SUPREME COURT OF QUEENSLAND

CITATION:	R v BDV [2022] QCA 219	
PARTIES:	R
v
BDV
(appellant)	
FILE NO/S:	CA No 244 of 2021
DC No 203 of 2021	
DIVISION:	Court of Appeal	
PROCEEDING:	Appeal against Conviction	
ORIGINATING COURT:	District Court at Townsville – Date of Conviction: 2 September 2021 (Coker DCJ)	
DELIVERED ON:	Date of Orders: 20 July 2022
Date of Publication of Reasons: 11 November 2022	
DELIVERED AT:	Brisbane	
HEARING DATE:	20 July 2022	
JUDGES:	Mullins P, Bond JA and North J	
ORDERS:	Date of Orders: 20 July 2022
1.	Appeal allowed.
2.	Set aside the convictions on counts 1, 3, 4, 5 and 6.
3.	Retrial ordered.	
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – where the appellant was convicted of five counts of rape of the complainant with whom he was in a sexual relationship – where it was common ground at trial that the issues of consent and honest and reasonable but mistaken belief as to consent arose for the jury’s consideration – where the jury should have been directed to consider the evidence of the circumstances on each occasion and what could constitute consent and withdrawal of consent by reference to the evidence – where the complainant’s evidence relevant to lack of consent was also relevant to the defence of mistake of fact – where the trial judge’s direction on the defence was an abstract proposition unconnected with the direction dealing with the proof of lack of consent – whether a miscarriage of justice occurred because the jury was not adequately instructed about how the evidence related to the issues of lack of consent and mistake of fact
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – where the appellant was convicted of five counts of rape of the complainant with whom he was in a sexual relationship – where the trial judge gave a direction on the use of the evidence that was admitted at the trial relating to the violent conduct of the appellant – where the appellant was violent on the night prior to the complainant making the complaint to the police about the rapes and this was relevant to explain why the complaint was made – where the direction given by the trial judge was adequate in relation to this evidence – where there was other evidence of violent conduct given by the complainant and a witness – where it was not correct for the trial judge to direct the jury on this evidence when such conduct occurred after the incidents the subject of counts 1 and 3 and the complainant’s evidence on counts 4-6 did not make the appellant’s violent behaviour relevant in any way to those counts
Criminal Code (Qld), s 24, s 348, s 620
Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34, cited
HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, cited
Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44, cited
R v Dunrobin [2008] QCA 116, cited
R v Makary [2019] 2 Qd R 528; [2018] QCA 258, cited
R v Rope [2010] QCA 194, cited	
COUNSEL:	J Trevino KC, with B R Bilic, for the appellant
A J Walklate for the respondent	
SOLICITORS:	Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent	
[1]	THE COURT:  The appellant was tried before the learned trial judge and a jury on six counts of rape.  It was a relatively short trial.  The complainant commenced giving evidence at 12 noon on the first day of the trial and her evidence was completed after about 25 minutes on the second day of the trial.  The rest of the evidence was completed by 1 pm on the second day of the trial.  The trial judge directed an acquittal on count 2 after a successful no case submission.  The jury were released to return on the third day when both counsel addressed and the trial judge completed the summing up by 1.05 pm.  The jury returned guilty verdicts in respect of counts 1 and 3-6 by 2.15 pm on the fourth day which was 2 September 2021.  On appeal to this Court on 20 July 2022, the Court allowed the appeal, set aside the convictions and ordered a retrial.  These are the reasons for those orders.
Grounds of appeal
[2]	The grounds of appeal were:
1.	A miscarriage of justice occurred because the jury was not adequately instructed about how the evidence related to:
a.	the issue of consent; and
b.	s 24 of the Criminal Code (Qld).
2.	A miscarriage of justice occurred because of the failure of the trial judge to direct the jury properly as to the use of evidence relating to the violent conduct of the appellant.
[3]	The appellant’s case at trial was primarily that the jury would not find the complainant to be a credible and reliable witness.  Both the prosecutor at the trial and the appellant’s trial counsel (who were not the counsel on this appeal) flagged in their addresses to the jury that the issues of consent and honest and reasonable but mistaken belief as to consent arose for the jury’s consideration.
Summary of relevant evidence
[4]	Most of the evidence at the trial was adduced from the complainant.  The complainant and the appellant met on 30 or 31 July 2019 through a mutual friend K.  She told the appellant on that occasion she was a virgin.  They communicated on social media until they met again for an evening out with friends on 27 August 2019.  Count 1 arose out of events that occurred when they returned to K’s apartment after that outing on or about 28 August 2019 which the complainant said was the first occasion they had sexual intercourse.  The complainant suggested that they go to bed and engage in consensual sexual activity.  Both the complainant and the appellant had been drinking alcohol.  (In cross-examination, the complainant conceded that by the end of the night her memory was somewhat impaired by the alcohol she had been drinking.)  The complainant was agreeable to the appellant’s inserting his finger into her vagina.  He then asked her whether she wanted to lose her virginity before her birthday, while she was still 18.  The complainant did not say anything back and said “I don’t know if he took that as a cue”.  The appellant then got up, took off his pants, got back into bed, got on top of the complainant and resumed kissing.  He then inserted his penis into her.  It hurt a lot and she remembered that she told him to stop about two or three times and she told him that he needed to slow down and that it was hurting.  She said “he just kind of pushed it in”.  The following exchange took place in evidence in chief:
“How has it stopped?---So he – midway through, he got up to go put on a condom and I had thought he wa – it was over and done with. Like, I kind of had, like, propped myself up to get up and he’s come back and gotten back on top of me and then reinserted himself into me and then finished into the condom.
When he’s come back with the condom, did you say anything to him?---No, I didn’t. I did tell him to stop again when he inserted – like, I said it was hurting and he said, ‘You’re just not used to it’, and that was it.”
[5]	The appellant asked the complainant, if she enjoyed it, and the complainant did not respond.  The complainant and the appellant went to sleep in the same bed in which the sexual intercourse had taken place.
[6]	The cross-examination of the complainant in respect of count 1 elicited more detail about the incident.  The complainant accepted that she and the appellant were kissing and touching each other, as they were lying on the bed and she did not have any underwear on.  The following exchange took place:
“Now, once you had commenced having sex, I suggest that you did at some point say, ‘Slow down.’?---Yes.
But – and you also said – at some point said it was hurting?---Yes.
And I suggest that when you said slow down, he would slow down?---Only briefly.
But when he slowed down, you didn’t say, ‘Get off me.’?---No.
You didn’t say, ‘Go away.’?---No.
I suggest, in fact, that you didn’t even say ‘no’ or ‘stop’?---I did say stop.”
[7]	The appellant’s trial counsel then suggested to the complainant that when she would say stop, the appellant would pause and wait for her “and then it would be okay to start again”.  The complainant’s response to that suggestion was that she would say stop, he would briefly stop, but he would not wait for a verbal response from her and he would just continue.  The following exchange then took place:
“And while he was stopped, you didn’t push yourself away, push him away?---No, I was – I was - - -
Then in the context of you saying, ‘Stop, it’s hurting.’ During sex, [the appellant] actually did stop and suggested using a condom?---Yes, he did.
And at that stage, he got off the bed. He went and got a condom. He put the condom on and you remained on the bed, lying on the bed?---Yes.”
[8]	The cross-examiner clarified that the affirmative response was to each of the three propositions that were in that last question.  The complainant conceded that when she conversed with K and the other friend who were in the apartment the next morning, she did not suggest that the sexual activity was non-consensual.  She did mention that it had hurt her.  The complainant also conceded that at the time she did not think she had been raped and thought she had a bad first experience of sexual intercourse.
[9]	On 30 August 2019 the appellant and the complainant were part of a group on a camping trip to celebrate the complainant’s birthday.  They shared a bed inside a house, while the other people in the group slept outside.  The appellant and the complainant had been drinking alcohol and were intoxicated.  The complainant agreed to vaginal sex.  They ended up where the complainant was on her hands and knees on the mattress.  The appellant suggested that anal sex was the same as losing her virginity.  He took his penis out of her vagina and placed the tip of his penis into her anus.  The complainant told the appellant that she did not want to have anal sex, but he did not listen and she pushed herself forward to get away from him.  She gave him a “hand job” to finish him off.  This was the subject of count 3.
[10]	The complainant called her friend Ms B the following morning and said to her “I think I just got sexually assaulted last night” and also said that she could not remember much of it.
[11]	In cross-examination on count 3, it was put to the complainant that there had been no discussion or attempt at anal sex at all on that night.  That was rejected by the complainant.  She agreed that they both went to sleep in the same bed.  The complainant conceded that the next day she did not talk to any of the other people on the camping trip about what had happened between the appellant and herself.
[12]	After the experiences on 28 and 30 August 2019, the complainant considered that she and the appellant were in a relationship.  They had consensual sexual intercourse in September and October 2019 on a weekly basis.  The complainant conceded in cross-examination that she did not think she had been raped when she went into the relationship with him.  In relation to the consensual sexual intercourse in those months, when it was put to the complainant in cross-examination that she said yes to consensual sex, she responded “I never said yes to any sex.  It was just non-verbal”.  She then agreed that it was possible that there were instances where she had verbally said to the appellant that she was willing to have sex and there were times when she instigated sex.  The sexual intercourse stopped in October for a week or two weeks when they argued after the complainant got chlamydia for which she blamed the appellant.
[13]	The complainant moved into the same unit as the appellant and their friend K on or around 16 November 2019.  Although they had separate bedrooms, the sexual relationship between the complainant and the appellant continued.
[14]	Counts 4 and 5 concerned vaginal and anal sex respectively occurring on the evening of 25 November 2019 when the appellant and the complainant had agreed to stop having a sexual relationship and be friends.  They had been drinking.  They were in the complainant’s bedroom, lying on the bed and talking.  The complainant was wearing a jumper and underwear.  The appellant went to leave, but then got on top of the complainant and she said “You need to get off”, “We’re just friends” and “I don’t want to do anything like that”.  He got off, got back on, moved her underwear and started to insert his penis into her vagina.  The complainant tried to push him off, he pushed her back down and he continued.  He then removed himself and said “we’ll try it a different way” and tried to insert his penis into the complainant’s anus.  The complainant said not to and that it hurt and that she did not want to do it and the appellant kept forcing it.  She told him again to get off her and he did.  In this incident, he inserted his penis into her vagina and he inserted the tip of his penis into her anus.  In cross-examination, the complainant conceded that when the appellant tried to initiate sex on this occasion, she did not tell him to stop immediately.  In cross-examination, the complainant was referred to her police statement concerning the incident in her bedroom at K’s unit when she was wearing the jumper and underwear (which was the occasion of counts 4 and 5).  She was referred in particular to that part of her statement where she said “He chuckled and continued.  I’ve told him to stop.  He told me that I just needed to relax and let it happen.  That it was the same as losing my virginity” which the complainant said was her recollection of what had occurred.  The complainant also confirmed that she then said that the appellant got frustrated and got off her, she said she didn’t want it anymore and the appellant said “well, I guess I’ll finish myself off then”.
[15]	Count 6 concerned anal sexual intercourse that occurred in the middle of consensual vaginal sexual intercourse on or about 26 November 2019.  The complainant said that she was happy to have sex with him vaginally and midway during the sexual intercourse the appellant put the tip of his penis into the complainant’s anus and she told him “to stop”.  She told him “I don’t want to have anal sex.  I just want to have normal sex.”  The appellant then put his penis back into her vagina.  In cross-examination, it was put to the complainant that there was a discussion on this occasion about having anal sex and that the complainant agreed with the appellant to try it.  That proposition was rejected by the complainant.
[16]	On 29 November 2019, the complainant and the appellant were arguing and they went into his room in the apartment.  The complainant told the appellant to stop yelling and when she tried to leave the room, he punched the wall beside her head.  She left the apartment and was heading for her car.  The appellant told her that, if she got into her car, he would follow her and there was nowhere that she could go that he could not follow her.  The complainant returned to the apartment and locked herself in her room.  She then returned to her parents’ home.  The next day which was 30 November 2019 she made the complaint to the police, speaking first to Constable Leggat, and that resulted in the charges on the indictment.
[17]	Apart from the incident of violence that preceded the complainant’s complaint to the police, her evidence in chief also included the following.  The appellant was a very violent person and a very angry person.  There were multiple times when he would hit a wall out of anger and on one occasion he hit an esky out of anger while the complainant was next to it.  Apart from the incident on 29 November 2019, there was another occasion when the complainant tried to leave the unit to go to her brother and his girlfriend.  The appellant followed the complainant down to the car park and refused to let her into the car.  The appellant tried to slam the car door on her hand.  There was another occasion when the complainant wanted to discuss with the appellant about his giving her chlamydia.  She was standing and talking and he was sitting in his car.  The appellant got angry about what the complainant said and told her to move away from his car which she did and he reversed his car and almost hit her.  There were other occasions when the appellant would grab her and throw her onto the bed or would push her.
[18]	At the conclusion of her evidence in chief, the complainant stated that she had not on any occasion consented to having anal sex with the appellant.  She was asked whether she consented to having sex with the appellant on the occasions that were the subject of counts 1, 4 and 5 and she responded “No”.
[19]	Ms B gave preliminary complainant evidence as follows.  The complainant called her on the complainant’s birthday around lunchtime.  The complainant was crying and she “seemed very confused and flustered”.  The complainant explained to her that sexual intercourse had occurred between her and the appellant and she was not sure how she felt about it.  Ms B could not remember the exact words used by the complainant.  The complainant told her this was her first time and “she wasn’t sure if she wanted to actually do it at the time … she went along with what happened”.
[20]	Over objection by the appellant’s trial counsel, Ms B gave evidence of an occasion (which was after 30 August 2019) on which she witnessed an argument between the appellant and complainant at K’s apartment when they had both been drinking, where the appellant hit the wall near the complainant.  (It was apparent from the topic of the argument described by Ms B that it was not the same incident described by the complainant as having occurred on 29 November 2019.)
[21]	Constable Leggat gave evidence of receiving the complainant’s complaint which he recorded on his body-worn camera.  The DVD recording taken from the body-worn camera was tendered in evidence and the recording was played for the jury.
[22]	The appellant did not call or give evidence.
The summing up
[23]	The summing up commenced with the standard directions about the role of the jury and the judge, what is evidence, the burden of proof, the standard of proof, the credibility and reliability of a witness, separate verdicts and the mandatory directions in relation to the manner in which the complainant gave her evidence.  The parties had agreed on the trial judge giving what was described as an “abridged form” of a Robinson direction and a motive to lie direction.  There then followed a section of the summing up dealing with the preliminary complaint evidence.  The evidence from Ms B was quoted at length by the trial judge, as was the preliminary complaint evidence from Constable Leggat that was recorded on his body-worn camera.  In fact, the trial judge read out almost all of the transcript of the audio of this recording.  The standard direction about the use that could be made of the preliminary complaint evidence then followed.
[24]	The parties had agreed on what was described as a “truncated Jones v Dunkel direction” in relation to other persons who may have been able to give some relevant evidence and who were not called.  That direction was given.  Then followed a direction also agreed between the parties to deal with the evidence of violent conduct involving the appellant and the complainant that was based on the direction found in Direction 70 of the Supreme and District Courts Criminal Directions Benchbook for relationship evidence admitted for the limited purpose described by Kiefel J (as the Chief Justice then was) in HML v The Queen (2008) 235 CLR 334 at [513]:
“And you have also heard evidence of other conduct that has taken place between the defendant and the complainant. That evidence, the prosecution says, is necessary to explain what occurred in the incidents which are the subject of the alleged offences. But you do need to understand that the relevance of this evidence is limited. If you accept this evidence, it does not make it more probable the defendant committed the alleged offences. The evidence is relevant only to answer questions that might naturally – that you might naturally have about the background to the incidents which the prosecution alleged were the charged offences.”
[25]	Even though the trial judge had not at that stage of the summing up identified the elements of the offence of rape, the trial judge referred to the fact that the jury had heard from both the prosecutor and the appellant’s counsel about mistake of fact.  The trial judge then proceeded to give a direction on mistake of fact:
“And it follows as this: a person who does – and I will abridge as necessary – an act under an honest and reasonable but mistaken belief in the existence of any state of things is not criminally responsible for the act to any greater extent than if the real state of things had been such as the person believed to exist.
And what that means is that if the defendant acts under an honest and reasonable but mistaken belief that there was consent to sexual activity as has been complained of, he is not criminally responsible to any greater extent than if the real state of things had been such as he believed to exist. What that means is that if you conclude that the real state of things was that the complainant did not consent to one or other of the sexual acts that make up the charges before you, but the defendant honestly and reasonably believed that there was such consent, the defendant will not be criminally responsible to any greater extent than if that belief were true. And that would mean that the defendant should be found not guilty of any count where he had that honest and reasonable but mistaken belief.
A mere mistake, however, is not enough. The mistaken belief must have been both honest and reasonable. An honest belief is one that is genuinely held by the defendant. To be reasonable, the belief must be one held by the defendant in this – in his particular circumstances on reasonable grounds. And therefore, I need to emphasise that there is no burden on the defendant to prove that he had a mistake of fact. The prosecution must satisfy you beyond reasonable doubt that he did not do so. If the prosecution has failed to satisfy you that the defendant did not act under an honest and reasonable mistake of fact, you should find the defendant not guilty of any of the counts that are before you where you find that you are not satisfied beyond a reasonable doubt that the defendant did act under an honest and reasonable mistake of fact.
However, if the Crown proves to your satisfaction beyond reasonable doubt that the defendant did not honestly hold the relevant mistaken belief about the consent being given, or that the belief was not reasonable in the defendant’s circumstances, then you would find that the mistake – the defence of mistake of fact did not apply in this case.” (emphasis added)
[26]	It should be noted that, even apart from the appellant’s complaint about the failure of the direction on honest and reasonable mistake of fact to refer to the evidence that was relevant to that issue, the latter part of the sentence that has been  put in bold above which is “where you find that you are not satisfied beyond a reasonable doubt that the defendant did act under an honest and reasonable mistake of fact” misstated the onus which the prosecution bears to exclude that defence and which was correctly set out in the first part of that sentence.
[27]	The trial judge then gave the standard direction on the appellant’s right not to give evidence.  Then followed the trial judge’s direction on the elements of the offence of rape as follows:
“The definition of rape that is relevant here is that the prosecution must prove, firstly, that the defendant had carnal knowledge of or with the complainant. And carnal knowledge means the insertion of the defendant’s penis into the genitalia or anus of the complainant to any extent. And secondly, and perhaps even more relevant here, is that the prosecution must prove that the defendant did so without the consent of the complainant. And you need to be satisfied of both of those elements in relation to each of the counts that are before you.”
[28]	The trial judge then signposted that he was summarising the rival contentions respectively of the prosecutor and the appellant’s counsel.  Apart from the references to the complainant’s evidence in those summaries that was given in the context of what counsel had said about that evidence in support of their respective arguments, the trial judge did not in the summing up refer to any detail of the complainant’s evidence in connection with any of the directions given by the trial judge.
[29]	After the jury had been deliberating for a couple of hours, they requested a transcript of the evidence relating to count 3.  The evidence in chief of the complainant relating to count 3 and her evidence in cross-examination relating to that count were then read to the jury.
[30]	The next day the jury requested a full transcript of the prosecution and defence relating to counts 4, 5 and 6 and also the “legal definition of penetration and consent”.  The relevant evidence from the complainant’s evidence in chief, cross-examination and re-examination was read out to the jury.  In relation to the question about “consent”, the trial judge advised the jury of the meaning of consent by reading s 348(1) of the Code.  In relation to the definition of “penetration” the trial judge read the definition of “carnal knowledge” in s 215 of the Code.
[31]	In giving the redirection on consent, the trial judge did not refer to any of the complainant’s evidence relevant to the issue of consent.
The trial judge’s duty in summing up
[32]	Section 620(1) of the Code provides that after the addresses “it is the duty of the court to instruct the jury as to the law applicable to the case, with such observations upon the evidence as the court thinks fit to make”.  As was stated by McHugh J in Fingleton v The Queen (2005) 227 CLR 166 at [77]:
“The court does not discharge that duty by merely referring the jury to the law that governs the case and leaving it to them to apply it to the facts of the case. The key term is ‘instruct’. That requires the court to identify the real issues in the case, the facts that are relevant to those issues and an explanation as to how the law applies to those facts.”
[33]	As the jury is the fact-finding body in a criminal trial, the reference to the facts in that statement of McHugh J should, in a case where the facts are disputed, be taken as requiring the trial judge to refer to the evidence that is relevant to the issue on which the direction is given and to explain how the law applies, depending on the facts the jury finds from the evidence the jury accepts.  See also R v Dunrobin [2008] QCA 116 at [38] and R v Rope [2010] QCA 194 at [53]-[56].
[34]	On the hearing of this appeal, the respondent did not demur from the principles in these authorities relied on by the appellant, but argued in the context of the short trial on these counts in which the issues were defined by the parties’ addresses, that the impugned directions were adequate.
Ground 1 – was the jury adequately instructed on the issues of consent and mistake of fact?
[35]	By identifying where aspects of the directions on the issues of consent and mistake of fact were inadequate in the circumstances of this trial, it is not intended that these reasons should be used as draft directions.  The directions on the retrial of the counts must be crafted in the light of the evidence adduced in the retrial and the issues that emerge in the retrial.
[36]	In relation to each count, the jury could not be satisfied beyond reasonable doubt of the guilt of the appellant unless the prosecution had proved that the sexual intercourse took place without the complainant’s consent.
[37]	The incidents that were subject of counts 1 and 3 took place at an early stage of the parties’ relationship whereas the incidents the subject of counts 4-6 took place at the end of their relationship.  On the question of lack of consent, the jury had to be directed to consider the evidence of the circumstances in which the sexual intercourse took place on each occasion.  In view of the complainant’s evidence, they required direction on what could constitute consent and withdrawal of consent.
[38]	There are two elements to “consent” in that there must, in fact, be “consent” as a state of mind of a complainant and that consent must also be “given” freely and voluntarily by a complainant:  see s 348 of the Code and R v Makary [2019] 2 Qd R 528 at [49].  In Makary at [50], Sofronoff P (with whose reasons Bond J agreed) explained what can amount to the giving of consent:
“The giving of consent is the making of a representation by some means about one’s actual mental state when that mental state consists of a willingness to engage in an act. Although a representation is usually made by words or actions, in some circumstances, a representation might also be made by remaining silent and doing nothing. Particularly in the context of sexual relationships, consent might be given in the most subtle ways, or by nuance, evaluated against a pattern of past behaviour.” (footnote omitted)
[39]	Importantly, the summing up did not explain how lack of consent could be proved by the prosecution by reference to the evidence of the complainant in respect of each of the four separate occasions on which the complainant said she was raped where the conduct of the complainant was relevant to the issue of consent, in addition to what she may have said to the appellant at the relevant time.
[40]	The fact that the giving of consent can be conveyed by a representation that might be made by remaining silent and doing nothing was particularly relevant to the evidence of the complainant given in relation to the commencement of the sexual intercourse and its resumption after the appellant put on a condom that was the subject of count 1.
[41]	It should have been pointed out, if the jury were not satisfied beyond reasonable doubt in relation to count 1 that the sexual intercourse commenced without the consent of the complainant, that it was a matter for the jury to decide, if they accepted the evidence of the complainant that she told the appellant to stop, whether they were satisfied beyond reasonable doubt that was withdrawal of consent in the circumstances.  If the prosecution could not exclude beyond reasonable doubt that it was a request made to the appellant, in effect, to slow down because the sexual intercourse was hurting her (rather than not continue at all), the prosecution would fail to prove lack of consent in respect of count 1.
[42]	There was evidence of non-verbal consent arising in connection with each count, including consensual vaginal sexual intercourse within the same course of conduct in respect of each of counts 3 and 6.
[43]	The pattern of past behaviour by the complainant to consensual sexual intercourse was raised by the complainant’s evidence, including that she said she never said “yes” to any sex and that “it was just non-verbal”.  Even though the complainant then conceded there were occasions when she had said “yes” to sexual intercourse, that did not necessarily completely negate her answer about non-verbal consent.  Whether consent was given by representation in the light of a pattern of past behaviour about engaging in sexual intercourse was relevant to the jury’s consideration of the complainant’s evidence about not consenting, at the least, to the vaginal sexual intercourse in respect of count 4 and also to the anal sexual intercourse in respect of counts 5 and 6 that the complainant said occurred at the same time as vaginal sexual intercourse.
[44]	Much of the complainant’s evidence that was relevant to the issue of the lack of her consent was also relevant to the issue of honest and reasonable, but mistaken, belief on the part of the appellant that the complainant did consent.
[45]	The evidence given by the complainant that was relevant to the prosecution’s excluding beyond reasonable doubt the defence of honest and reasonable, but mistaken, belief on the part of the appellant that the complainant was consenting to the sexual intercourse that was the subject of each count should have been traversed by the trial judge in connection with giving the direction about excluding that defence, in order to explain how the defence could apply in relation to each count, depending on the evidence accepted by the jury.
[46]	It did not assist the jury that the direction given on this defence was as an abstract proposition unconnected with the direction dealing with the essential element of the offence of rape of proof of lack of consent to the particularised sexual intercourse that was the subject of each count.  Although by itself that did not amount to a miscarriage of justice, it reinforced the effect of the failure to give the direction by reference to the relevant evidence of the complainant.
[47]	There was no forensic advantage to the appellant in the failure by his trial counsel to point out the inadequacies in the directions given by the trial judge as to consent and mistake of fact.
[48]	The respondent submitted on the appeal that the issue of consent was within the experience of members of the jury and, although it would have been preferable for the trial judge to relate the direction to the evidence, that omission did not make the directions inadequate.
[49]	Even though it can be said that the issue of consent may be generally understood by the members of a jury, a jury would usually benefit by the relevant direction relating the issue of consent to the evidence that was relevant to that issue and given with regard to the subtlety with which consent can be conveyed when the parties had been in a sexual relationship.
[50]	The exclusion of the defence of honest and reasonable, but mistaken, belief is one that would not easily be characterised as within the common experience of members of a jury in the absence of an explanation by the trial judge of how that defence may apply to the specific evidence adduced in the trial.
[51]	Even though the appellant’s primary defence was that the jury would not find the complainant to be a credible and reliable witness, the issues of consent and mistake of fact as to consent were significant issues, if the jury largely accepted the complainant’s evidence that sexual intercourse occurred on the four occasions as outlined in the complainant’s evidence.  The jury should have been given assistance in the summing up on the significance of some aspects of the complainant’s evidence to the issues of consent and mistake of fact for each count.  Without that assistance, the jury’s assessment of those aspects of the complainant’s evidence relevant to those issues may have been affected.  The failure to direct the jury on the issues of consent and mistake of fact by reference to the relevant evidence in the circumstances of this trial therefore gave rise to a miscarriage of justice.
[52]	It was for the prosecution to discharge of burden of showing that no substantial miscarriage of justice occurred as a result of the failure of the directions to engage with the relevant evidence at the trial.  The inadequate directions were likely to have affected the assessment by the jury of the complainant’s evidence relevant to these issues.  This was therefore not a matter where this Court on the appeal was in a position to assess whether the guilt of the appellant on each charge was proved beyond reasonable doubt: See Orreal v The Queen (2021) 96 ALJR 78 at [20] and [41].
[53]	The appeal succeeded on ground 1.
Ground 2 – use of the evidence relating to the violent conduct
[54]	In view of the conclusion reached on ground 1, it is not strictly necessary to deal with whether the appellant has established a miscarriage of justice on the basis of ground 2.  As there is to be a retrial, it is relevant to make some observations on the direction about the use of evidence relating to the violent conduct of the appellant.
[55]	This ground of appeal was limited to the direction given on the use of the evidence that was admitted at the trial relating to the violent conduct of the appellant.  The appellant also submitted on the appeal that some of that evidence was wrongly admitted and inadmissible.  The ground of appeal did not address the admissibility of the evidence.  The basis on which evidence of violence by the appellant against the complainant could be admitted where it was not the prosecution case that the complainant’s will was overborne by acts of violence or fear of harm was limited.  The charges did not engage s 132B of the Evidence Act 1977 (Qld) which applies only to offences within chapters 28-30 of the Code (which do not include the offence of rape).  The evidence of violence could only be admitted as relationship evidence for the purpose described in HML at [513].
[56]	As the appellant’s submissions on this appeal accepted, the evidence of the complainant about the violent conduct of the appellant on the night preceding the complainant’s complaint to the police was relevant to explain why the complainant made her complaint on that particular day and met the description of answering a question the jury might naturally have, as to what precipitated the complainant’s complaint to the police, as contemplated in HML at [513].  The complainant’s evidence of generalised violent behaviour of the appellant towards her did not meet that description.  The evidence of Ms B about an incident of aggressive behaviour by the appellant which was not the same incident described by the complainant that occurred on the night before she complained to the police also did not answer the description in HML at [513].
[57]	The direction given by the trial judge would have been adequate in relation to the incident that occurred on 29 November 2019 with the explanation that the evidence was relevant to explain why the complainant made the complaint to the police on 30 November 2019.
[58]	In relation to the other evidence of violent conduct, it was not correct for the trial judge to embrace the prosecutor’s submissions and describe it as explaining “what occurred in the incidents which are the subject of the alleged offences” when, it was apparent from the evidence in that category from both the complainant and Ms B that such conduct occurred after the incidents that were subject of counts 1 and 3 and the complainant’s evidence on counts 4-6 did not make the appellant’s violent behaviour relevant in any way to those counts.
[59]	There is no purpose in suggesting how the direction could have been modified to deal with the evidence of violent conduct (apart from the complainant’s evidence of the incident that occurred on 29 November 2019) when that category of evidence was not relevant to the issues in the trial.
Orders
[60]	It was apparent at the hearing of the appeal that the appellant had shown that there was a miscarriage of justice due to the inadequate directions on the issues of consent and mistake of fact and that it was not a matter for the application of the proviso.  The orders made at the conclusion of the appeal were:
1.	Appeal allowed.
2.	Set aside the convictions on counts 1, 3, 4, 5 and 6.
3.	Retrial ordered.