R v Green[2025] QCA 148

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA:  I agree with the reasons for judgment of Henry J and with the orders proposed by his Honour.
2. [2]
   GOTTERSON AJA:  I agree with the orders proposed by Henry J and with his Honour’s reasons for them.
3. [3]
   HENRY J:  The appellant, a middle-aged farmer, was convicted of committing sex offences against his 20 year old British employee.  She had been based in Melbourne but was seeking rural work to gain a two year visa.  She travelled to Queensland to live and work on the appellant’s farm in the South Burnett region.
4. [4]
   The appellant exploited the complainant’s isolation and need for income and a visa by threatening to fire her if she did not gratify him sexually.  He thereby manipulated her into twice performing oral sex upon him and allegedly allowing him to touch her breasts.
5. [5]
   That conduct attracted three counts on the indictment, for which the appellant stood trial before a Kingaroy jury almost five years later, namely:

1. Procuring a sexual act by intimidation – the first episode of oral sex;
2. Sexual assault – the episode of alleged breast touching;
3. Rape – the second episode of oral sex.

6. [6]
   The appellant was convicted on counts 1 and 3 but acquitted on count 2.  He appeals his convictions.
7. [7]
   The defence confronted two obvious disadvantages at trial.  One was unavoidable.  It was that the appellant’s unethical conduct as an employer risked prejudicing the jury’s objective consideration of whether his conduct went beyond being morally despicable into constituting the criminal offences alleged.
8. [8]
   The other disadvantage was avoidable.  It was the inherently prejudicial circumstances in which the defence had to cross-examine the complainant.  Those circumstances involved the complainant giving evidence via video link from England at a time when, as the complainant highlighted under cross-examination, she was giving evidence through the night and was tired.  Those sympathy inducing circumstances risked undermining the jury’s willingness to give weight to points made in cross-examination that were unfavourable to the complainant’s reliability.
9. [9]
   Compounding that avoidable disadvantage was the prejudicial significance of two of the learned trial judge’s ‘comments’ on facts during the summing up, each of which was favourable to the prosecution case.  The result is that the appeal must be allowed.
10. [10]
    To explain that result it is convenient to consider the issues collectively raised by the grounds of appeal in this sequence:

1. Were the convictions on counts 1 and 3 unreasonable having regard to the evidence and verdict in count 2?
2. Was the evidence in count 1 capable of proving the appellant procured performance of oral sex by ‘intimidation’?
3. Was the evidence on count 3 capable of excluding the defence of mistake of fact?
4. Did the conditions under which the complainant gave evidence from the United Kingdom occasion a miscarriage of justice?
5. Did the trial judge’s comments about the significance of the complainant’s behaviours or the unreasonableness of the appellant’s belief about consent amount to a wrong decision on a question of law or a miscarriage of justice?

11. [11]
    Discussion of the first three issues will not expose grounds for interference by this Court but will aid understanding of the significance of the problems identified in issues 4 and 5.

1. Were the convictions on counts 1 and 3 unreasonable having regard to the evidence and verdict in count 2?

12. [12]
    Ground 3(i) of the appeal alleges:

The verdicts on counts 1 and 3 were unreasonable and cannot be supported having regard to the evidence because:

1. Those verdicts were inconsistent with the acquittal on count 2 and the devastating impact that the evidence on count 2 had on the capacity of the jury to accept the complainant’s evidence generally …

13. [13]
    This ground founded two arguments.  One was of inconsistent verdicts.  The other was that the evidence on count 2 so devastated the complainant’s credibility as to render the verdicts on counts 1 and 3 unreasonable.  Consideration of both arguments requires consideration of the nature of the case and the evidence in support of it.

The nature of the case

14. [14]
    The complainant travelled to Australia in September 2016, staying in Melbourne with a friend who was also travelling.  She liked it so much she decided to seek a visa which would allow her to stay for two years.
15. [15]
    Such a visa required her to complete 88 days of rural work in Australia.  She looked for such work and noticed an advertisement by the appellant for the position of a farmhand on his farm in the South Burnett region in Queensland.  She contacted the appellant about the position in a series of phone calls and texts which led to her being given the job.
16. [16]
    The complainant stayed in the appellant’s house at the farm during her brief time working there in the first fortnight of February 2017.
17. [17]
    The appellant was alleged to have committed three sexual offences against her in that period:

1. Count 1 Procuring a sexual act by coercion – intimidating her into performing oral sex upon him one night in the loungeroom of the farmhouse.
2. Count 2 Sexual assault – raising her shirt and touching her breasts while he drove a farm truck.
3. Count 3 Rape – intimidating her into performing oral sex upon him in his bedroom at the farmhouse.

18. [18]
    The prosecution case was not that the complainant was physically forced or physically threatened into performing oral sex upon the appellant or acquiescing to his touching of her breasts.  Rather, it was that the complainant had been intimidated into doing so by the threat of the loss of her job and fear of what the appellant might do if she did not cooperate.  In support of this, a lengthy body of evidence was adduced from the complainant about her dealings with the appellant in securing the job and his conduct during the period between her arrival and the first alleged offence.
19. [19]
    The appellant did not go into evidence.  His case, as advanced in submissions to the jury, was that they should harbour a reasonable doubt about the central premise of the case: that the complainant was scared of and intimidated by the appellant.  This was submitted to be an exaggeration because of its inconsistency with the evidence of others and of various aspects of the complainant’s own behaviour and statements around the era of the alleged offending.
20. [20]
    It was not disputed that the complainant twice performed the physical act of oral sex on the appellant.  However, the occurrence of the alleged act of breast touching was disputed, with reliance being placed on contradicting evidence in the prosecution’s own case.

The complainant’s dealings with the appellant in securing the job

21. [21]
    The complainant testified that when she spoke about the advertised job with the appellant, he was vague regarding the nature of the work but said it was general farm help.  She explained the appellant sent her photographs of other backpackers on the farm, although she also claimed that when she asked if there were other people there, the appellant would shut down such questioning, saying, ‘It’s fine’.  She said there was ‘a strange sexual undertone to the conversations that we had and it all just seemed a bit odd’.  She testified he, at one stage of their communications, asked her what size ‘boobs’ she had and also told her to bring a dress because he would take her to the races.  He also asked her to send him a ‘bikini photo’, which she did not do.
22. [22]
    The complainant testified she sought out the appellant’s ABN from him and he was ‘really funny’ about giving it to her.  On another occasion when they were speaking by phone, she testified he just told her ‘to come and stop asking questions and that everything would be fine’.  She testified he made a really strange comment to the effect, ‘If I was going to rape or murder you, I wouldn’t do it on the farm’.
23. [23]
    In answering a question about what happened on her arrival, the complainant double-backed, unresponsively, testifying:

“I just want to say to my previous comments about trying to get the job and things.  Because now looking back it’s like I – if it was me now, I wouldn’t have gone with all the sexual things that he was saying.  But back then, I think I was just younger and, yeah, I found it really difficult to find farm work.  So that was why I made the decision to go, because I just really wanted to stay in Australia.”

24. [24]
    Explanations of this kind, incorporating reflections informed by the passage of time, recurred during the complainant’s evidence.  Whether or not such reflections had infected the reliability of her account of her thinking at the time of the events was an obvious issue in the case.
25. [25]
    The appellant’s trial counsel (who was not his counsel on appeal) argued that the complainant was distorting the effect of her preliminary communications with the appellant and that she was not at all apprehensive about taking the job.  He highlighted a variety of text messages involving friendly banter, including a text exchange, when the appellant explained he wanted to take the advertisement down because he was being bombarded and he asked ‘Are you fucking serious?’  The complainant responded, ‘I’m fucking serious; count me in.  Ten thousand per cent’.
26. [26]
    Despite the content of the texts, the complainant maintained she was apprehensive, explaining she took the job because she ‘really wanted to go and get’ her visa.

The complainant’s interactions with the appellant after her arrival

27. [27]
    The complainant flew from Melbourne to Brisbane and then caught a bus to Murgon.  She testified the appellant picked her up in his ute.  She recalled he had beer in the car and volunteered that ‘he always drink drove most of the time when we were out together in the car’.  She testified they ‘went straight for drinks’ after he picked her up and then drove back to the farm.
28. [28]
    When they got there at about 10 pm she observed it was just he and her that were present and it dawned on her that she was there on her own, which caused her to feel scared and stressed and to wish she had not come.
29. [29]
    After arriving, she explained they had a few more beers and a roast dinner and chatted a bit.  The appellant then showed her to her room which was located upstairs in the house with two other bedrooms, one being the appellant’s.
30. [30]
    The complainant reiterated that she felt really frightened because it was just her and him at the house and ‘he seemed really strange and creepy’.  He told her the house had an open-door policy and that she could not shut her bedroom door when sleeping or close the bathroom door when showering.  That night, when she showered before going to bed, she shut the bathroom door and after she came from the bathroom he texted her, ‘Not cool’.  The appellant’s infliction of such a perverse ‘policy’ upon an employee staying in his house was a fact, if accepted, which was likely to support the complainant’s evidence she was fearful of him.
31. [31]
    The following day the complainant testified the appellant showed her about the farm on a quad bike.  At one point he arranged for her to drive the bike with him and he belittled her, telling her she had done a ‘really shit job at it’.  She testified he told her she was not going to be very useful on the farm and he was not sure she was going to be able to keep her job.  This made the complainant feel nervous because she had spent most of her money getting to the farm.  She testified the appellant knew she did not have any money in her bank account.
32. [32]
    In cross-examination it emerged these events could not have occurred on the complainant’s first day on the farm, as the appellant had not been present at the farm for the first few days after the start of the complainant’s stay.  This was at odds with the complainant’s evidence that she was scared of the appellant the whole time she was on the farm.  She qualified that evidence by explaining:

“It’s not specific – I’m not saying I was scared for specific days or one day I was scared or one day I wasn’t scared.  It’s just the general sense that I had while I was there and the lasting impression and the trauma that I have from being there.  I know that I was frightened of Wayne.”

33. [33]
    When asked to affirm her earlier evidence that she had been scared from when she arrived, she responded:

“I remember it’s not specific days I remember being scared; I remember the feeling that I have from being at the farm is that it was really scary being 21 and in a vulnerable position with someone who was 52 and manipulating me into doing things that I didn’t want to do while I was on my own with no money or friends or family around me.  That was really scary.”

34. [34]
    The complainant testified to a ‘narrative’ developing, of the appellant putting her down and telling her she was not going to be very useful on the farm.  She said he told her she would need a driver’s licence but she did not have a driver’s licence and that was not something he had told her she would need before she came.  She testified the appellant told her he did not know what use she was going to be on the farm without a driver’s licence.
35. [35]
    On another occasion she had been asked to mow the front garden area with a mower, which another worker on the farm, AW, showed her how to use.  She testified the appellant told her she had done ‘a really shit job of it’ and was ‘useless and wasn’t good at the job’.
36. [36]
    The complainant testified that in addition to the narrative of her being rubbish at her job, the appellant told her he did not think he was going to be able to pay her, which was stressful, both because she needed to do farm work in order to be able to stay in Australia and because she did not have any money to leave.
37. [37]
    Additionally, she explained there was a constant ‘sexual backdrop to everything that he was saying’.  He told her of other people who had stayed on the farm and of sexual acts that had happened with other people on the farm.  He referred to a German girl that had been on the farm that he had had sex with, and a couple that had come to the farm that he had had sex with and that they liked it so much they came back.  He would repeatedly say ‘if people are fun then they get to stay’.  The complainant described this variously as ‘scary’ and ‘really creepy’.

The first alleged sex offence

38. [38]
    The complainant testified that, against this background of the appellant repeatedly saying she may not be able to keep the job because she did not have a driver’s licence and was not good at her job, there came a night when they were at the kitchen table of the farmhouse, drinking beer.
39. [39]
    They were drunk.  A conversation developed about how she would be able to afford to pursue her interest in nursing.  The complainant testified the appellant said, ‘How are you going to ever afford to do that if you don’t do stripping or take your clothes off?’  He mentioned there were people in town that would pay to have sex.  He also told her he had hired a new girl, AK from Germany, and that she had a driver’s licence.  He told the complainant that because he had AK there was not any way for her to keep her job as he would not need her.
40. [40]
    He said he had a cleaner that used to work for him, who would do his laundry and clean his clothes and perform sexual acts on him and he would pay her $50 to do that.  He said if she wanted to stay on the farm and get her second year visa, that she could do that.
41. [41]
    The complainant testified that during the conversation leading up to this point, the appellant had removed all of his clothes.  He then asked her to take her clothes off and she did.  She explained, ‘I did it because I just felt really scared and, like, I didn’t know what he was going to do’.
42. [42]
    She testified the appellant told her if she performed sexual acts on him, he would pay her the $550 that she was meant to be getting paid for her farm work and he would sign her second year visa.  When asked what she did next, she testified:

“So after that, we went through to the living room and I performed oral sex on him.”

43. [43]
    The complainant testified she said she would do it because she felt scared and did not have a choice in the matter.  She said she was on her own, she ‘didn’t have anywhere to go’ if she got fired and was nervous about what would happen if she said no, because she was scared of him.
44. [44]
    She went on to say that she felt like she ‘didn’t have a choice’, that she felt like something worse would happen if she said no and that if she had felt free in her decision then there is no way she would have done it.
45. [45]
    When asked if the appellant had said anything when she was performing oral sex on him, she said she could not remember specifics but that he was ‘sort of’ being aggressive and ‘maybe pushing my head down’.  She also said he was ‘kind of saying something aggressive’ to her like ‘suck his dick’.
46. [46]
    The complainant testified that the appellant ejaculated in her mouth, and she ran to the sink and spat it out, after which each of them went to bed.
47. [47]
    When again asked to recall the conversation that had occurred prior to her performing oral sex, the complainant responded:

“So my recollection of the conversation is that I think he’d asked me to give him, like, a hand job and then I said that I would perform oral sex instead.  And now that I’ve been in, like, therapy for a long time and I know that I did that because I think I didn’t want to, like – I didn’t want to look at his face.  And also that that’s something in – that I feel, like, more comfortable doing.  And I was nervous that if I didn’t, like, do a good job, that something worse would happen or that – or that he would attack me or – I don’t know.  It just was really scary being there on my own and without anyone else with me and I just wanted to learn about the freeze and fawn responses when you’re in a trauma situation.  And I think that mine was the fawn response, so I just wanted to – wanted to do a good job so that he – so that something worse didn’t happen.  It was just my way of trying to get out of a situation that I felt really – like I didn’t have any control over.  Yeah.  But that’s part of it that I found really difficult to process.  But through therapy over the last five years, that’s how I processed it.”

48. [48]
    That the complainant chose to perform oral sex, which might be thought a more invasive sexual act than the ‘hand job’ which the appellant had asked for, did not fit neatly with the complainant’s earlier assertion that she felt like she ‘didn’t have a choice’.  That appears to explain why, having answered the question she was asked in the above passage, the complainant’s above answer referred to her having engaged in therapy and hindsight analysis.

Count 2 Sexual assault

49. [49]
    The complainant recalled that on a day which the appellant said was his birthday, she performed hay delivery work with him and another worker from the farm, DW.  On the complainant’s account, they had driven in the hay truck to deliver bales of hay around town and had stopped at various bars in the area to celebrate the appellant’s birthday.  The three of them were sitting in the front of the truck with the complainant sitting in the middle as the appellant drove the truck back to the farm.
50. [50]
    She testified that the appellant lifted up her top and touched both her breasts, massaging them.  She explained he used his left hand because his right hand was on the steering wheel.  When asked if anything was said during this, she stated the appellant was saying her breasts looked good and was encouraging DW to touch them as well.
51. [51]
    The complainant said the appellant touched her breasts for a minute or two and that she did nothing in response.  She testified that she ‘just froze’ and described it as ‘a trauma response to being sexually assaulted by someone who’s my employer’.
52. [52]
    She testified at some point they stopped and got more alcohol.  She testified that ‘he would always drink while he was driving’ and that he continued to drink on the way home.
53. [53]
    The third person in the vehicle, DW, significantly contradicted the complainant’s account of events during the hay run.  The complainant acknowledged that since her arrival at the farm, but prior to the hay run, she and DW had been sexually intimate.  On DW’s account, the complainant had mentioned to him that she had given the appellant ‘a blow job’ but did not tell DW she did not want to be at the farm.  He testified that she had seemed fine and normal.
54. [54]
    DW testified they were all drunk on the hay run, although he clarified he and the complainant drank more than the appellant.  He testified the complainant was flashing her breasts at passing cars and he was flirting with her.  He explained that for a brief period he had touched her breasts and may have sucked on them.  However, he testified the appellant, who was driving, did not engage in any such activity.
55. [55]
    Another farm worker, AW, who performed a variety of farm work with the complainant, recalled that on the day after the hay run the appellant, DW and the complainant were at the appellant’s home, some of them having coffee.  He recalled the appellant and DW were speaking and laughing about the fact that on the way home on the hay run the complainant had been ‘flashing her boobs to the cars coming the other way’ and DW was ‘sucking on her nipples’ and was worried that they might be seen by somebody he knew in one of the oncoming cars.  AW testified the complainant was present during that conversation and that she was not saying much and was ‘just sort of smirking’.

Count 3 Rape

56. [56]
    The complainant testified that on a day sequentially after the touching of her breasts but only ‘maybe a few days’ later on from the first episode of oral sex, there was another episode when she gave the appellant oral sex.
57. [57]
    She testified that she and the appellant came back to the house and she recalled being in the kitchen.  She then heard him call her upstairs.  In response, she went upstairs to his bedroom where he was lying completely naked on the bed.
58. [58]
    She described going to the doorway and then into the room.  She said there was some sort of conversation about her performing oral sex on him again but could not recall its detail.  The appellant testified that while she could not recall what was said, ‘it was implied that it was, like, this is a continuation of the agreement that you need to do that, to keep the job here’.  She also testified:

“[A]gain, it was the same situation of feeling like I didn’t have a choice and that I was on my own there with just him and that I didn’t have, like, free will to make the decision to not do that.  I felt very trapped and that’s why I did it.”

59. [59]
    She described being fully clothed and positioning herself over him and performing oral sex on him for three or four minutes until he ejaculated in her mouth.  She went and showered.  He came in while she was showering but she could not recall anything being said at that stage.
60. [60]
    She was asked further questions in evidence-in-chief about why she had acted as she did and responded:

“So it’s the same reason as before, and it’s that I was young and on my own there and didn’t have any money or any way of getting off the farm and his demeanour towards me, like, the whole time on the farm was very belittling and aggressive and I felt scared of him and frightened of what would happen if I didn’t do what he wanted me to do.  And that’s why I did it.  I don’t feel like I had a choice in the matter and I was doing what – I was doing what I felt like I had to do to keep myself, like, safe in that situation, or to get out of the situation that I felt really out of control of. … I just think I was young and vulnerable and now that I can look back on this after, like, five, six years of therapy, I know what happened to me was wrong.  And that’s why I’m here seven years later, because I don’t want this to happen to anyone else.”

61. [61]
    It will be noted that about halfway through the above answer the complainant again appeared to digress into her present day conceptualisation of her actions, looking back in hindsight after therapy.
62. [62]
    In cross-examination the complainant confirmed that beyond the appellant calling her to his room she could not recall any specific conversation by the appellant immediately prior to her performing oral sex on him.  However, she repeatedly emphasised the continuing inducing effect of the appellant’s earlier conduct, including that she had to perform sex acts on him to keep her job and be paid.

The complainant’s departure from the farm

63. [63]
    The complainant testified that around 11 or 12 February the appellant told her the mung bean crops had dried up and there was no work for her and that he was taking the German girl AK to Longreach for a week and that she needed to find another job.  She testified that the appellant helped her to find a job on Gumtree on a farm in the Alpha district and she was collected by someone from that farm.
64. [64]
    The complainant testified the appellant said he had paid her on the books for a week and that for the other week $300 was coming off her pay because of the alcohol that she had consumed, so that she would receive $250 instead of $550 for that week.  When she received paperwork from the appellant’s bookkeeper verifying her paid work her written response to the bookkeeper included, ‘Please say a big “Hello and thank you” to Wayne [i.e. the appellant] for everything’.

No specific reference made to the offending in the complainant’s personal diary

65. [65]
    It emerged in cross-examination that the complainant had maintained a personal diary during her time in Australia, including her time on the farm.  The complainant expressed embarrassment that it had to have been provided as evidence because it was ‘very personal’ and contained two years of her ‘thoughts, feelings, emotions’.
66. [66]
    The complainant’s diary mentioned the appellant was creepy and would not let her close the bedroom or bathroom door and that she was grateful when he fired her because she did not want to be there anymore.  However, it did not make any mention of how scared she was of him.  Nor did it mention any of the alleged offending against her.
67. [67]
    When asked if she wrote about the alleged offending, she responded:

“I didn’t write about what happened with Wayne in my diary because I was trying to pretend that it didn’t happen, because it was so traumatising for me.  I remember specifically not writing it in my diary because I didn’t want to believe that it happened, even though I knew it had.”

68. [68]
    The complainant was taken to entries in her diary which noted that she was having a relaxing time, suntanning and ‘literally chilling to the max’.  It was suggested this was at odds with her feeling scared and intimidated, to which she responded:

“Again, I was scared of him and the things that happened to me on that farm have left a lasting emotional scar on me and I have PTSD and anxiety and trauma from what happened to me.  And whether I was – wrote that I was tanning in a field on one of the days on the farm is, to me, irrelevant, and I wouldn’t be here seven years later if I didn’t know that this was the truth. … What happened to me, shouldn’t have happened to me.”

There were means of seeking assistance from others

69. [69]
    The defence highlighted through cross-examination of the complainant and others that, while the farm was in a rural region, there existed means by which the complainant could seek assistance from others had she chosen to do so.  For example, she was in repeated contact with a number of other persons who worked on the farm; there was a neighbouring property and farmhouse a short walking distance from the appellant’s farm; and she had her mobile phone and used it to communicate with some of her friends in Melbourne.
70. [70]
    One friend with whom she had such communications, SC, testified the complainant did not report in those communications that she had been sexually assaulted, although she did mention that the doors had been removed from the bedroom and bathroom and that the farmer would walk around naked.
71. [71]
    In her phone communications with another such friend, AC,  the complainant told her it was boring and hot and that she would spend much of the day inside, reading in the air-conditioning.  She mentioned the doors had been taken off the bedrooms and bathroom and that the appellant would come into the bathroom when she was showering, and he would walk around naked which made her feel uncomfortable.

Preliminary complaints

72. [72]
    The complainant made a formal statement to the police on 23 July 2018.
73. [73]
    There was evidence of preliminary complaints made to five persons including SC and AC, from the latter months of 2017 into 2018.  Complaints about the oral sex episodes were made to all five but there was only one complaint about the breast touching episode.
74. [74]
    The preliminary complaint evidence was collectively lengthy.  Analysis of it reveals that there were some inconsistencies in the detail of the complaints, both as between the other preliminary complaints and the complainant’s account.  However, none of the inconsistencies were so significant as to substantially undermine the main allegations emerging from collective consideration of the complaints.  Those main allegations were that the complainant had performed oral sex on the appellant because he had made her do so by threatening to fire her, with the consequence she would not get her visa, and she had also been scared of him.
75. [75]
    Those main allegations were of course consistent with the complainant’s testimony about why she had performed oral sex on the appellant.  Realistically the main issue regarding the preliminary complaint evidence was not that there were some inconsistencies in it.  Rather, it was that their value as evidence of consistency was potentially diminished by them having occurred many months after the events and the complainant’s return to Melbourne.  That potential diminution arose from the possibility that the complainant’s reflections in the interim, about the exploitive conduct of her employer, might have infected the accuracy of her recollections about why she had performed oral sex on him.

Were the verdicts inconsistent?

76. [76]
    The test of appellate intervention, where a jury’s verdicts are alleged to be unreasonable on account of inconsistency between them, has been described as one of logic and reasonableness.^[1]  Where there have been mixed verdicts, if there is evidence to support the guilty verdict or verdicts, an appellate court should not interfere where the mix of verdicts can be reconciled on the evidence as having been logically open to a jury acting reasonably.^[2]
77. [77]
    The mix of verdicts can be so reconciled here.  The acquittal in count 2 was unsurprising in circumstances where the complainant’s evidence of its occurrence was directly contradicted by DW who had been in the vehicle at the time.  It was also undermined by the evidence of AW who was present when the hay run was discussed the following day.  Further, the event was only mentioned in one of the five preliminary complaints.
78. [78]
    The issues before the jury in respect of count 2 were also quite different from the issues in respect of counts 1 and 3.  The conduct of the defence had not disputed the occurrence of the physical acts of oral sex in counts 1 and 3.  Rather, it focussed on features of the evidence which might have caused the jury to doubt the complainant had been scared of the appellant and been intimidated by him into twice performing those acts.
79. [79]
    It follows the mix of verdicts was logically open and the complaint of inconsistent verdicts must fail.

Did the evidence on count 2 so devastate the complainant’s reliability that the guilty verdicts on counts 1 and 3 were unreasonable?

80. [80]
    The appellant, in effect, argues that the contradictory evidence on count 2 so devastated the complainant’s reliability that it should necessarily have caused the jury, acting reasonably, to harbour a reasonable doubt about the complainant’s reliability in respect of the other two counts.  That argument has two flaws.
81. [81]
    Firstly, it places unwarranted reliance upon the significance of the evidence contradicting the alleged act of breast touching by the appellant as somehow devastating the complainant’s reliability.  The acquittal on count 2 likely reflects a reasonable doubt arising from there being evidence contradicting the occurrence of the charged act.  However, the acquittal does not mean the jury positively believed the contradicting evidence of AW and DW or positively disbelieved the complainant’s account.
82. [82]
    In respect of AW’s evidence, it was well open to the jury to conclude that, when the event was discussed the following day by a group of three men, including the complainant’s employer, the complainant was unlikely to feel empowered to interrupt and challenge the accuracy of what was being said.
83. [83]
    In respect of DW’s evidence, it was open to the jury to have reservations about the reliability of his account, bearing in mind he had been intoxicated and was an employee of the appellant and thus possibly reluctant to speak ill of the appellant.  Further, his version of the events was no less extraordinary than the complainant’s, allegedly involving him licking the breasts of the complainant in the immediate presence of the appellant.  The jury may well have thought the complainant had been subjected to some inappropriate interference with her breasts in the truck’s cabin but been left in a reasonable doubt about the detail of it given the conflicting memories of witnesses who were intoxicated at the time.  In short, the state of the evidence on count 2 was not inevitably devastating of the complainant’s general reliability.
84. [84]
    The second flaw in the appellant’s argument is that it does not make due allowance for the force of the prosecution case generally.
85. [85]
    Of course, that case necessarily relied upon the reliability of the complainant’s evidence, and the appellant’s trial counsel demonstrated various arguable inconsistencies in her account, beyond it being contradicted regarding count 2.  But those alleged inconsistencies did not compel a conclusion of unreliability.  For example:

• the complainant’s robust text exchanges with the appellant in getting the job did not bespeak the anxiety she claimed to have felt, but, nor was she likely to have expressed such anxiety to him;
• the complainant’s diary entries about how she felt when at the farm did not mention the alleged offences, but they did mention the appellant was creepy and would not let her close the bedroom or bathroom door and that she was grateful when he fired her because she did not want to be there anymore;
• the complainant’s memory of when she started to feel scared of the complainant was partly at odds with him travelling away for a few days after her arrival, but, not with her unchallenged evidence of him telling her on the night of her arrival to keep her bedroom door and the bathroom door open;
• the complainant could have fled the farm, but, she did not have the money to do so without having to seek the assistance of others;
• the content of some of the complainant’s preliminary complaints had some inconsistencies, but also had substantial consistencies.

86. [86]
    Moreover, it was a significant feature of the case that the occurrence of the two physical acts of oral sex was not in dispute.  This was a marked difference from count 2.  Of course, in assessing the complainant’s reliability in respect of counts 1 and 3, her account of the appellant’s other conduct remained important and the jury’s view of the evidence in count 2 was relevant in that context.  However, as will be apparent from discussion of issues 2 and 3 below, much turned upon the jury’s assessment of whether the appellant’s surrounding conduct was intimidatory and knowingly had the effect of pressuring and scaring the complainant, as alleged, into performing oral sex upon him.  In that assessment of degree and effect the contradictory state of the evidence regarding the physical occurrence of count 2 was unlikely to have had an influential impact.
87. [87]
    Finally, the improbability of the complainant freely choosing to twice perform oral sex on her employer – a man who she found to be creepy – without there having been at least some form of pressure inducing her to do so was a dynamic tending to support, rather than undermine, the complainant’s reliability.  That dynamic did not necessarily make it a strong case, but it is a feature tending to bolster the complainant’s reliability in circumstances where the occurrence of the two acts of oral sex were not in dispute.
88. [88]
    Those considerations demonstrate the evidence in support of the conclusion of guilt on counts 1 and 3 was not so problematic that the evidence in respect of count 2 should have caused a jury acting reasonably to harbour a reasonable doubt about counts 1 and 3.  It follows that ground 3(i) of the appeal has failed.

2. Was the evidence in count 1 capable of proving the appellant procured performance of oral sex by ‘intimidation’?

89. [89]
    Ground 3(ii) of the appeal alleges:

“The verdicts on counts 1 and 3 were unreasonable and cannot be supported having regard to the evidence because: …

2. The evidence given by the complainant on count 1 was incapable of proving “intimidation” …”

90. [90]
    Count 1, which related to the first occasion of oral sex, alleged ‘the appellant by intimidation procured [the complainant] in a sexual act’.  The issue to which this ground gives rise is not a consideration of whether the complainant’s evidence could prove intimidation as an isolated concept but whether it could prove the appellant procured her performance of oral sex upon him by intimidation.
91. [91]
    The charged offence was contained in s 218(1)(a) of the Criminal Code, which has since been amended.  References to s 218 hereafter are to the provision as it was in February 2017.  It relevantly provided:

“218 Procuring sexual acts by coercion etc.

1. A person who––

1. by threats or intimidation of any kind, procures a person to engage in a sexual act, either in Queensland or elsewhere …

commits a crime. …

4. In this section––

procure means knowingly entice or recruit for the purposes of sexual exploitation.”

92. [92]
    The prosecution alleged the appellant procured the complainant to engage in the sexual act of performing oral sex upon him by intimidation.  The appellant’s trial counsel in effect argued that the appellant’s conduct was only transactional, a form of economic inducement, and fell short of the intimidation required to constitute the criminal offence charged.

Must the threat or intimidation be objectively substantial?

93. [93]
    The word “intimidation” is not specifically defined by the Criminal Code.  The learned trial judge therefore instructed the jury that intimidation was to be given its ordinary meaning.  He correctly directed them, consistently with dictionary definitions of the word, that ‘to intimidate someone is to force them into some action by inducing fear’.
94. [94]
    The meaning of the term ‘intimidation or threats of any kind’ in s 218 does not appear to have received appellate consideration.  However, the term was used in s 347’s definition of rape until its amendment in 2000.  Before then s 347 provided:

“Any person who has carnal knowledge of another person without that person’s consent or with that person’s consent if it is obtained by force, or by means of threats or intimidation of any kind, or by exercise of authority, or by fear of bodily harm, or by means of false and fraudulent representations as to the nature of the act, or, in the case of a married female, by personating her husband, is guilty of a crime, which is called “rape.”” (emphasis added)

95. [95]
    That provision was considered by the Court of Appeal in R v Shaw.^[3]  Pincus JA and McPherson JA each considered the degree of threat or intimidation required by the section, Fitzgerald P finding it unnecessary to consider that aspect.^[4]
96. [96]
    Pincus JA acknowledged ‘a relatively minor threat, involving merely the prospect of some embarrassment or inconvenience, might possibly induce consent’ but thought, ‘one would not expect that the Parliament intended to cover such cases’.^[5]  McPherson JA considered the terms of the section merely required that the consent of the complainant was induced by the threats or intimidation of the appellant, not that the threats or intimidation must be objectively substantial.^[6]  His Honour considered it unremarkable the section did not require regard to the likely inducing effects of the alleged conduct upon a complainant of notionally ordinary fortitude because ‘human attitudes and behaviour may vary from one individual to another’.^[7]
97. [97]
    Shaw was considered in Michael v Western Australia,^[8] which dealt with a Western Australian provision like s 347.  Steytler P noted the words ‘threat’ and ‘intimidation’ were not limited to threat of physical violence, observing threats may include blackmail or ‘threat of substantial economic harm’.  However, his Honour’s use of the word ‘substantial’ was qualified by his Honour’s conclusion, consistently with McPherson JA’s reasoning in Shaw, that the legislature chose to impose a subjective test.
98. [98]
    The reasoning of McPherson JA, that the threats or intimidation do not need to be objectively substantial, clearly conforms with the language of the definition and should be followed here.  It follows that threats of economic harm could constitute a threat or intimidation under s 218.

The extent of the threat or intimidation is relevant to the element of knowledge

99. [99]
    It will be recalled that in Shaw, Pincus JA was concerned at the prospect of objectively minor threats being relied upon.  The answer to that concern, as it may relate to s 218, is not to introduce requirements that are not present in the language of the section by requiring that the threats or intimidation be objectively substantial.  Rather the answer is that the existing language of the section requires that a defendant’s act of enticement or inducement occurred ‘knowingly’.
100. [100]
     Section 218’s element of knowledge protects a defendant against conviction for unwittingly intimidating a complainant into engaging in a sexual act.  The more minor the alleged threat or misconduct, the less likely it is the actor will know of its enticing or inducing effect.  Thus, if the threat or intimidation which is proved to have procured the complainant’s act is objectively minor, that quality might not preclude proof of the element of threat or intimidation, but it may preclude proof of the knowledge element, depending on the circumstances of the case.

Was the appellant’s conduct capable of proving the appellant procured her performance of oral sex upon him by ‘intimidation’?

101. [101]
     In the present case the appellant’s conduct did constitute, as the appellant acknowledges, a form of economic inducement.  However, the context in which that inducement occurred necessarily informs the nature of its inducing effect.  That context was different, for example, from the position of a prostitute induced to have sex with a man, with whom she has no desire to have sex, by the inducement that she will be paid for doing so.  The appellant well knew the complainant was someone who had been induced to travel a considerable distance to stay at his farm to perform farm work, not sex work.
102. [102]
     In that context it understates matters to speak of the appellant’s threats as mere economic inducement.  Threats not to pay the complainant her wage as an employee, or to deprive her of her job in circumstances where she needed such employment to obtain her visa, were threats of economic harm.  A threat of economic harm, like a threat of physical harm, may have an intimidatory effect.^[9]
103. [103]
     In any event, the circumstances in which the complainant found herself took her choice beyond one driven only by economic considerations.  There were other inducing considerations in the mix.
104. [104]
     The complainant was geographically removed from the far away city from which she had travelled.  She did not have enough money to immediately quit and travel away from the farm unless she sought assistance from others, a consideration which would have heightened her sense of isolation.
105. [105]
     True it is there were other workers who she had contact with from time to time on the farm.  There was also a farmhouse nearby to which she could have fled to seek assistance, and it appears her mobile phone was working, and she was able to communicate by telephone or text message with her friends in Melbourne.  Nonetheless, the complainant was considerably more isolated than would have been the case, for example, had she been threatened with dismissal if she did not perform sexual favours for an employer when working back in the city of Melbourne, proximate to her friends and cheap public transport.  Moreover, on her account, the appellant knew she did not have enough money to immediately quit and travel away from the farm.
106. [106]
     A further consideration is the appellant’s insistence that, while staying in the same house as him, on the same level as the bedroom he occupied, the complainant in using both the shower and her bedroom keep the door to those rooms open.  This was an extraordinary, inherently disturbing exercise of control over an employee.  Coupled with the appellant’s repeated references to sexual matters it was objectively likely to engender fear of perverse physical misconduct by him towards her.  It was reasonably open to the jury to accept the complainant’s evidence that she was scared of the appellant and feared he might do something worse if she did not cooperate by performing sexual acts for him.
107. [107]
     The above mix of factual circumstances demonstrates the appellant’s conduct was collectively capable of proving the appellant procured her performance of oral sex upon him by ‘intimidation’.
108. [108]
     It follows that ground 3(ii) of the appeal has failed.

3. Was the evidence on count 3 capable of excluding the defence of mistake of fact?

109. [109]
     Ground 3(iii) of the appeal alleges:

“The verdicts on counts 1 and 3 were unreasonable and cannot be supported having regard to the evidence because: …

iii. The evidence on count 3 was incapable of excluding an honest belief by the appellant, based on reasonable grounds, that the complainant consented to the sexual activity.”

110. [110]
     Count 3 charged the offence of rape.  The prosecution’s particulars of the charge were that the appellant penetrated the complainant’s mouth with his penis without her consent.
111. [111]
     As at that era, the offence of rape already included penetrating the mouth of another with the penis without the other person’s consent.  However, the definition of what constitutes ‘consent’ was less expansive then than it now is.  In that era, s 348 relevantly provided:

“348 Meaning of consent

1. In this chapter, consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent.
2. Without limiting subsection (1), a person’s consent to an act is not freely and voluntarily given if it is obtained –

1. by force; or

2. by threat or intimidation; or

3. by fear of bodily harm; or

4. by exercise of authority …”

112. [112]
     The prosecution case in respect of count 3 relied upon the same intimidation as had been relied upon in count 1 and its continuing effect.
113. [113]
     The appellant places significant emphasis upon the skeletal nature of the appellant’s alleged conduct at the time of the alleged commission of count 3.  That merely involved him calling the complainant up to his room where he lay naked, after which the complainant came upstairs, entered his room and, without the appellant saying anything further, performing oral sex upon him.
114. [114]
     However, it will also be recalled the complainant explained she acted as she did because of the continuing inducing effect of the appellant’s earlier intimidatory conduct, including that she had to perform sex acts on him to be paid and keep her job.  It was open to the jury to regard the appellant’s act of calling her to his bedroom, where he lay naked, as relying upon the on-going effects of his earlier intimidation to induce the complainant to perform oral sex upon him again.
115. [115]
     The appellant submits, by reason of the same argument advanced in respect of count 1, that his earlier conduct was not capable of amounting to intimidation.  That submission must fail for the reasons already given in respect of that argument.
116. [116]
     The appellant also submits the skeletal nature of the appellant’s alleged conduct on the occasion of count 3 was not rationally capable of excluding a defence of honest and reasonable mistake of fact per s 24 of the Criminal Code.  The flaw in that submission is its implicit assumption that the appellant’s knowledge of his own earlier conduct is to be ignored.
117. [117]
     The submission requires quite the suspension of disbelief, including ignoring the absence of any immediately preceding romantic interplay.  It is difficult to imagine even a credulous jury would think the appellant genuinely believed his employee, upon being called to his room and seeing him naked on his bed, was so driven by attraction to him that, without further ado, she consensually fellated him.  A much more obvious interpretation of why there was no further ado was that the appellant’s earlier conduct had intimidated the complainant into understanding she had to perform sex acts on him.
118. [118]
     It was open to the jury to accept the appellant believed his earlier conduct would have an ongoing effect upon the complainant if he called her to his room when he was waiting naked in his room.  It was open to the jury to conclude that act was committed in knowing anticipation that his earlier conduct would result in the complainant understanding this was one of those occasions on which she had to perform sex acts on him in order to keep her job and be paid.
119. [119]
     It was therefore open to the jury acting reasonably to conclude the defence of honest and reasonable mistake of fact had been excluded beyond a reasonable doubt.

4. Did the conditions under which the complainant gave evidence from the United Kingdom occasion a miscarriage of justice?

120. [120]
     Ground 1 of the appeal complains:

“The order pursuant to section 39R of the Evidence Act 1977 permitting the complainant’s evidence to be given remotely from the United Kingdom occasioned a miscarriage of justice because of the deficiencies in the remote process.”

121. [121]
     The appellant complains of an array of problems with how the complainant’s evidence was given by video link from England.  The determinative complaint relates to persistence with the complainant’s evidence through the night as she became obviously tired and alluded to the late hour and the difficulty it was causing her.  The appellant in effect submits that feature would have engendered sympathy for the complainant and forgiveness of error by her in dealing with questions asked in cross-examination, which was obviously unfair to the appellant and could realistically have affected the reasoning of the jury to its guilty verdicts.
122. [122]
     The respondent submits the problems complained of by the appellant lacked real substance or consequence.  It is argued they were not such as to cause unfairness to the appellant by engendering sympathy for the complainant or forgiveness of error by her to such an extent as to occasion a miscarriage of justice.

Authorisation of the complainant’s evidence being given via video link from England was subject to there being a ‘plan’

123. [123]
     The Court has the discretion under s 39R Evidence Act 1977 (Qld) to direct a person may give evidence by audio visual link from a location outside Australia.  A direction was given, by a different judge than the trial judge, at a pretrial hearing, that the complainant give evidence by audio visual link from the United Kingdom.
124. [124]
     The application for the pretrial ruling requested that the complainant give evidence pursuant to special witness measures pursuant to s 21A Evidence Act, so that the public would be excluded from the courtroom whilst she was giving evidence, a support person would be present whilst she was giving evidence,  the defendant would be obscured from her available view and a video recording of her evidence would be made.
125. [125]
     A belated amendment of the application added an application for the complainant to give evidence by video link from the United Kingdom.  The appellant did not oppose the application as it related to the orders under s 21A but did oppose the complainant being permitted to give evidence from anywhere other than in a separate room in the precincts of the Court.  This included opposing the complainant giving evidence by video link in the middle of the night her time.
126. [126]
     In granting the application, the learned applications judge noted the applicant’s material had not specifically addressed how the witness was to give evidence by way of an appropriately reliable video link within the reasonable parameters of conducting a jury trial at Kingaroy, ‘particularly given the time differences’.  Accordingly, his Honour expressly made the order granting the application, ‘Subject to the approval by the trial judge of a plan as to where, when (in the sense of the witness being available) and how’ the complainant would give evidence.
127. [127]
     It is unsurprising such a plan was required, given the absence of evidence of arrangements about where, when and how the complainant would be giving evidence by video link from the United Kingdom.  In hindsight there may usefully have been some greater specificity about the ‘when’ aspect of the plan, addressing the impact of the substantial time differences.  The applications judge presumably expected, not unreasonably, that allowance for that impact would attract proper planning.
128. [128]
     Despite the pretrial orders being subject to the approval by the trial judge of a plan, no plan in writing or in detail was ever approved.  The high point was the learned trial judge was orally informed the location to be used in the United Kingdom accommodated both video conferencing and connection to Pexip, that a private room would be provided for the complainant’s use and there would be a person on site to provide technical support throughout the duration.
129. [129]
     The Court was informed it was intended the complainant be called as a witness as soon after a connection was established at 9 am AEST on one morning during the trial.  When the learned trial judge asked defence counsel if he had anything to say in respect of the arrangements mentioned, he responded that he had ‘nothing to say in respect of the arrangements’.  It was of course not his plan to formulate or approve and his unsuccessful argument in the pre-trial application had opposed the complainant giving evidence by video link in the middle of the night her time.

Multiple deficiencies are complained of

130. [130]
     The appellant contends there was a failure to properly plan arrangements for the critical evidence of the complainant to be given from overseas, which manifested in various deficiencies.
131. [131]
     The appellant and respondent each invited the Court to view the video recording of the complainant’s evidence to properly appreciate the complainant’s evidence as seen by video link by the jury.  That has occurred.

Some of the alleged deficiencies lack substance

132. [132]
     The video recording reveals some deficiencies alleged by the appellant have greater substance than others.  It is desirable, bearing in mind there may be a re-trial, to deal, at least briefly, with the lesser alleged deficiencies.
133. [133]
     It is submitted the microphone was poor.  There were sporadic occasions when the volume of the complainant’s voice became soft.  But it was not so soft that she was inaudible.  Moreover, the frequency of those occasions diminished after the learned trial judge pointed out to the witness that her volume was dropping off when she moved her mouth away from the microphone.
134. [134]
     The appellant submits there was a persistent delay in the transmissions.  Viewing the video reveals the gap in time between the cross-examiner ending a question and the complainant beginning to answer the question was not materially different from the mild transmission lag the Court ordinarily experiences with a wholly Australian based transmission between different cities and towns.  The gap was so mild that the exchange of questions and answers effectively appeared to proceed at the same pace as would occur during a moderately paced questioning between participants in the same room.  If there was a difficulty with timing, it was that the complainant occasionally cut in to answer a question, not appreciating, because of the cross-examiner’s tendency to pause in posing longer questions, that the question had not been finished.  That difficulty would have existed if they were each in the same room.
135. [135]
     It is also submitted the questioning was hampered because of the quality of the audio connection not capturing the use of ‘inflection’ during cross-examination.  This is not apparent on viewing the video recording of the evidence.  The complaint is evidently based on an exchange where the cross-examiner put a proposition to the witness and it seemed she did not realise it was a question, as distinct from a statement.  This provoked the learned trial judge’s intervention to explain that fact and to suggest to the cross-examiner that it should be made clear it was a question rather than a statement.  His Honour, in the course of that exchange, observed:

“When a witness is here, they can understand a bit better the inflection.  But on a video link, it’s a bit different.”

136. [136]
     It is a common experience of the Courts that even when witnesses are giving evidence in the courtroom, they sometimes fail to appreciate a proposition being put to them is being put as a question for them to answer.  In any event, the distinction about inflection inherent in the observation of the learned trial judge is the general distinction between questioning over video link as distinct from questioning with a witness present in Court.  The observation does not reflect difference in this context between the effectiveness of this video link transmission as compared to any other.
137. [137]
     It is submitted the room from which the appellant gave evidence looked to be a study or a bedroom.  That submission must be rejected.  The room appears to be about the same small size and unadorned state typically encountered for corporately arranged video conferencing and questioning of an individual.  That includes pre-recording of evidence in Queensland courthouses.  The walls were off-white.  The only visible accoutrements beyond the witness chair were a lamp in the background and some rectangular black items mounted on the wall, perhaps speakers.  In short, the room appeared to be small, unadorned and not materially different from rooms often used for video links.  If there was a difference from the appearance of pre-recordings of evidence in Queensland courthouses it was that the screen was helpfully zoomed in on the complainant, giving a clearer view of her facial expressions than tends to occur with some pre-recordings.  This made it easier than average to see the detail of the complainant’s face, including when her eyes wept, a topic returned to in a different context below.
138. [138]
     It is submitted that the use of the video visualiser to show the witness documents was awkward or less effective, by reason of it having to be done via the video link and the lack of arrangements for the witness to be easily shown relevant documents.  In fact, the process by which the witness was shown documents, involving them being placed on a video visualiser in the courtroom and being transmitted to her screen with an inset view of what she was seeing appearing in the screen visible in the courtroom, appeared to work satisfactorily.  She and persons in the courtroom would have been able to see the content of what she was being shown.  The process might have been more effective had the parties arranged in advance for the complainant to have possession of copies of pages of her diary, it being an item about which she had been cross-examined at committal and was inevitably going to be asked about in cross-examination.  However, that did not occasion any material disadvantage compared to the process undertaken via the visualiser and the appearance of what was shown in the visualiser on screen.
139. [139]
     The appellant submits the support person’s actions compromised the integrity of the evidence-taking process.  Complaint is also made of the fact that the support person for the complainant was not identified.  In fact, she was partly identified by her first name by the complainant, before the jury was brought in, as being the complainant’s best friend.  It has not been submitted it was wrong for a person of such intimate connection to be a support person.  The appellant complains there were ‘numerous’ occasions when the complainant appeared to turn her head in the direction of where the support person would have been sitting offscreen, as if potentially reacting to the support person.  While there were several such occasions, they did not occur often and obviously coincided with points in time when the complainant, who was an emotional witness, was likely experiencing emotional pressure.  It appeared her occasional glances at the support person were in response to that pressure, not in reaction to the support person.  In short, such little interaction as appeared to occur appeared consistent with the support person’s role.
140. [140]
     For completeness, there is no substance to a related complaint that at one stage, when the video link was resumed, one of the conference facility employees was present in the room.  That person left as the support person entered, once it was realised that the video link had been re-established.  All that occurred was that the link was re-established quicker than people at the UK facility were apparently expecting and the movements of people preparing to resume were visible.  Nothing problematic was said before the jury.
141. [141]
     Further to the above collection of inconsequential complaints, two complaints of greater substance were advanced: repeated failures of the link and, much more significantly, the impact of the tiredness of the complainant.  As will be seen, the unfairness associated with the link failures did not occasion a miscarriage of justice, although it has some contextual relevance in explaining why the impact of the tiredness of the complainant did occasion a miscarriage of justice.

Three failures of the link

142. [142]
     The video link dropped out, that is, the screen froze and the audio stopped, on three occasions.  To bring some context to the timing of those failures it is helpful to tabulate some landmark events during the complainant’s evidence, as she gave evidence through the night in the UK:

143. [143]
     The three link failures were of progressively longer periods, totalling one hour and 13 minutes.  The latter, longer two failures, of 21 minutes and 48 minutes respectively, occurred in cross-examination after the luncheon adjournment.
144. [144]
     The failures of the video link would obviously have been distracting and frustrating to all involved.  Indeed, after the third failure when the jury had retired, his Honour observed to the prosecutor:

“HIS HONOUR:  Ms Nicola I know that there’s other elements at play, including perhaps the wishes of the witness herself to not come to Australia, but I simply make the observation that if it’s the goal of the modern system to allow a witness an opportunity to present their best evidence, I don’t think this is it.” (emphasis added)

145. [145]
     That observation was solicitous of the witness’s position.  The same type of observation could fairly be made in respect of the position of the accused citizen.  The only interruptions to the flow of testimony should have been those ordered by the judge in charge of ensuring a fair trial as between the prosecution and the appellant.  The appellant’s counsel should have had the opportunity to cross-examine the most important witness in the case without that process being interrupted in an uncontrolled way.
146. [146]
     In this context it is to be appreciated that, as with evidence-in-chief, so too in cross-examination, it is not just a matter of putting a list of questions to the witness.  Professional advocates structure and sequence questioning, adjusting as it progresses, so that their controlled eliciting of evidence flows and builds towards fulfilling their persuasive objectives in front of their audience, the jury.  It is a process requiring high levels of concentration as the questioning progresses.  Unanticipated interruptions invariably impact the effective execution and impact of that process.
147. [147]
     That said, the reality is that from time to time Court hearings are interrupted by events beyond the Court’s control, such as power failures, problems playing exhibited recordings, health emergencies and the impact of weather events.  The mere fact a proceeding has been so interrupted does not mean there has been a miscarriage of justice.  Whether interruptions have had that effect obviously depends upon their impact on the trial, particularly whether the result is a trial which was not conducted according to law or a trial which was unfair.
148. [148]
     It is not suggested the failures of the link resulted in a trial which was not conducted according to law.  Further, if the three failures of the link were the only problem, they could not alone be regarded as causing an unfair trial.  However, they did extend the period an already tired witness was required to give evidence.  They therefore inform consideration of the problem caused by the impact of the tiredness of the complainant.

Some aspects of the complainant’s manner of giving evidence inform consideration of the tiredness problem

149. [149]
     Before dealing with the tiredness problem, it is also contextually helpful to identify three aspects of the complainant’s manner of giving evidence.  To remove doubt, these aspects are identified to bring context to the assessment of the impact of the tiredness issue.  They are not identified to criticise the complainant, for whom the experience of giving evidence in support of her contested complaint would have been challenging.
150. [150]
     The first aspect was the complainant’s tendency, having answered the question asked, of continuing to speak and add information and opinion which was not responsive to the question.  This made her evidence-in-chief and cross-examination materially longer than necessary and materially longer than either counsel had anticipated.  Moreover, the added, unresponsive information, was frequently information lacking in probative foundation before the jury but nonetheless likely to attract jury sympathy.  For example, the complainant's answers repeatedly volunteered references to her trauma (15 times), therapy (6 times) and her fawn response (4 times), in response to questions which did not ask about those topics.
151. [151]
     Second, the complainant repeatedly became teary and wiped her eyes when giving evidence.  This occurred on at least 12 occasions during evidence-in-chief and nine during cross-examination.  The emotional upset of the complainant while giving evidence would have been obvious to the jury by the time of cross-examination.
152. [152]
     Third, after cross-examination commenced and progressed, the complainant complained in eight separate instances about defence counsel’s questioning of her.  She accused him, as cross-examination progressed, of:

1. confusing her with the way he was asking questions;
2. making her feel upset with the way he was pressing her;
3. making her feel anxious with the way he was interrogating her;
4. making it traumatising for her and it being cruel by asking her about her reason for performing oral sex on the first occasion when she had already testified about it in answering the prosecutor’s questions, resulting in her saying she did not want to talk about it again and asking the trial judge, in reference to the defence counsel, ‘Did he not hear last time I said it to the prosecutor?’;
5. making it ‘triggering’ for her by repeatedly questioning her about her decision to perform oral sex on the first occasion;
6. making it hard not to get upset and making her feel really anxious by berating her and the process feeling unfair;
7. making her feel really upset with the way he phrased a question which put a conversation alleged by her had not occurred;
8. making her doubt herself with the way he was phrasing questions.

153. [153]
     The last five of those instances occurred after the luncheon adjournment – a point of particular significance in connection with the topic of tiredness discussed below.
154. [154]
     None of the questioning associated with these eight instances of complaint was the subject of any objection by the prosecution about the questioning.  That is unsurprising because defence counsel’s questions involved no impropriety in their manner or content.  In some instances, the learned trial judge even intervened to assure the complainant there was nothing inappropriate about the questioning.  However, like the lay complainant, the lay members of the jury were not equipped with the parties’ and Judge’s appreciation of the legitimate bounds of cross-examination.  There was a risk the complainant’s many complaints about the manner of cross-examination of her would engender jury sympathy for her, jury prejudice against the defence and jury reluctance to give weight to the potentially unreliable features of the complainant’s evidence being dealt with in cross-examination.
155. [155]
     None of the above three aspects is unheard of in a case of this kind.  However, their combination informs appreciation of the impact of the problems associated with the complainant’s tiredness.

The relevant legal test is whether there was an irregularity meeting the materiality threshold

156. [156]
     The appellant’s most concerning complaint about the video link process is that the complainant was required to give evidence throughout what was her night-time in the UK.  It is apparent from viewing her recorded evidence that she grew weary, yet cross-examination continued.  That environment deprived the defence of a fair opportunity in which to cross-examine the complainant.  The unfairness arose from the likelihood the complainant’s obvious disadvantage would have made the jury sympathetic and reluctant to place weight on evidence elicited by defence counsel in cross-examination.  It is that unfairness which is correctly said to have occasioned a miscarriage of justice.
157. [157]
     Pursuant to s 668E(1) of the Criminal Code the grounds on which an appeal shall be allowed and the verdict of the jury set aside include if the Court is of the opinion ‘that on any ground whatsoever there was a miscarriage of justice’.
158. [158]
     The categories constituting a miscarriage of justice are not closed but they often involve errors or irregularities in the trial.^[10]  The alleged irregularity in the present case is one of unfairness flowing from the arrangements under which the complainant gave evidence.  The arrangements, purportedly planned pursuant to Court order, failed to avoid one of the very mischiefs the ordered plan should have allowed for – the adverse impact of time differences upon the complainant’s giving of evidence at trial.
159. [159]
     In Brawn v The King,^[11] the High Court recently explained that errors or irregularities, which are ‘fundamental’ in the sense discussed by the authorities, will constitute a miscarriage of justice and that other errors or irregularities will constitute a miscarriage of justice if they meet a materiality threshold.  That threshold is whether the error or irregularity was one that could realistically have affected the jury’s reasoning to a verdict of guilty.^[12]
160. [160]
     An error or irregularity will be fundamental in the sense discussed by the authorities if, for example, it involves such a departure from the essential requirements of the law that it goes to the root of the proceedings,^[13] or if it involves a serious breach of the presuppositions of the trial,^[14] or is so profound as to be characterised as a failure to observe the requirements of the criminal process in a fundamental respect.^[15]
161. [161]
     It is an essential ingredient of a criminal trial that the defendant or a lawyer acting on behalf of the defendant is given the opportunity to cross-examine witnesses called by the prosecution.^[16]  More broadly it is a presupposition of a criminal trial that it will be a fair trial.^[17]  It is thus uncontroversial that the opportunity given to the defence to cross-examine prosecution witnesses must be a fair opportunity.  However, the assessment of the fairness of that opportunity involves considerations of degree, informed by the individual circumstances of the case.
162. [162]
     It is doubtful the unfairness occurring in cross-examination in this case, as a result of the arrangements under which the complainant gave evidence, involves fundamental irregularity.  However, the point does not require determination in light of the result now reached in considering the matter as involving non-fundamental irregularity.  In that consideration the issue for determination is whether the unfairness resulting from the arrangements under which the complainant gave evidence could realistically have affected the reasoning of the jury to its verdicts of guilty.  It could have.

There was no forensic decision contributing to the irregularity

163. [163]
     Before explaining why the materiality test as explained in Brawn has been met here, it is necessary to address the topic of forensic choice by the defence.  That is because the High Court’s explanation was qualified as not addressing the consequence, to the assessment of miscarriage, if the error or irregularity results from a rational forensic decision of defence counsel.^[18]
164. [164]
     After the complainant twice complained how late at night she was being required to give evidence, defence counsel did not object to her continuing to give evidence or seek an adjournment of the hearing of the complainant’s evidence to the following day.  However, there are three reasons why it would be inaccurate and unreasonable to regard defence counsel’s conduct at that stage as a forensic decision contributing to the irregularity.
165. [165]
     Firstly, by that stage, the irregularity had already manifested and had the adverse effect of devaluing the worth of what had been achieved in the appellant’s favour in cross-examination to that point.  Secondly, it was not to the appellant’s rational forensic advantage that this continued.  Thirdly, the defence had opposed the complainant giving evidence by video link in the middle of the night in the first place, back at the pre-trial application.
166. [166]
     Turning to the application of the materiality test, it is necessary to explain how the unfairness developed.

The complainant was tired and complained about giving evidence through the night

167. [167]
     The complainant was required to give evidence throughout what was her night-time in the UK.  That fact would have been obvious to the jury and was complained of by the complainant as being disadvantageous to her.
168. [168]
     The first such complaint occurred after 20 minutes of cross-examination, around 12.15 pm AEST or 3.15 am GMT.  As with evidence-in-chief, cross-examination proceeded chronologically through the relevant events.  Prior to the first complaint, defence counsel had been asking questions about the complainant’s interactions with the appellant before and after her arrival at the farm and prior to the alleged offending.  Questioning about that had taken even longer in evidence-in-chief.  Defence counsel was in the process of asking questions highlighting comments the complainant had made to her friend SC, to the effect that the appellant was a top bloke, super friendly and super chill.
169. [169]
     The following exchange then occurred:

“MR LYNCH:  And you also told her that he was “super chill”?--- Again, I’d never met him and he’s not super chill, and I would never say that now.

HIS HONOUR:  [Complainant], I’m sorry for interrupting again, but that’s not quite what you’re being asked.  It’s – this is a topic which I think confuses every single witness that is ever asked this.  For the moment, what Mr Lynch is asking you is “Did you say that to [SC] It’s not whether it was true or----?--- Yeah.

---what your thoughts are on it now.  It’s simply do you remember saying to [SC] before you went to the farm – is that right, Mr Lynch?

MR LYNCH:  Yes, your Honour.

HIS HONOUR:  Before you went to the farm that the – Mr Green was “super friendly and chill”.  Did you say something like that to [SC]?--- I don’t remember saying that---

Okay?--- ---to her, but if he has proof of it then maybe I did say it.  Sorry.  I’m trying my best.  The way that he’s pressing me is making me feel upset and it’s half 3 in the morning.

Yes, I know it’s very early, or late, as you might want to put it there.

MR LYNCH: Now, in fact I’d suggest to you …” (emphasis added)

170. [170]
     At a point about 11 questions prior to this exchange the complainant physically stretched in a way which suggested she was getting weary.  That action, coupled with her emphasis soon after, that she was trying her best and it was 3.30 in the morning, a lateness his Honour acknowledged, all highlighted to the jury that the complainant was struggling with tiredness.
171. [171]
     A further similar complaint was made by the complainant a little over half an hour after the first, at about 12.50 pm AEST/3.50 am GMT.  In the interim, the complainant appeared to become weepy when making another complaint about defence counsel’s cross-examination causing her to feel anxious.  Cross-examination had progressed through statements the complainant had made in her diary and the state of her friendship with DW and had then moved to the count 1 episode.
172. [172]
     Defence counsel was asking the complainant questions about the circumstances under which her clothes came to be removed, leading to this exchange:

“MR LYNCH:  He didn’t undress you?--- I don’t recall.  I don’t remember that.

You don’t recall whether he undressed you or not?--- No.  I don’t recall whether he undressed me or not.

All right.  Well, I’d suggest to you I asked you a question at some preliminary proceedings on the 2^nd of March 2020 – you remember me asking you some questions on a prior occasion?--- Yeah.  I don’t remember what questions that you asked me.  That was – probably been, like, really traumatising and it’s hard to remember it.  I’ve blocked a lot of out, I think.

HIS HONOUR:  [Complainant], I’m sorry for interrupting.  But I don’t know if it’s because you’re further from the microphone or not, but I’m having some trouble hearing you?--- Sorry.

That’s okay.  It’s – it must---?--- Sorry.

---be a very bad microphone.  It’s not your fault.  But the moment you go---?--- Yeah.

---more than a couple of centimetres away, it just really drops off.  I’m sorry.  Thanks?--- Sorry.  It’s hard to feel uncomfortable.

It must be difficult sitting in that position, I know?--- And it’s 4am.

Yes.  All right?--- Yeah.

Thank?--- I’m just – I’m really tired and I’m finding this really stressful.  But I’m trying my best.’

Sure.  All right.  Well, [complainant], I’ll just – Mr Lynch, do you have an estimate as to how long you might be and if – your best guess?  Can I---

MR LYNCH:  It’s going to be some time longer than what I anticipated, I’m sorry.

HIS HONOUR:  Yes.  That’s all right.  [Complainant], do you mind – I just want to raise something with the lawyers.  So can we just disconnect the video just for a short while, and then we’ll get back to you?--- Yeah.  Do you know how long it might be, so that I can maybe stretch my legs?  Because it’s – it’s 4 in the morning and it’s---

Yes?--- I feel like I’ve been here for a long time.

Well, let’s give you – let’s give you 10 minutes, okay?  So that’ll be 1 pm our time and 4 am your time.  Okay?--- Yeah.  Okay. (emphasis added)

173. [173]
     The complainant was thus stood down for a while after her second complaint of disadvantage because of the time.  As will be seen, the complainant’s evidence was subsequently allowed to continue, but a determinative point had already been reached for the fairness of the trial.

The result was unfairness, not only to the complainant but to the appellant

174. [174]
     The complainant’s allusion to it being half 3 in the morning, when coupled with her assertion that she was trying her best, implied to the jury that any deficiencies in her answers were because she was tired, having been required to give evidence through her night to such a late time.  That implication carried the real risk that the jury’s inevitable sympathy for the complainant’s predicament in giving evidence in such difficult circumstances would cause it to give less than warranted weight to the potentially unreliable features of the complainant’s evidence being highlighted in cross-examination.  The complainant’s disadvantage in being required to give evidence throughout the night was so obvious that it risked unfairly devaluing the worth of evidence elicited on the appellant’s behalf in cross-examination.
175. [175]
     That unfair consequence was exacerbated by the further similar complaint about half an hour later when she complained it was 4 am and she was ‘really tired’ and ‘finding this really stressful’.  The repetition fortifies the conclusion of the real risk identified above.
176. [176]
     The complainant’s obviously disadvantaged position, struggling in continuing to give evidence through the night, was highly likely to reduce the value in the jury’s mind of facts being established in a cross-examination which still had much to canvass.

What should have happened?

177. [177]
     The appellant should never have been placed in a position of such disadvantage.  The problem was an entirely predictable incident of the complainant giving evidence for a prolonged period through the night.  In the result, at her end, the ordeal lasted from midnight GMT through to 7.21 am GMT.  Plainly there was not a proper plan in place to address the problem arising from the time gap.
178. [178]
     Short of a lead in of effective sleep pattern adjustment – and nothing suggested that had occurred – a plan was required to avoid the complainant giving evidence through the night.  It is unnecessary to be prescriptive as to what that plan should have been and sufficient to give two examples.
179. [179]
     One plan may have been to split the period for which the complainant would give evidence over two days, commencing each period at a time which would only involve a modest interruption to the complainant’s usual sleep pattern.  An example of such a modest interruption might have involved imposing a slightly early rise on the complainant and a slightly later than usual adjournment on the jury.  Setting aside interruptions from link failures and adjournments, the complainant’s evidence-in-chief at trial took one hour and 21 minutes and cross-examination took one hour and 59 minutes, a total of three hours and 20 minutes.  Taking a cautious approach, it would have been reasonable to assume her evidence would not exceed four hours, add an hour for interspersing some short concentration and comfort breaks and plan to split that five hour total evenly into two and a half hour blocks over two days.  Rather than planning to commence her evidence at midnight her time and plough on through her night as occurred, a sensible plan, spanning her evidence over two days, would have commenced each block of her evidence at 2.30 pm AEST/5.30 am GMT, adjourning by 5.00 pm AEST/8.00 am GMT each day.
180. [180]
     Another plan may have involved seeking an order per s 21A(2)(e) Evidence Act so that the complainant’s evidence was videorecorded on a date prior to the trial and the video-recorded evidence was viewed and heard in the proceeding instead of the direct testimony of the complainant.  The pre-recording could thus occur outside usual jury sitting hours, opening up larger reasonably available periods, at the start or end of the working day of the Judge and counsel, coinciding with times at which the complainant would usually be awake.
181. [181]
     It is difficult to avoid the impression that the applications judge assumed the trial judge would ensure a proper plan was in place and the trial judge assumed the application’s judge’s orders would have caused a proper plan to be in place.  Neither occurred.
182. [182]
     It evidently had not been contemplated the complainant’s evidence would last as long as it did.  In fairness to both counsel, the under-estimate is understandable when it is realised the complainant’s evidence at the committal proceedings did not suffer from her repeated pattern at trial, of unnecessarily prolonging her answers by continuing to speak and add information and opinion which was not responsive to the question asked.
183. [183]
     The way the problem crept up on the Court seemingly obscured a realisation that the trial was at risk of miscarrying.  If it was to be salvaged, the Court needed to cease further receiving the complainant’s evidence that day.  It did not.

The decision was made to continue with the complainant’s evidence

184. [184]
     After the second of the above complaints about the time of night, the link was disconnected and the jury stood down.  In the ensuing exchange between Bench and counsel, the learned trial judge intimated he would adjourn for a few minutes to allow the Crown Prosecutor to, as his Honour put it:

“---communicate however it can with the witness to see whether – do we continue today?  Do we try and come back at 9 tomorrow?  Obviously you two need to have a chat among yourselves as to what you think is acceptable as well.  And then I thought we’d come back at 1 o’clock and just work out what we’re doing, because the other difficulty, Ms Nicola, is I’ve got to let the jury go for some time to have lunch.  We can’t just plough on …” (emphasis added)

185. [185]
     The exchange subsequently continued as follows:

“MS NICOLA:  I just have to double-check with the complainant, because obviously she’s under cross-examination.  I haven’t had the opportunity and I have to get consent, obviously, just to double-check.

HIS HONOUR:  Yes, yes.  I mean – I mean, Mr Lynch has indicated he doesn’t mind if you discuss those kinds of matters with her.  Yes.

MS NICOLA:  I’ll go speak to her during this break.  Is your Honour happy that if she does want to come back tomorrow, that those arrangements---

HIS HONOUR:  Oh, I’m okay with that.  You know, obviously it’ll depend on Mr Lynch and his client’s instructions as well, but I’m – if you want to press on, that’s fine.  If you both agree to come back tomorrow at 9 to conclude your evidence, I’m happy with that as well.” (emphasis added)

186. [186]
     The Court subsequently adjourned for enquiries to be made by the Crown Prosecutor and resumed at 1.08 pm at which time the following exchange occurred:

“MS NICOLA:  Thank you for that time, your Honour.  I have spoken to the complainant.  I’ve also indicated to her that the jury would have at least an hour break for lunch, and she still said that she---

HIS HONOUR:  Okay.

MS NICOLA:  ---wishes to continue on.  Earlier today … once the jury have their lunchbreak.

HIS HONOUR:  Yes.  All right.  Well, I mean, we can shorten the lunchbreak, I think a little bit more … [l]ook, we’ll come back at 2 o’clock.

MS NICOLA:  Thank you, your Honour.

HIS HONOUR:  Mr Lynch?

MR LYNCH:  Yeah, I’m happy with whatever suits the Court.” (emphasis added)

187. [187]
     An inquiry of the complainant on this topic at this stage of the proceeding could have been made in the jury’s absence by the learned trial judge.  The inquiry which was instead made of her by the prosecutor did not occur in Court, so it is not apparent what considerations influenced the communication of the complainant’s preference.  It is a reasonable inference the complainant would have realised from the prosecutor’s consultation of her that, because of what she had been saying about the time of night, the taking of her evidence might be adjourned to the next night and she did not want that to happen.
188. [188]
     It is not apparent why the complainant’s preference was seemingly so determinative of the Court’s choice to press on.  In fairness, decision-making in managing the efficient progression of any trial is difficult, let alone a trial on circuit of a very old complaint.  It involves weighing a variety of sometimes competing considerations, including the desirability of maintaining the momentum of the trial.  It occurs without the benefit of the timely reflection enjoyed by an appellate court.

The unfairness continued

189. [189]
     So it was that after the luncheon adjournment the complainant continued to give evidence under cross-examination from 2.05 pm AEST/5.05 am GMT through to completion of her evidence at 4.21 pm AEST/7.21 am GMT.  As earlier explained it was a period prolonged by two collectively lengthy failures in the video link.
190. [190]
     During that period the complainant did not expressly complain again about the timing of her evidence.  That is scarcely surprising, for the complainant by this point now likely knew how such complaint risked the process being adjourned to continue the following day.  But the absence of further express complaint about the timing of her evidence did not remove the obviously prejudicial effect of cross-examination continuing after what had already occurred.
191. [191]
     The jury well knew that the complainant was tired and had twice indicated in their presence that she was having trouble dealing with cross-examination at such a late hour.  Nothing was said to the jury to suggest those disadvantages had somehow been resolved.  Nor had they been.  The jury would correctly have realised that occasional periods of further interruption to the complainant giving evidence, such as the shortened luncheon adjournment and the further two periods of failure of the link, would not solve the problem of the complainant’s accumulated weariness from being awake giving evidence through the night.
192. [192]
     The complainant still appeared weary at times, after the adjournment, which is unsurprising, given how long she had been up through the night.  Her eyes also became weepy, accompanied by her wiping them, on another eight occasions.  Further, in this ensuing period she made five of her aforementioned eight complaints about the disadvantage she was suffering because of defence counsel’s questioning of her.
193. [193]
     In summary, the unfairness prevailing prior to the luncheon adjournment was perpetuated by the continuation of the complainant’s evidence after it.

There was a miscarriage of justice

194. [194]
     As earlier explained, the content of some of the complainant’s unresponsive answers, her visibly emotional state and her repeated complaints about defence counsel’s questioning are contextually relevant here.  They were in combination likely to provoke jury sympathy for the complainant, carrying some risk the jury would not give weight to the potentially unreliable features of the complainant’s evidence being dealt with in cross-examination.
195. [195]
     However, that risk became substantially greater once it became apparent to the jury, early in cross-examination, that the complainant had grown weary from giving evidence for such a long time through the night.  This was likely already apparent to the jury, given the complainant’s appearance and the jury’s awareness of how long the process was taking.  But once she complained of how long it was taking and the late hour where she was, the jury could have been in no doubt that she was finding it challenging to continue to give evidence in such circumstances.
196. [196]
     That problem must, as matter of objective fact, have made it more difficult for the complainant to understand and respond effectively and reliably to defence questions in cross-examination.  The jury would have realised that.  This would have had an effect greater than merely engendering jury sympathy for her.  Because it bore upon the reliability of the content of the complainant’s evidence elicited by defence counsel in cross-examination, it meant the jury, already likely sympathetic to her circumstances, would not give the potentially unreliable features of the complainant’s evidence being dealt with in cross-examination the weight they deserved.
197. [197]
     The complainant was the critical witness in the trial.  Much turned on what the jury made of her explanation of why she acted as she did, weighed relative to evidence which variably supported and detracted from the likely reliability of her explanation.  The unfair devaluing of evidence being elicited on the appellant’s behalf in cross-examination of her could therefore realistically have affected the jury’s reasoning to its verdicts of guilty.  It follows the materiality threshold has been met and there was a miscarriage of justice.

5. Did the trial judge’s comments about the significance of the complainant’s behaviours or the unreasonableness of the appellant’s belief about consent amount to a wrong decision on a question of law or a miscarriage of justice?

198. [198]
     Ground 2 of the appeal alleges:

“The learned trial judge directed the jury as to a matter of contested fact in breach of the principles in McKell which amounted to:

1. A wrong decision on a question of law; and/or
2. A miscarriage of justice.”

199. [199]
     The complaint is that in two passages of the summing up the learned trial judge made comments which favoured the prosecution case.  The first comment related to the defence of mistake of fact as it potentially applied to count 3.  The second comment related to the significance of the complainant’s behaviours, such as the absence of reference to the offending in the complainant’s diary.

Judges should refrain from comments to the jury conveying their opinion of the proper determination of a disputed fact

200. [200]
     It is convenient to first identify the nature of the constraints on judicial comment in summing up the case to the jury.
201. [201]
     A trial judge has a broad discretion to comment on the evidence in summing up the case to the jury.^[19]  Indeed some comment may be unavoidable in meeting that part of the judge’s task requiring explanation to the jury of the real issues in the case and the factual issues they must resolve in deciding those issues.^[20]  However, as was explained by the plurality in McKell v The Queen:^[21]

“[T]he trial judge’s summing up is not an occasion to address the jury in terms apt to add to the force of the case for the prosecution or the accused so as to sway the jury to either view.  For that reason, as the plurality in RPS stated, judicial circumspection is required in the exercise of the discretion to comment.^[22]” (emphasis added)

202. [202]
     After discussing Castle v The Queen,^[23] and RPS v The Queen,^[24] the plurality in McKell went on to make the point that comments which are unnecessary for the performance of the judge’s duty to give fair and accurate instructions should be avoided because they risk occasioning a miscarriage of justice.^[25]  It emphasised that was particularly so ‘in relation to expressions of opinion by a trial judge as to the determination of disputed issues of fact’,^[26] and went on to observe:

“It is difficult to conceive of a situation in which the performance of the trial judge’s fundamental task of instructing the jury would be advanced, consistently with the role of the jury, by suggesting the determination of a disputed question of fact, the resolution of such questions being the exclusive province of the jury.^[27]” (emphasis added)

203. [203]
     In summary, when directing the jury judges should refrain from comments conveying their opinion of the proper determination of a disputed fact, that determination being the exclusive province of the jury.

The comment about mistake of fact

204. [204]
     In directing the jury about count 3, the second episode of oral sex when the appellant called the complainant to his bedroom, the learned trial judge left the defence of mistake of fact to the jury.  His Honour explained to the jury the defence was being left, having regard to the evidence that ‘in this instance that when she was called upstairs, he was naked on the bed and she went to perform oral sex upon him without apparent objection or demur’.
205. [205]
     In explaining the operation of the defence, his Honour dealt with the need for the belief to be both honest and reasonable.  After dealing with the honesty component, his Honour continued:

“So, that deals with whether he honestly believed that she had given her consent.

The other aspect is whether it was reasonable to believe that – whether there were reasonable grounds for the defendant to hold such a belief.  A defendant’s belief is reasonable when it is one held by him on reasonable grounds.  What amounts to reasonable grounds are for you to assess, and again you might think it is important to decide whether the defendant told [the complainant] that she would lose her job if she did not perform sex acts on him or something to that effect.  If you are satisfied beyond reasonable doubt that is what he said, then you might think in those circumstances it was not reasonable for him to believe that she was freely and voluntarily giving her consent.  That is, if the defendant said something like that to [the complainant], could he really have believed that she was actually agreeing to the sexual act, rather than acting under the influence of the statement or statements that he had made? That is, of course, a matter for you to decide, having regard to all of the evidence.” [emphasis added]

206. [206]
     It is the emphasised comment above which is the subject of complaint by the appellant.  It may immediately be observed the comment was unnecessary to the discharge of the learned trial judge’s function.  Before considering its significance, it is necessary to identify the potential basis for this Court’s interference.

The comment falls to be considered not as a wrong decision on a question of law but as potentially occasioning a miscarriage of justice

207. [207]
     These reasons have already discussed s 668E’s reference to a miscarriage of justice.  Section 668E also provides that the grounds on which this Court shall allow an appeal include where the Court is of the opinion that ‘the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law’.
208. [208]
     The appellant submits the trial judge’s making of the comment about mistake of fact was both a wrong decision on a question of law and occasioned a miscarriage of justice.  The High Court’s recent decision in MDP v The King,^[28] explained a wrong decision on a question of law involves a wrong determination or response to a question of law by the trial judge that has legal effect in the trial,^[29] and, that there will be a wrong decision on a question of law if a judge misdirects the jury on a matter of law.^[30]
209. [209]
     The comment complained of here did not have legal effect in the trial in that it was a comment, not a direction on a question of law.  That it tended to influence how the jury would resolve the issues of fact to be considered in applying the law on which they were directed did not make it a direction on that matter of law.
210. [210]
     To remove doubt, no re-direction was sought, so it is not a case where such a refusal arises as a potentially wrong decision on a question of law.
211. [211]
     The issue to be determined therefore, is whether the comment occasioned a miscarriage of justice.  For reasons earlier explained, because the irregularity said to have created the unfairness causing the miscarriage was not ‘fundamental’, the issue for determination is whether it could realistically have affected the reasoning of the jury to its verdict of guilty.

The comment occasioned a miscarriage of justice

212. [212]
     The respondent submits the comment was merely an example of how the jury might apply the directions and did not indicate the views of the Court.  It is submitted the comment did not seek to persuade the jury what facts they should find.  Those submissions must be rejected.
213. [213]
     The comment framed the issue of the reasonableness of the potentially mistaken belief as if readily determined by whether the appellant told the complainant she would lose her job if she did not perform sex acts on him.  But on the complainant’s evidence there was nothing said on that topic at the time of the episode attracting count 3, it having been said earlier in the complainant’s tenure at the farm.
214. [214]
     That temporal gap, combined with aspects of the case highlighted by the defence suggesting the complainant was not scared as she claimed, were issues for the jury to consider in weighing whether the prosecution had excluded the possibility of an honest and reasonable mistake of fact as to consent.  Framing the issue as his Honour’s comments did, implied to the jury, to the prosecution’s advantage and the defendant’s disadvantage, that those issues were of no importance to the reasonableness of the appellant’s belief.
215. [215]
     Beyond that implication the comment expressly sought to influence the jury’s view by deploying the rhetorical device of asking whether the appellant could ‘really’ have believed the complainant was ‘actually’ agreeing, rather than acting under the influence of the statement she would lose her job if she did not perform sex acts on him.
216. [216]
     The comment went to a factual issue in dispute, namely whether the appellant acted under an honest and reasonable mistake of fact as to consent.  It focussed upon only part of the facts relevant to the issue and unfairly highlighted that part.  It did so in such a way as to tend to sway the jury towards thinking there was no substance to the defence being left to the jury.
217. [217]
     For all of these reasons the comment could realistically have affected the reasoning of the jury to its verdict of guilty.
218. [218]
     The fact that no redirection was sought is irrelevant in the present context.  This was no mere inaccuracy in stating law or fact which could be corrected neutrally by re-direction.  It was a comment which revealed what the learned trial judge thought of an important disputed aspect of the case.  A redirection would not have removed the realistic prospect that the comment could have affected the jury’s reasoning.  The unfairness thereby caused was not realistically susceptible to correction by redirection.
219. [219]
     The materiality threshold has been met.  The comment occasioned a miscarriage of justice on count 3.
220. [220]
     Given the appeal’s success for other reasons on both counts 1 and 3, it is unnecessary to conclude whether the reasons just given mean the comment had the incidental effect of also occasioning a miscarriage in respect of count 1.

The comment on the significance of the complainant’s behaviours

221. [221]
     Towards the end of the learned trial judge’s summing-up, after he concluded summarising the arguments of the prosecution and then the defence, and shortly before sending the jury out, his Honour said:

“Members of the jury, submissions have been advanced really by both prosecution and defence which invite consideration of whether [the complainant’s] behaviour was consistent or not with some expectation of how a so-called ‘genuine victim’ would behave.  Questions were posed for your consideration like, why would she go to the farm in the first place?  Why not seek help whilst she’s at the farm?  Why not write it in the diary?  Why not complain earlier?  You decide the facts and not me, so it is up to you to evaluate those submissions, bearing in mind all of the evidence, including [the complainant’s] explanation that she was young, isolated, and scared.

I would, however, make this comment.  It is a comment and not a direction of the law, so you could ignore it if you do not agree with it.  I would comment though that there are no rules about how a victim of sexual assault should behave; that there is such a wide variety of factors which might be relevant to a person’s behaviour; that it is difficult, if not dangerous, to generalise.  You might think that a person’s response to a sexual assault will be different depending on who the person is and the circumstances in which the assault occurred.  If that is the case, you might think that you should be cautious before reaching conclusions about whether [the complainant’s] behaviour is consistent or inconsistent with her allegations being true.  But, it is a matter for you and as I have said, you can ignore that comment if you do not agree with it.” (emphasis added)

222. [222]
     The appellant submits the effect of this comment was to give a tail wind to the prosecution case and substantially weaken the defence case in the eyes of a jury.  It is submitted the effect of the above quoted comment was made even more concerning by it going beyond references to not complaining earlier or seeking assistance, to the topic of not making diary entries about the offences.  The point is also made that even division 3 of part 6A Evidence Act (which was not in operation at the time of trial) in providing for the giving of directions to counter erroneous assumptions about how a complainant should behave, does so in neutral terms without suggesting, as this comment did, what the jury ‘might think’ about the significance of alleged inconsistency of conduct in this case.
223. [223]
     The respondent submits the comment occurred in the context of a fair and balanced summing up and were disconnected from and unlikely to undermine what was submitted by the appellant’s trial counsel regarding behaviours such as the absence of reference to the offending in the diary.

The comment falls to be considered not as a wrong decision on a question of law but as potentially occasioning a miscarriage of justice

224. [224]
     The appellant submits the trial judge’s making of the comment was both a wrong decision on a question of law and occasioned a miscarriage of justice.
225. [225]
     As with the comment about mistake of fact, and for the same reasons, the comment was not a wrong decision on a question of law.  Again, because the irregularity said to have created the unfairness causing the miscarriage was not ‘fundamental’, the issue for determination is whether it could realistically have affected the reasoning of the jury to its verdicts of guilty.

The comment occasioned a miscarriage of justice

226. [226]
     The comment was unnecessary to the exercise of the Judge’s function.  Its unfair impact was made greater by the combination of its content with its timing.
227. [227]
     Its content literally conveyed to the jury that they should be cautious before concluding whether the complainant’s behaviour was consistent ‘or’ inconsistent with her allegations being true.  But that warning was contextually informed by the fact the comment in the preceding paragraph had only listed consistency issues raised by the defence as potentially undermining the jury’s view of the complainant’s reliability.  In light of that context, the comment carried an unintended one-sided effect.  It also went beyond counselling the jury generally against holding preconceived views about how victims of non-consensual sexual activity respond.  It counselled the jury to be cautious before concluding the complainant’s behaviour in this case was inconsistent with her allegations being true.  That case specific quality took it beyond the neutral and generalised quality of an educative direction, for example a direction of the kind now contained in s 103ZT Evidence Act.
228. [228]
     The law long ago moved on from warning the jury of the need for caution before accepting the uncorroborated evidence of a sex case complainant.^[31]  However, the onus and standard of proof in a criminal trial precludes the legal pendulum swinging beyond neutrality, to the point of warning the jury of the need for caution – whether because of what are sometimes described as rape myths or other reasons – before rejecting such evidence.  The comment impliedly suggested the jury should exercise such caution.
229. [229]
     The point is an important one.  It is common in many complaints of sex offending that, in the absence of eye-witness evidence other than from the complainant,  the jury are left to weigh the reliability of the complainant’s evidence in the light of other relevant evidence.  There will often be arguable consistency and inconsistency as between that evidence and the complainant’s evidence.  It is the jury’s task, not the judge’s, to weigh the significance of such consistency and inconsistency relative to the complainant’s evidence.  The comment’s one-sidedness and case specific quality intruded on that task.
230. [230]
     Its effect was to erode the worth of a defence case substantially based on highlighting the objective evidence of the complainant’s behaviour, including how she did not behave, and its inconsistency with the complainant’s assertions of being in fear of the appellant.
231. [231]
     As against that case, it can scarcely be said the jury had not heard of a contrary theme.  The complainant had exercised many opportunities during her evidence to explain her behaviours.  In her closing address, the prosecutor addressed on the fact that there is ‘no normal way’ and ‘no playbook for how a victim of sexual offending reacts’ and illustrated ‘how dangerous it can be to make assumptions about how’ such a victim should behave.  In that part of the learned trial judge’s summing up which summarised counsel’s submissions, his Honour reminded the jury of the prosecutor’s submissions about exercising ‘caution in forming judgments about how [the complainant] should have behaved’.
232. [232]
     The comment therefore related to a topic which the conduct of the prosecution case had already made the jury aware of, as the learned trial judge had already reminded the jury in summarising the respective cases.  There was no need for his Honour to circle back to the topic and add his own comment on it just before sending the jury out.
233. [233]
     This heralds the point that the timing of the comment is likely to have carried added persuasive influence upon the jury.  It was made after his Honour directed the jury on the issues in the case and then summarised counsel’s opposing arguments.  All that remained, and all that occurred after the comment, was the giving of some brief, standard logistical directions before sending the jury out.
234. [234]
     Even if it had been appropriate to make such comment at some stage of the trial, which it was not because of its contextually one-sided and case specific quality, it was inappropriate to make it at this delicately balanced phase of the case.  It was the last substantive direction the jury heard before retiring to consider it verdict.  Such timing would inevitably have had the effect of further enhancing the likelihood of the comment’s content aiding the prosecution’s prospects and undermining the appellant’s.
235. [235]
     Had the comment been made much earlier in the trial then, despite its one-sided and case specific quality, it was less likely to have been perceived or remembered by the jury as signalling the judge’s opinion about factual matters in dispute.  Timed as it was, the comment was an irregularity which could realistically have affected the reasoning of the jury to its verdicts of guilt.  It therefore occasioned a miscarriage of justice.
236. [236]
     To remove doubt, the fact that no redirection was sought is irrelevant in the present context for the same reasons earlier given in respect of the comment about the defence of mistake of fact.

Conclusion and orders

237. [237]
     The appellant has established there was a miscarriage of justice on a number of grounds.  The result must be the allowing of the appeal, the setting aside of the convictions and the ordering of a re-trial.
238. [238]
     The orders should be:

1. Appeal allowed.
2. The convictions on counts 1 and 3 of the indictment are set aside.
3. New trial ordered on counts 1 and 3.