R v LBK

This was the first case in which the Court of Appeal considered in detail the new provisions of Pt 6B, Div 3 Evidence Act 1977, particularly the directions provided for in ss 103ZT and 103ZY. The appellant in this case was convicted of various sexual offences and appealed against those convictions. Key issues at trial were whether the complainant consented to those sexual offences, or whether the appellant honestly and reasonably believed that the complainant was consenting. The trial judge gave directions in purported compliance with ss 103ZT and 103ZY. With respect to s 103ZT, the trial judge directed the jury that it should not rely on “preconceived notions” as to how a sexual offence complainant might behave, and that it ought to “apply [its] own wisdom and knowledge of the human condition in also considering the facts of the case”. The appellant complained that these directions could not be reconciled and would have unduly confused the jury. As to s 103ZY, the trial judge referred to “research” supporting the notion that sexual offence complainants may not have a perfect recollection of the details of such offending, which the appellant contended was a misdirection. Additionally, the prosecutor made submissions in closing which suggested that defence counsel’s cross-examination of the complainant had been improper. Justice Crowley, with whom Mullins P and Boddice JA agreed, held that none of these matters occasioned a miscarriage of justice. Importantly, Crowley J ultimately reached the conclusion that the purpose of the directions is to address common misconceptions about sexual offences and provide guidance to juries as to how they may use their common sense. His Honour also held that while the prosecutor’s comments were inappropriate, any misstatements of law were corrected by the trial judge’s directions and the comments were of a nature that they did not occasion a miscarriage of justice. In the result, the appeal against convictions was dismissed.

Mullins P, Boddice JA and Crowley J

24 June 2025

Background

The appellant appealed his convictions for 1 count of aggravated sexual assault and 2 counts of rape. Relevantly, he contended on appeal that a miscarriage of justice arose from the trial judge’s directions to the jury, and that the jury was led into error by improper comments made by the Crown prosecutor in his closing address. [8], [13].

In summary, the circumstances of the offending involved the complainant’s boyfriend propositioning the complainant to participate in a “threesome” with the appellant and himself. The complainant refused, and the two men subsequently forced the complainant to participate in non-consensual sexual acts with them. At trial, the complainant gave evidence that prior to and during the sexual acts taking place, she repeatedly expressed to the men that she did not consent/was not consenting to the acts. [9]–[11], [41], [47]. She described that at one point she began moaning and called the appellant “Daddy” in an effort to end the sexual acts. [28]–[29]. The appellant provided a different version of events to police, including as to what the complainant said during the sexual acts taking place, which was put to the complainant in cross-examination. [45], [56]–[69].

Did the trial judge’s directions occasion a miscarriage of justice?

This ground of appeal related to the directions given by the trial judge in accordance with the provisions of Pt 6B, Div 3 Evidence Act 1977, which deals with jury directions related to sexual offences that are generally required to be given by virtue of s 103ZQ, including the directions provided in s 103ZT. Relevantly, s 103ZT(c) provides that a judge may direct the jury that “the jury must avoid making assessments based on preconceived ideas about how people respond to non-consensual sexual activity.” (emphasis added).

In the directions required by s 103ZT, the trial judge made a number of references to “preconceived notions”, “preconceived expectations” and “preconceived ideas” and “myths” in the summing up as if they were essentially synonymous phrases (the “s 103ZT directions”). [116]–[117].

The trial judge also directed the jury, in accordance with s 103ZY, that:

“… experience and research shows that people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time that they are asked to re-tell what happened” (the “s 103ZY direction”). [116].

After a request from defence counsel, the trial judge redirected the jury, after reminding it about avoiding preconceived notions about the behaviour of sexual offence complainants, that:

“[the jury] should apply [its] own wisdom and knowledge of the human condition in also considering the facts of the case. And [the jury] must assess all of the evidence with those directions I gave [the jury] in mind.” [118]–[119].

The appellant argued that the directions given by the trial judge in purported compliance with ss 103ZT and 103ZY occasioned a miscarriage of justice. He submitted that this was because, first, the various phrases used by the trial judge in the s 103ZT directions departed from the statutory language of “preconceived idea”, which made the directions convoluted and confusing for the jury. Secondly, the appellant complained that the reference to “experience and research” in the s 103ZY direction was a misdirection and that this amounted to the trial judge effectively telling the jury that research proved this point as a matter of law. [121]–[123].

Justice Crowley did not see an issue with the terminology that the trial judge used interchangeably in the summing up. His Honour considered that while the expressions used were different, they were all to the same effect with no material difference in their meanings, and that a miscarriage of justice is not demonstrated simply because a trial judge has used different words which are to the same effect. That was particularly so given that s 103ZQ(5) provides that a trial judge is not required to use a particular form of words in giving the relevant directions. Therefore, his Honour concluded that the directions would not have confused the jury. [126]–[127].

Justice Crowley also did not consider there to be any illogicality and tension between the directions provided for in s 103ZT on the one hand and informing the jury that they are entitled to use their “wisdom and knowledge of the human condition” to evaluate the evidence on the other. His Honour extensively considered the background to the enactment of the provisions in Pt 6B, Div 3 Evidence Act 1977 and the extrinsic materials which informed their enactment. A common theme evident in those materials was that the purpose of such legislation in Queensland and other jurisdictions was to address the issue of “rape myths and stereotypes”, “common misconceptions” about sexual violence, and “incorrect assumptions as a result of inconsistencies in a complainant’s account” which have typically featured heavily in jury trials for sexual offences. [97]–[98], [104]–[106]. In tracing that history and those materials, his Honour identified that the purpose of the directions in Pt 6B, Div 3 Evidence Act 1977:

“… is to ensure that where a complainant attests to the fact that the subject sexual activity was non-consensual, a jury does not assess the complainant’s evidence of what occurred and what they did or did not do, by reference to outdated, but perhaps still commonly held, misconceptions and stereotypical assumptions about how sexual offences are perpetrated and how a “real victim” of a sexual offence would behave or respond to non-consensual sexual activity. The directions achieve this purpose through their educative and corrective content and by a judicial instruction that prohibits assessments based on preconceived ideas.” [130].

His Honour also noted that due to their nature and the fact that there are ordinarily no other eyewitnesses, cases involving sexual offending inherently often rise and fall on a complainant’s evidence. [132]. His Honour considered that because arguments about the implausibility or impossibility of alleged sexual acts in cases of this kind often appeal to “common sense” and “human behaviour”, directions of the kind contemplated by Pt 6B of Div 3:

“have been enshrined in legislation because of the real risk that jurors may wrongly assess a complainant’s account of non-consensual sexual activity on the basis of invalid assumptions derived from so-called ‘common sense’ or their supposed knowledge or experience of ‘everyday life’, ‘human behaviour’ or ‘the human condition’. The directions are designed to counteract such invalid assumptions.” [133].

Accordingly, his Honour considered that while jurors may use “common sense”, they could not be permitted to deploy “common sense” at large without guidance and that the directions in the legislation provide such guidance to prevent jurors from wrongly assessing certain matters on the basis of “rape myths” and misconceptions as to how victims of sexual offences should behave. [134]. His Honour therefore considered that because such directions explain to jurors what matters, such as misconceptions and stereotypes, are not legitimate matters of common sense, his Honour concluded that there was no illogicality between the various directions given by the trial judge to the jury. [137]–[138].

Further, Crowley J considered there was no substance to the appellant’s complaint about the s 103ZY direction. His Honour concluded that while it would have been preferable for the trial judge to have avoided using the word “research” and to adhere to the statutory language, the use of the word “research” did not amount to a misdirection and did not add anything more to what the trial judge had already directed. [139].

Justice Crowley therefore held that this ground failed. [141].

Did the prosecutor’s closing address occasion a miscarriage of justice?

In his closing address, the Crown prosecutor made the following submissions to the jury:

“[Defence counsel] even went as far as to suggest that she should’ve tried biting their penis. Is that really the defence case here?

Well, ladies and gentlemen, as her Honour will tell you, the law recognises now that it isn’t appropriate anymore to suggest that someone should’ve done or said something to stop what was happening as my learned friend tried to suggest to [the complainant]. On multiple occasions during his cross-examination of her, he suggested to her that her lack of fighting back, her lack of pushing them away, somehow means that she was now consenting. That just simply isn’t the law, ladies and gentlemen.

…

So how does that fit with my learned friend questioning [the complainant] on what she should’ve done, what she should’ve said, and how she should’ve reacted? My learned friend said to her, ‘You didn’t tell him to pull out. You didn’t tell him to not ejaculate inside of you. You didn’t tell him afterwards that he shouldn’t have done that. You didn’t say anything to him after.’ And we have moved as a community far away from this type of myth and stereotype and what my learned friend was focusing on with [the complainant] and what she didn’t do to stop what was happening to her.” (underlining added).

Justice Crowley considered that the Crown prosecutor’s submissions were inappropriate, and in particular, that the excerpt in underline above misstated the law and erroneously elevated factual matters that were meant to be for the jury’s consideration to matters of law instead. This posed the risk that those submissions may have induced the jury to think that the matters which defence counsel had cross-examined the complainant on were improper or contrary to law. [154]. His Honour clarified that while the new directions provided for in Pt 6B of Div 3 prohibit juries from making assessments based on preconceived ideas, this does not mean that the jury must ignore the facts and circumstances of the case at hand as to what a complainant did or did not do when considering issues such as consent. In particular, his Honour considered that the new directions do not preclude defence counsel from testing the evidence of a complainant by putting a proposition to them that they did not react or respond in some particular way when allegedly subjected to non-consensual sexual activity. Because of this, his Honour considered that it was improper for the prosecutor to suggest that defence counsel had done something contrary to law by conducting the defence case in that manner. [155]–[156]. His Honour also criticised other aspects of the prosecutor’s submissions as impermissibly portraying defence counsel’s cross-examination of the complainant as examples of outdated myths and stereotypes. [157].

Nevertheless, his Honour held that those submissions in the prosecutor’s closing address did not occasion a miscarriage of justice. That was because, in his Honour’s view, the problems with the submissions which misstated the law were effectively corrected by the trial judge’s “preconceived notions” directions, and the other comments that suggested impropriety by defence counsel were addressed by defence counsel in his closing. [158]–[159].

Accordingly, his Honour held that this ground of appeal was not established. [160].

Disposition

Justice Crowley ordered that the appeal against the convictions be dismissed, and Mullins P and Boddice JA joined in the reasons and orders of Crowley J. [1], [5], [7], [175].

A Lukacs