SUPREME COURT OF QUEENSLAND

CITATION:	R v NAE [2023] QCA 82	
PARTIES:	R
v
NAE
(appellant)	
FILE NO/S:	CA No 9 of 2022
DC No 684 of 2021	
DIVISION:	Court of Appeal	
PROCEEDING:	Appeal against Conviction	
ORIGINATING COURT:	District Court at Cairns – Date of Conviction: 30 November 2021 (Fantin DCJ)	
DELIVERED ON:	28 April 2023	
DELIVERED AT:	Brisbane	
HEARING DATE:	21 July 2022	
JUDGES:	Mullins P and Bond JA and North J	
ORDER:	Appeal dismissed.	
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was convicted of four counts of rape, one count of indecent assault with a circumstance of aggravation and one count of indecent assault – where there was no contest as to whether the physical acts had occurred – where the contest concerned whether the acts had been committed without the complainant’s consent – where the appellant’s principal ground of appeal was that a miscarriage of justice was occasioned by the Crown prosecutor suggesting in his closing address that the appellant had engaged in ‘recent invention’ without having put this contention to the appellant in cross-examination – whether the prosecutor had actually made a suggestion of recent invention – whether there had been a miscarriage of justice
Criminal Law (Sexual Offences) Act 1978 (Qld), s 4
Browne v Dunn (1893) 6 R 67, cited	
COUNSEL:	B R Bilic for the appellant
D C Boyle for the respondent	
SOLICITORS:	Fisher Dore for the appellant
Director of Public Prosecutions (Queensland) for the respondent	
[1]	MULLINS P:  I agree with Bond JA.
[2]	BOND JA:  The appellant was convicted after a jury trial in the District Court on an indictment alleging –
(a)	four counts of rape (counts 1 to 4);
(b)	one count of indecent assault with a circumstance of aggravation (count 5); and
(c)	one count of indecent assault (count 6).
[3]	All counts were domestic violence offences within the meaning of s 12A of the Penalties and Sentences Act 1992 (Qld).
[4]	On each of the four counts of rape the appellant was sentenced to 9 years’ imprisonment. On each of counts 5 and 6 the appellant was sentenced to 2 years’ imprisonment.  All sentences of imprisonment were to be served concurrently.  It was declared that 374 days spent in pre-sentence custody was to be deemed time already served under the sentence.  No parole eligibility date was fixed, with the result that the appellant will become eligible for parole after he has served half the period of imprisonment to which he was sentenced: see s 184(2) of the Corrective Services Act 2006 (Qld).
[5]	The appellant appeals against his conviction on the following grounds:
(a)	Ground 1: A miscarriage of justice was occasioned by the Crown prosecutor suggesting to the jury during his closing address that the appellant had engaged in ‘recent invention’ without having put this contention to the appellant in cross-examination.
(b)	Ground 2: A miscarriage of justice was occasioned by the learned trial Judge’s interruption of defence counsel’s closing.
(c)	Ground 3: A miscarriage of justice was occasioned by the prejudicial language adopted by the Crown prosecutor.
(d)	Ground 4: A miscarriage of justice was occasioned by the jury being shown photos of the appellant in clothing which the jury would infer was that worn by a prisoner.
[6]	During oral argument, counsel for the appellant conceded that the principal ground of appeal was ground 1, and grounds 2, 3 and 4 were only relied upon in the event that the court was persuaded of the merit of ground 1 but was concerned as to whether the significance of the unfairness was such as to amount to a miscarriage of justice.  If this court was not persuaded of the merit of ground 1, it would not become necessary to consider grounds 2, 3 or 4.
[7]	For reasons which follow, I am not persuaded of the merit of ground 1.  It is therefore not necessary to consider grounds 2, 3 or 4.  The appeal should be dismissed.
The relevant contest at trial
[8]	At the time of the offending the appellant was aged 49 and the complainant was aged 22.  The appellant was married to the sister of the complainant’s grandmother making him the complainant’s great uncle-in-law.  The appellant had known the complainant all her life.  He ran a takeaway food store.  She worked in childcare at a kindergarten.  She had one child.
[9]	It was accepted that the appellant had performed the physical acts which constituted the offending.  The contest at trial concerned whether the acts were committed without the complainant’s consent.  Ground 1 of the appeal challenges the fairness of counsel for the Crown’s conduct in relation to the evidence of the appellant which sounded on that contest.  In what follows I identify only the relevant aspects of the course of the trial.
The complainant’s evidence in chief
[10]	The complainant gave evidence that, as at 2019, she had irregular contact with the appellant.  Text messages retrieved from her phone were tendered.  They revealed the following exchanges.
[11]	In January 2019:
Appellant	Complainant	
	20/01/19 at 4.50 pm: Hey uncle [the appellant], do you have a … big trailer we could use to finish the rest of our moving by any chance	
20/01/19 at 5.27 pm: I do have a large trailer. When are you looking at?		
	20/01/19 at 8.00 pm: Tomorrow by 9am??	
There followed further texts on 20, 21 and 22 January 2019 finalising the arrangements to meet with the trailer.	
[12]	In February 2019:
Appellant	Complainant	
	12/02/19 at 1.30 pm: Is there another way I can get quick cash	
12/02/19 at 7.28 pm: As in?		
	12/02/19 at 7.28 pm: Like small jobs cleaning or something	
13/02/19 at 8.31 pm: As in a second job?		
	19/02/19 at 12.07 pm: Sort of as I need money for bond	
[13]	On 1 and 2 April 2019:
Appellant	Complainant	
	01/04/19 at 11.14 am: How do I earn quick cash?	
01/04/19 at 12.51 pm: How much cash are you chasing?		
	01/04/19 at 1.27 pm: Like between $400-$600 cause. I really need to get out of Mums place	
	02/04/19 at 7.51 am: Need $1740 all up for a duplex 
This week	
02/04/19 at 8.16 am: What are you suggesting?		
	02/04/19 at 9.19 am: What can I do to get quick cash	
[14]	On 7 April 2019:
Appellant	Complainant	
	07/04/19 at 6.55 pm: Hey uncle [the appellant], I know it’s late but are you able to pick me and [complainant’s child] up just outside of [town]	
	07/04/19 at 7.33 pm: All good got it sorted [emoji]	
[15]	In July 2019:
Appellant	Complainant	
	03/07/19 at 8.18 am: Need some quick cash [emoji] hahaa how do I go about it	
[16]	In November 2019:
Appellant	Complainant	
	01/11/19 at 11.10 am: Can I earn some extra cash next week?	
	01/11/19 at 11.17 am: Will you be my guarantor	
05/11/19 at 12.11 pm: How much are you chasing?		
	05/11/19 at 12.13 pm: About $600. Gotta pay my storage unit and get layby off	
[17]	In December 2019:
Appellant	Complainant	
	12/12/19 at 6.51 am: Hey uncle [the appellant] are you able to drop me off to work this morning I’m on lake street atm	
	12/12/19 at 6.52 am: [The complainant provided a specific address]	
12/12/19 at 7.44 am: Sorry
I only just read your message!
Do you still require a lift?		
	12/12/19 at 7.44 am: No all good, I heard wrong from my friend	
[18]	The complainant said that nothing came of the requests for quick cash contained in the text messages.  She approached “Uncle [the appellant]” with the requests evidenced by the texts because he was “just always available” when she needed something.  Although there was no sexual content in any of the text messages, the complainant did give evidence of two communications during that year which did have such content.
[19]	First, and in the context of being asked about the February 2019 text exchange, the complainant said she had previously raised with the appellant whether she could get quick cash, as in a second job.  The appellant had raised with her the prospect of being involved in pornographic recordings.  She responded that that was not the job she was talking about and that she was not comfortable doing that.  So when she asked for “another way”, she meant to convey other than the way he had suggested.  Her evidence was that the topic of pornographic recordings was not discussed again with the appellant.
[20]	Second, in November 2019 the appellant asked the complainant whether she was still looking for work.  When the complainant replied that she was the appellant allegedly asked to see her breasts.  The complainant refused and said she was “shocked” and “very surprised” at the request.
[21]	The texts retrieved from the complainant’s phone also contained messages in the couple of days preceding the events which were the subject of the indictment.  That exchange was as follows:
Appellant	Complainant	
22/12/19 at 9.44 pm: I need some arms and legs for a couple of nights doing once off cleans, 3-4 hrs per night later in the week if you are still chasing work?		
	23/12/19 at 9.23 am: What days?	
23/12/19 at 9.30 am: Can work in with you!
I will talk with you later		
	23/12/19 at 9.30 am: Okay	
23/12/19 at 8.49 pm: I need to do some spring cleaning at the takeaway.  Hiding and squeezing etc.  It needs to be after hours, so 9.00 pm start for 2 nights.  Doesn’t worry what nights!
Probably 3-4 hrs per night.
Are you interested?
If so what nights would work for you?		
23/12/19 at 11.05 pm: That was supposed to be “hosing” not “hiding”!		
	25/12/19 at 4.26 pm: I can do Thursday and Friday nights this week	
25/12/19 at 7.48 pm: Merry Xmas
Tomorrow night and Friday night work for me!
I’ll contact you tomorrow afternoon to finalise details!		
26/12/19 at 4.02 pm: I’m assuming you need a lift tonight?		
26/12/19 at 4.11 pm: Where do you want to be picked up from?		
	26/12/29 at 4.12 pm: Yes please from mums place	
26/12/19 at 4.12 pm: Pick you up about 9.00		
	26/12/19 4.13 pm: Okay no worries	
26/12/19 at 7.07 pm: I’m going to be running late!
About 10.15 I’ll be there!		
	26/12/19 7.07 pm: Okay no worries	
[22]	The appellant picked up the complainant as arranged and she carried out the planned cleaning work for the appellant at his takeaway food store.
[23]	It was in the early hours of the next morning (27 December 2019) that the appellant committed the acts which constituted the physical elements of the offences with which he was charged.  The complainant gave detailed evidence of the events.  Her evidence was that she explicitly and plainly conveyed to the appellant that she did not consent to any of the sexual contact between them.
[24]	The respondent accepted the accuracy of the following summary of her evidence as expressed in the appellant’s written submissions (footnotes omitted):
“On 26 December 2019 the complainant had been engaged by the appellant to clean his food store and the detached house which abutted it. The complainant alleged that in the early hours of 27 December 2019 while the complainant was mopping the bathroom of the detached house the appellant entered and locked the door behind him. When the complainant asked what the appellant was doing he replied “you’ve been naughty, and need to be punished.” The appellant first touched her face then told her than she needed to perform oral sex on him before forcing the complainant on to her knees.  The complainant repeatedly said “no” and told the appellant she was pregnant. After touching his penis to make it erect the complainant says the appellant forcibly put his penis into her mouth. The appellant’s penis remained in the complainant’s mouth for about two minutes (count 1) and remained in her mouth to the point of ejaculation.
The complainant then recalled that this (count 1) was not the first incident in the sequence. She said that prior to being forced to her knees the appellant had taken off her clothes and she sat on the bathroom sink. While this was happening the complainant repeatedly said “no” and was crying. At that point the appellant began penetrating her vagina with his finger for about 10 seconds (count 2). The appellant was holding his phone while this was occurring and it was pointing in the direction of the complainant’s vagina. The complainant told the appellant “no please stop.”
After count 1 the appellant instructed the complainant to get in to the shower telling the her that he wanted to perform cunnilingus on her. The complainant complied. The appellant cleaned the complainant’s vagina and then performed cunnilingus (uncharged act). He then penetrated her vagina with his penis (count 3). This continued for “a couple of minutes” before the appellant ejaculated.
After exiting the shower the complainant and the appellant entered the bedroom. The appellant instructed the complainant to lay on the mattress. The complainant complied as she was scared. The appellant directed the complainant to ‘spread’ her ‘flaps’ at which time the appellant again held his phone. The complainant was saying “no, no, no.” The appellant then preformed cunnilingus on the complainant (count 5) and bit her clitoris before penetrating the complainant’s vagina with his finger (count 4).
The appellant then directed the complainant to play with her clitoris (uncharged act). She complied because she was scared. The appellant stroked his penis for a couple of minutes before ejaculating onto the complainant’s face with ejaculate landing in or on the complainant’s cheek, eye, hair and mouth (count 6). The complainant dressed shortly thereafter and the appellant drove the complainant to her mother’s house. During the journey they largely discussed menial matters until the appellant suggested that the offending needed to stay between them and told the complainant if it didn’t then the videos recorded by the appellant would be provided to the partner of the complainant.
Upon being dropped off by the appellant the complainant immediately told her mother that she had been raped by the appellant. Her mother’s partner was also present when this disclosure was made. The complainant’s mother contacted the Police. The complainant was very upset and was “hyperventilating”.”
[25]	The reference which the complainant had made to videos recorded by the appellant was a reference to a series of five video files which the appellant had used his phone to take.  The Crown played those files to the jury.  The first four recordings were very short, approximately one second each.  Some of the conduct said to constitute count 6 was captured in recording five which was approximately 70 seconds in duration.
Cross-examination of the complainant
[26]	The first part of the cross-examination was engaged in exploring with the complainant possible inconsistencies between her evidence in chief and her statement to police.
[27]	Cross-examination then turned to address what counsel described as “some questions about your contact with [the appellant] prior to that night of the 26th and 27th of December 2019”.
[28]	The complainant agreed that prior to that night if she needed to speak with the appellant about something she was in the habit of contacting him by telephone, ordinarily by text message.  The complainant agreed that the text messages in evidence and which she had spoken about in her evidence in chief were not the total of her contact with the appellant during 2019.
[29]	She was then the subject of cross-examination in relation to the contents of the text messages in 2019 which were in evidence.  She accepted that the text messages revealed that on a number of occasions she had enquired of her uncle as to the means by which she might earn extra cash.  She agreed that on all the occasions where she had contacted her uncle asking him if he knew of any way that she could get some extra cash or get another job he had never provided her with anything by way of assistance.  Her recollection was that he had helped her move to her mother’s place in January 2019 but other than that up to the start of November 2019 the only contact that she had had with him in that year was via text messages other than special occasions or running into him at the shop.
[30]	Counsel then commenced asking questions concerning a period which was later demonstrated to be 2017, in which the complainant sought driving lessons from the appellant.  It was suggested that during the course of those lessons the complainant asked the appellant if he was able to give her money.  She denied that.  Counsel then suggested that the two of them basically came to a particular arrangement but was then interrupted by the trial judge and a discussion took place in absence of the jury.
[31]	It transpired that the trial judge had correctly apprehended that counsel was going to suggest matters for which he needed leave pursuant to s 4 of the Criminal Law (Sexual Offences) Act 1978 (Qld).  Ultimately counsel accepted that such leave was necessary.  He sought to justify the grant of leave by submitting that the line of enquiry which he described was designed to elicit evidence relevant to the issues of consent and also to issues of credit.  A relevant exchange was as follows:
“HER HONOUR: So develop that submission if you’re relying on it. For example, is it said that this transactional relationship was an ongoing one up until the time of the alleged offence?
MR BENJAMIN: Sorry. Yes, it was. It is – that is what’s being suggested – that – and what I was going to suggest is that it, in fact, had started several years before and had been an ongoing thing all the way up until this particular night, and that on the occasions that this happened, the complainant would receive money. This is an occasion where things changed.
She did not leave that night with money, and she left in circumstances where, not only did she not have money that she was expecting – and part of what I’m going to put to her too is discussions about how much money and things of that nature – discussions between she and the defendant about how much money she could earn, and in circumstances where, as I say, on this particular night, she left without any money, that – the way I’m developing this, it’s almost as though there is a – an overlap between the issues of credit and the issues in the trial.”
[32]	After hearing the submissions from counsel for the appellant, counsel for the Crown conceded that the proposed line of enquiry was substantially relevant to the fact in issue on the basis of being part of a sequence of events that explained the circumstances in which the offences were committed and that it was potentially also a proper matter for cross-examination as to credit because the witness had already denied having any earlier contact with him apart from what would otherwise be entirely non-sexual.
[33]	Her Honour ruled in favour of the grant of leave and the jury returned.  The substance of the line of questioning foreshadowed during argument was advanced in the following passage from the cross-examination:
“At some point during those driving lessons, at night time at the [town’s] boat ramp, you started asking [the appellant] if he would be able to give you money?---No, I did not.
And in return, you offered to perform sexual activity with him?---No, I did not.
And, in fact, by the time we get to the beginning of 2019, that had become pretty much the relationship between you and [the appellant] – that you would let him know when you needed money, and he would give it to you in return for sexual services?---No. That is incorrect.
Effectively, the relationship had become transactional in nature?---No, it did not.
And my suggestion to you is that it was in the context of that transactional relationship, that had existed for some time, that you sent that text message to him on the 12th of February 2019 asking if there was “another way” you could get quick cash?---No.”
[34]	The cross-examination progressed with counsel for the appellant putting his client’s version of the events of the night in question and contending that sexual activity was all consensual.  He returned to the significance of the alleged transactional relationship which was said to have existed between the complainant and the appellant at the close of his cross-examination during the following passage:
“I’m suggesting to you …, that all the sexual activity that occurred between you and [the appellant] that night occurred entirely with your consent?---No, it did not.
And that the reason why you got upset afterwards and accused him of raping you is partly because he did not give you the money that you were expecting?---I disagree.
But also because you now knew that there were at least some form of electronic evidence of the two of you engaged in sexual activity, be it videos or pictures?---Can you rephrase that, please?
Yes. Another part of the reason why you decided to make a complaint against him is because by the time you got home, you realised that there were now pictures or videos on his phone of you, and you needed - - -?---Can you say that again? I’m - - -
Yes?--- - - - still not understanding.
Yes. No, I’ll try and make it a little clearer. I’m suggesting that another reason that you decided to make the complaint that these things had happened without your consent is because you now knew that there were videos or photos of his phone and you were scared that they might come out?---Disagree. He raped me. I said no through – through the whole thing. He raped me.
And I’m suggesting to you that, at no time, did he threaten you that he would send those pictures or whatever he had taken that night to [the complainant’s partner]?---He did threaten me.”
The appellant’s case as opened
[35]	Counsel for the appellant opened their case in a way which was consistent with the case put during cross-examination of the complainant.
[36]	He told the jury that the appellant would give evidence that for some period prior to the night in question, the appellant and the complainant had a sexual relationship in which she would engage in sexual activity with him in return for him giving her money.  He would say that she would contact him and let him know that she needed some money, that the two of them would then engage in sexual activity, and he would give her money.  That relationship had developed initially as part of his providing her with driving lessons at the boat ramp at night-time.
[37]	Counsel suggested that the appellant would say that during the evening in question but before the actual sexual contact the two of them had discussed how much money she was going to receive for the cleaning work.  He suggested that the appellant told her it was unlikely that the work that she was doing for him at that point in time was worth $1,000 for that night’s work.  He would say that she told him she needed a bit over $1,000 for costs and bond and rent.
[38]	Counsel suggested that the appellant would give evidence that he got the impression that she was not happy that she was not going to be able to earn the full amount of money that she needed.  He explained to her that even if he’d been paying her $50 an hour, she’d need to do 20 hours’ worth of work in order to earn that much, and that that was not going to be able to be done even in two nights.  The appellant would say that the complainant initiated the sexual contact between them that night, she shut the door, she told him that she really needed the money, they started engaging in sexual activity in the bathroom.
The appellant’s evidence in chief
[39]	The effect of the appellant’s evidence was broadly consistent with his case as opened, which was itself broadly consistent with the case put to the complainant during cross-examination.
[40]	He said that he had, for an extended period prior to 27 December 2019, provided money to the complainant in exchange for sexual acts.  He said that it started with driving lessons at the boat ramp in 2017.  The complainant had initiated sexual activity between them because she needed money.  Prior to 2019 that had happened twice.
[41]	He was not asked to give any detail of what occurred on either occasion.
[42]	He suggested the text messages which passed between he and the complainant in 2019 and which made reference to “quick cash” referred to this arrangement.  The appellant gave evidence that there were multiple occasions throughout 2019 where he had had sexual intercourse or sexual interactions with the complainant.  On each of the multiple occasions, the sexual activity was in exchange either for money or for his assistance to her.  His evidence was as follows:
“Were there occasions that sexual activity took place other than on the driving lessons?---Yes.
Where else did such things take place?---When I was moving her out of her apartment at [name of street], her and I had intercourse upstairs in the unit.
And was there anywhere else?---There was also at her mother’s place, when she asked me for a lift to take her and her son to the bus stop.
So during the course of 2019, was this something that happened on multiple occasions?---There was multiple occasions that [the complainant] and I had had sexual intercourse or sexual relations, as such.
And were those occasions in exchange for money?---Either for money or for work being done, ie, I was moving all of her and her furniture out of her unit when nobody else was helping. Yeah.
Now - - -?---I also was giving her a lift to the bus stop, sort of thing.”
[43]	He was not asked to give any detail of what occurred on any of the occasions in 2019 to which he referred.
[44]	The appellant gave evidence of picking up the complainant for the cleaning work on 26 December 2019.  At some time in the early hours of the morning of 27 December 2019 (but before the sexual contact between he and the complainant had occurred) he had to leave and pick his son up from where his son was working and take him home.  The complainant was uncomfortable with being left alone at the shop so she accompanied him in the car.  During that time, they had a discussion about how much money she needed.  His recollection was that she said she needed more than $1,000.  He said he told her she wasn’t going to earn that much because “even at $50 and hour, even at $100 an hour she’d have to do 10 hours work and she wasn’t going to be doing 10 hours of work that night.”  His impression was that she was disappointed she wouldn’t be getting the amount she needed.
[45]	After picking up his son and dropping him home, the appellant and the complainant went back to his store to complete the cleaning work.  It was later in the morning that the events the subject of the offending occurred.  The appellant gave evidence to the effect that all sexual interactions between he and the complainant on 27 December 2019 were consensual.
[46]	He said that after these acts occurred the complainant was not upset or crying.  He drove her home.  He and the complainant discussed what payment the complainant would receive. He told her that she was not going to be getting $1,000.  He said she was unhappy she would not be receiving the $1,000 which she had hoped to make that evening.
The cross-examination of the appellant
[47]	Counsel for the Crown was evidently not content with the paucity of detail which had been elicited from the appellant during evidence in chief about the alleged previous sexual interactions between the appellant and the complainant.  He pressed for detail concerning the sexual interactions for money said to have occurred twice before 2019 and also for detail concerning the alleged sexual interactions in 2019, apart from those said to constitute the offending conduct.
[48]	The questioning in this regard commenced with the topic of the alleged sexual interactions with the complainant at the carpark in 2017.
[49]	The appellant said that he had given the complainant a couple of driving lessons just for her to get her licence.  He said on one of those occasions she mentioned to him that she wanted to buy a ute and that he told her she would need a driver’s licence first.  She said she did not have anyone to teach her and he said that he was willing to teach her how to drive.  The appellant estimated that he had given the complainant  three or four driving lessons in which no sexual interactions occurred.  This was something he was just doing to help out a family member.
[50]	On the occasion in 2017 when there was sexual interaction he said that she had put her hand on his leg and said that she needed money.  The next thing that happened was that she had started to rub his penis.  He said it was a bit of a shock.  They ended up at the back of the carpark outside the vehicle.  There was no actual agreement between them in which a dollar amount was discussed.  He agreed it was basically happening “on spec”.  He didn’t actually agree to pay her money prior to sex.  He said they did not have intercourse, rather she masturbated him and he ejaculated over her breasts.  After the interaction he gave her the money that he had in his wallet which was about $140.  She was happy with that and took the money.
[51]	His evidence was that before the sexual interaction there was no conversation about cash exchanging hands and that effectively up to that point they were just two consenting adults having consensual sex.  Counsel suggested to him that there was no transactional arrangement and he said that although nothing was stated as to money which was to be paid it was implied that that’s why she was having the sexual interaction with him.
[52]	The next time that any sexual contact occurred was in 2018 after she had had her child.  He picked her up for another driving lesson at her apartment.  He noted that her breasts were swollen from breast milk.  She initiated another sexual contact by lifting her t-shirt up showing him her breasts while they were still in a bra and asking if he was interested.  They ended up at the back of the carpark outside the vehicle again and the sexual interaction proceeded as it had in 2017.  He said that she initiated the contact because she wanted money.  He thought he had $170 in the car which he gave to her.  He said that he had given her a total of $310 over the course of two years. He said that there had been no sexual intercourse between them on those two interactions.
[53]	The third occasion in which there was sexual interaction occurred in 2019 when he helped her to move from her apartment.  This was the occasion referred to in the text messages in January 2019.  The cross-examiner pointed out to him that the texts by which that arrangement was made contained no reference to him getting paid for his assistance in sexual favours.  His response was that such texts would not have been good things to have on his phone.  If there had been such texts he would have deleted them because his wife checked his phone.
[54]	He said that during the evening when he assisted the complainant to move from her apartment, he initiated sexual contact with her and what then occurred was that the complainant gave him oral sex and then they moved to the bedroom in which they had sexual intercourse.  Counsel asked him what conversation had occurred between them during this interaction and he said that he could not recall.  He was challenged as to the falsity of his evidence in this passage:
“This is the first time you were having sexual intercourse with your niece.  Again, I’ll ask you the same question:  is this a big moment for you?---As I said, this was not the first time that there was sexual contact between [the complainant] and I.  And to honest, I wasn’t concentrating on her – her words as such, as more as to her body.
You don’t know because it didn’t happen?---That’s not correct.
You’re just telling us that?---That’s not correct.”
[55]	He gave further details of the sexual contact between them on this occasion.  He confirmed that there was no discussion of money either before or after the interaction and that he did not give her any money.
[56]	The conversation to which the complainant had attested concerning a suggestion of making money by pornographic photos was put to him and he denied there was ever any such conversation.  He said that he did not accept that he ever had any conversation with her regarding taking pornographic pictures.
[57]	His explanation for the text message in February 2019 which asked about “another way” she could get quick cash was that it was a reference to the interactions before that time by which he had paid her money and his responding requesting further details was an attempt to clarify whether “she was still talking about sex for money”.
[58]	He was taken through the rest of the text messages.
[59]	He then was asked about the evidence he had earlier given about intercourse that had occurred at the complainant’s mother’s place in November 2019.  Further detail was elicited concerning that suggestion.  He agreed that on his evidence there was no payment discussed before that occurred, that she had asked for some money while they were in the truck and he gave her the contents of the ashtray in the truck which he believed was about $40.  He said that for her sexual services on that occasion he’d given her this money and a lift in his truck.
[60]	He was asked further about his evidence that there were “multiple occasions” when he and the complainant had sexual intercourse in 2019 either for money or for work done.  He agreed that’s what had occurred.  Counsel pointed out to him that he had told the jury about two such occasions that were in the text messages and he was asked what the other occasions were.  He said he could not give exact times as to when the things occurred.  He said they were in the context of driving lessons down at the boat ramp as a general rule.  He said there were at least a couple of driving lessons in 2019.  He said that any time she was chasing money she would ask for money and imply that she was willing to give sex for it.  He said that it was always a case of whatever he gave her she would either ask or indicate that she needed more.
[61]	He was then cross-examined in detail about what occurred on the evening of 26 December and the morning of 27 December 2019.
[62]	I interpolate that the only occasion that the cross-examiner explicitly put to the appellant that the appellant’s version of events was false was in the passage quoted at [54] above.  But the appellant’s counsel had put the case to the complainant and the complainant had denied it.  There was no need to put to the appellant all the denials of the complainant.  It must have been plain to everyone in the court room that the Crown was challenging the truth of what the appellant was saying.  Certainly, as will appear, his own counsel’s closing address revealed that he was under no illusion that that was what had happened.  And the trial judge’s summing up was to the same effect.
The closing address of counsel for the appellant
[63]	When counsel for the appellant moved to discuss the evidence in the case he observed to the jury that the complainant had given evidence that everything that happened occurred not just without her consent but absolutely against her express objection.  He contrasted that with his client’s evidence that she had been the actual instigator of what occurred that night and was a consenting participant in all of it.  He submitted that if the jury accepted his client’s evidence then that would be the end of the matter because they would conclude that everything happened with the complainant’s consent and the appellant would not be guilty.
[64]	He observed that the appellant gave graphic evidence of what he said was the arrangement between he and the complainant that saw him get sexual favours and her get money or other things to her advantage.  He then moved to address the evidence that had been given concerning the night in question, summarising the evidence that his client had given as to the consensual nature of that interaction.
[65]	In relation to the cross-examination of his client his submission was that it had traversed the detail of the transactional relationship between the two parties that occurred over several years and that the appellant had answers to the questions raised during cross-examination.  He suggested that the sordid arrangement that involved small amounts of money actually gave credence to the story because if the details were false his client would have told the jury that he had given the complainant a lot more money on each occasion.  Ultimately, he summarised the impact of cross-examination by suggesting that in spite of the vigorous cross-examination, the appellant had maintained a consistent account of (1) the nature of his interactions over time with the complainant and (2) of what occurred on the night in question.
[66]	He submitted the jury would accept the evidence of the appellant, finding it either preferable to that of the complainant or more reliable or at the least as giving rise to a reasonable doubt.
[67]	He went on to address the possibility that the jury rejected the appellant’s evidence and the requirement that they then examine the Crown case, and he turned to address issues which he asked the jury to bear in mind in assessing the evidence of the complainant.  He first addressed what he identified as “internal inconsistencies”.  They were alleged inconsistencies between the details of the offending as recorded in the statement the complainant had initially given to police and the details she had expressed in her evidence in court.
[68]	Counsel then went on to address what was said to be “external inconsistencies” and in this regard sought to address suggested inconsistencies between the complainant’s evidence and the evidence of the preliminary complaint witnesses.
[69]	The next broad subject matter was addressing the jury concerning the text messages that were in evidence and in this regard counsel sought to invite the jury to interpret the messages consistently with the version of events advanced by the appellant in his evidence.
The closing address of counsel for the Crown
[70]	Counsel for the Crown told the jury that the trial was about two things.  First, consent, and second, whether the complainant was a witness who the jury might consider to be truthful and reliable.  He submitted that even if the jury rejected what the appellant had said and thought none of it could be the truth, that none of it was plausible, the jury would still have to go back to consider whether the complainant was a witness who was truthful and reliable.  Counsel suggested that was the crux of his address before the jury.
[71]	Counsel then proceeded to develop reasons why, in his suggestion, the jury ought to accept the evidence of the complainant and why they ought not be troubled by the matters identified by counsel for the appellant during his address.  In the course of so doing counsel took the jury back to the text messages that had been sent, suggesting that those text messages corroborated with the version of events given by the complainant.  There was nothing in the messages that supported her wanting to have sex with her uncle.
[72]	Counsel sought to contrast the version of events proceeding from the appellant as inconsistent with the text messages and the reliable evidence of the complainant.  Counsel submitted that the appellant’s version of events was simply made up.
[73]	In written submissions and oral argument before this Court counsel for the appellant drew particular attention to the following four passages of the transcript of the Crown’s address to the jury and suggested that the Crown was advancing a case of recent invention which had never been put to her client.  The four passages were as follows:
(a)	In the context of addressing the text messages in November and December 2019 (emphasis added by counsel for the appellant):
“It just reads a hell of a lot, members of the jury, like he’s someone who is testing the waters on something that he had said in January or February of that year of which she has not taken the bait. The fact that he is even asking those questions, members of the jury, is testament to the fact that there is no pre-existing arrangement between the two. The fact that he says, “how much are you chasing?” is inconsistent with his evidence that they never speak about any arrangement. And doesn’t really matter how much she wants to him, because he can just fling her whatever is in the ashtray. It doesn’t make any sense because he’s making it up. So how does he actually get her? He says, “I need some arms and legs for a couple of nights to help me clean, if you were still chasing work”, because she has been all year’.”
(b)	In a passage introduced by these words (emphasis added by counsel for the appellant):
“So [the appellant] has a right to silence and this is about the only thing I’m going to say about the things that he said in this trial. He doesn’t have to give evidence. You must consider the Crown case first and foremost because he doesn’t have to prove anything. He doesn’t have to get in the witness box and say the things that he said. But can I suggest it appears like he did because he was trying to get us to believe something that just isn’t consistent with the other evidence that we have in this trial. He needed to tell us something that we can’t see for ourselves within those messages. He sought, in my submission, to get around both, by coming up with the elaborate relationship that they were having for sexual exchanges, or at least it started that way.”
(c)	Having read to the jury the first four paragraphs of the passage of the appellant’s evidence in chief quoted at [42] above (emphasis added by counsel for the appellant):
“That’s the evidence of it in evidence-in-chief. That’s what was proposed to be led from him in respect of all that sexual conduct, which you might think, members of the jury, was fairly broad-brush strokes. Not too many questions asked about it, and that might be with good reason, members of the jury, because the more the inquiries were made about it, the less assertive the point became and the more clunkier the evidence became about the things that he – she was supposedly doing to him. And in my submission to you, he – that was occurring because he was making it up. The relationship became two times in a car park in 2017 and 2018.”
(d)	And a few lines later after having referred to the appellant’s evidence that he paid the complainant $140 after a sexual interaction in 2017 and $170 after a sexual interaction in 2018 and the contents of the car ashtray after a sexual interaction in 2019 (emphasis added by counsel for the appellant):
“The 2017 and the 2018 incidents just became carbon copies of each other. That she would just put her hand on his knee, that she would put his hand on his groin. They drive to the end, they’d get out, he’d ejaculate on her breasts. That’s what he was coming up with in circumstances where his counsel didn’t ask him about it during the course of evidence-in-chief.”
[74]	After these passages counsel for the Crown continued to make references to the version of events advanced by the appellant suggesting that it made no sense.  Counsel argued that the appellant’s hypothesis that the complaint of rape was a false complaint made because of the complainant’s disappointment in not getting the money that she wanted made no sense, because on his evidence she had never got the amounts she had wanted out of their sexual interactions yet had not previously made any complaints.
The trial judge’s summing up
[75]	It is only necessary to refer to a few matters of the summation given by the trial judge.  Relevantly, the trial judge drew the jury’s attention to the contest between the versions of events which had come from the complainant and those that had come from the appellant.
[76]	She made these observations:
“On the complainant’s evidence, there is no evidence, you might think, from what she said that she did or said anything to [the appellant] to express any sexual interest in him whatsoever on the night of the alleged offences.
Remember, however, [the appellant’s] evidence. He gave sworn evidence. On [the appellant’s] account of what occurred, the complainant was not only consenting to all of the sexual contact between them, she was the person who initiated it. On [the appellant’s] evidence, she approached him. She came into the bathroom when he was in there and closed the door. She took her clothes off. She got up on the basin of her own accord. On his account, she was consenting to all of the sexual contact between them, including penetrative sex, and that she was an active and willing participant in all the sexual conduct on that day. [The appellant] gave evidence that he believed she was having a good time. He said she was happy to do it and that she was enjoying it. He denied that she ever said, ‘No, I don’t want to do that’.
He also gave evidence of a previous arrangement in which he said he and the complainant had which involved him giving her money in exchange for sexual favours. And you’ve heard references to some of that evidence. So, of course, [the appellant’s] evidence is completely different to the complainant’s.”
[77]	Later the trial judge gave the jury a conventional direction about the fact that the appellant had given evidence and how that evidence could be used in an orthodox way.  She explained that where there was evidence from a defendant, as there was in this case, usually one of three possibilities would follow:
“First, you may think the defence evidence, that is [the appellant’s] evidence, was credible and reliable and it provides a satisfying answer to the prosecution’s case. If so, you would find him not guilty of each charge if that is your view.
Or, second possibility, you may think that although [the appellant’s] evidence was not convincing it still leaves you in a state of reasonable doubt about what the true position was. If so, your verdict would be not guilty, because you would still have a reasonable doubt, even though you found his evidence unconvincing.
Or, third possibility, you may think his evidence should not be accepted. You may not have believed him on the key issues at all. However, even if you do not believe him or accept him as a truthful witness, be careful not to jump from that view to an automatic conclusion that he is guilty. If you find the defence evidence unconvincing, set it to one aside. Put it aside. Go back to the rest of the evidence called by the prosecution.
Ask yourself whether on a consideration of the evidence you accept, you are satisfied beyond reasonable doubt that the prosecution has proved all of the elements of the offence. If it has, you must find [the appellant] guilty. If you are not satisfied beyond reasonable doubt of all of the elements of the offence, you must find him not guilty.”
Consideration of appeal ground 1
[78]	The appeal ground suggests that unfair submissions were made by the Crown prosecutor in the closing address to the jury because counsel for the Crown had not put to the appellant the basis on which he invited the jury to disbelieve the appellant’s evidence.
[79]	The operative legal principle here is one aspect of the so-called rule in Browne v Dunn.  Cross on Evidence puts the relevant proposition in the context of a general statement of the rule in these terms (emphasis added, footnotes omitted):
“There is an important rule of practice known as the rule in Browne v Dunn.  It has been formulated as follows by Hunt J.
It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn.
And if a court is to be invited to disbelieve a witness, the grounds upon which the evidence is to be disbelieved should be put to the witness in cross-examination so that the witness may have an opportunity to offer an explanation.”
[80]	The present case did not involve any breach of that rule.
[81]	As has been mentioned, in my view no one was in any doubt at the trial that the Crown case was that the appellant’s evidence that there had been sexual interactions between he and the complainant in 2017, 2018 and on multiple occasions in 2019 before the offending was false.  The Crown posited that the jury should set aside the appellant’s evidence on that basis and should accept the evidence of the complainant as a satisfactory basis to reach the conclusion that the Crown had proved beyond reasonable doubt that the complainant had not consented to the offending conduct.
[82]	The language used by counsel for the Crown in the first two of the impugned passages from his address was simply seeking to make that point.  “Making it up” and “coming up with” was language apposite to describe the conduct of a witness who had concocted a false story.
[83]	Similar language was used in the last two impugned passages, and the point being made was the same.  Counsel for the Crown was not suggesting that the jury should infer that the appellant had not told his own counsel that version of events and had simply made up the evidence on the spot and during the cross-examination.  He was not seeking to make a point of “recent invention”.  As has been observed, the appellant’s evidence of prior sexual interactions was broadly consistent with the case which his counsel had put to the complainant and which his counsel had identified in the opening of the appellant’s case.  It was counsel for the Crown who had elicited greater detail concerning the alleged prior sexual interactions.  The choice to do so in the cross-examination was obviously a forensic decision by him.  The effect of the submission made to the jury was that the appellant’s counsel must have chosen not to elicit the detail of the prior sexual interactions because when the detail was elicited it did not withstand scrutiny.
[84]	Before this Court counsel for the respondent submitted that ground 1 was misconceived as there was no suggestion of “recent invention” by the Crown prosecutor.  He submitted:
“The prosecutor did not, in cross-examination, nor in his address, make any suggestion of recent invention. He did not ask the jury to draw any inference as to the credibility of the appellant’s version from not having told it to his lawyers, or from having given any inconsistent version previously. In those circumstances, a fair trial has not been jeopardised.”
[85]	I agree.  Appeal ground 1 has no merit.
Conclusion
[86]	In those circumstances it is not necessary to consider the remaining appeal grounds.
[87]	The appeal should be dismissed.
[88]	NORTH J:  I have read the reasons of Bond JA.  I agree with his Honour’s reasons and the order proposed.