- Notable Unreported Decision
SUPREME COURT OF QUEENSLAND
R v Halliday  QCA 279
CA No 300 of 2017
DC No 26 of 2017
Court of Appeal
Appeal against Conviction
District Court at Hervey Bay – Date of Conviction: 15 November 2017 (Robertson DCJ)
19 October 2018
19 March 2018
Philippides and McMurdo JJA and Douglas J
The appeal is dismissed.
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – TEST TO BE APPLIED – where the appellant was convicted of one count of indecent treatment of a child under 12 years under care – where the complainant gave evidence that when she was alone with the appellant playing a computer game and sitting on the appellant’s lap the appellant touched her vagina with his fingers – where the appellant gave evidence that the complainant was on his legs but he did not touch the complainant’s vagina, that he instead put his hands on her legs to reposition her and to stop her from falling off his lap – where the complainant gave specific and detailed evidence of the appellant touching her vagina for a prolonged period – where the complainant gave evidence that she “didn’t know why” the appellant acted as he did and that it “might be an accident” and that maybe he thought he was touching her legs – whether in all the circumstances the verdict of guilty was unreasonable
CRIMINAL LAW – PROCEDURE – MISCELLANEOUS POWERS OF COURTS AND JUDGES – SUMMING UP – where after the jury retired they requested that the complainant’s evidence (given pursuant to s 21AK of the Evidence Act 1977 (Qld)) be replayed – where the trial judge ordered that that evidence together with cross-examination evidence be replayed – whether the trial judge’s failure to direct the jury not to place undue weight on the evidence that was replayed and failure to remind the jury of the defence case evidence resulted in a miscarriage of justice
Criminal Code (Qld), s 668E(1A)
Gately v The Queen (2007) 232 CLR 208;  HCA 55, cited
GAX v The Queen (2017) 91 ALJR 698;  HCA 25, applied
M v The Queen (1994) 181 CLR 487;  HCA 63, applied
MFA v The Queen (2002) 213 CLR 606;  HCA 53, applied
Morris v The Queen (1987) 163 CLR 454;  HCA 50, applied
R v Ali  QCA 191, considered
R v Baden-Clay (2016) 258 CLR 308;  HCA 35, applied
R v DAJ  QCA 40, considered
R v FAE  QCA 69, considered
R v GAO  QCA 54, considered
R v LAK  QCA 30, considered
R v M’Bie  QCA 40, applied
R v MCC  QCA 253, considered
R v SCG (2014) 241 A Crim R 508;  QCA 118, considered
SKA v The Queen (2011) 243 CLR 400;  HCA 13, applied
N W Weston for the appellant
J A Wooldridge for the respondent
Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent
The appellant was convicted after a trial of one offence of indecent treatment of a child under 12 years under care.
The appellant appeals against his conviction on the grounds that:
- The trial judge’s failure to direct the jury not to place undue weight on the evidence of the complainant that was replayed to them and to remind them of the defence case resulted in a miscarriage of justice.
- The verdict was unreasonable.
The complainant child, born on 21 September 2008, is the daughter of then family friends of the appellant. The prosecution case was that, on 8 July 2016 when the appellant was alone with the complainant at the appellant’s house, the appellant put his hand between the complainant’s legs while she sat on his lap and rubbed the side of her genitals over her leggings. The complainant was aged seven at the time. The complainant provided a recorded statement to police on 9 July 2016, the day following the alleged incident and gave further evidence at a hearing pursuant to s 21AK of the Evidence Act 1974 (Qld) on 9 August 2017, at which time she was eight years of age.
At trial, the Crown also called evidence from the complainant’s older brother, her mother, her father and police. The appellant also gave evidence.
The complainant’s evidence
On 8 July 2016, she and her siblings were having a playdate at the appellant’s home. The complainant’s mother was friends with the appellant’s wife. The complainant’s mother had left the complainant and the other children at the house and went to collect the complainant’s father from work. The appellant’s wife had also left the house at the same time to go to the doctors.
At some stage, the appellant was alone with the complainant and they played a computer game called Minecraft, which the appellant showed the complainant how to play. The appellant and the complainant both operated the computer controls.
In her interview with police, the complainant made the following disclosures. The complainant said that the day before a man (to whom she referred to as Greg, being the appellant), “touched my private”. She “was playing Minecraft on his computer and [she] was sitting on his lap” on a small black chair that spins around. The appellant “started wiggling his fingers on it [her private]”. After making that disclosure at the beginning of the interview, the complainant told police that she “didn’t know why” the appellant did it and “it might have been an accident”, and that “[m]aybe he thought it was my legs or somethink”. The complainant then proceeded to describe how the appellant touched her vagina, saying he “kept touching it for the whole game” which was, she thought, for about 20 minutes. The touching was on the sides and not the middle of her private, which the complainant also referred to as her “gina”. She said she saw his hands as well as felt them. The appellant used both bare hands when touching her, and used the middle of his fingers. She described it as feeling “a bit weird” and “a weird kind of sore…like a pin was going in it”. The complainant came to be sitting on the appellant’s lap because he had told her to do so. She had her clothes on at the time. Initially, the complainant could not recall what she was wearing, but then indicated she had been wearing white and black striped leggings.
After the incident in the playroom, the complainant went out and played the game on the big TV. When her mother returned, she went out to the car and played on the iPad while waiting for her mother to finish talking.
During her evidence on 9 August 2017, the complainant identified in photographs aspects of the playroom that she referred to when speaking to police, including the chair, the computer and a picture of the appellant’s children. During cross examination, the complainant denied that when the appellant went to show her how to use Minecraft in the other room that he had also asked her younger brother to come in.
Initially, the complainant stated that she was sitting on his lap while they waited for the game to load. The complainant guessed this took about five minutes. However, she later accepted that initially she was standing beside the appellant, between him and the computer, when the game loaded. When she sat on his lap, it was on both of his legs. She was sitting closer to his knees than back in his lap, to be closer to the computer as they were both using their hands on the controls at the same time until the complainant took over the controls and that she never sat “right back in to his lap or his hip”.
The complainant agreed to the proposition put to her that the appellant “grabbed [her] legs and kind of repositioned [her] on his legs so that [she] didn’t slip off” and accepted that the appellant grabbed her around the thigh while he was showing her how to use the controls. The complainant agreed that the appellant was putting his hands on her legs to make sure he was stable and that she seemed to slide off and had to use his hands to reposition her and while the appellant was holding her in position to stop her from sliding off that he might have touched her in the groin area.
In re-examination, the complainant was asked if the touching occurred over seconds or minutes, she replied “probably minutes”.
Other evidence adduced in the Crown case
The complainant’s brother made a s 93A statement in which he confirmed that the complainant was with the appellant, who was on his computer, while the others were playing elsewhere, and that his mother and the appellant’s wife had left. In cross examination, he also confirmed that he felt that the complainant was gone for about half an hour. He also denied that her younger brother went with the complainant when she went into the room with the appellant. He also recalled the complainant was wearing black and white striped leggings.
Her brother said that during the trip home in the car the complainant said “the man in the house touched my vagina” and that it might have been an accident and he may have just tried to touch her leg. However, the brother clarified when asked exactly what the complainant said that he could only remember the first bit – that he had touched her “gina”. He accepted in cross examination that he may have been confused and the conversation could have occurred sometime other than in the car on the way home. He also gave evidence of having overheard the complainant speaking to their parents about what occurred and using the word “accident”.
The complainant’s mother gave evidence that the appellant was left to babysit all the children while she went to collect her husband from work. After she collected her husband, they went and had a coffee for about 45 minutes before returning to the appellant’s home at around 5.30 pm.
The complainant’s father gave evidence that on the evening of 8 July 2016, while the complainant and her younger brother were in the bath, he overheard the complainant tell her brother something similar to “That man at the house hurt my gina”. He asked the complainant what she had said and the complainant replied that the man at the house had hurt her “gina”. Later, he had a discussion with the complainant, asking her to tell him exactly what had happened and that it was very important to have the right information. The complainant demonstrated how she was seated on the man’s lap and that the appellant had put his hand around her and was rubbing her on her “gina”. She said it happened while they were playing Minecraft, and the touching went for the length of the game. Later, after the complainant had also spoken to her mother, he asked the complainant to demonstrate by rubbing on his hand how long the touching on her vagina was for. He estimated that she rubbed his hand for between 40 seconds to one minute. She described the touching as being over the clothing. In cross examination, he denied recalling the complainant having ever said to him that what occurred may have been an accident.
The complainant’s mother gave evidence that after they drove home she was out of the house at dog training and did not return until 7.40 pm. Sometime after that she had a conversation with her husband and the complainant during which the complainant told her that “that man” had touched her “gina”. The complainant described how she was sitting and that the touching was over the clothing. She questioned the complainant as to where she was touched and the complainant demonstrated it was on either side of the clitoris and that this was done with an amount of pressure and described the manner of touching as being “like scraping”. A diagram was tendered where the complainant’s mother drew the area demonstrated by the complainant as being where she was touched. She stated that she asked the complainant how long it went on for, and the complainant was unsure. She stated that the complainant was not good at differentiating time. The complainant described the soreness that she felt as being like a bruise. The complainant’s mother observed that the complainant’s vagina was a little red and put Vaseline on it. The complainant’s father also gave evidence of being present during this conversation between the complainant and her mother.
The appellant’s evidence
The appellant gave evidence that he had invited both the complainant and her younger brother into his room to play Minecraft on the computer. The complainant stood in front of him momentarily, which made it hard for him to see. She then sat on his knees. He could not recall if he assisted her on to his knees. She was sitting on the end of his knees with one leg either side. He had to reposition her at one stage when she slid or was falling off his legs. The only time he put his hands on her legs was to reposition her, and that was “just momentarily”. In evidence in chief he said that the contact was with the top of her legs to stop her falling off. In cross examination he said that he “lifted her back” at which time he believed he would have made contact with the side of her legs, before again referring to touching the top of her legs. He did not recall any intentional contact with or in proximity to her groin or vagina area. He realised her younger brother was not in the room and left to look for him. He then returned to the playroom and invited the complainant to come out to play with the other children.
In cross examination, he accepted that as the playroom was set up, if anyone walked into the room and he was sitting at the desk, they would see his back and not his hands. He was not sure how long the two of them were in the playroom, but thought it unlikely that it was as long as 20 minutes. He did not accept that there was a time when the complainant was operating the controls on her own without his assistance before he left the room. When asked if his hands came within “any proximity” to the complainant’s groin, he replied, “I don’t believe so”.
Grounds of appeal
Was the verdict unreasonable?
The appellant’s submissions
On behalf of the appellant, it was contended that the conviction was unreasonable and could not be supported by the evidence having regard to the following:
“a) The complainant child, during an interview with investigating police, stated that the event of the [appellant] touching her private part might have been accidental;
b) The complainant child later testified that she was of the opinion that the event of the [appellant] touching her groin area was accidental;
c) The [appellant] testified consistently with the complainant’s evidence, that an event occurred which was consistent with his accidental touching of the complainant; and
d) The evidence of the complainant child was otherwise uncorroborated.”
In support of that ground, it was argued that the complainant’s evidence was confused and at best unclear, that, under cross examination, the complainant conceded that she did not sit on the appellant’s lap, but rather only on his leg and the act of touching took place when the complainant started to slide off of his leg. The complainant accepted that this appeared to be done for the purpose of stabilising and repositioning her. Her initial perception of the incident was that it may have been an accident and she repeated this perception to the interviewing police officer. It was submitted that such a conclusion was consistent with the scenario revealed under cross examination. Further, the complainant’s initial evidence that the touching lasted while the game was played was directly inconsistent with the evidence given by her father that the complainant indicated that the touching lasted between 40 seconds and a minute. In addition, the appellant gave evidence denying the offence and was unshaken in cross examination.
Even accounting for whatever advantage the jury may have had in assessing the witnesses, the evidence is unsatisfactory and contradictory. While perhaps some allowance could be made for the age of the complainant, at its highest the evidence was that the complainant was touched by the appellant when she was sliding off his leg and such touching was of a very short duration. Anything said by the complainant in her evidence in chief to suggest an intentional touching of the genitals must be doubted in the light of her concessions under cross examination. Rather the complainant’s evidence suggested an element of reconstruction and a changing account.
The ground of appeal against conviction agitated before this Court is to be regarded as a contention pursuant to s 668E of the Criminal Code (Qld) that the verdict of guilty of count 2 was unreasonable and cannot be supported by the evidence.
The approach of an appellate court where such a ground is raised may be summarised having regard to the High Court authorities as follows:
- The question which an appellate court must ask itself is whether it considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the defendant was guilty: M v The Queen and MFA v The Queen.
- Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. The boundaries of reasonableness within which the jury’s function is to be performed should not be narrowed in a hard and fast way R v Baden‑Clay.
- In most cases, a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. In such a case of doubt, it is only where a jury’s advantage in seeing and hearing the evidence can explain the difference in conclusion as to guilt that the appellate court may conclude that no miscarriage of justice occurred: MFA v The Queen.
- If the evidence contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence: M v The Queen and MFA v The Queen.
- The ultimate question for the appellate court must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: R v Baden‑Clay. In determining that question, this Court must undertake its own independent assessment of the evidence, both as to its sufficiency and quality: Morris v The Queen and SKA v The Queen. In doing so, the Court must disclose the manner of that assessment: GAX v The Queen.
It may immediately be said that the fact that a complainant’s account is not corroborated, as a matter relied upon by the appellant, is not a basis for concluding that it was not open to the jury to convict the appellant. Further, in the circumstances of this case, the evidence of the complainant’s brother and the appellant himself provided support for aspects of the complainant’s account. She had been in the playroom with the appellant, on the afternoon in question, with no one else present, playing Minecraft on the computer with the appellant. The appellant was seated on the chair and she was seated at the end of his lap. The issues for the jury were limited to where on her body the complainant was touched by the appellant, and if such touching were intentional. The appellant’s principal contention was, in effect, that the evidence of the complainant and the appellant was consistent with any touching that did occur being accidental.
The evidence of both the complainant and the appellant was to the effect that the complainant was seated straddled across the appellant’s legs, while the appellant was also seated. In those circumstances, it was submitted that the jury were entitled to discount the suggestion that the complainant conceded that she did not sit on the appellant’s lap but rather only on his leg. The complainant did accept in cross examination that there was a time when she was slipping off the appellant’s legs and he had repositioned her so that she did not fall off. She described him as at that time touching her “probably about in the middle” of her legs, “around the thigh area”. She also responded in the affirmative to the proposition that “it was while he was holding you in position and trying to stop you from slipping that you think he might have touched you – around your groin area, is that right?” However, as the respondent submitted, those questions alone did not serve to demonstrate that a touching of her vagina, as the complainant otherwise recounted, did not occur. The jury were entitled to consider the evidence in the context of the complainant’s evidence as a whole, including her statement to the police.
The appellant’s evidence was that he did not recall any intentional contact with or in proximity to the complainant’s groin area and that he only touched her “just momentarily” which at different times in his evidence he described as being to the top or to the side of the complainant’s legs. The jury was entitled to reject the evidence of the appellant as lacking credibility having regard to such matters as his description of how he repositioned the complainant on his legs, and his assertions that he brought her younger brother into the room also (contrary to other evidence) and had the complainant on his lap and only realised after sometime that her younger brother was not in fact in the room.
The appellant placed emphasis on the evidence that the complainant did tell police that she did not know why the appellant touched her and said, “it might have been an accident”, and may be the appellant had thought it was “her legs or somethink”. However, as the respondent argued, the complainant’s statement to police was otherwise clear that the appellant touched her on her “gina”, that it was to the sides rather than the middle, that he used both hands when doing so, that she saw as well as felt his hands touching her, that the touching went for a period of time, and as to how it felt when he touched her there. The details provided to her mother and father as to where she was touched and how she was touched supported the credibility of the complainant’s account.
It was open to the jury to consider the complainant’s account of the touching of her vagina as reported to the police or her parents was not consistent with a brief and inadvertent touching of her genital area. The details which the complainant provided to police were, as the respondent argued, ample for the jury to conclude for themselves that the touching to the complainant’s genitalia was not inadvertent. It was also open to the jury to consider that the complainant’s conjecture that “maybe” the appellant “thought it was my legs or somethink” he was touching was an attempt to rationalise the appellant’s behaviour and speculating, from a child’s perspective, as to the reason for the appellant’s conduct. The same observations can be made as concerns the complainant’s acceptance during her pre-recorded cross examination evidence that she had “first” thought it may have been an accident. The jury were entitled to distinguish between the evidence of the complainant’s initial impression that “maybe” the touching by the appellant of her vagina was accidental made early in her police interview and her specific, detailed and consistent evidence as to the actual nature of that touching. They were thus entitled to reject that the touching was accidental, as the complainant initially supposed (as reflective of her age and innocence) but accept her account of the touching of her vagina as prolonged, involving his bare hand and the use of his middle finger causing her discomfort and pain. The jury’s rejection of the child’s initial supposition as to whether the touching was intentional, while accepting the description of what was recounted, was a matter well within the province of the jury. It is not for this Court to substitute its own view for that of the jury.
On the basis of my own assessment of the quality and sufficiency of the evidence as analysed above, it was entirely open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt. In the circumstances, the appellant failed to demonstrate that the verdict of guilty was unreasonable. Accordingly, the ground of appeal is not established.
Failure to direct the jury as to the replayed evidence of the complainant
The appellant contended that the trial judge erred when, after the jury were played recordings of the complainant’s interviews and evidence for a second time, his Honour omitted to direct the jury that undue weight should not be placed on the replayed evidence and to remind the jury of the defence case.
The evidence in the trial concluded early on the second day with counsels’ addresses and the trial judge’s summing up being completed late that day. Soon after retiring, the jury indicated that they would like to hear the evidence of the complainant replayed. After discussion with counsel, the trial judge determined it appropriate to also play the complainant’s evidence of 9 July 2016, and so that there was some continuity between the playing of the two, the jury were sent home for the day and the recordings played the following morning. His Honour had also indicated that he would remind the jury of the appellant’s evidence.
Playing of the tapes of the complainant’s evidence commenced at 9.33 am the following morning. The pre-recorded evidence took about 50 minutes to replay. At 10.55 am, the jury again retired to consider their verdict. His Honour did not caution the jury against giving undue emphasis to the replayed evidence, nor were the jury reminded of any of the defence arguments or evidence. Nor did counsel for the appellant seek any such direction. No redirections were sought at any stage by counsel for the appellant. At 2.19 pm, the jury sent a note indicating that they were having difficulty reaching a verdict. After discussing the matter with counsel, his Honour gave an appropriate direction to assist the jury. Further directions were given in an attempt to assist the jury, before they again retired at 2.28 pm. The jury returned a verdict of guilty at 3.33 pm.
The appellant’s submissions
The appellant submitted that the need for fairness and balance in formulating appropriate directions to overcome the real risk that the jury may place undue weight upon replayed evidence has been reaffirmed by the Court of Appeal, particularly in a case such as the present matter where the evidence is “word versus word”. In making that submission, reference was made to R v MCC, where it was held by Margaret McMurdo P (the other members of the Court agreeing) that when a child complainant’s evidence is replayed during the jury’s deliberations “there is almost always a real risk that the jury might give the evidence greater weight because the jury have seen and heard it for a second time, without fully considering the defence submission about it”. Reliance was also placed on the following passage of Gotterson JA (the other members of the Court agreeing) in R v Ali:
“It is well settled that, depending upon the circumstances, where the evidence of a complainant is replayed to a jury, fairness may require a direction in order to balance the risk that the jurors may place undue weight upon it by virtue of having seen and heard the evidence twice.”
The appellant submitted that the interests of fairness and balance in the present case required at the very least that the jury should have been warned against giving undue weight to the replayed evidence of the complainant. It was submitted that the jury “would be naturally sympathetic to a very young child giving evidence about an alleged sexual assault”. Apart from the preliminary complaint evidence (which can only be used to assess the credibility of the complainant), the prosecution case consisted entirely of the complainant’s evidence. At the time of replaying the evidence, a day had elapsed since the appellant had testified and defence counsel had addressed the jury. It was argued that, while it was accepted that the jury would have seen the cross examination of the complainant, they did not have the benefit of being reminded of all aspects of the defence case, particularly the importance of the concessions made by the complainant about sitting on the appellant’s leg and only being touched when she slid off his leg. It was submitted that those matters were said to conform with the appellant’s evidence and should have been brought to the jury’s attention.
Given that the key question was whether the complainant’s evidence could be accepted beyond a reasonable doubt, the failure to properly balance the replayed evidence by warning the jury and reminding them of the defence case caused a miscarriage of justice. It was submitted that the failure to balance the replayed evidence must lead to the appeal being allowed.
There was no dispute that the trial judge did not give any additional directions to the jury at the time of the complainant’s evidence being replayed, of the nature the appellant contends should have been given.
The dicta in MCC relied upon by the appellant that there is “almost always a real risk” of a jury giving greater weight to the evidence of the complainant that is replayed should be considered in the light of the discussion of R v SCG and R v FAE. They were both cases in which this Court found that a miscarriage of justice had been occasioned where the trial judge did not give any direction to the jury that they should not give the replayed evidence of the complainant undue weight by virtue of its repetition, nor repeat or summarise to the jury any of the evidence given or called by the appellant. The decision of Ali, and the decisions of R v GAO and R v DAJ, referred to in SCG, were cases where the jury were only given or replayed the complainant’s statement to police and not the complainant’s further evidence in court, including, relevantly, the cross examination of the complainant. In the instant case, the jury were played both the complainant’s original statement to police and her pre-recorded evidence, including her cross examination in full.
“The authorities establish that where all or part of the complainant’s evidence is replayed to the jury after they have retired, it is desirable that the jury be warned not to give undue weight to that evidence and, where applicable, to remind the jury of evidence called by the defendant. The giving of such a direction is not, however, an immutable standard. As was emphasised in Gately, whether such a direction is necessary depends on the circumstances of the particular case. The overriding consideration is whether fairness and balance gives rise to the need to guard against the risk that undue weight might be given to a complainant’s evidence where it is played a second time without a warning, or where no reminder is given to the jury about the competing evidence or considerations relied on by the defence.
Ensuring fairness and balance may give rise to particular difficulties in emotive sexual cases which are particularly likely to arouse feelings of prejudice in the jury. Factors that will be relevant include those identified in SCG, namely, the time that has elapsed after completion of the defence evidence; the time that has elapsed since the conclusion of the summing up; the character of the complainant’s evidence, including the manner in which it is given; the course of the trial, in particular the stage of deliberations that the jury has reached; and the length of time that the relevant evidence occupies.”
In assessing the risk that the jury in the present case placed undue weight on the evidence of the complainant, by virtue of its repetition, such that there was a lack of fairness and balance in the evidence as presented to the jury, it is relevant to consider that the trial was of short duration. The jury heard the evidence of the complainant on day 1. Thereafter on day 2, they heard the evidence of the appellant, the addresses of counsel and the summing up of the trial judge which reminded the jury of the competing contentions of counsel. The jury’s request to watch the complainant’s evidence followed quickly upon their commencing deliberations. As it was close to the end of the day, the jury were sent home for the day. On day 3, the replaying of the complainant’s evidence, as the respondent pointed out, took in total 82 minutes. That concluded some 24 hours after the jury had heard the appellant’s evidence.
The jury were considering only the one charge. The issue was not whether touching had occurred but the nature of the touching. As to that matter, the appellant’s version was clear and, given how recently the appellant had given his evidence, it was unlikely to have been forgotten by the jury. The jury, of course, was also re-appraised of the defence case by the replaying of the evidence in its entirety which thus included matters put to the complainant in cross examination.
The jury were given the standard directions as to the manner in which the evidence of the complainant came before them, and to treat it no differently from evidence given by other witnesses who gave evidence in the courtroom.
Counsel for the appellant at trial did not seek further directions of the nature the appellant’s counsel now contends were required. There may have been forensic reasons for not requesting that the jury be reminded of the evidence of the appellant (even if thought necessary, in light of the jury also hearing the cross examination of the complainant). There is force in the respondent’s contention that, forensically, it may have been thought preferable for the jury to focus on the concessions that the appellant’s counsel suggested to the jury it would conclude the complainant had made in cross examination, rather than the evidence given by the appellant which, on one view (and it may be thought the view reached by the jury), was unsatisfactory in a number of aspects.
The appellant has not demonstrated fairness required a direction to be given as contended by the appellant in order to balance the risk that the jurors may place undue weight upon it by virtue of having seen and heard the evidence twice. This ground of appeal also fails.
The order I would propose is that the appeal be dismissed.
McMURDO JA: In my conclusion the jury’s verdict was unreasonable. It was not open to the jury to be satisfied that any touching of the complainant’s vagina (outside of her clothing) was not accidental.
During the cross-examination, the complainant gave this evidence:
“Do you agree that it seemed to you that he was just putting his hands on your legs to make sure that you were stable on his legs?---Yeah.
And that at one time, you agree that you seemed to slide off, and he had to use his hands to put you – reposition you?---Yeah.
Or hold you in place. And you agree with that?---Yeah.
And it was while he was holding you in position and trying to stop you from slipping that you think he might have touched the – around your groin area; is that right?---Yes.
[Y]our impression seemed to be that he might’ve touched around your groin area by accident?---Yes.
All right. But – and that was what you first thought, wasn’t it?---Yeah.”
The cross-examination then proceeded to demonstrate that the complainant knew the meaning of the words “accident” and “accidental”. There was this evidence:
“[W]hen I used the term accidental, do you have any idea of what accident is?---Yes, I do.
Right. If I said to you an accident is something that – someone does something but they don’t mean to do it, it just happens when – it just happens by accident, they didn’t mean it and it happened, something like that; is that right?---Yes.
All right. Like, they weren’t trying to do it and that’s an accident?---Yeah.
This was not the first time in which the complainant had said that the touching could have been accidental. As she said in cross-examination, on the evening of the incident, she had told each of her brother, her mother and her father that it might have been accidental. Her brother’s evidence in his s 93A statement was that the complainant had said that it might have been an accident. She also said the same to the police the next day, as was recorded in the s 93A statement. Therefore, her evidence in cross-examination could not be explained on the basis of her being overborne by leading questions. It was a repetition of what she had said to others on the day of, or the day after, the events. At no time had she said otherwise.
The jury was asked to find, beyond reasonable doubt, that the touching was not accidental upon the basis of other parts of her evidence, in particular her description of where she was touched and how long it continued. In effect, they were asked to convict the appellant by accepting part of her evidence and rejecting another part of it.
In general, of course, a jury may accept part but not all of the evidence of a witness. But in this case, there was no basis to reject the complainant’s impression that this could have been accidental. Of course, allowance had to be made for the fact that the complainant was a child with possibly no understanding of sexual behaviour. Nevertheless, her evidence demonstrated that she understood the difference between a deliberate and an accidental touching and she was able to assess, by what had happened to her, whether it must have been deliberate. If the event, as she had experienced it, had left her in doubt about whether the touching was deliberate, it was not open to the jury to conclude otherwise.
The prosecutor argued to the jury that they could also use the appellant’s evidence to find that the touching was not accidental. But his evidence was not inconsistent with that possibility. He said that he touched her legs, but his evidence allowed for the possibility that he touched her “groin or vaginal area” or inner thighs. This evidence did not assist in the proof of deliberate touching.
Therefore I have concluded that it was not open to the jury to conclude, beyond reasonable doubt, that the appellant was guilty of the offence. I would allow the appeal, set aside the conviction and order that the appellant be acquitted of the charge.
It is unnecessary then for me to discuss the other ground of appeal.
DOUGLAS J: I agree with the reasons of Philippides JA and the proposed order. Because my colleagues have disagreed about whether the conviction should be set aside as unreasonable, I wish to say something further about that topic consistent with what I have said previously in similar circumstances.
The primacy of the jury’s verdict in cases of this nature is described by the High Court in MFA v The Queen as follows:
“Where it is argued that the verdict of a jury is unreasonable, or cannot be supported, having regard to the evidence, the test to be applied is that stated by Mason CJ, Deane, Dawson and Toohey JJ in their joint judgment in M v The Queen. That test was accepted and applied by this Court in Jones v The Queen. In M, it was pointed out that it was once common for expressions such as ‘unsafe or unsatisfactory’, or ‘unjust or unsafe’, or ‘dangerous or unsafe to be used in place of the language of s 6(1) of the Criminal Appeal Act, and corresponding statutes in other jurisdictions, and that such expressions might cover different parts of the statutory provision, referring, for example, either to a verdict that is unreasonable, or cannot be supported, having regard to the evidence, or to a miscarriage of justice because an accused has not had a fair trial according to law. Speaking of cases where what is in question is whether a verdict is unreasonable, or cannot be supported having regard to the evidence, the joint judgment said:
‘Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.’”
Other statements of principle were also gathered in SKA v The Queen in these terms:
“ The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:
‘In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.’
 In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make ‘an independent assessment of the evidence, both as to its sufficiency and its quality’. In M, Mason CJ, Deane, Dawson and Toohey JJ stated:
‘In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’.”
Similarly, in R v Baden-Clay, the court said:
“ It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is ‘the constitutional tribunal for deciding issues of fact’. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury’s function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.
 With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court ‘must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’.”
In my view the sufficiency of the evidence to establish this charge is not in doubt. The complainant’s evidence that the appellant touched her vagina in the manner she alleged is enough to satisfy a jury, if they accepted the evidence, that the elements of the offence had been committed.
There were significant aspects of the quality of the prosecution evidence that were concerning. They have been summarised by McMurdo JA, particularly in respect of the evidence that the touching may have been accidental. These issues were addressed by the learned trial judge in his summing-up. They were typically issues which the jurors were required to assess in reaching a view about the adequacy and reliability of the evidence.
The jurors also had the benefit of having heard the complainant’s and the appellant’s evidence and had the chance to assess their credit as witnesses. We have not shared that advantage, particularly in the case of the appellant’s evidence. That is a real advantage in a case of this nature.
The appellant gave evidence that he “had no recall of any intentional contact” with the complainant’s “groin or vaginal area”, did not believe his hands came within the proximity of her groin and also said he was unaware of any accidental contact with her groin. If the jury rejected that evidence as implausible on their assessment of the complainant’s and the appellant’s evidence it was open to them to have relied on the complainant’s evidence that she had been deliberately touched. I have concluded, therefore that this is one of those cases where the jury’s advantage in seeing and hearing the evidence is capable of resolving the doubts about the quality of the prosecution evidence.
 AB at 214-215.
 AB at 215.
 AB at 217.
 AB at 213.7.
 AB at 213.11-12.
 AB at 218.49-50.
 AB at 213.18.
 AB at 213.22-23. (Emphasis added).
 AB at 213.36-37.
 AB at 220.12.
 AB at 220.18.
 AB at 222.
 AB at 221.8-22.
 AB at 221.5-42.
 AB at 219.01.
 AB at 220.12-13.
 AB at 215.24; 221.58.
 AB at 222.9-18.
 AB at 223.
 AB at 224.11.
 AB at 224.5-8.
 AB at 16.30.
 AB at 18.27.
 AB at 18.38-19.7 20.43-44.
 AB at 20.46-47.
 AB at 21.11-19.
 AB at 20.15-18.
 AB at 21.16.
 AB at 21.39-40.
 AB at 21.46-22.17.
 AB at 24.6-16.
 AB at 25.30-33; 28.39.
 AB at 23.25-26.
 AB at 311.35.
 AB at 233.
 AB at 36.17.
 AB at 35.21-23.
 AB at 239.4-5.
 AB at 238.14.
 AB at 36.41-46.
 AB at 37.37.
 AB at 68.
 AB at 85.
 AB at 86-87.
 AB at 88.19.
 AB at 93.38.
 AB at 71.
 AB at 71-73.
 Exhibit 7 reproduced at AB at 205.
 AB at 73.43-44.
 AB at 74.2.
 AB at 82.
 AB at 89-90; 94-95.
 AB at 108; 115.4.
 AB at 109.46; 111.40.
 AB at 111.18-19.
 AB at 112.1-9.
 AB at 113.17.
 AB at 118.31; 121.25.
 AB at 113.20; 118.28.
 AB at 112; 118.
 AB at 116.24.
 AB at 120.26.
 AB at 118.
 AB 87.40-45.
 (1994) 181 CLR 487 at 493.
 (2002) 213 CLR 606 at 615.
 (2016) 258 CLR 308 at - per French CJ, Kiefel, Bell, Keane and Gordon JJ. See also M v The Queen (1994) 181 CLR 487; MFA (2002) 213 CLR 606.
 (2002) 213 CLR 606 at 623.
 (1994) 181 CLR 487 at 494-495.
 (2002) 213 CLR 606 at 623.
 (2016) 258 CLR 308 at - per French CJ, Kiefel, Bell, Keane and Gordon JJ. See also M v The Queen (1994) 181 CLR 487; MFA (2002) 213 CLR 606.
 (1987) 163 CLR 454 at 473.
 (2011) 243 CLR 400 at 406.
 (2017) 91 ALJR 698 at .
 AB at 117-119; 12; 20-24.
 AB at 118.28-119.9.
 AB at 213.
 AB at 220-221.
 AB at 71; 86-88.
 AB at 25.35.
 AB at 181.31.
 AB at 182-183; 191.
 AB at 194-196.
 AB at 198.
  QCA 253 at .
  QCA 191 at .
  QCA 118.
  QCA 69.
  QCA 54.
  QCA 40.
  QCA 30.
  QCA 118.
  QCA 69.
  QCA 30 at -.
 FAE at ; SCG at -.
 SCG at  per Morrison JA (with whom the other members of the Court agreed).
 Gately v The Queen (2007) 232 CLR 208 at .
 SCG at . See Gately at .
 GAO at .
 AB at 181.39. The complainant’s statement to police was 27 minutes in length while her pre-recorded evidence was 55 minutes in length.
 AB at 193; 123.
 AB at 46.37- 47.37; 172.22.
 AB 113/20 – 25.
 AB 110/5 – 7.
 The following comments mirror the approach I adopted in the Court of Appeal in R v M’Bie  QCA 40 at -. Gotterson JA and Philippides JA agreed at  and .
 (2002) 213 CLR 606, 614-615 at  (footnotes omitted).
 (2011) 243 CLR 400, 405-406 at - (footnotes omitted).
 (2016) 258 CLR 308, 329-330 at -;  HCA 35 at - (footnotes omitted).
 See AB 220-221 in particular.
 AB 176/24-AB177/30; AB 178/26-AB179/34.
 AB 113/20-22.
 AB 118/28-29.
 AB 123/24-25.
- Published Case Name:
R v Halliday
- Shortened Case Name:
R v Halliday
 QCA 279
Philippides JA, McMurdo JA, Douglas J
19 Oct 2018
- White Star Case:
No Litigation History