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[2025] QCA 261
respondent. Appeal dismissed. The conviction was not set aside ([78]-[79]).
The Court of Appeal dismissed Ellul’s appeal against his rape conviction. It held that the jury had received adequate directions about circumstantial evidence, the complainant’s capacity to consent, identification and the alleged lies. The jury had also been told that the prosecution had to prove its case beyond reasonable doubt. The Court found that the evidence of flirtation at the hotel did not fairly raise a defence that Ellul honestly and reasonably believed the complainant was consenting to the alleged anal penetration. All five appeal grounds failed.
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2,852 words · generated 07/10/2026
Tyson Alexander Ellul appealed his jury conviction for one count of rape. The alleged offence occurred after Ellul and the complainant, then aged 25, met at the Kingaroy Hotel. Ellul was 18. Both drank alcohol during the evening. The complainant described herself at different points as “a bit buzzed”, “a bit tipsy, but good”, and later “starting to get a bit more drunk, but still knew what [she] was doing” ([3]-[6]).
No linked legislation citations have been extracted yet.
After the hotel closed, the complainant and Ellul left with two other men, including Shawn Smith. The group walked towards the Liberty service station, and the complainant and Ellul then walked down King Street. There was evidence of flirtatious behaviour at the hotel and as they left, including that the complainant jumped on Ellul’s back and he gave her a piggyback ([6]).
The complainant had no memory of events between leaving the hotel and waking in hospital. She could not recall sexual activity or penetration. She reported pain, and medical evidence identified a small tear in the anal sphincter region. Dr Finlay considered that a penis was a more likely cause than a finger ([9]-[10]).
Smith was an important prosecution witness. He said that he saw the complainant on her back on a car bonnet, with a man on top of her. He described the man as a “white fella” and said the man’s pants were around his legs. Smith said he told the man to get off, and that the complainant told him she was being raped. Smith walked her back to the hotel and described her as unable to talk or walk properly ([11]-[12]). The defence challenged Smith, including by suggesting that he himself might have been the offender ([12], [32]).
The prosecution case was substantially circumstantial, alongside Smith’s evidence and the medical evidence ([15]). The disputed questions included whether penetration occurred, whether Ellul was responsible, and whether the complainant lacked capacity to consent because of intoxication ([16]). Ellul did not call evidence at trial. He denied sexual interaction in a police interview and sent the complainant text messages the next day. The prosecution relied on parts of his police account and a text message about how the complainant got home as alleged lies ([13]).
The appeal raised five grounds: the circumstantial-evidence directions; directions on identity; directions on capacity to consent; the treatment of three alleged lies as potentially showing consciousness of guilt; and the failure to direct on s 24 of the Criminal Code (Qld) ([17]). Brown JA gave the substantive reasons. Mullins P and Bradley JA agreed ([1], [79]). The Court dismissed the appeal ([78]).
The Court assessed the jury directions in context, rather than isolating particular sentences. It considered the evidence, the issues actually contested, the judge’s handout and summing-up, and the advocates’ closing addresses.
For circumstantial evidence, the judge gave the jury the standard direction: guilt had to be “the only rational inference” from the circumstances, and any reasonable possibility consistent with innocence that could not be excluded required acquittal ([26]). The Court considered whether the jury needed a more detailed direction applying that principle separately to penetration, capacity to consent, and identity.
It found that the judge had identified the defence contention that the complainant might have scratched herself and caused the injury. But the medical evidence did not support that explanation: Dr Finlay said the tear’s orientation was not consistent with a fingernail scratch and was more typical of tissue being stretched ([27]-[28]). The Court also noted that the defence had not positively challenged the evidence of the complainant’s post-event condition. The jury was nevertheless told that lack of consent was an issue the prosecution had to prove beyond reasonable doubt, and the judge expressly reminded the jury that the defence did not have to prove alternative possibilities ([29]-[31]).
The identity ground was considered in the context of the whole summing-up. The judge directed the jury to consider identification evidence carefully, including the need for caution with visual identification. He also referred to the Crown’s reliance on Smith’s evidence, CCTV, DNA and other circumstances. When summarising the defence case, the judge identified the possibility that Smith was the offender and linked that contention back to the circumstantial-evidence direction ([32]-[41]). The Court held that the jury did not need a further, separate direction on identity in these circumstances ([33], [46]).
The Court distinguished R v Lewis. There, the alternative explanation for the accused’s conduct was a distinct hypothesis raised by the evidence and central to intent. Here, the Court considered the suggested alternatives had been raised through cross-examination but were not supported by positive evidence in the same way. The judge had identified the alternatives and given the general direction requiring the jury to exclude reasonable possibilities consistent with innocence ([42]-[46]).
On capacity to consent, the Court rejected the argument that the jury needed a specific direction explaining that intoxication does not necessarily remove capacity to consent. It considered R v SAX different. In SAX, the complainant’s possible consciousness during intercourse was a live issue, and a jury question indicated that jurors might be considering whether she was conscious but so affected by alcohol that she could not decide whether to consent or remember events ([53]-[54]). In Ellul’s case, the Court found no comparable evidentiary tension. The issue was whether the complainant’s intoxication meant she did not consent or did not freely and voluntarily consent. The judge identified that issue and directed that the Crown had to prove it beyond reasonable doubt ([51]-[55]).
The alleged lie ground concerned the appellant’s account that he signalled Smith over when the complainant was collapsing and then left. The prosecutor inaccurately placed the collapse at the Liberty service station, whereas Ellul’s police account placed it on an unknown street after they had walked away from the service station ([56]-[58]). The Court considered that geographical error did not obscure the substance of the alleged lie: that Ellul had signalled Smith over and left the complainant with him. If Smith’s evidence was accepted, that account could be treated as inconsistent with what Smith had seen ([61]-[68]). The Court concluded that the jury would have understood the allegation from the closing addresses and summing-up. In any event, it held that the imprecision could not realistically have affected the jury’s reasoning ([69]-[70]).
Finally, the Court considered whether the judge should have directed on s 24 of the Criminal Code. It accepted that the defence can be raised by evidence from any source, even if the accused does not give evidence. The question was whether evidence, viewed fairly or realistically, could support a reasonable possibility that Ellul honestly and reasonably believed the complainant was consenting ([71]-[72]). The evidence of flirtation, touching, hugging and a piggyback occurred earlier and was too remote from the alleged anal penetration. The Court found no evidential link supporting a belief in consent at the relevant time ([73]-[77]). The defence was therefore not fairly raised on the evidence.
This judgment does not present itself as changing the law. It applies existing principles about jury directions, circumstantial evidence, intoxication and consent, lies said to show consciousness of guilt, and the evidential threshold for a s 24 direction.
On circumstantial evidence, the Court treated the general direction as adequate in this trial because it covered the controlling standard and the judge identified the defence alternatives. Its treatment of Lewis limits the force of that case to its evidentiary context: the Court said it did not establish a general rule requiring a fact-specific alternative-inference direction in every case involving substantial circumstantial evidence ([42]-[46]). The judgment also refers to Kuhn and Newlove in support of the point that there is no invariable rule that the additional directions discussed in Lewis must be given in every circumstantial case ([44]-[45]).
For consent and intoxication, the judgment applies the approach in SAX by examining why a further direction was needed there and whether a comparable issue arose in Ellul’s trial. The Court did not reject the possibility that a complainant may be conscious yet lack capacity to consent. Rather, it held that the evidence and issues in this trial did not require the specific distinction that had been necessary in SAX ([53]-[55]).
For s 24, the judgment applies Makary and refers to Kalisa. It restates that evidence need not come from the accused, but it must provide a basis for the relevant subjective beliefs and for their reasonableness. It also emphasises the need for a connection between the evidence of the complainant’s conduct and the accused’s alleged belief at the time of the sexual activity ([72]-[76]). The Court’s application shows that prior flirtation, without evidence linking it to a belief in consent to the later act, may be insufficient to raise the defence on the facts ([74]-[77]).
The judgment cites Brawn v The King when explaining why any deficiency in the lie direction would not be material if it could not realistically have affected the jury’s reasoning ([69]). It also refers to Meale for the contextual need for precision when identifying alleged lies ([64]). These citations are used to evaluate the direction in this case, not to announce a new test.
The decision is a Court of Appeal judgment delivered on 19 December 2025. The supplied judgment contains no account of later judicial treatment. It therefore supports explanation of how R v Ellul applied earlier authorities, but it does not establish how any later court has treated Ellul itself.
At [26], the jury was told that guilt must be “the only rational inference” from the circumstances. In plain English, where the prosecution case depends substantially on circumstantial evidence, the jury cannot convict if a reasonable innocent explanation remains that the evidence does not exclude.
At [30], the judge reminded the jury that it was for the Crown to exclude reasonable possibilities consistent with innocence, and that the defence did not have to prove them. This was important to the Court’s conclusion that the jury was not left with the burden reversed.
At [45], the Court said there was no “distinctive possibility” raised on the evidence in the way there had been in Lewis. Its point was not that the defence alternatives were irrelevant, but that the trial judge had identified them and that the evidence did not demand the further direction sought.
At [52], Brown JA stated: “The summing up must be directed to the matters in issue.” This means the trial judge’s directions are assessed against the live questions the jury had to decide, rather than by asking whether every imaginable alternative was described.
At [54]-[55], the Court explained why SAX did not require the same direction here. In SAX, the jury’s question indicated a real possibility that jurors were considering a conscious but very intoxicated complainant. In Ellul’s case, the Court found no equivalent conflict requiring a separate explanation of that scenario.
At [64], the Court observed that lies “should be identified with precision”, but that the precision required depends on the trial’s issues and conduct. In plain English, an error in describing an alleged lie does not automatically invalidate a direction; the question is whether the jury could understand the allegation and reason about it properly.
At [72], the judgment states that a s 24 direction may be required even if the accused did not give evidence, so long as evidence from any source, viewed fairly or realistically, raises a reasonable possibility of an honest and reasonable mistaken belief in consent. At [74]-[77], the Court found that the evidence here did not make that connection to the time of the alleged act.
The circumstantial-evidence reasoning is most relevant where a prosecution depends substantially on circumstantial evidence and the defence argues that one or more reasonable innocent inferences remain. The decision indicates that the judge’s directions should be assessed as a whole, including whether the standard direction was given, whether the defence alternatives were put to the jury, and whether the issues were clearly identified ([26]-[46]). It does not say that fact-specific directions are never necessary. The Court’s contrast with Lewis makes clear that a distinct alternative hypothesis supported by evidence and central to a disputed element may call for closer attention ([43]-[45]).
The consent reasoning is relevant where intoxication is relied upon to infer that a complainant lacked capacity to consent, and an appellant argues that the jury should have been told that intoxication does not automatically mean incapacity. The Court’s conclusion turned on the particular trial record: the complainant’s lack of recollection, the evidence about her condition, the absence of a positive challenge to much of that evidence, and the way the parties framed the issue ([48]-[55]). A record presenting a live question about whether the complainant was conscious but unable to decide or communicate consent may be materially different, as the Court’s discussion of SAX illustrates ([53]-[54]).
The lie-direction analysis is relevant where a statement relied on as a lie is described imprecisely, or where different parts of a statement are said to be true or false. The judgment focuses on whether the substance of the alleged lie was clear in the context of the addresses and summing-up, whether it could support an inference of consciousness of guilt, and whether any error could have affected the jury’s reasoning ([61]-[70]). It does not remove the need for care in identifying alleged lies.
The s 24 analysis is relevant where an accused argues that the evidence required a direction about an honest and reasonable but mistaken belief in consent. The evidence may come from witnesses, CCTV or other sources, rather than from the accused. But the judgment requires an evidential link to the relevant act and time, including a basis for inferring both the asserted belief and its reasonableness ([72]-[77]). Conduct that occurred earlier may not suffice merely because it was flirtatious, if there is no evidence connecting it to a belief in consent to the later sexual conduct.
The supplied judgment contains no information about later courts’ treatment of R v Ellul. As a decision delivered on 19 December 2025, it explains the authorities available to and considered by the Court of Appeal, but it does not report any subsequent decisions applying, distinguishing or criticising Ellul.
The judgment itself describes how it used earlier authorities. It considered Lewis, Kuhn and Newlove on additional directions in circumstantial cases ([42]-[46]); distinguished SAX in the context of intoxication and capacity to consent ([53]-[55]); and applied Makary and considered Kalisa on the s 24 evidential threshold ([72]-[77]). Those are relationships between Ellul and earlier decisions, not evidence of later treatment of Ellul.
Accordingly, the source provided does not support claims about whether later courts have followed or limited Ellul. Any assessment of subsequent treatment would require later judgments, which are not included in the supplied material.
The judgment leaves the application of its reasoning dependent on the evidence and the way issues are raised at trial. It does not set out a universal checklist for when the standard circumstantial-evidence direction must be supplemented. Instead, it contrasts the evidence-based alternative in Lewis with the alternatives identified in this case, which the Court considered insufficient to require additional directions ([42]-[46]). A question for future cases is how much evidential support an alternative hypothesis must have before it becomes a distinct possibility requiring specific explanation.
The decision also does not define a general threshold for when a jury must receive a separate direction about capacity to consent despite intoxication. It holds only that the further distinction was unnecessary on this record and distinguishes SAX based on the evidence and the jury’s question in that case ([53]-[55]). How a direction should be framed where evidence supports both consciousness and possible incapacity will depend on the issues and evidence before the jury.
On alleged lies, the judgment acknowledges the importance of precision while finding the location error immaterial in context ([64]-[70]). It does not establish that a jury may always be given a shorthand description of an alleged lie. The practical question remains whether the jury can identify the particular statement alleged to be false, assess whether it was deliberately untrue, and avoid treating a mistaken or inaccurate statement as proof of guilt without the required reasoning.
On s 24, the judgment emphasises a link between the evidence and the accused’s belief at the time of the alleged act ([74]-[77]). It does not specify how particular kinds of evidence, such as communications or conduct immediately before an act, would satisfy that threshold. It also does not decide the defence’s operation on facts where the accused gives evidence of belief, because Ellul did not give evidence at trial. The Court’s stated approach is that evidence from any source can raise the defence, but it must support the relevant belief and its reasonableness ([72]-[75]).
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Ellul [2025] QCA 261
PARTIES: R / v / ELLUL, Tyson Alexander / (appellant)
FILE NO/S: CA No 231 of 2024 / DC No 51 of 2021
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction
ORIGINATING COURT: District Court at Kingaroy – Date of Conviction: 26 September 2024 (Smith DCJA)
DELIVERED ON: 19 December 2025
DELIVERED AT: Brisbane
HEARING DATE: 6 June 2025
JUDGES: Mullins P and Brown and Bradley JJA
ORDER: Appeal dismissed.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted after a trial of one count of rape – where the appellant contends that further directions have been given as to the use of circumstantial evidence – where the appellant contends that the directions regarding the complainant’s alleged loss of capacity to give consent provided by the trial judge were inadequate – where the appellant contends that the trial judge erred in instructing the jury that they could conclude that any of three purported lies revealed a consciousness of guilt – where the appellant contends that the trial judge ought to have directed the jury in terms of s 24 of the Criminal Code (Qld) – whether the alleged inadequate directions provided by the trial judge, or the non-directions, resulted in a miscarriage of justice / Criminal Code (Qld), s 24 / Brawn v The King (2025) 99 ALJR 872; [2025] HCA 20, cited / MDP v The King (2025) 99 ALJR 969; [2025] HCA 24, cited / R v Kalisa [2024] QCA 198, considered / R v Lewis [2019] QCA 192, considered / R v Makary [2019] 2 Qd R 528; [2018] QCA 258, cited / R v SAX [2006] QCA 397, considered
COUNSEL: T A Ryan KC, with J J Underwood, for the appellant / M A Green for the respondent
SOLICITORS: Taylor-Rose Lawyers for the appellant / Director of Public Prosecutions (Queensland) for the respondent
MULLINS P: I agree with Brown JA.
BROWN JA: The appellant, Mr Ellul, was convicted by a jury of one count of rape, following a three-day trial. He contends in this appeal that the trial judge erred in not providing adequate directions and in not leaving a defence under s 24 of the Criminal Code to the jury. Before discussing each ground of appeal it is necessary to provide an overview of the factual evidence of the events on the evening that the rape occurred.
Background
The complainant, 25 years of age, and the appellant, 18 years of age, met for the first time at the Kingaroy Hotel on the night of the offending.
Following a family dinner at the Kingaroy Hotel, the complainant remained at the hotel for a couple of hours, playing pool and the poker machines. She had drunk a couple of alcoholic drinks at dinner and continued to drink during this time and testified at trial that she was “a bit buzzed”.
The complainant and her mother then moved to another hotel where they continued to drink and play pool and the poker machines. At this point, the complainant was “a bit tipsy, but good”. After an hour or two the complainant returned to the Kingaroy Hotel at around 9 - 9.30 pm. At this point the complainant was “starting to get a bit more drunk, but still knew what [she] was doing”. It was at this stage of the night, upon returning to the Kingaroy Hotel, that the complainant met the appellant. While at the hotel both the appellant and complainant continued to consume alcohol.
The appellant and complainant left the hotel after closing time with two other men, one being Shawn Smith. After leaving the hotel, the group of four walked up Youngman Street towards the Liberty service station. The complainant and the appellant then walked down King Street. There was evidence that the complainant and appellant had been engaging in some flirtatious conduct at the hotel and then as they were leaving. There was also evidence that the complainant had jumped on the appellant’s back and he had piggybacked her.
Evidence was given by different witnesses as to their observations of the complainant’s intoxicated state. The complainant’s mother and grandmother said that after the incident the complainant had difficulty walking and was speaking incoherently. Evidence from the security guards was that the complainant did not seem that bad but looked like she had had a few and observed her balance to be off.
At trial the Crown argued that the appellant penetrated the complainant’s anus while she was laid upon the bonnet of a car in King Street. The Crown submitted that the complainant had not consented or had lost the cognitive capacity to consent to the penetration on account of her intoxication.
The complainant testified at trial that she had no memory of any event between leaving the Kingaroy Hotel and waking up in hospital. She said she was pretty intoxicated before leaving the hotel and her next memory was the police taking her clothes off her and her vomiting and feeling confused. She could not recall any act of penetration. She described feeling pain in her anus when she woke up at the hospital. In examination in chief she was asked whether she recalled having “any sexual interactions with anyone that night”, and whether she recalled “consenting to any sexual interactions with anyone that night”. The complainant responded “no” to both questions.
Should further directions have been given as to the use of circumstantial evidence? (Grounds 1 and 2)
The appellant complains that while the trial judge gave the jury a circumstantial evidence direction in accordance with the benchbook, the trial judge did not explain, as he should have as part of that direction, how that direction applied to the determination of the issues of penetration and lack of capacity. In particular the appellant contends that the trial judge did not explain to the jury that where competing inferences from circumstantial evidence are open, it is necessary for the prosecution to exclude all reasonable possibilities consistent with innocence before a jury may find that the evidence established an element of the offence beyond reasonable doubt. A trial judge is responsible for correctly directing the jury as to the law and “to be astute to secure … a fair trial according to law.”1 (citations omitted)
As to the first issue of penetration, the appellant contends that there was evidence to support an inference that the appellant did not penetrate the complainant’s anus on the basis there was a possibility that the injury to the complainant’s anus was caused by the complainant scratching herself. If the Crown had not excluded that possibility beyond reasonable doubt, the jury would have been obliged to acquit the appellant.
As to the second issue of lack of capacity to consent, the appellant complains that the trial judge should have directed the jury about the possibility that the complainant retained the capacity to consent to the penetration and that, if they regarded that as being the case, the Crown had not proved the complainant lacked capacity to consent beyond reasonable doubt and they would be required to acquit the appellant.
Related to the first ground is the second ground by which the appellant complains that while the trial judge gave the direction as to identification evidence, he did not give the jury any guidance as to how to resolve the question of identification of the offender, particularly whether the offender was the appellant or Mr Smith who gave evidence relevant to the identification of the appellant as the offender.
The appellant contends that a direction should have been given analogous to the direction which the Court of Appeal contended should have been given in R v Lewis2 which identified the possible alternative explanation for the injury and the alternative possibility that the complainant had cognitive capacity to consent and if they could not exclude either possibility the prosecution would not have proved penetration or lack of consent beyond reasonable doubt.
The Crown however contends that the prosecutor in his closing address identified specifically the circumstantial evidence relied upon to prove:the identity of the offender being the appellant;the penetration of the complainant’s anus; andthe penetration being without the complainant’s consent.
“To bring in a verdict based entirely or substantially upon circumstantial evidence, it is necessary that guilt should not only be a rational inference, but also, that it should be the only rational inference that can be drawn from the circumstances. If there is any reasonable possibility consistent with innocence which cannot be excluded, it is your duty to find the defendant not guilty. This follows from the requirement that guilt must be established beyond reasonable doubt.”
Second, the Crown’s contention that the alternate possible explanation regarding penetration whilst argued by the appellant was not the subject of evidence of Dr Finlay or otherwise, is correct. At its highest the evidence was the complainant had blood around the rim of her middle fingernail. When asked whether Dr Finlay observed that the injury to the complainant’s anus was consistent with being scratched by a fingernail, he replied, “no. … I don’t think so. The orientation of the tear would be in the wrong direction, I think … that the scratch is more likely to come and grab tissue and drag. …the orientation of the tear is – is typically seen where the tissue or the sphincter has been stretched, and … to a degree or at a rate that the skin can’t adapt to and it tears, rather than stretching”.
Notwithstanding that, the trial judge did identify to the jury that the defence contended that there was a reasonable possibility that the complainant had scratched herself and inflicted the injury herself. That identification of the possibility did not call for a further direction to be given by the trial judge.
Third, the question of the direction as to what was required to prove the element of lack of consent beyond reasonable doubt the issue of consent and particularly whether the complainant had cognitive capacity to consent was plainly identified by the trial judge as a matter in issue which had to be determined by the jury. It was identified as an issue notwithstanding the evidence of the complainant’s intoxicated state, and that at the trial the complainant was not challenged on her lack of recollection or the effects of alcohol that she experienced. Nor was the evidence identifying the complainant’s state immediately post-offence that was given by Mr Smith, the complainant’s mother and grandmother challenged. While there was some evidence of witnesses who saw the complainant at the hotel suggesting the complainant was not so drunk she was incapable of walking or speaking, the complainant’s ability to consent was not directly challenged by the defence. Indeed the complainant’s level of intoxication was embraced by the defence in closing, including that: “Her state of intoxication is such that she doesn’t realise what’s happening to her at the time, nor who is responsible”. As to the possibility that she had inflicted the injury; “the one concession that Dr Home made in cross-examination was that a person can reach a level of intoxication such that they injure themselves but don’t experience pain until the level of intoxication comes down. Maybe she did it earlier, didn’t realise she did it, and then it was only after the complete alcoholic collapse that – when she was coming out that, she realised that there was a sensation of pain.”
In the context of the circumstances relied upon by the Crown to contend that the complainant lacked cognitive capacity to consent, the trial judge having outlined those circumstances reminded the jury that it was for the Crown to disprove or exclude any reasonable possibility consistent with innocence and that it was not for the defence to prove those possibilities, stating that:
“So there are the circumstances relied on by the prosecution. The Crown submits this collection of circumstances would lead one to the conclusion, beyond reasonable doubt, that he did anally penetrate her with his penis and he lied to [the complainant] and the police, and he raped her. But I do caution, of course it is for the Crown to disprove, exclude any reasonable possibility consistent with innocence, and I have mentioned the ones that Mr Buckland mentioned … It is not for the defence to prove those possibilities, so bear that in mind. And ultimately, the Crown says by reason of all of the circumstances, you would conclude guilt in this case.”
There was no deficiency in not outlining the evidence supporting the fact that the appellant may not have lacked cognitive capacity. While the appellant now seeks to raise matters suggesting the possibility that the complainant had cognitive capacity to consent, that was not the subject of real challenge at trial, notwithstanding there were some opinions offered by witnesses that the complainant’s level of intoxication was not as bad as others described. But in any event the cognitive capacity of the complainant to consent was a matter clearly identified in the judge’s handout as a matter in issue and the jury was squarely directed that lack of consent was a matter in issue which the Crown had to prove beyond reasonable doubt.
The second ground of appeal is somewhat related to the first ground. The appellant contends that the trial judge needed to identify to the jury how to resolve the identity of the offender, namely whether the offender was the appellant or Mr Smith. Mr Smith of course was not charged with the offence, but the defence had sought by cross-examination to raise the possibility of him being the offender although there was no positive evidence suggesting that he was the culprit. The appellant further complains the judge did not separately identify the identity of the offender as an issue separate from the issue of penetration.
In the context of the trial and the summing up as a whole, the judge did not need to give a further direction as to the resolution of the identity of the offender nor did he incorrectly conflate the issues of penetration and identity of the offender. The question of whether the appellant was responsible for the offence was clearly a live issue at trial.
The trial judge had highlighted that the DNA evidence was part of the circumstantial evidence relied upon by the Crown as well as the evidence of Mr Smith of seeing a white male combined with CCTV footage as to identification of the appellant as the offender. The trial judge directed the jury as to identification being an issue which they had to decide as a matter of fact and observed that “[w]here a case against a defendant depends, to a degree, on the correctness of a visual identification, I need to warn you of a special need for caution before convicting in reliance on the correctness of that identification”. He then directed the jury had to consider the identification evidence carefully, outlining the deficiencies that can arise with such evidence.
The trial judge clearly linked the question of alternative explanations offered to penetration and Mr Smith being the offender identified by the defence back to the directions he gave earlier in the summing up as to a circumstantial case. When summarising the contentions of the defence and possible alternative inferences, including the possibility that Mr Smith was the offender, the trial judge stated:
“So turning back to the circumstantial case, the defence argues there are two reasonable possibilities open on the evidence. Firstly, as to the anal injury, it is possible the complainant inflicted this injury on herself. She has lost memory, she may have used the bathroom, she has very large fingernails and could well have scratched herself. Also, the DNA evidence is not inconsistent with such a proposition, and any later distress she was suffering may have been as a result of gross intoxication and confusion on her part.
The second possibility is Mr Smith did this, and he asked you to take into account the CCTV footage and gave you reasons concerning that. And ultimately Mr Buckland submitted you would have a reasonable doubt and you would enter a verdict of not guilty in this case.” (emphasis added)
The Crown also in its closing made submissions as to why they would not consider Mr Smith committed the offence and why they would accept his evidence.
The appellant further complains that the trial judge did not give the jury any guidance about how to resolve the issue of identification of the offender, assuming there had been a rape, namely whether the offender was the appellant or Mr Smith and how those issues were to be resolved on a circumstantial case.
In particular, the appellant contends that notwithstanding that the identity of the offender was a critical issue in the trial, the judge’s handout conflated the two by identifying for the jury that there were two issues: first, whether the appellant penetrated the complainant’s anus; andsecondly, whether the complainant lacked the cognitive capacity to consent to penetration.
The handout of the trial judge which was Exhibit K under the hearing “Count 1 –Rape” stated that:
“The prosecution must prove each of the following elements beyond reasonable doubt:
The defendant penetrated the anus of the complainant with his penis, fingers or any other object to any extent.
The penetration was without the consent of the complainant. ‘Consent’ means consent freely and voluntarily given by a person with the cognitive capacity to give consent. A person’s consent to an act is not freely and voluntarily given if it is obtained by force; or by threats or intimidation; or by fear of bodily harm; or by exercise of authority.”
The judge’s handout conformed to identifying what elements of the offence were in issue. Identity is not an element per se, but of course it is the appellant who is the subject of the charge and who had to be the party responsible for the act of penetration as the first issue outlined in the handout made clear. The Crown’s case as to penetration having occurred and the complainant’s lack of consent to penetration relied on a number of circumstances which were also set out in the handout by the trial judge. The identity of the appellant did not simply rely on circumstantial evidence but relied on the evidence of Mr Smith as well as other circumstances including that he had been with the complainant when they left the hotel and the Liberty service station and DNA evidence which supported contact between the appellant and complainant.
The direction as to identification evidence was clearly directed by the trial judge to the identification of the appellant. The trial judge further identified the particular issues raised during the trial by reference to the contentions of the defence and the Crown, such as the possibility of Mr Smith being the offender.
The appellant contends that a direction should have been given similar to that in Lewis in relation to the alternative possibilities raised as to the injury, cognitive capacity and identification*.*3 The present case is however quite different from the case of Lewis and the proposed direction was called for in the circumstances of that case rather than setting down a matter of law as made clear by subsequent authorities.
In Lewis, the Court of Appeal held that after the general direction about circumstantial evidence, the jury should have been directed further as to proof of a circumstantial case. The jury should have been given a further direction as prompted by the benchbook, namely that if more than one inference was reasonably open on the facts they found proven which was adverse to the defendant but one which was favourable to the defendant, they must give the benefit of the inference in the defendant’s favour and that the verdict of guilty based upon circumstantial evidence had to be the only rational inference that could be drawn from the circumstances. The Court added it would be appropriate “[t]hen, to relate those directions to the facts of the case”4 (citations omitted) and suggested a possibility in that regard. In Lewis Burns J5 explained that the failure to give the further direction as to the possible alternative for the accused’s actions resulted in the direction being inadequate because:
“In this case, the trial judge did not give any such directions and his Honour should in my respectful opinion have done so. The whole case was about intent. Before the jury could find the appellant guilty, they needed to be satisfied beyond reasonable doubt that the appellant intended to cause grievous bodily harm to the complainant when he did the relevant act. Such a conclusion regarding the appellant’s state of mind could only be drawn as a matter of inference from the proven circumstances including, in particular, what the appellant said and did before, during and after that act. Although it was open to the jury to infer from those circumstances that the appellant was possessed of the requisite intent at the relevant time, the hypothesis that the appellant acted only to ‘frighten the complainant into leaving [him] alone’ was also open. Unless the jury were satisfied that any such hypothesis had been excluded beyond reasonable doubt, their duty was to acquit, and that is something that ought to have been the subject of explicit directions. Without them, the summing up as a whole was inadequate.” (emphasis added)
In R v Kuhn7 Applegarth J referred to Lewis and observed that it was a case such as had been described by Dawson J in Shepherd v The Queen8 as one which involved a “helpful direction” with respect to many, if not, most cases involving substantial circumstantial evidence, but where Dawson J also stated that there was no invariable rule of practice let alone rule of law that those directions should be given in every case involving circumstantial evidence. Justice Applegarth also referred to the case of R v Newlove9 where Morrison JA10 stated that in Lewis there was a distinct alternative raised on the complainant’s own evidence and it was supported by past conduct, namely an intention to achieve a different result. Justice Davis in Newlove11 observed that Lewis did not establish any matter of general principle.
In the present case, the trial judge did not have a duty to give the further direction as discussed in Lewis. There was not a distinctive possibility that was raised on the evidence, as was the case in Lewis, rather the defence raised them as reasonable possibilities which had been raised by cross-examination but not supported by positive evidence. Further, the jury were informed of those possibilities raised by the defence by reference back to the circumstantial case. As was the case in Kuhn and Newlove and as is the case here, the trial judge did expressly direct the jury that the case was in part a circumstantial case, and that “guilt should not only be a rational inference, but also, that it should be the only rational inference that can be drawn from the circumstances. If there is any reasonable possibility consistent with innocence which cannot be excluded it is your duty to find the defendant not guilty”.
The trial judge did not fail to provide adequate directions to the jury. There was not a risk that the jury would impermissibly reason that they did not have to consider reasonable possibilities raised by the facts they accepted as to penetration, cognitive capacity to consent or identification. Grounds 1 and 2 fail.
Ground 3: was the direction as to the complainant’s cognitive capacity to give consent adequate?
The appellant further complains, separately from ground one, that the trial judge failed to give adequate directions to the jury concerning the complainant’s lack of cognitive capacity to give consent. In particular he contends that the trial judge should have distinguished between cases where the intoxication is so gross that the complainant is unable to consent and those cases where the complainant is not so severely intoxicated and she consents to sexual intercourse either because her inhibitions are reduced or for any other reasons.12 The deficiency is said to be that the judge did not direct the jury about the possibility that a person could retain cognitive capacity to give consent despite intoxication and that the trial judge should have instructed the jury that it was necessary for the prosecution to exclude beyond reasonable doubt the possibility that the complainant retained the capacity to consent to act of penetration notwithstanding her intoxication. Such an omission is said to be material because there was a real risk that the jury could reason that because the complainant was heavily intoxicated, she must have lacked cognitive capacity to give consent and not considered the possibility that her capacity to consent to penetration remained despite her intoxication.
The complainant did not recall the sexual offending. The appellant now contends that the complainant’s alcoholic intoxication worsened progressively as time went on such that she may have had cognitive capacity to consent at the time of the offending but not when she met her mother and grandmother. No questions were asked of any medical witness to that effect by the defence.
The appellant points to the CCTV footage showing the complainant walking at the Liberty service station and the timing of Mr Smith’s phone call to the complainant’s mother show that there were some 21 minutes gap between when the complainant and appellant were seen to be walking past the Liberty service station to when the complainant and the person who seemed to be Mr Smith passed by the station again in the direction of the Kingaroy Hotel. The appellant also focusses on Mr Smith’s evidence that the complainant got off the bonnet and walked towards Mr Smith and told him how to ring her mother. Mr Smith’s evidence however was also that the complainant could not stand up properly, she could not speak properly and he thought it appeared that she had more than alcohol which had caused intoxication.
The Crown rejects that such a direction was necessary. In particular, it relies on the fact that the evidence as to the complainant’s gross intoxication was not the subject of challenge with evidence being given by both the complainant’s mother, the complainant’s grandmother as well as the complainant. The evidence therefore excluded the need for further direction as now is contended to have been given. The Crown contends that there was no miscarriage of justice demonstrated by the fact that no such direction or redirection was sought by the appellant’s counsel. The Crown contends that the evidence of the complainant, her mother and grandmother, as well as the appellant’s own admissions did not allow for a reasonably possible alternative requiring separate direction.
Ground 4 – did the trial judge err in providing his direction as to consciousness of guilt?
The appellant contends that his Honour erred in giving a direction that three lies were relied upon by the prosecution which were capable of being used by the jury as revealing a consciousness of guilt. No issue arises as to two of lies which the jury were directed could constitute evidence of consciousness of guilt. The complaint is that the third alleged lie identified by the prosecution, namely, the appellant telling police that “while [the appellant and the complainant] were at the Liberty service station … she collapsed and he signalled to … Shawn Smith … to come over, and that then he left”.
The appellant contends that the prosecutor’s description of what he told police was inaccurate. That is correct. The appellant did not tell the police that the complainant collapsed “while [he and she] were at the Liberty service station”, but rather she “collapsed” on an unknown street after he and she had walked off together from the Liberty service station. (emphasis added)
The appellant in fact told police that after he and the complainant had walked off together from the Liberty service station, the complainant was collapsing “…I ended up leaving and the other guy came and picked her up … I was signalling him over ‘cause she pretty much collapsed, I was signalling him over”. The appellant contends that there was no evidence that the complainant collapsed while she was at the Liberty service station which could establish that it was a lie. The appellant’s evidence in this regard would have been exonerating of the appellant rather than incriminating him because it tended to establish she was not as intoxicated as the prosecution alleged.
The appellant contends that by the trial judge treating the lies collectively in giving the Edwards direction there was a risk that the introduction of a false lie infected the entire direction.19 The appellant contends that the combined force of the appellant’s alleged lies was a matter heavily emphasised in the prosecutor’s closing address and there was a real risk the jury would impermissibly use the purported lies in determining that they were satisfied beyond reasonable doubt of the appellant’s guilt of the offence.
The Crown contends that the appellant’s argument fails to recognise that the lie was relevantly the combination of circumstances that involved a statement by the appellant that the complainant had collapsed and he signalled Mr Smith over to him.
While the reference to the complainant collapsing at the Liberty service station by the prosecutor does appear to have been incorrect, the reference to the appellant saying that he had signalled Mr Smith over when the complainant was collapsing could have been a lie revealing consciousness of guilt if the evidence of Mr Smith was accepted. The evidence that Mr Smith gave was inconsistent with him being signalled over. While the appellant contends that the prosecution had not put to Mr Smith that he had not been signalled over, it was plainly something which was inconsistent with his evidence and did not need to be put to Mr Smith. The lie was as the Crown contends, a lie told by the appellant as a result of his awareness that Mr Smith had interrupted his offending and could constitute consciousness of guilt.
“…the prosecution has submitted to you that some lies were told by the defendant. Firstly, he lied in that text about walking [the complainant] home with [a second individual], and the evidence reveals that did not happen. And secondly, he lied to the police when he said he did not go past the Shell service station and that he said he did not go up near Liberty, and he talked about her collapsing at the service station, and the Crown asked you to contrast that with the CCTV footage. So they are the lies relied on.
But before you could use that evidence against the defendant, you would need to be satisfied of a number of matters, and unless you are satisfied of those, you cannot use it against him…”
“He was asked by the police whether he walked past the Shell service station, and he said that he left the group once he got to the Shell service station, but if you look on the CCTV you might think otherwise. Police asked if he walked past the Liberty service station, he said “no”, and he was asked if he could explain why the CCTV might show him walking past there, and he really couldn’t explain it very well. Then later, when he spoke to the – when he was continuing to speak with the police – he changed his story again about what had happened and told the police that [the complainant] had wanted to go home with him, but he didn’t let her, and while they were at the Liberty service station that she collapsed and he signalled to the guy with the dreadlocks – who you might think is Shawn Smith – to come over, and that then he left.
[…]
Now, you might also think that some of what you saw on the CCTV is inconsistent with what [the appellant] said happened, particularly that [the complainant] had collapsed near the service station and that he’d left her with Shawn Smith…”
Given the above, the jury would have been sufficiently aware of the lie being referred to by the trial judge. What the appellant told the police regarding leaving the complainant with Mr Smith prior to when penetration occurred could be found to be a lie if Mr Smith’s evidence was accepted because it was inconsistent with Mr Smith’s evidence. Similarly the CCTV footage demonstrated that the appellant did go past the Liberty service station contrary to what he told the police. The jury could be satisfied both lies were deliberately told by the appellant to remove himself from having been seen with the complainant at the time of the offending. The lie was capable of demonstrating consciousness of guilt.
The direction otherwise accorded with the Edwards direction and also pointed out that the appellant had made statements consistent with his innocence. The direction given was sufficient to ensure the jury were aware of the lies relied upon which were capable of being lies demonstrable of consciousness of guilt and the matters they had to consider in order to be able to treat the lie as evidence of guilt.
Even if his Honour should have identified the lie separately with greater precision it was not material in that it could not have realistically affected the reasoning of the jury to the verdict.21 If the jury simply understood the lie to be that the appellant said the complainant collapsed at the Liberty service station it would not have been a matter of significance in determining whether the offence occurred or not. They would have understood the lie in a way that favoured the appellant. The lie that she had collapsed (albeit at the Liberty service station and not in King St) and the appellant called Mr Smith over had been clearly identified by the Crown in closing. Again the reference to where the complainant collapsed was of no significance, nor could it have caused any confusion but the remainder was capable of being a lie demonstratable of consciousness of guilt. Notably the defence did not specifically challenge that it was a lie or contend it could not be a lie, but rather focused on the explanations for why the appellant might have made the statements he did, namely, intoxication. Nor was it the only evidence which linked the appellant to the offence. Mr Smith’s evidence and CCTV footage linked the appellant to the offence. Significantly, the DNA evidence if accepted by the jury implicated the appellant, supporting sexual contact between the appellant and the complainant. As a lie it was not as significant or damaging as the appellant’s lie to the complainant telling her he and another fellow had walked her home. The appellant’s own text messages with the complainant the following day explaining what had occurred the night before was plainly a lie to remove himself from having been alone with the appellant.
Even if the direction was inadequate it was not material. This ground must fail.
Ground 5: did the trial judge err in failing to direct in terms of s 24 of the Criminal Code (Qld)?
The trial judge did not direct the jury that the defence in terms of s 24 of the Criminal Code was available, namely as to whether the appellant was acting under an honest and reasonable but mistaken belief that the complainant was consenting to the act which constituted rape. No direction to that effect was requested by defence counsel, understandably given the defence case denied the appellant had carried out the offence. The question for this Court to consider, however, is whether the defence was fairly raised on the evidence such that it should have been the subject of a direction. It is for the Crown to exclude a defence under s 24 of the Code.
It is sufficient if there was evidence on which the jury could legitimately entertain a reasonable doubt about whether the appellant honestly and reasonably believed the complainant had consented, even if that evidence has not been given by the appellant.22 Or to put it as Ryan J did in R v Kalisa23:
“If evidence at trial from any source, or from a combination of sources, viewed fairly or realistically, discloses a reasonable possibility that a defendant might have had an honest and reasonable but mistaken belief that a complainant was consenting to the sexual conduct alleged, then a jury should be directed about a defence under section 24 of the Criminal Code.”
The appellant raises five pieces of evidence in support of his argument, namely:the Liberty service station CCTV footage which showed the complainant pulling the appellant by the arm along the street while she was walking along the footpath;a witness who saw the appellant and complainant at the hotel who considered they seemed keen on each other and agreed that “their behaviour towards each other was flirty” and that “they were a bit touchy”;another witness who said he thought the complainant and appellant were boyfriend and girlfriend and agreed that they were “hugging lots and all over each other” and touching each other and when they were leaving the hotel they were “holding hands, kissing, hugging” and the complainant jumped onto the appellant’s back and he gave her a piggyback;another witness who observed the appellant and complainant playing pool together and “enjoying each other’s company” and after they left the hotel the complainant jumped on the appellant’s back; andthe evidence of Mr Smith who said that the complainant was conscious when he intervened and got off the car bonnet herself and walked towards him.
As in Makary the events described by the witnesses from the hotel and just after when the complainant jumped on the appellant’s back were “inconsequential”24 and too remote from the offending itself to establish an evidential basis to fairly raise the possibility of an honest and reasonable belief by the appellant. Accepting the evidence at its highest the flirtatious conduct of the complainant was not sufficient to raise a basis for an honest and reasonable belief being held by the appellant that the complainant was later consenting to the appellant having anal intercourse with her. In Kalisa, the appellant gave evidence and asserted that he had believed she was consenting and the basis for holding that belief. The fact the appellant in this case did not give such evidence does not preclude the possibility of evidence raising such a defence. However, there must be evidence from which an inference of a possibility of an honest and mistaken but reasonable belief could be drawn linked. This depends upon there being evidence in the case which could give rise to an inference that:25
“(a) The appellant subjectively believed that the complainant was willing to engage in sexual intercourse with him; and
the appellant subjectively believed that consent has been given; and,
those beliefs were reasonable.”
“It follows that before s 24 can arise for a jury’s consideration in connection with the issue of consent there must be some evidence that raises a factual issue about whether the accused believed that the complainant had a particular state of mind and also believed that the complainant had freely and voluntarily given consent in some way. Inevitably, that will require some evidence of acts (or, in particular circumstances, an omission to act) by a complainant that led the defendant to believe that the complainant had a particular state of mind consisting of a willingness to engage in the act and believed also that that state of mind had been communicated to the defendant, that is, that consent had been ‘given’”.
The appellant’s denial that he was responsible for the sexual act may imply that he had no belief about consent but it is not determinative. The evidence of the flirtation at the hotel and as they left, albeit by both the appellant and the complainant, does not provide any evidence to support any inference of an “operative mistake”27 or any mistaken belief, that the complainant was consenting at the relevant time, namely just prior to and when anal intercourse took place. The appellant by his own admissions in his texts to the complainant knew she was drunk.
In the circumstances there was “no evidence that would give an air of reality to an honest belief in consent for any of the sexual activity which took place…”.28 The defence under s 24 of the Code was not fairly raised on the evidence. This ground of appeal must fail.
Proposed Order
Appeal dismissed.
MDP v The King (2025) 99 ALJR 969 at [109]. ↩
[2019] QCA 192. ↩
Lewis at [24]-[25]. ↩
Lewis at [24]. ↩
With whom Gotterson and Philippides JJA agreed. ↩
Lewis at [23]. ↩
[2022] QCA 247. ↩
(1990) 170 CLR 573. ↩
[2019] QCA 291. ↩
With whom Fraser JA and Davis J agreed. ↩
With whom Fraser JA and Morrison JA agreed. ↩
R v Francis [1993] 2 Qd R 300 at 305. ↩
[2006] QCA 397 at [20] with whom Jones J agreed. ↩
SAX at [19]. ↩
R
Ellul [2025] QCA 261
(2025) 99 ALJR 872
(2025) 99 ALJR 969
(1990) 170 CLR 573
Appeal dismissed. The conviction was not set aside ([78]-[79]).
The complainant was found to have a small tear to her anal sphincter region which Dr Finlay considered would more likely have been caused by a penis as opposed to penetration with a finger.
Mr Smith was a key witness in the Crown’s case. He was seen with the complainant immediately after the offence occurred and was intoxicated on drugs on the night of the offence.
At trial Mr Smith testified that he saw the complainant on her back on top of the bonnet of a car, with a man on top of her. He described the man as a “white fella”. He said he did not know what he was doing but described his pants as being around his legs. He said that he told the man to “jump off…of her straight away”, and told the complainant to “come towards [him] and explain”. The complainant got off the car bonnet herself. He testified that the complainant told him “she was getting raped”. Mr Smith walked her back to the hotel and described her as unable to talk or walk properly. She told him how to use a mobile phone to ring her mother. Mr Smith was cross-examined extensively by the defence including being accused of being the perpetrator.
The appellant did not call any evidence at trial, but denied having any sexual interactions with the complainant in a police interview. Some of his responses were relied upon by the Crown as constituting lies that were evidence of guilt. The appellant exchanged text messages with the complainant the next day. He told the complainant she was “fucked and stumbling everywhere”. He also told her a lie about how she got home, which was relied upon by the Crown as constituting lies that were evidence of guilt.
At trial evidence was called including from people who were with or saw the appellant and complainant at the hotel, Mr Smith and the complainant’s mother and grandmother. Dr Finlay who examined the complainant after the incident described her injuries and he also observed blood under the rim of her fingernail. Dr Taylor gave evidence as to DNA samples collected. CCTV footage was played which was from the Liberty service station.
The Crown’s case was substantially circumstantial as to the offence other than the evidence of Mr Smith and Dr Finlay.
Although framed in different ways the issues at trial were:Whether the complainant’s anus was penetrated or whether the complainant had scratched her anus while intoxicated, given blood was found under the rim of the complainant’s left cuticle;Whether it was the appellant who penetrated the complainant or on the defence’s case whether the possibility that it was Mr Smith could be excluded;Whether the complainant had lost the capacity to consent to penetration due to her level of intoxication.
The appellant appeals his conviction, relying on five grounds of appeal, framed as follows:Ground 1: The learned trial judge erred in failing to link the circumstantial evidence direction to proof of the relevant elements of the offence.Ground 2: The learned trial judge erred in failing to give the jury adequate directions about the need for proof of the identity of the offender.Ground 3: The learned trial judge erred in failing to give the jury adequate directions about the complainant’s alleged loss of capacity to give consent.Ground 4: The learned trial judge erred in instructing the jury that they could conclude that any of three purported lies revealed a consciousness of guilt.Ground 5: The learned trial judge erred in failing to direct the jury in terms of s 24 of the Criminal Code (Qld).
The Crown further contends that the appellant’s counsel had addressed those elements in the broader course of the closing address and identified why the jury would find that the alternative inference had not been excluded.
None of the complaints of the appellant are well founded for a number of reasons.
First, the trial judge directed the jury that the Crown’s case was in part circumstantial given the complainant could not recall what occurred, although there was some direct evidence from Mr Smith and Dr Finlay. He gave the standard direction as to circumstantial evidence which included that:
It is true that the trial judge only outlined the circumstances relied upon by the Crown supporting the inference that the complainant lacked capacity to consent. That was unsurprising since he was summarising the Crown’s case and the defence had not positively challenged the evidence as to the complainant’s state of intoxication, instead they challenged whether she was raped at all and whether the appellant was responsible for the rape. It remained of course for the Crown to prove beyond reasonable doubt the lack of consent as part of its case.
The summing up must be directed to the matters in issue. It was unnecessary to outline the matters relied upon which demonstrated the possibility of the complainant’s capacity to consent in the circumstances since the issue was whether the Crown had proved its case of lack of consent.
The appellant placed reliance on the observations of Keane JA in R v SAX.13 This case is however quite different and not analogous. In SAX the Crown’s case had originally been that the complainant was unconscious, but there was some evidence suggesting she may have been conscious. The jury, after the summing up, raised a question which suggested that they had in mind the possibility that the complainant was conscious when intercourse occurred, but so affected by alcohol as to suggest she was incapable of deciding whether to consent or not or to remember what she did while so affected.14 In SAX “two witnesses had said that the complainant walked into the appellant’s house when, on her version, she had ‘blacked out’. Furthermore the appellant had been cross-examined on the basis that he had engaged in sexual intercourse with the complainant while she was conscious but stupefied”.15 It was in that context that Keane JA stated that “…the jury’s request signalled that there was a real possibility that the jury, or some of its members, was minded to come to the view that the complainant was very drunk, but conscious, when intercourse occurred.”16
Justice Keane determined on that basis that notwithstanding his earlier directions, it was incumbent on the trial judge to make a clear distinction “between cases where the intoxication is so gross that the complainant is unable to consent and those cases where the complainant is not so severely intoxicated and she consents to sexual intercourse either because her inhibitions are reduced or for any other reason”.17 It was clear from the jury’s question that they may have been acting on the basis of the complainant being conscious in which case the issue was whether or not she could consent for which they were not equipped to decide according to law, given the previous direction given. In SAX the need to provide a further direction to ensure a fair trial was due to the fact that the jury had only been directed on the basis of the complainant being unconscious not the possibility that she was conscious and may or may not have been able to consent with stupefied acquiescence which was raised on the issue.18 Unlike SAX there was no such tension or potential conflict in this trial. The issue was whether the complainant’s level of intoxication was such that the jury could infer she did not consent to penetration.
In the present case the only question was whether the complainant did not consent or did not give free and voluntary consent because of her intoxication. The jury were clearly directed about consent and that the Crown had to prove as part of its case that the complainant’s level of intoxication was such that the jury could infer the complainant did not consent. The trial judge outlined the circumstances relied upon by the Crown to assert that the complainant lacked cognitive capacity to consent. It was clearly a matter in issue before the jury which they had to determine on the facts before them. They were instructed that each element had to be proven by the Crown beyond reasonable doubt on the evidence presented at the trial. The present case did not call for the further direction as to the distinction between when the level of intoxication means a party can consent as opposed to when they cannot. This ground is not established.
The reference to the fact that the complainant was said to have collapsed at the Liberty service station, when in fact it was in another street, could not have misled or created any confusion in the jury’s mind. It was simply part of the narrative put in the context of what was relied upon by the Crown as a lie, namely that he signalled Mr Smith over and he then left the complainant with him.
While the appellant contends that the lie was too equivocal to support a conclusion that it could be capable of being a lie told out of consciousness of guilt and may have had a sting in the tail because it relied on something that the appellant had said had happened in the same street as the alleged offence, the lie was properly identified by the Crown in the closing address, namely the signalling to Mr Smith once the complainant was collapsing and the appellant leaving. Plainly that was a lie if Mr Smith’s evidence was accepted. The Crown also linked the inconsistency between the appellant’s account and the CCTV footage. If made, the lie was capable of demonstrating consciousness of guilt because it could be inferred that it was told to counter that Mr Smith had seen the appellant on top of the complainant on the bonnet of the car which was the subject of the offence.
While lies should be identified with precision, the degree of precision required depends on the matters in issue in the particular trial, the manner in which the trial has been conducted and what directions are necessary to ensure that the jurors undertake permissible reasoning and do not embark on impermissible reasoning.20
The trial judge referred to the lie in a shorthand way by reference to collapsing at the service station and informing the jury that they should review the CCTV footage:
SAX at [20]. ↩
SAX at [20]. ↩
SAX at [20] quoting R v Blayney [2003] SASC 405; (2003) 140 A Crim R 249 at 254 [17]. ↩
SAX at [25]. ↩
R v Smart [2023] QCA 222 at [84]-[95]. ↩
R v Meale [2025] QCA 121 at [66] per Mullins P (with whom Brown JA and Wilson J agreed). ↩
Brawn v The King (2025) 99 ALJR 872 at [3] and [8]-[12]. ↩
R v Makary [2019] 2 Qd R 528 at [90]. ↩
[2024] QCA 198 at [54]; See also Dalton JA at [4] with whom Flanagan JA agreed. ↩
Makary at [60]. ↩
Makary at [60]. ↩
Makary at [54]. ↩
Cf Kalisa. ↩
R v Ewanchuk [1999] 1 SCR 330 at 376-378 referred to by McMurdo P in R v Cutts [2005] QCA 306 at [14] and Sofronoff P in Makary at [69]. ↩