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[2026] QCA 54
respondent. Appeal dismissed. The Court held there was no wrong decision on a question of law concerning the distress evidence and no material irregularity concerning the prosecutor’s submission about...
The appeal concerned two complaints about the jury directions in a sexual-assault trial. The Court of Appeal held that the judge’s repeated instructions sufficiently confined preliminary-complaint evidence, including evidence that the complainant was distressed, to its possible effect on her credibility and reliability. A separate direction that distress could not corroborate the assault was not required in the circumstances. The prosecutor’s argument that the appellant’s disposal of a note showed he had done something wrong was inappropriate. However, the trial remained focused on whether the jury accepted the complainant’s account beyond reasonable doubt, so the irregularity was not material. The appeal was dismissed.
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2,276 words · generated 08/10/2026
Michael Kevin Flaherty appealed his District Court conviction for one count of sexual assault. The complainant was a university student undertaking a practical teaching placement at the high school where Flaherty worked. The alleged assault took place at Flaherty’s home on 4 August 2018. The Court of Appeal, comprising Mullins P, Bond JA and Doyle JA, dismissed the appeal on 31 March 2026. Bond JA and Doyle JA agreed with Mullins P’s reasons ([1], [54]–[56]).
No linked legislation citations have been extracted yet.
The complainant’s evidence was that Flaherty had asked her to visit his home to give advice about interior design. During the visit, he allegedly told her he was attracted to her and tried to kiss her. She said that she refused, that a physical struggle followed, and that he undid her pants and put his hand into them. Flaherty accepted that sexual contact occurred but said it was consensual and that he stopped when she no longer wanted to continue ([5], [7]).
The appeal raised two distinct matters. First, Flaherty argued that the judge should have directed the jury that evidence of the complainant’s distress when making preliminary complaints could not corroborate the alleged assault. He also argued for a direction confining that distress evidence to the narrative of the complaints and the assessment of credibility and reliability ([37]–[38]). Second, he argued that the judge should have addressed the prosecutor’s submission that disposing of a note containing the complainant’s contact details showed that Flaherty knew he had done something wrong ([47]–[49]).
The evidence about preliminary complaints was not uniform. Nine witnesses gave preliminary-complaint evidence, and four described the complainant as upset, shocked, shaken or stressed. The accounts also differed in their detail and timing. The trial judge directed the jury that such evidence could affect the complainant’s credibility and reliability through consistency or inconsistency, but could not independently prove what had happened ([31]–[33], [42]).
As to the note, Flaherty said he had been unable to find it for about two weeks and then threw it out. In closing, the prosecutor said: “You might think only a man who knew he’d done something wrong tries to erase the evidence of it” ([6], [48]). The Court considered that submission inappropriate, but held that it did not make the conviction unsafe because the trial judge had repeatedly focused the jury on whether it accepted the complainant’s evidence beyond reasonable doubt ([50]–[53]).
The Court’s approach to the first ground was practical and contextual. It did not treat the absence of a particular formula from the summing-up as decisive. Instead, it assessed what the judge had told the jury about the evidence and whether, read as a whole, those directions left open a route to misuse the complainant’s distress as corroboration ([40], [42]–[45]).
The Court noted that no party at trial had suggested that the complainant’s distressed condition when making preliminary complaints could corroborate her account of the assault. It also observed that only four of the nine preliminary-complaint witnesses referred to distress, and that the evidence varied in its description of the complainant’s condition ([42]). Those circumstances informed the assessment of whether an additional direction was needed.
More important was the content of the summing-up. The judge told the jury that the real issue was whether the complainant’s account of what happened at Flaherty’s home was true, and that the prosecution had to prove the relevant elements beyond reasonable doubt ([25]–[30]). In dealing specifically with preliminary complaints, the judge explained that those accounts could bolster or detract from credibility and reliability depending on consistency, but “it does not independently prove anything” ([31]–[32]). The judge also told the jury that they could put the evidence to one side if it did not assist them ([32]).
The Court considered that these directions adequately confined the permissible use of the evidence. It rejected the argument that the general statement that the jury must consider “all of the evidence” left open an impermissible use of distress. That statement was made at the start of the summing-up, before the judge gave extensive directions about the limits of preliminary-complaint evidence. The Court read it in that context, rather than in isolation ([26], [40]).
The Court also rejected the proposed second direction, which would have limited distress evidence to the narrative of the complaints and credibility. In its view, the judge had already made the relevant limitation clear. The repeated emphasis on the central question, whether the jury accepted the complainant’s account beyond reasonable doubt, meant that no further direction was needed ([44]–[46]).
The Court’s reasoning on the prosecutor’s submission distinguished between an irregularity and a material irregularity. It accepted that the submission was “surprising (and unnecessary)” and was capable of suggesting that disposal of the note demonstrated consciousness of guilt ([49]). But the trial was not conducted as a circumstantial case in which post-offence conduct was being considered as proof of guilt or an element of the offence ([52]). The judge did not repeat the prosecutor’s argument. Instead, the judge addressed the factual significance of the 13 August conversation for the complainant’s later decision to seek to make a record with police ([36], [50]).
Applying the materiality test stated in Brawn v The King, the Court asked whether the irregularity could realistically have affected the jury’s reasoning to its verdict. It concluded that it could not, given the judge’s careful and repeated focus on the complainant’s evidence and the burden of proof ([52]).
The judgment does not set out a comprehensive account of the law before R v Flaherty, nor does it claim to establish a new general rule about every case involving evidence of distress. Its reasoning is expressly tied to the directions given and the issues at this trial.
For preliminary-complaint evidence, the judgment’s stated position is that a trial judge should direct the jury on the purpose and limits of that evidence. In this case, the evidence could be used to assess whether the complainant’s account to others was consistent or inconsistent with her trial evidence, and therefore to assess credibility and reliability. It could not independently prove the assault ([31]–[32]). The Court held that these directions were enough in the circumstances, without separate directions about distress as corroboration or as part of the narrative ([42]–[46]).
The Court relied on R v Sunderland and R v PBQ for the proposition that Benchbook directions are guides and should be considered in the context of the particular trial. A judge may need to decide whether a suggested direction is suitable and whether its terms should be adjusted to address the actual issues ([41]). The judgment does not reproduce the full reasoning in those cases, so it supports no broader account of their holdings here.
On appellate materiality, the Court cited Brawn v The King and Hofer v The Queen. It stated the relevant test by reference to Brawn: the error or irregularity must be material in the sense that it could realistically have affected the jury’s reasoning to its verdict ([52]). The Court treated the prosecutor’s submission as an irregularity, but applied that test to the circumstances of this trial and found materiality had not been established.
The “after” position that can safely be drawn from the judgment is therefore a contextual one. It confirms that a court assessing alleged non-directions examines the whole summing-up and the actual use the jury was permitted to make of the evidence. It also illustrates that an inappropriate prosecution submission does not, without material effect on the jury’s reasoning, necessarily establish a miscarriage of justice. The judgment does not say that separate distress directions are never required, or that submissions about post-offence conduct can never be material.
At [31], the judge told the jury that preliminary-complaint evidence might bolster or detract from credibility and reliability, but “it does not independently prove anything.” In plain English, the complainant’s earlier statements could help the jury assess whether her evidence was consistent, but those statements were not themselves proof that the alleged assault occurred.
At [32], the judge repeated that the evidence of what the complainant said to others was relevant only to credibility, and that the jury could put it aside if it did not assist. The Court treated this as a meaningful boundary on the jury’s use of the evidence, rather than a general invitation to rely on every feature of the complaints.
At [41], the Court said, “Benchbook directions are a guide.” In plain English, the Benchbook is an aid to judicial direction, not a set of words that must be used regardless of the case. The judge should consider whether a direction fits the evidence and issues before the jury, and whether it needs adjustment.
At [43], the Court explained that detailed directions about how evidence may be used can make a separate warning about how it must not be used unnecessary. The point is conditional: that is so where the permitted use, as explained to the jury, excludes the impermissible use.
At [49], the Court described the prosecutor’s submission about the note as “surprising (and unnecessary)” and said it was arguable that the submission suggested consciousness of guilt. The Court did not approve the submission. It nevertheless considered whether it was material to the verdict, rather than treating the impropriety alone as decisive.
At [52], the Court stated the materiality test as whether the irregularity “could realistically have affected the reasoning of the jury to its verdict.” In plain English, the appeal question was not simply whether the prosecutor’s argument was improper. It was whether that impropriety could realistically have influenced how the jury reached its verdict.
The judgment is most directly relevant where a criminal trial includes preliminary-complaint evidence and witnesses describe the complainant as distressed when making those complaints. It is especially useful where the trial judge has directed the jury that the earlier statements may bear on credibility and reliability through consistency or inconsistency, but do not independently prove the alleged offence ([31]–[32], [42]–[46]).
The factual features mattered. There were nine preliminary-complaint witnesses, but only four referred to distress. There was no suggestion at trial that the distress evidence corroborated the complainant’s account. The judge also repeatedly identified acceptance of the complainant’s account beyond reasonable doubt as the central issue. The Court relied on that combination in deciding that the additional directions were unnecessary ([42]–[45]).
The judgment may also be relevant when an appeal alleges that a judge failed to respond adequately to an improper prosecution submission. The note-related submission explicitly connected disposal of evidence with wrongdoing. The Court recognised the irregularity, then considered its place in the trial as a whole, including whether the case depended on circumstantial reasoning about post-offence conduct and whether the judge’s directions kept the jury focused on the central evidentiary issue ([48]–[52]).
The decision does not establish that the same result follows whenever there is distress evidence or an improper submission. The outcome depended on the directions actually given, the way the case was presented, and the Court’s assessment of whether the irregularity could realistically have affected the verdict.
The supplied judgment contains no decisions after R v Flaherty and therefore does not establish how later courts have treated it. No later application, distinction, approval or criticism can be identified from the material provided.
The judgment itself cites four authorities. It refers to R v Sunderland and R v PBQ in support of treating Benchbook directions as guides requiring case-specific consideration ([41]). It cites Brawn v The King and Hofer v The Queen in discussing fundamental errors and the materiality of irregularities, and applies the materiality test stated in Brawn ([52]). Those are the relationships recorded in this judgment, not evidence of later treatment of Flaherty.
The judgment leaves open when evidence of distress will require an express direction. It does not specify a general threshold. It found no need for further directions given the evidence’s limited role, the absence of a trial submission that distress corroborated the assault, and the judge’s detailed instructions about the permissible use of preliminary complaints ([42]–[46]). A different evidentiary setting or a different summing-up is not resolved by this decision.
It also leaves open how a judge should direct a jury where the prosecution affirmatively relies on distress as corroboration or where the distress is closely connected in time to the alleged offence. The Court discussed the Benchbook’s alternative directions as concerning distress during, or closely connected in time to, the assault, but the appeal concerned distress described by preliminary-complaint witnesses ([24]). The judgment does not decide those other settings.
For post-offence conduct, the Court did not formulate a comprehensive direction for consciousness-of-guilt evidence. It rejected the suggested need for one in a trial where that reasoning had no proper role and where the judge focused the jury on the complainant’s evidence ([49]–[52]). The decision therefore does not determine what directions may be required where post-offence conduct is properly relied on as part of a circumstantial case.
Finally, the decision does not define when an inappropriate prosecution submission becomes material. It applies the Brawn test to the specific trial and concludes that the submission could not realistically have affected the jury’s reasoning in this case ([52]). The extent to which different wording, emphasis, judicial response or evidentiary context changes that assessment remains dependent on the facts of each case.
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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 Flaherty [2026] QCA 54
PARTIES: R / v / FLAHERTY, Michael Kevin / (appellant)
FILE NO/S: CA No 292 of 2025 / DC No 1777 of 2024
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction
ORIGINATING COURT: District Court at Brisbane – Date of Conviction: 2 July 2025 (Heaton KC DCJ)
DELIVERED ON: 31 March 2026
DELIVERED AT: Brisbane
HEARING DATE: 12 February 2026
JUDGES: Mullins P, Bond JA, Doyle JA
ORDER: Appeal dismissed.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant was convicted after trial before a jury of sexual assault – whether the trial judge erred in failing to direct the jury that the preliminary complaint evidence of the complainant’s distress should not be used by the jury as a circumstance capable of corroborating the offending conduct – where four witnesses gave preliminary complaint evidence about the complainant’s distressed condition when telling them of the offending conduct – where both trial counsel requested the trial judge to give the direction in chapter 67 of the Supreme and District Courts Criminal Directions Benchbook on distressed condition where the evidence is led as part of the narrative of the assault – where the trial judge did not give the direction – where the trial judge directed the jury that they could convict the appellant only if they were satisfied beyond reasonable doubt of the truthfulness and reliability of the complainant’s evidence – whether the trial judge also erred in failing to direct the jury to confine the relevance of the preliminary complaint evidence of the complainant’s distress to her credibility and reliability – where the trial judge directed the jury on the limited use of preliminary complaint evidence in assessing the credibility and reliability of the complainant’s evidence – where there was no error by the trial judge / CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant was convicted after trial before a jury of sexual assault – where the appellant disposed of a note containing the complainant’s contact details after the offending conduct – where the prosecutor in addressing the jury inappropriately suggested that the appellant’s disposal of the note demonstrated a consciousness of guilt – whether the trial judge erred in failing to direct the jury on the prosecutor’s submission about the appellant’s consciousness of guilt – where the trial judge in summing up did not remind the jury of the inappropriate submission but focused the jury’s attention on the facts and whether they accepted the complainant’s evidence of the offending conduct beyond a reasonable doubt – where the issue in the trial was whether the jury accepted the complainant’s evidence of the sexual assault beyond reasonable doubt – where the prosecutor’s submission was an irregularity – whether the irregularity was material – where there was no miscarriage of justice / Brawn v The King (2025) 99 ALJR 872; [2025] HCA 20, cited / Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36, cited / R v PBQ [2025] QCA 101, cited / R v Sunderland (2020) 5 QR 261; [2020] QCA 156, cited
COUNSEL: J A Greggery KC for the appellant / M B Lehane for the respondent
SOLICITORS: Robertson O'Gorman Solicitors for the appellant / Director of Public Prosecutions (Queensland) for the respondent
MULLINS P: The appellant was convicted after trial in the District Court before a jury of one count of sexual assault. The assault had been particularised as occurring at the appellant’s house when he tried to pull the complainant’s pants down and pushed his hand into her pants without her consent.
The grounds of appeal are:
There was a wrong decision on a question of law by the failure to direct the jury in respect of the evidence of the complainant’s distress when making her preliminary complaints.
There was a miscarriage of justice by the failure to direct the jury in respect of the evidence of the appellant’s admission by way of post offence conduct.
Circumstances of the offending
The appellant was a teacher at a high school. The complainant was a university student studying education while also working part time in another profession. On 23 July 2018 the complainant commenced a practical placement at the high school for four weeks which ended on 21 August 2018. The complainant and the appellant met during brief interactions in a staff room.
In the second week of the placement, the appellant initiated a conversation with the complainant on the topic of interior design which was a topic of interest to the complainant. The appellant sought the complainant’s opinion on a kitchen table in his home. The complainant wrote her telephone number and email address on paper and placed it on the appellant’s desk in the staff room, so the appellant could send her pictures of the table and the room. Later that week the appellant said to the complainant she should come to his house on the weekend to which she agreed, subject to her working commitments.
On Saturday 4 August 2018, the appellant telephoned the complainant who was at home with her partner and insisted the complainant attend his home quickly. She made a written note of his address. The complainant’s partner declined to accompany her and she arrived at the appellant’s home after 3.00 pm. The appellant told the complainant his wife was out with their children. The appellant took the complainant through the two storey home. While on the second floor near the top of the stairs, the appellant grabbed her arm as she was about to walk down the stairs and said “I’m very attracted to you”. The complainant replied “Thank you”. When the appellant tried to kiss the complainant, she pulled away from his arms and said “No” a number of times and “I don’t want to hurt anybody”. There was mutual pushing and the physical struggle between them intensified. The appellant undid her pants and tried to pull them down. The complainant described that she “froze” but when she felt him trying to pull her pants and underwear down and felt his hand on her she got “aggressive”. The appellant stopped and the complainant fixed her clothes. The complainant went down the stairs and she left the house and returned home.
A conversation took place at the school between the appellant and the complainant on 13 August 2018. The complainant’s evidence was that the appellant asked if she were okay and she said “I’m fine” and the appellant said “I’m sorry. I will get rid of the note you gave me” to which the complainant replied “Do whatever you want”. The appellant gave evidence at the trial. The appellant’s evidence about the exchange was to the effect that he told the complainant that he did not want to keep the paper with her contact details on it and that he would return it to her. He was unable to find the paper for about two weeks and then he threw it out. The following exchange occurred in cross-examination of the appellant:
“And you offered to get rid of the note with her contact details on it, because you knew you had done something bad?---That’s not true.”
Preliminary complaint evidence
On Sunday 5 August 2018 the complainant attended a travel expo with her partner, her friend Ms M and Ms M’s flatmate. The complainant’s evidence was that she briefly told Ms M what happened but not the details and that “it was more like he … touched me and I think he tried to rape me but it didn’t happen”. Ms M’s evidence was that the complainant told her that “she was sexually abused and she ducked out quickly out of the home”. Ms M described the complainant as “very disturbed” and “she was very shaken”. In cross-examination, it was put to Ms M that she had stated in her statement to the police that the complainant had told her that the appellant “tried sexually abusing her”. Ms M accepted that the complainant said that the appellant tried sexually abusing her.
On 5 August 2018 the complainant exchanged messages with Ms T with whom she studied at university. The Facebook message from the complainant was “No had a bit shitty incident on yesterday. Will talk later” (exhibit 3). Ms T gave evidence of meeting with the complainant at a café a few weeks later after that message when the complainant gave her the following details about the incident. When she was upstairs in the male colleague’s house, he told her she looked attractive and proposed an affair to her. She wanted to leave and he was blocking her way. She refused his advances and he attacked her. Ms T said the complainant “was still processing and shocked and didn’t really go into details”.
The complainant had a Facebook message exchange with Ms D with whom she also studied at university on 9 August 2018 (exhibit 4). The complainant asked Ms D the following question:
“If someone attacked female for sexual … But didn’t go through and I didn’t want to report it but make some kind of report in case if this happens again to someone else … Is it possible?”
Ms D recommended writing down a detailed account of what happened with times and dates. The complainant sent a string of messages on the same date in relation to the incident which included the following. It was a male teacher who wanted the complainant to check his house/kitchen table design to get her advice and she assumed that his family would be there but he was by himself. He attempted something but nothing happened except for some physical struggle. The complainant was not injured but did not “feel good”. The complainant did not want to make any formal complaint but wanted “to finish the prac”. She was thinking about finishing the “prac” and going to the police to “leave a record in case some thing happens to other person”. She did not want “to lose anything or miss anything because of him” and “will just finish prac first”.
Ms D accompanied the complainant to the police station on 13 August 2018. The complainant wanted to leave a record about her complaint but the police officer at the reception desk would not take the record unless the complainant wanted to pursue a charge against the appellant. Ms D accompanied the complainant as a support person when the complainant spoke to Dr Clifton at the university.
The female teacher who was the complainant’s supervisor for the practical placement shared the same staff room as the appellant and which the complainant also used. The supervisor’s evidence included the following. She was approached by the complainant while on canteen duty in the playground. The complainant looked “visibly upset” and “worried”. The complainant told her that she had gone over to the appellant’s house the previous weekend to give him some advice on interior design which was something to do with a table. The complainant said she had done something really stupid or weird and she was embarrassed. The supervisor asked the complainant if the appellant had touched her and the complainant replied in the negative or shook her head. The supervisor asked the complainant if she wanted to report it to anyone and at the time she said “No”. The complainant told the supervisor that she did not want to be in the staff room with the appellant in her spare lessons.
Dr Ruberry had a consultation with the complainant on 14 August 2018. The complainant told him that during her practical placement while she was studying to become a high school teacher a male teacher had asked her to come to his house on the pretext of her offering him interior design advice. She visited his house on 4 August 2018 during which time he made unwanted sexual advances and physically tried to force her clothing off. She was able to successfully physically resist and leave his house. Dr Ruberry impermissibly offered his opinion that the complainant seemed entirely genuine to him in her account of events. Dr Ruberry observed that she was tearful and distressed and she advised that a police report had already been made.
The complainant explained in her evidence that she did not talk to her partner about what had happened in the beginning. After she had made an appointment to see the course coordinator after the placement finished, she talked to her partner about the incident, because it would not be fair for him not to know when everybody else knew. The complainant did not go into detail but reminded him of the occasion when she was going to see the teacher “for the interior design stuff” and said “there was something happened and he tried to inappropriately touch me at that time, so I left”. This conversation would have taken place around 26 to 28 August 2018.
Evidence of the complainant’s distress when complaining about the appellant’s conduct to the preliminary complaint witnesses
Before addresses at the trial, the trial judge raised with counsel whether any direction was required about distressed condition. It was common ground at the trial that there could be no reliance by the prosecution on evidence of any distressed condition of the complainant as corroborative of her evidence of the offending conduct. The prosecutor’s position was that the evidence about distressed condition was only relied on as part of the narrative. The prosecutor requested the trial judge to give the direction in chapter 67 of the Supreme and District Courts Criminal Directions Benchbook where evidence is led as part of the narrative but is not led in support, or corroborative, of the complainant’s evidence.
The trial judge had difficulty with that suggestion as that direction in the Benchbook was telling the jury to disregard the evidence of distressed condition, except to the extent that it was part of the narrative, but the trial judge considered the distressed condition was relevant to the jury’s assessment of the complainant’s credibility or reliability. The trial judge asked the prosecutor what did it mean to tell the jury that it was part of the narrative, when the case turned on what the jury made of the evidence of the complainant. The trial judge observed that the complainant’s emotional reaction when describing to the preliminary complaint witnesses what happened to her on 4 August 2018 might be a factor for the jury’s consideration in assessing the credibility and reliability of what the complainant said happened.
The appellant’s trial counsel submitted that it was not a case where distressed condition could amount to corroboration or support and that the trial judge should consider making the direction set out in the Benchbook where the evidence of distressed condition was led as part of the narrative of the assault. Counsel left it to the trial judge to decide whether that direction should be given or not. By not giving the direction, the trial judge impliedly ruled against the parties’ request that he give the distressed condition direction in chapter 67 of the Benchbook for where the evidence of distressed condition was led only as part of the narrative of the assault (and therefore made a decision on a question of law).
The alternative directions in chapter 67 of the Benchbook are concerned with evidence of the complainant’s distressed condition during the assault or closely connected in time to the occurrence of the assault. The trial judge’s concern expressed during the trial was that the direction both parties urged be given (where evidence of the complainant’s distressed condition was part of the narrative of the assault given in evidence by the complainant) was not apt in this trial to apply to the successive complaints made by the complainant to the preliminary complaint witnesses and the assessment of the credibility and reliability of the complainant’s evidence by reference to her consistency or otherwise in reporting what had happened in the incident with the appellant to the preliminary complaint witnesses.
Summing up
At the outset of the summing up, the trial judge identified for the jury the real issue in the trial was whether the prosecution had proved beyond reasonable doubt that the appellant did the things the complainant alleged against him. The trial judge pointed out that, as the prosecution relied upon the complainant’s evidence to support the charge, they must accept the essential parts of the complainant’s evidence as to the elements of the offence of sexual assault before they could find the appellant guilty. The trial judge summarised that the case turned on what the jury made of the complainant’s evidence, posing the questions: “Do you accept that she was telling the truth about the events at [the appellant’s] house on the 4th of August 2018? Did you find her to be credible and reliable?”
After identifying these two questions for the jury, the trial judge stated:
“In order to prove the charge, it is necessary that you accept the evidence of [the complainant] beyond reasonable doubt, and that is that you find her to be credible and reliable when she says that the defendant assaulted her when she attended his house on the 4th of August 2018.
As has been touched upon in the – in the addresses, and depending on what you make of the evidence, the complainant’s credibility is also perhaps supported by the disclosures that she made to other people. That is why you must consider all of the evidence to determine whether you are satisfied each of the elements of the offence of sexual assault have been established beyond reasonable doubt.” (emphasis added)
The trial judge gave the standard directions about the jury being concerned with the credibility of the witnesses and the reliability of their evidence and noted “that is especially so in relation to the evidence of [the complainant], because the case rests on whether or not you accept what she is saying”. The trial judge gave the usual example of factors that may impact on the jury’s decision as to what evidence to accept. His Honour noted that the jury had “seen and heard” how the complainant, the appellant and the other witnesses presented when giving evidence and being cross-examined.
After giving an extensive direction about any inconsistencies or differences that the jury might find in the complainant’s evidence and referring to the arguments by the appellant’s trial counsel that differences in the complainant’s account supported a conclusion that the complainant was not truthful or a reliable witness, the trial judge directed the jury that it was up to them to decide whether or not there were any differences in her account and, if there were, whether any such differences were important in assessing her truthfulness and reliability. In making that assessment, the trial judge gave directions pursuant to s 103ZT, s 103ZU, s 103ZV and s 103ZY of the Evidence Act 1977 (Qld) (Act).
After the trial judge had summarised the elements of the offence, he directed the jury:
“Whilst it remains the responsibility of the prosecution to prove each of the elements of the offence, beyond reasonable doubt, before you can find the [appellant] guilty, you might think that in the way that this case has been litigated, the real issue is whether you are satisfied that the events alleged by [the complainant] occurred in the way that she says they did. If you do not accept what she has said, or have a doubt about whether she is telling the truth, then of course you would find the [appellant] not guilty of this offence.”
“The prosecution seeks to prove this offence based on the evidence of [the complainant]. There is no other evidence which is capable of proving the essential elements of the offence. If you have a reasonable doubt as to her credibility, you must find the – or reliability, you must find the [appellant] not guilty accordingly. Unless you are satisfied that she is telling the truth about this event, the [appellant] is entitled to be found not guilty. However, if you do accept that she is truthful and reliable, and each of the elements as I have explained them to you have been proved, then you would find the [appellant] guilty. So that, it really seems to me, to be the central issue for your focus in this case.”
“Now, this evidence is relevant only in that, depending on what you make of it, it might either bolster her credibility and reliability because of consistency, and thereby increase the likelihood that her evidence is true, or detract from your assessment of her credibility and reliability because of inconsistency, and thereby decrease the likelihood her testimony is true, but it does not independently prove anything. Whether inconsistencies or consistencies impact on the complainant’s credibility or reliability is a matter for you.”
“Now, it is a matter for you, of course, what you make of all of that evidence. If you accept that those things were said by the complainant to those various people, you cannot regard the things she said, in those out-of-court statements by [the complainant], as proof of what actually happened. As I said, it is relevant only in that, depending on what you make of it, it might either bolster her credibility and reliability, because it is consistent, and thereby increases the likelihood that what she is saying to you is true, or it might detract from your assessment of her credibility and reliability, because it is inconsistent, and thereby decrease the likelihood that what she is saying to you is true, but it does not independently prove anything. Whether inconsistencies or consistencies impact on the complainant’s credibility and reliability is, as I have said, for you to determine.
So it is important to appreciate that the evidence of what she said to those people, about having been sexually assaulted, is only relevant to your assessment of [the complainant’s] credibility. Does what she told her friends and colleagues tend to support that she is telling the truth because it is consistent with her allegations as to what she says happened, or does it undermine her credibility because it is inconsistent, or does it not assist one way or the other, in which case you would put it to one side and look at what evidence you do accept.”
“It is a matter for you what you make of that submission, in light of the evidence of what has been said and what [the complainant] has said about how she felt about the incident and why it was that she said what she said to her friends and colleagues, and the circumstances in which each of those various conversations took place.”
The trial judge summarised the prosecutor’s submission about the evidence from the preliminary complaint witnesses that it was consistent with what the complainant said happened and that any differences were a product of the understandable circumstances in which the various conversations took place and the emotions which the complainant explained she was feeling at the time.
The trial judge directed the jury that Dr Ruberry’s opinion about whether the complainant was genuine or not in her account when she spoke to him was irrelevant to the jury’s determination and stated:
“It is not his opinion that is relevant, it is entirely a matter for you to determine the credibility and reliability of [the complainant]. You must base your assessment of [the complainant] on the evidence that you have heard, and you must ignore what Dr Ruberry said his opinion was. His evidence is relevant only to the extent that she told him what she says happened on that day.”
“She submitted … that it was the apology that [the appellant] made to [the complainant] on the 13th of August that angered [the complainant], because it was then that she realised that [the appellant] did know that what he had done to her was wrong. And it was that that prompted her to seek to make some record of the event with the police even though she was still not then motivated at that point to make a formal complaint.”
Ground 1 – was any direction required in respect of the complainant’s distressed condition?
There are two aspects in which the appellant submits that the trial judge was required to direct on distressed condition. The first aspect is that the trial judge should have given an express direction to the jury that the evidence of the complainant’s distress in the preliminary complaint evidence should not be used by the jury as a circumstance capable of being corroborative of the assault. The second aspect which complements the first aspect is that the trial judge should have given an express direction which confined the relevance of any evidence of the complainant’s distress in the preliminary complaint evidence to being part of the narrative of the preliminary complaint and was therefore relevant only to the jury’s assessment of the credibility of the complainant and the reliability of her evidence.
The appellant submits that, without either direction contemplated in the Benchbook being given where there was evidence of the distressed condition of the complainant, there was a real risk that the jury may have reasoned impermissibly towards guilt from the evidence of distressed condition. To illustrate the risk, the appellant relied on the impermissible evidence given by Dr Ruberry as indicating how a lay person may reason from distressed condition without the benefit of specific directions on the use that can be made of evidence of distressed condition.
The reliance on Dr Ruberry’s impermissible opinion is misconceived. He was a witness giving evidence of the complainant’s disclosure to him by way of preliminary complaint and he gratuitously offered an opinion about the genuineness of the complainant. His role as a witness was not equivalent to the jury’s task of fact finding where express directions were given by the trial judge to the jury relevant to their undertaking that task.
The appellant also relies on the words that have been bolded in the extract from the summing up quoted at [26] above as leaving open the possibility that the jury could have regard “to all of the evidence” including the demeanour or distress which the complainant exhibited to preliminary complaint witnesses. That submission also has no substance. That statement was made in the context of the trial judge’s statement that immediately preceded it that the charge could be proved only if the jury accepted the complainant’s evidence about the assault by the appellant beyond reasonable doubt. The impugned statement was in general terms at the commencement of the summing up before the trial judge gave extensive directions on the limitations of the preliminary complaint evidence. The summing up as a whole did not leave open the possibility that the jury would misuse the evidence of the complainant’s demeanour or distress given by some of the preliminary complaint witnesses.
Benchbook directions are a guide. In any particular case, it is prudent for the trial judge to consider whether any direction is appropriate in the circumstances of the trial and, if so, whether the suggested terms of the Benchbook direction require modification so as to apply to the issues in that trial. See (2020) 5 QR 261 at [55] per Sofronoff P and [2025] QCA 101 at [72] per Brown JA.
Ground 2 – was any direction required in respect of the evidence of the appellant’s admission by way of post offence conduct?
The appellant relies on two aspects of the conduct of the case by the prosecutor for ground 2. The first is the exchange in cross-examination of the appellant set out at [6] above where the appellant denied the prosecutor’s suggestion that he offered to the complainant to get rid of the note with her contact details because he knew he had done something “bad”. The jury were told that, if a witness did not agree with the proposition put to them by counsel, there was no evidence of the facts asserted in the proposition. The question asked by the prosecutor did not take the matter anywhere due to the appellant’s negative response and can be ignored for the purpose of considering ground 2.
The second aspect of the conduct of the case by the prosecutor raised by ground 2 was the prosecutor’s address to the jury in reliance on the appellant’s evidence that he threw out the note. The prosecutor stated:
“You might think only a man who knew he’d done something wrong tries to erase the evidence of it. Getting rid of a note aligns with the Crown case that the [appellant] had done something wrong.”
This was a surprising (and unnecessary) submission made by the prosecutor to the jury in a case that turned solely on whether the jury accepted the complainant’s evidence beyond reasonable doubt. The appellant characterises this submission as an invitation by the prosecutor for the jury to consider whether the appellant’s conduct revealed a guilty mind. It is arguable that the submission was suggesting the appellant’s conduct in disposing of the note constituted consciousness of guilt of the offence. The appellant submits the trial judge was obliged on the making of this submission by the prosecutor to direct the jury they had to be satisfied that the appellant disposed of the note because he knew he was guilty and not for any other reason and to consider other possible explanations for the conduct consistent with innocence.
As the extract from the summing up set out (at [36] above) shows, the trial judge’s response to this inappropriate submission by the prosecutor was not to remind the jury of the submission but to deal with it in a more subtle way. The trial judge dealt with another aspect of the submission instead and stated the submission was that the conversation on 13 August 2018 in which the apology was made (and the offer of the appellant to destroy the note was also made) motivated the complainant to immediately seek to have some record of the incident (short of a formal complaint) notified to the police. The trial judge defused an inappropriate submission by focusing on the factual significance of the conversation of 13 August 2018 for the complainant’s visit to the police.
The direction now sought by the appellant would have compounded the prosecutor’s inappropriate submission. It was not a trial where an assertion of consciousness of guilt of the offence inferred from the appellant’s post-offence conduct had any role to play.
The inappropriate submission was an irregularity in the trial. It was not fundamental in the sense explained in the authorities referred to in Brawn v The King (2025) 99 ALJR 872 at [11], including Hofer v The Queen (2021) 274 CLR 351 at [123]. It was an error or irregularity that was minor in the context of a trial where the issue for the jury was whether they accepted the complainant’s evidence beyond reasonable doubt as to the incident involving the appellant and where there was no suggestion whatsoever that they were undertaking consideration of a circumstantial case in respect of either the offence or an element of the offence where post-offence conduct that may constitute consciousness of guilt of the offence would have been a consideration. For the appellant to succeed on ground 2, the test that must be satisfied, as explained in Brawn at [3], is that “the error or irregularity was material in the sense that the error or irregularity could realistically have affected the reasoning of the jury to its verdict”. This was a straightforward trial where the jury’s focus was always brought back by the trial judge in the summing up to whether they accepted the complainant’s evidence about the appellant’s assault beyond reasonable doubt. The trial judge’s careful summing up precludes the appellant from showing that the prosecutor’s inappropriate submission could realistically have affected the reasoning of the jury to its verdict.
Order
The order which should be made is: Appeal dismissed.
BOND JA: I agree with the reasons for judgment of Mullins P and with the order proposed by her Honour.
DOYLE JA: I have read and agree with the reasons for judgment of the President and with the order proposed by her Honour.
R
Flaherty [2026] QCA 54
(2025) 99 ALJR 872
(2021) 274 CLR 351
Appeal dismissed. The Court held there was no wrong decision on a question of law concerning the distress evidence and no material irregularity concerning the prosecutor’s submission about disposal of the note ([46], [52]–[56]).
The complainant’s partner recalled 4 August 2018 when the complainant drove off to visit a gentleman about some interior design or a table. She returned later in the day. Later in the month of August 2018, the complainant told her partner that when she visited that man, he tried to remove her clothes and assault her. The complainant told him that she was given a drink when she arrived, the man was wearing boxer shorts and he grabbed her clothes and tried to remove them. The partner’s evidence in cross-examination included the following. When the complainant returned on 4 August 2018, “there was nothing notable about her return” and the complainant did not say anything to the partner. There was nothing remarkable in the immediate following days.
Dr Clifton who was the coordinator of the complainant’s course gave evidence about her meeting with the complainant on 3 September 2018 during which Dr Clifton made notes. In summary, Dr Clifton recorded that the complainant was asked by a teacher at that school to come to his house to give some possible design ideas for where to put a table. The complainant went there. The appellant offered her some alcohol. He wanted to show her some different parts of the house. They went upstairs. He had told her he was quite attracted to her when they were at the top of the stairs. When they made their way downstairs, he grabbed her from behind and she said she froze, put her hands up in front of her and said “No, no, no”. He then said “It’s okay. Relaxed” and pushed her to the floor and started to take off her pants. She said “No, no” and she felt his hands in her pants and said “No, I don’t want this. I don’t want to hurt anyone” and rearranged her clothes and tried to leave. At that stage, his pants were down and she saw his genitals. She ran and he said “Oh, well, you’ve had your fun, now it’s my turn”. She left through the garage door. She ran up the stairs to get her jacket. Dr Clifton emailed her typed notes to the complainant on 4 September 2018. In cross-examination, Dr Clifton stated that the complainant told her at that time she did not want to go to the police and that she just wanted to finish her placement.
The complainant gave evidence that Dr Clifton asked her to give a statement about the incident. The complainant wrote a statement and because English was her second language, she spoke to her partner’s sister (the sister) about the incident and sent the sister her statement to proofread. The sister’s evidence included the following. The complainant told her that she had been assaulted by a man at the school where she was working at the time. He had sought her opinion about design matters and contacted her to look at a table. She went to his place. He offered her a drink and she asked for a glass of water. He showed her around the house. They went upstairs and he asked the complainant if she had a boyfriend or if she was married and he then tried to have intercourse with her. She ended up on the floor or on the stairs and he was trying to get her jeans off. He did manage to get his hands inside her pants. She said she froze initially and then kept saying “No” and eventually he gave up trying to get her jeans off because she was resisting. He stood up and exposed himself. The complainant finally managed to gather herself sufficiently and get downstairs. She did get out through the garage.
Ms Y met the complainant in 2016 when they worked together. Ms Y had a telephone conversation with the complainant some time in 2018. Ms Y’s evidence was as follows. The complainant was “quite stressed and upset about what happened to her”. She was a student teacher at that time and another teacher asked her to come over to his place as he wanted a second opinion about some furniture or something related to it. The complainant was a good person to give an opinion. After a little bit of conversation at the colleague’s place, he tried to take the complainant’s clothes off. She tried to get out of there and she reported to the police. The complainant called Ms Y one or two days after it happened. She was traumatised. In cross-examination, Ms Y clarified that the complainant telling her about the incident and that she went to the police station all happened in the same phone call. The complainant was a “bit upset”.
Detective Hill was the arresting officer. She received the file to conduct the investigation on 18 August 2021. The complainant provided a statement on 26 April 2022.
The first aspect of ground 1 can be rejected for the following reasons. There were nine preliminary complaint witnesses only four of whom (Ms M, Ms T, the supervisor and Ms Y) referred to the complainant being upset, shocked or shaken. There was a range of evidence about the complainant’s distress when she made her respective preliminary complaints. There was no suggestion whatsoever at the trial by counsel that any evidence of the complainant’s distress when making some of the preliminary complaints would corroborate or support her evidence of the appellant’s sexual assault of her. In addition, as the directions of the trial judge to the jury left open no path for the jury to jump from the evidence of the complainant’s distress in making some of her preliminary complaints as a circumstance capable of being corroborative, or in support, of her evidence of what happened during the incident with the appellant at his home, the express direction now proposed by the appellant was not required.
If fulsome directions are given by a trial judge on how to use evidence, then it may not be essential to give an express direction to the jury on how not to use aspects of the evidence. This is particularly so where the thoroughness of the direction on how to use the evidence excludes the possibility of the jury using that evidence in a way that was not covered by the direction on how to use it.
The trial judge had made it clear to the jury repeatedly that they could only convict the appellant if they were satisfied that the complainant was truthful and reliable in her evidence that related to each of the elements of the offence. As the trial judge emphasised “the real issue is whether you are satisfied that the events alleged by [the complainant] occurred in the way that she says they did”.
The second aspect of ground 1 can also be rejected for similar reasons. The trial judge gave express directions on the purpose of the preliminary complaint evidence that appropriately limited its use for the purpose of assessing the credibility of the complainant and the reliability of her evidence. In the circumstances of this trial where the trial judge kept returning during the summing up to the real issue in the trial of whether the jury accepted beyond reasonable doubt the complainant’s account of the incident, there was no need for any further direction confining the relevance of the evidence of the complainant’s distress related in the preliminary complaint evidence.
There was no wrong decision on a question of law in respect of the matters raised by the appellant under ground 1.
The appellant also fails on ground 2.