contended for the contrary factual basis.  It was therefore necessary for the sentencing judge to determine whether that fact should be found, in accordance with s 132C of the Evidence Act.  Section 132C(3) provides that a sentencing judge may act on a challenged allegation of fact if satisfied on the balance of probabilities that the allegation is true.  Section 132C(4) reflects the Briginshaw standard and provides that the degree of satisfaction required for a sentencing judge to be so satisfied varies according to the consequences, adverse to the person being sentenced, of finding the allegation to be true.
171. [171]
     In rejecting the factual basis for sentence urged by defence counsel on behalf of the appellant, the sentencing judge stated that she was satisfied to the “requisite standard”.  That was obviously a reference to the standard of satisfaction required by s 132C(3), informed by s 132C(4).
172. [172]
     In my view, the sentencing judge did not err as contended.
173. [173]
     The appellant’s interview provided the substantial foundation for his mistake of fact defence.  In it, he denied that the complainant had said or done anything to indicate that she was not consenting.  That was in direct conflict with the complainant’s evidence.  In my opinion, the sentencing judge was correct to conclude that the jury must necessarily have accepted the complainant’s evidence that she had repeatedly said “no” and “I don’t want to do this” to both the appellant and her boyfriend and that the appellant was therefore aware that she was not consenting.  Regardless, it must be borne in mind that it was not necessary for the sentencing judge to attempt to divine the basis upon which the jury may have reached its verdicts.  What the sentencing judge was obliged to do was to find the facts for sentence, consistent with the jury’s guilty verdicts, on the basis of the available evidence and in accordance with s 132C.  That is what her Honour did.
174. [174]
     In my opinion, there was ample evidence upon which the sentencing judge could find that the complainant made clear to the appellant that she did not consent to the sexual conduct.  That being so, there was simply no room left for a hybrid finding that the appellant had an honest, mistaken, but unreasonable belief that the complainant was consenting to any of the sexual acts.  It was open to the sentencing judge to find, in accordance with s 132C, that, the appellant knew that the complainant was not consenting but proceeded with the sexual acts regardless.

Conclusion and orders

175. [175]
     With respect to the appeal against convictions, I would order:

1. Appeal dismissed.

176. [176]
     With respect to the application for leave to appeal against sentence, I would order:

1. Leave to appeal granted.

2. Appeal dismissed.