R v Tamwoy [2026] QCA 73 - Appeal Against Conviction Dismissed

R v Tamwoy [2026] QCA 73 (24 April 2026)

Last Updated: 24 April 2026

SUPREME COURT OF QUEENSLAND

| CITATION: | R v Tamwoy [2026] QCA 73 |
| PARTIES: | R v

TAMWOY, Kelly Richard

(appellant) |
| FILE NOS: | CA No 196 of 2023 DC No 155 of 2023 |
| DIVISION: | Court of Appeal |
| PROCEEDING: | Appeal against Conviction |
| ORIGINATING COURT: | District Court at Townsville – Date of Conviction: 18 October
2023 (Coker DCJ) |
| DELIVERED ON: | 24 April 2026 |
| DELIVERED AT: | Brisbane |
| HEARING DATE: | 13 June 2025 |
| JUDGES: | Bond JA, Brown JA, Bradley JA |
| ORDER: | Appeal dismissed. |
| CATCHWORDS: | APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR
GROUNDS – MISDIRECTION OR NON-DIRECTION – where
the appellant was
found guilty of two counts of sexual assault and two counts of rape committed on
a fellow inmate at Townsville
Correctional Centre – where the appellant
contended that the complainant instigated the alleged offending conduct –
where
the appellant contends the Crown and trial judge misstated the evidence
– where the appellant submitted that the complainant’s
conduct could
have constituted consent to the acts – where the appellant submits that
the complainant’s evidence fairly
raised the defence that the appellant
had an honest, reasonable but mistaken belief as to the complainant’s
consent and s 24
of the Criminal Code (Qld) applied – whether the
Crown and trial judge misdirected the jury about evidence – whether the
trial judge wrongly
informed the jury about the nature of consent –
whether the trial judge erred in failing to direct the jury in relation to
s 24 of the Criminal Code (Qld) – whether the trial judge
erred by not giving a narrative distress direction – whether the trial
judge gave an
inadequate warning cautioning against impermissible propensity
reasoning – whether the deficiencies alleged had a cumulative
effect
giving rise to a miscarriage of justice Criminal Code (Qld), s 24, s 348 MDP v The King (2025) 99 ALJR 969; [2025] HCA 24, cited R v
Burley [2022] QCA
251, distinguished

R v Kalisa [2024] QCA
198, considered

R v Makary [2019] 2 Qd R 528; [2018] QCA
258, followed

R v SDQ [2022] QCA
91, followed

R v Sunderland (2020) 5 QR 261; [2020] QCA
156, considered |
| COUNSEL: | K M Hillard, with S Bloom, for the appellant S J Muir for the
respondent |
| SOLICITORS: | Alexander Rashidi Lawyers for the appellant Director of Public
Prosecutions (Queensland) for the respondent |
[1] BOND JA: I agree with the reasons for judgment of Brown
JA and with the order proposed by her Honour.

[2] BROWN JA: The appellant was found guilty of two counts of sexual
assault and two counts of rape following a trial. He was sentenced to
imprisonment
for 6 years on the counts of rape and lesser concurrent
sentences on the counts of sexual assault.

[3] The appellant seeks to appeal on the basis that one or more errors caused
the trial to miscarry either alone in some cases or
cumulatively, namely:

(a) the trial judge erred by misdirecting the jury about the evidence concerning
consent and wrongly informed the jury as to the
nature of the consent to be
considered; (b) the trial judge erred in failing to direct the jury in relation to s 24 of
the Criminal Code (Qld);

(c) the trial judge erred in failing to give a narrative distress direction to
the jury; and

(d) the trial judge erred in providing an inadequate warning cautioning against
impermissible propensity reasoning.
The trial

[4] Evidence was given by the complainant, the complainant’s partner at
the time and some prison corrective service officers.

[5] A summary of the complainant’s evidence is as follows.

[6] The appellant and the complainant were inmates at Townsville Correctional
Centre. They had become cellmates a few days prior
to the offending.

[7] During an evening lockdown, the complainant was woken by the appellant.
He rolled over on his back and half sat up. The appellant
said he was
“horny and he wanted to fool around”. The complainant informed him
he couldn’t do that and that “I
can’t. I’m in a loyal
relationship. I have a partner on the outside”, to which the appellant
responded “It’s
okay. So do I”. The complainant did not
respond.

[8] The appellant then started rubbing the complainant’s genitals on
top of his clothing, causing an erection. He then put
his hands underneath the
complainant’s shorts and massaged his erect penis (count 2). After the
appellant started touching
the complainant’s genitals, he exposed his own
erect penis and placed the complainant’s hand on it in a motion to start
massaging it (count 1). The complainant said he tried to pull away at first,
“but because he had a hold - hold of my hand,
I was unable to do so, so he
just continued that motion. I probably continued the motion past the point of
his initiating it”.

[9] After that period of masturbation, the appellant grabbed the
complainant’s neck and pushed him towards the appellant’s
crotch to
initiate oral sex, which he motioned to the complainant to do (count 3). The
complainant stated: “because my hand
was still on his penis, it’s
gone into my mouth” and oral sex continued for “a matter of
minutes”. There
was no verbal exchange at that point.

[10] Towards the end of the oral sex the appellant started to massage the
complainant’s anus area and removed the complainant’s
pants. The
complainant said: “we can’t do that. We don’t have protection
and we don’t have lube”.
The appellant said “It’s okay.
I’m experienced. It’ll be fine”. No further response was
given by
the complainant. The complainant said that the appellant rolled him
onto his side. They laid in the big spoon, little spoon position.
The
appellant tried to get his penis into a position where he could enter the
complainant’s anus. The complainant voluntarily
rolled on his back and
the appellant lifted his legs up over the appellant’s shoulders. The
appellant then pressed his penis
close to the complainant’s anal area and
the complainant said in evidence that it was “not quite in the right
position”.
The complainant then grabbed the appellant’s erect penis
and put it in the appropriate area “for anal sex to occur”.

According to the complainant, he repositioned the appellant’s penis
because the original position would have been painful
and could have led to
tearing. Penetration then occurred (count 4). The complainant did not say
anything to the appellant. The
anal penetration lasted a matter of minutes.
Neither of them spoke during or after anal intercourse.

[11] The complainant denied consenting to any of the sexual acts.

[12] The complainant subsequently complained to corrective service officers,
following which he was taken to hospital. He was seen
by two police officers
who asked whether he wanted to make a formal complaint, but at that point he did
not.

[13] Three corrective service officers gave evidence that said that the
complainant had said that two days after the alleged offending
took place he was
“raped” by his cellmate. Shortly after the first interaction with
the two corrective services officers,
the complainant told another corrective
service officer that he had been “sexually assaulted” by his
cellmate who had
“penetrated his anus” with his penis. He said that
he told the appellant no several times.

[14] The complainant’s partner also gave evidence that the complainant
told him that he had been raped by an inmate. The partner
said he was told
during a prison visitation with the complainant in or about the middle of
2021.

[15] No evidence was called by the appellant at the trial.

[16] Consent was a critical issue at the trial. There was no dispute that
the sexual acts had taken place.

[17] The defence case cross-examined the complainant, suggesting that it was
the complainant who propositioned the appellant with
a promise of giving him
money or drugs. That had been denied by the complainant in cross-examination.
It was also put to the complainant
that he had forced himself upon the
appellant. The complainant was further cross-examined to the effect that he had
motive to lie
about the offending because he wanted to have himself removed from
solitary confinement or to obtain his own cell.

[18] The trial was short, taking place over two days.

Ground 1

[19] The appellant complains that the Crown misstated the complainant’s
evidence, as did the trial judge. He complains further
that the trial judge
gave inadequate directions in relation to consent, insofar as he did not outline
the complainant’s actions
which could have constituted consent.

[20] As a result of the two errors, the appellant contends that the jury was
misinformed about the evidence, which was misleading
and wrongly characterised
consent as not being in issue, despite the complainant’s physical acts on
silence leaving the issue
of consent open. It is contended by the appellant
that the misdirection was material and deprived the appellant of a chance of
acquittal.
This cannot be accepted.

[21] As to the first aspect of the appellant’s complaint, the appellant
relies on the fact that the complainant’s evidence
did not specifically
say, as was contended by the Crown, “No. No. I’ve got a partner.
I’m loyal. I’m not
interested”, but rather he said “I
don’t do that. I can’t. I’m in a loyal relationship. I have
a
partner on the outside”. The difference is not significant. While the
former is slightly more emphatic, the summation by
the Crown was not
significantly different from the appellant’s evidence and was not
misleading.

[22] Further, the appellant contends that the Crown inaccurately stated in
its address to the jury “[n]ow all of those things
occurred without his
consent. It was very clear with the defendant at the outset that he
wasn’t interested, and he maintained that communication at various
times throughout the offending. The defendant, on the other hand, made it
clear that this is happening one way or the other, and in that
context, the
complainant only participated to avoid harm” (emphasis added).

[23] The appellant submits that this inaccuracy was then entrenched by the
fact that the trial judge failed to correct the Crown’s
misstatement of
evidence and in his Honour’s summing up reinforced and compounded the
Crown’s misstatements. When directing
the jury, the trial judge stated in
relation to counts 3 and 4 and not in relation to counts 1 and 2, that:

“And in this matter you do not need to trouble yourself about issues as
to whether or not it might have been that the complainant
remained silent,
because a person is not to be taken to giving consent [sic] to an act only
because the person does not before or
at the time the act is done say or do
anything to communicate that they don’t consent. In this matter, you
heard very clearly
from the complainant that his evidence was that he told the
defendant a number of times that he did not consent to the sexual acts
and
certainly did not consent to either of the oral or anal rape.”

[24] According to the appellant, the direction was directed towards counts 1
and 2 as well as 3 and 4 and was a material misdirection
on the evidence that
misinformed the jury about what the complainant’s evidence was on the
crucial issue at the trial, being
that of consent. According to the appellant,
the jury should have been told what the complainant’s actual evidence was
concerning
his words for each of the counts and where no words were said for
count 3 and 4, the jury should have been told of his silence, and
informed of
his actions that might amount to consent for the jury to assess consent.

[25] The respondent contends that neither of the contentions of the appellant
are well founded. The Crown’s reference to the
complainant’s
evidence was a fair summary. The reference that the complainant
“maintained that communication”
was accurate and extended not only
to his statements in relation to counts 2 and 4, but to his own actions or his
action being forced
by the appellant in relation to count 1 and 3.

[26] In relation to the suggestion that there was a failure in the direction
to the jury about consent, the respondent submits that
the reference of the
trial judge that the complainant told the appellant a number of times he
“did not consent to the sexual
acts” was a fair summary of the
complainant’s evidence. The respondent submits that given the shortness
of the trial,
with the evidence being heard on the first day and the addresses
and summing up on the following day, it was not necessary to give
further detail
of the evidence in his Honour’s summing up.

[27] The respondent’s argument must be accepted. Insofar as the
complainant gave evidence that he stated:

(a) “I don’t do that”; (b) “I can’t”;

(c) “I’m in a loyal relationship”;

(d) “I have a partner on the outside”;

(e) “We can’t do that”; and

(f) “We don’t have protection and we don’t have lube”,
prior to acts the subject to count 2 and 4 occurring, the complainant’s
evidence did show he verbally communicated that he was
not interested and not
consenting.

[28] Further, the complainant’s action of trying to pull his hand away
in relation to count 1 and his neck being grabbed and
pushed down by the
appellant in relation to count 3 are also matters capable of communicating
that the complainant did not consent.
It was not therefore inaccurate of the
Crown to state that the complainant maintained the communication that he
wasn’t interested.
Nor was the trial judge’s reference to the
complainant telling “the defendant a number of times that he did not
consent
to the sexual acts and certainly did not consent to either of the oral
or anal rape”, inaccurate in light of the evidence given.

[29] The trial judge’s direction as to consent was not inadequate and
did not need to be more expansive. The trial judge identified
the central issue
in the case to be whether or not the alleged offences occurred without consent.
During the summing up, his Honour
outlined what was required to prove a lack of
consent in relation to count one. The trial judge, in his directions as to the
elements
of the other offences, stated that consent was an issue for each
offence and restated what was required for there to be a lack of
consent in
relation to each offence. It is not material that his Honour’s
restatements were more brief in comparison to his
first initial statement in the
context of the directions given. For each offence, the sentencing judge
specified that the jury had
to be satisfied that the act was done without
consent.

[30] The appellant contends that the sentencing judge should have gone
further and outlined what the complainant’s evidence
was for each of the
counts in relation to the words said and that where no words were said,
“his silence, and of his acts and
actions that may amount to consent for
the jury to assess consent”. In relation to count 2, the appellant relies
on the act
of the complainant rolling onto his back when the appellant woke him
up as indicating consent. In relation to count 1, the appellant
relies on his
physical arousal after the appellant’s touching which is the subject of
count 2 and that the act of masturbation
continued for some minutes. In
relation to count 3, the appellant relies on the fact that the complainant had
continued to masturbate
the appellant before oral sex took place and did not say
anything when he was pushed down onto the appellant’s penis and the
appellant motioned for him to perform oral sex. In relation to count 4, the
appellant contends that the complainant’s words
were equivocal, and the
complainant’s actions which followed, particularly in rolling on his back
and placing the appellant’s
penis, was conduct from which consent could be
inferred.

[31] There are several reasons why the appellant’s argument should be
rejected and no further explanation by the trial judge
was required:

(a) first, the complainant’s evidence was that he did not consent to any
of the sexual acts. That was not challenged in cross-examination.
Rather, the
defence cross-examined on the claims that the complainant was the instigator,
which if accepted by the jury would have
meant that they would not have had to
consider consent; (b) secondly, the jury were told that they had to consider the question of
consent in light of all of the evidence presented by the
complainant;

(c) thirdly, the jury did not require an expanded direction that the actions of
the complainant could indicate consent given:

(i) the direction as to consent was a general direction and not directed only to
the words spoken; (ii) the jury were informed that for each offence consent was the critical issue
they had to consider and the trial judge identified
the relevant act that had to
be committed without consent for each offence;

(iii) the jury were properly informed that they did not have to consider silence
because a person is not to be taken to give consent
to an act only if that
person does not before or at the time the act is done say or do anything to
communicate that they don’t
consent. That is consistent with s 348 of the
Criminal Code. The trial judge did go on to point out that in this case the
complainant
had on his evidence spoken to the appellant and voiced his position;
and

(iv) it was no part of the case put by the defence to the complainant that the
complainant had consented to any of the acts which
constituted the offences.
[32] In R v Sunderland, [1] Sofronoff P [2] observed that:

“The giving of consent, in the context of a charge of a sexual offence,
involves the making of a representation by one person
to another, to the effect
that the first person agrees to participate in the sexual act that would
otherwise be an offence. Such
a representation might be made by words or by
actions or by a combination of both. Sometimes the words or actions cannot be
understood
apart from the surrounding
circumstances.” [3]

[33] Further, a number of the acts relied upon by the appellant were not acts
or actions from which consent could be inferred. In
relation to count 1, the
relevant act relied upon was the complainant continuing to massage the
appellant’s penis after the
appellant had pulled his hand across and
placed it on his penis. As the act that had to be shown to be without consent
was the placing
of the hand on the penis, the subsequent action of massaging the
penis by the complainant was not relevant to the question of consent.
In
relation to count 2, the appellant relied on the complainant’s physical
arousal through an erection. Such an involuntary
physiological response could
not constitute an act by which consent can be inferred. Nor could it convey
consent for the conduct
the subject of count 1. In relation to count 4, the
appellant contends that the complainant’s silence after the appellant
said
“It’s ok. I’m experienced” could constitute consent. As
stated above, that is contrary to s 348(3)
of the Criminal Code ** and
in any event the complainant had communicated to the appellant words which
indicated a lack of consent.

[34] The only purpose for which the acts relied upon by the appellant as
indicating consent could be relevant, was whether they provided
an evidentiary
basis of acts which objectively may convey consent and could raise a defence
under s 24 of the Criminal Code which
is the subject of the second ground of
appeal.

[35] Given the shortness of time between the hearing of evidence and the
summing up, and having identified one of the critical issues
to be whether for
each count there was a lack of consent, no further details of the evidence
needed to be given by the trial judge
during the summing up for the direction
that was given to be adequate.

[36] Ground 1 is not established.

Ground 2

[37] The real issue raised in this appeal is whether the jury should have
been directed to consider whether the Crown had excluded,
beyond reasonable
doubt, a mistake of fact defence. The appellant contends that the applicability
of s 24 of the Criminal Code was
not closed off by the conduct of the defence
case, and that the evidence supports a possibility that the appellant honestly
and reasonably
but mistakenly believed that the complainant was consenting for
the purpose of a defence of honest and reasonable mistake under s
24 of the
Criminal Code.

[38] The trial judge did not direct the jury that the defence in terms of s
24 of the Criminal Code was available. Nor was any direction
to that effect
requested by defence counsel or the Crown when the question was raised by the
trial judge. However, if such a direction
was required to be given by the
trial judge, failing to do so would only constitute an error of law if that
error could realistically
have affected the reasoning of the
jury. [4]

[39] The question for this Court however is whether the defence was fairly
raised on the evidence such that it should have been the
subject of a
direction.

[40] Justice Dalton (with whom Flanagan J agreed) stated in R v
Kalisa: [5]

“It is for the Crown to exclude a defence under s 24. When the jury
should be instructed to consider whether or not the Crown
has done so, depends
upon the evidence in the case. The question must be asked whether the evidence
raises for the jury’s
consideration the issue of whether, even though the
complainant did not consent, there was a possibility that the defendant had
an
honest, reasonable but mistaken belief that the complainant had consented.
It does not matter whether that evidence comes from the
complainant, the
defendant, from another source, or is open to the jury from a combination of
sources. As recognised by Ryan J,
the jury might accept and reject various
parts of the evidence to arrive at factual findings not consistent with the
entirety of
any one witness’s evidence.” (footnotes omitted)

[41] Justice Ryan in R v Kalisa, who also agreed in the result, framed
the obligation to give such a direction in this
way: [6]

“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 s 24 of
the Criminal Code.” (emphasis in original)

[42] The evidence founding the defence does not need to come from the
defendant and can come from the evidence of the complainant
or the evidence as a
whole. [7] The appellant’s case
put in cross-examination was that it was the complainant not him who was the
instigator. The appellant’s
case was that it was the complainant who had
forced himself upon the appellant and that the complainant had said that he
would pay
him some buy-ups and money or drugs and he had a motive to lie. Both
propositions were rejected by the complainant.

[43] The appellant contends that the evidence of the complainant was
equivocal in many respects as to whether consent was not given
and when
considered with his physical actions, his silence and his gaining an erection
even if involuntary and his other conduct
all contributed to the availability of
the defence that should have been left to the jury in relation to each
offence.

[44] The respondent submits that no direction was required to be given as the
matters relied upon by the appellant did not establish
an evidential basis for
the defence to be put to the jury.

[45] There must be evidence from which an inference of a possibility of an
honest and mistaken but reasonable belief could be drawn.
That depends on there
being evidence in the case which could give rise to an inference that:

(a) the appellant subjectively believed that the complainant was willing to
engage in sexual activity with him which constituted
each offence; (b) the appellant subjectively believed that consent has been given; and

(c) those beliefs were reasonable. [8]
[46] Count 2 was a count of sexual assault by the appellant touching the
complainant’s penis on top of his clothing, causing
an erection. That
followed the complainant having said “I don’t do that. I
can’t. I’m in loyal relationship.
I have a partner on the
outside”, to which the appellant replied “It’s okay. So do
I” and then proceeded
to physically touch the complainant. The appellant
sought to contend that by the complainant having an erection, that was somehow
evidence from which an inference of consent could be drawn. The erection
manifesting from the appellant’s touching of the
complainant is a
physiological response, rather than a voluntary act from which consent could be
inferred. A physical reaction to
stimulation is not evidence which could fairly
give rise to a reasonable belief that the complainant was consenting,
particularly
in light of the fact he had been told by the complainant that he
couldn’t partake in sexual conduct. To the extent the appellant
suggested
that such a belief could be inferred from the complainant rolling onto his back
in response to the appellant waking him
up, that must be rejected. The
complainant’s evidence was relevantly that he was lying, probably on his
side, as that was
how he usually slept, “and when I was awoken, I’ve
rolled onto my back and sort of started to sit up with my back against
the
wall”.

[47] The conduct the subject of count 1 occurred after the conduct the
subject of count 2. The appellant also had an erection and
placed the
complainant’s hand on his penis in a fashion to make a motion to
start massaging his penis. The complainant said
that he tried to pull it away,
but because the appellant had a hold of his hand, he could not do so. In this
respect, the appellant
sought to argue, by the fact that the complainant
continued with the motion of masturbating the appellant, that was evidence from
which a possible inference was available that the appellant had a mistaken but
reasonable belief that the complainant was consenting.

[48] As to count 2, the evidence of the complainant continuing to masturbate
the appellant after he had grabbed the complainant’s
hand and placed it on
his penis could not raise the possibility that the appellant formed an honest
but mistaken reasonable belief
that the complainant was consenting, given that
it was conduct after the offence had occurred. The act which was the subject of
the offence, and which had to be proved to not be consented to, was the
appellant grabbing the complainant’s hand and placing
it onto his
penis.

[49] Nor could it be inferred that the complainant’s act of
masturbating the appellant could have caused the appellant to have
formed an
honest but mistaken belief that the complainant was consenting to the offending
the subject of count 3, given the unchallenged
evidence of the appellant’s
physical conduct.

[50] For count 3, the evidence of the complainant was that the appellant
grabbed the complainant’s neck and pushed him towards
the
appellant’s crotch while continuing to hold his neck to initiate oral sex.
This evidence was not challenged in cross-examination.
The appellant sought to
rely on this evidence as suggesting that the appellant had motioned to the
complainant to do the act and
that the complainant did so without verbally
communicating that he did not consent. The complainant’s evidence was
“...he
still had a hold of my - the back of my neck at that point, and in
the same fashion that he did with my hand, he motioned for me
to perform oral
sex”. Given the complainant was held by the neck and pushed down, the
evidence relied upon by the appellant
was insufficient to allow an inference
that the complainant had possibly consented, let alone to infer that the
appellant held such
a belief.

[51] As to count 4, which is a count of rape said to be constituted by the
appellant placing his penis in the complainant’s
anus and penetrating him,
the appellant particularly relies on the actions of the complainant remaining
silent after the appellant
said “It’s okay”, not further
rebuffing the appellant and subsequently rolling onto his back and when the
appellant
had sought to place his penis close to the complainant’s anal
area, grabbing the appellant’s erect penis and putting
it in an
appropriate area for anal sex to occur. The actions of the appellant in
initiating anal sex occurred immediately after
the statements made by the
complainant that “We can’t do that. We don’t have protection
and we don’t have
lube”, which indicated he was not consenting to
the act. The appellant’s contention is however that the
complainant’s
subsequent co-operation to enable the act to occur raised
the possibility of the appellant forming an honest, mistaken but reasonable
belief that the complainant was consenting.

[52] The conduct in count 4, if considered in isolation, may be conduct which
could give rise to a mistaken belief as to consent.
However, when regard is had
to all of the circumstances, the evidence did not fairly raise such a defence.
First, the complainant
had said “We can’t do that” and had
given an excuse as to why it couldn’t occur, before he was told by the
appellant “It’s okay. I’m experienced. It’ll be
fine.” While the appellant had sought to contend that
the
complainant’s statement was equivocal, ‘no’ does not mean
‘yes’, nor does “We can’t”
mean ‘yes’.
The complainant’s words communicated that the complainant was resistant to
anal intercourse, did not
want to engage in it with the appellant and did not
consent. The appellant’s assurance “It’s okay” was
merely
indicative of the fact that the appellant was going to satisfy himself,
as he had done previously with the other sexual acts, regardless
of the
complainant’s resistance. That was clear from the appellant’s
actions in that after the complainant rolled onto
his back the appellant lifted
his legs over his shoulder. The silence of the complainant after the appellant
said “It’s
okay”, and the physical acts by the complainant
after the appellant indicated he wanted to have anal sex, were not sufficient
to
raise the defence. There was no pre-existing relationship between the appellant
and the complainant and the offending was taking
place in a locked cell in a
prison. At its highest, the evidence of the complainant’s actions could
have given rise to a reasonable
belief that the complainant was not going to
fight the appellant seeking to have anal sex with him, not that he was
consenting.
Submission does not constitute consent that is freely and
voluntarily given. [9] The matters
raised were not sufficient to raise an inference that the appellant could have
held an honest but mistaken belief of
consent, let alone that such a belief was
reasonably held in the circumstances.

[53] In the circumstances, the defence was not fairly raised and the
direction was rightly not given by the trial judge.

Ground 3

[54] The appellant complains that the complainant had given evidence of his
attendance at the hospital and referred to his own trauma.
The appellant
contends that that evidence was synonymous to the complainant giving evidence of
his own distress and a direction
should have been given to the jury of the use
to be made of that evidence, which on its face was also prejudicial given what
was
described by the complainant. According to the appellant, a distress
narrative direction should have been given. The appellant
contends that while
that failure alone may not be sufficient to allow the appeal, together with the
other complaints, the lack of
direction had a cumulative effect with the other
deficiencies giving rise to a miscarriage of justice.

[55] Since R v SDQ, [10] a
direction that juries should exercise caution where there is evidence of a
distressed condition of a complainant is no longer accepted
as one correctly
given. The appellant in this case however contends that a direction here was
necessary to show that the jury should
not use the evidence of the distressed
condition other than as part of the surrounding narrative. It was plain in this
case it was
only part of a surrounding narrative.

[56] The evidence of the complainant’s distress at the hospital was not
linked to the offending. The evidence of the complainant’s
distress was
that:

“Prior to that, I was sent through a strip search, and I was escorted
there under extremely horrible conditions, given the nature
of the event that I
had been through itself. So that was - yeah, pretty traumatic. I was taken in
an ambulance - no, I was taken
in a - in an escort vehicle from the jail,
handcuffed and shackled, put in a hospital bed, and at that point, I was seen by
two police
officers, and they asked whether I wanted to make a - a formal
statement or formal complaint. And at the point, I didn’t.”

[57] The complainant’s evidence of distress was in connection with the
hospital visit and what occurred. It was not linked
to the offending, as it
occurred some two days after the offending. It was not relied upon by the
Crown, other than by way of demonstrating
the circumstances leading to the
complainant making a preliminary complaint to one of the correctional officers.
The evidence as
to the complainant’s trip to the hospital was used by the
appellant to undermine his credibility by suggesting that he was
upset because
being handcuffed and shackled the complainant could not get access to drugs.
There was no risk of the evidence of
the distressed condition being misused by
the jury in support of the allegation of the sexual assaults.

[58] No direction was required to be given. Had it been an error not to give
such a direction, it could not possibly have caused
the jury to engage in
impermissible reasoning in reaching their
verdict. [11]

Ground 4

[59] Finally, the appellant takes issue with the caution against propensity
reasoning given by the trial judge. In his Honour’s
summing up, the jury
were directed about the complainant’s prior convictions and then
separately about the appellant’s
convictions, in which the trial judge
said as to the latter:

“And of course, in this matter, ladies and gentlemen, you’ve also
heard that the defendant has been in custody and was
in custody at the time of
the alleged offending. That is, or course, irrelevant. It would be entirely
unfair for you to speculate
about why he might have been in custody, and you
must not use that in any way adverse to the defendant to make findings in
relation
to this matter. In fact, what I would direct you is that you should
put the fact that the defendant was previously imprisoned and
was in custody at
the time entirely out of your minds at – in your deliberations in relation
to this particular matter.”

[60] In the appellant’s submission, that direction failed to include a
crucial component of cautioning against the jury using
the fact of the appellant
being in custody and having a criminal history as not something which could be
used to reason towards guilt.
The direction therefore failed to warn the jury
against impermissibly reasoning that the appellant was a person more likely to
have
committed the counts alleged.

[61] The appellant submitted that an additional direction should have been
given, as discussed by this Court in R v Burley, [12] given that the
jury were dealing with a prison rape allegation and there was cross-examination
of the complainant to the effect that
he was being held in a high security
section of the prison as a result of his breaches of prison rules. The
circumstances in the
present case were however quite different to that
considered by the Court in Burley. In Burley, the jury had heard
evidence that the complainant was in custody for a sexual offence against a
child and that the appellant in that
case was in custody in the same cellblock
with him. It was in those circumstances that this Court found that there was a
risk that
they may have inferred that the appellant was in custody for similar
offending to the complainant. There was therefore a risk that
the jury may have
impermissibly reasoned that there was a heightened risk of the appellant
sexually offending. That is not the case
here.

[62] The respondent contends that the trial judge gave an adequate warning
about the appellant’s custodial situation and nothing
further was
required.

[63] Unlike in Burley, there was not the potential risk for the jury
impermissibly reasoning that the appellant may also have been a sex offender and
therefore
more likely to have committed the offences against the
complainant. [13] The
cross-examination of the complainant focussed on his drug convictions and that
he was in the security unit where the offending
occurred because he had failed
prison drug tests. It may have been open for the jury to infer that the
appellant had also done something
for which he was being disciplined. However,
that evidence could not on any reasonable view lead a jury to impermissibly
reason
that the appellant was more likely to have committed a sexual offence
against the complainant. There is simply no logical link between
those two
propositions.

[64] Although the appellant’s counsel was careful to submit that,
standing alone, the alleged failure to give an expanded direction
would not give
rise to a miscarriage of justice, it is nevertheless difficult to identify any
need for an expanded direction to be
given in the terms he contended. The jury
had been specifically directed to disregard the fact that the appellant was in
custody
and that they were not to use that fact in any way adverse to the
appellant to make findings in relation to this matter. They were
directed to
put the fact that the appellant was previously imprisoned and in custody at the
time entirely out of their minds. Nothing
further was required.

[65] Having viewed the grounds of appeal individually and found them not to
be established, there is no cause to consider whether
cumulatively they could
have given rise to a miscarriage of justice.

[66] The appeal should be dismissed.

[67] I would propose that the order of the Court should be:

1. Appeal dismissed.

[68] BRADLEY JA: I agree with Brown JA.

[1] (2020) 5 QR 261; [2020] QCA
156.

[2] With whom Morrison JA and
Mullins JA agreed.

[3] [2020] QCA 156; (2020) 5 QR 261 at [44].

[4] MDP v The King [2025]
HCA 24 at [5] – [6].

[5] [2024] QCA 198 at [4] with
whom Flanagan JA agreed.

[6] [2024] QCA 198 at [54].

[7] [2024] QCA 198 at [6] and
[55].

[8] R v Makary [2019] 2 Qd
R 528; [2018] QCA 258 at [60].

[9] (2020) 5 QR 261; [2020] QCA
156 at [44] per Sofronoff P with whom Morrison JA and Mullins JA
agreed.

[10] [2022] QCA 91 at [29] - [30] per Sofronoff P (with whom Morrison JA and Boddice J agreed) following R v
Roisetter [1984] 1 Qd R 477 at 482.

[11] [2025] HCA 24 at [9].

[12] [2022] QCA 251.

[13] Cf [2022] QCA 251 at [31].