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Queensland Judgments
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  • Unreported Judgment

R v MDH

 

[2020] QCA 175

SUPREME COURT OF QUEENSLAND

CITATION:

R v MDH [2020] QCA 175

PARTIES:

R
v
MDH
(appellant)

FILE NO/S:

CA No of 151 of 2018
DC No 38 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich – Date of Conviction: 18 June 2018 (Horneman-Wren SC DCJ)

DELIVERED ON:

25 August 2020

DELIVERED AT:

Brisbane

HEARING DATE:

14 May 2019

JUDGES:

Fraser  and Morrison JJA and Davis J

ORDERS:

  1. The appeal be allowed.
  2. The convictions be set aside.
  3. Verdicts of acquittal be entered on counts 1, 2, 7, 8, 9 and 10.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where the appellant was convicted of two counts of indecent dealing with a child under the age of 16 and four counts of indecent dealing with a child under the age of 16 with a circumstance of aggravation (counts 1, 2, 7, 8, 9, 10) – where the appellant was acquitted of one count of indecently dealing with a child under the age of 16 years, two counts of indecently dealing with a child under 16 years with a circumstance of aggravation, and two counts of rape (counts 3, 4, 5, 6, 11) – where the appellant appeals his convictions on the ground that the jury’s verdict of guilty was unreasonable and unable to be supported on the evidence – where all counts relate to the same complainant – where the complainant was the appellant’s niece – where the complainant’s account of the sexual offences was uncorroborated and denied in evidence given by the appellant – where there was evidence which contradicted the complainant’s account of the counts on which the appellant was acquitted – whether, upon a consideration of the whole of the case, the complainant’s credibility or reliability was so damaged that it was not open to the jury to accept her evidence and convict on the counts which they did – whether the jury ought to have entertained a reasonable doubt as to the appellant’s guilt – whether the verdict of the jury on counts 1, 2, 7, 8, 9, and 10 was reasonably open on the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was convicted of two counts of indecent dealing with a child under the age of 16 and four counts of indecent dealing with a child under the age of 16 with a circumstance of aggravation (counts 1, 2, 7, 8, 9, 10) – where the appellant was acquitted of one count of indecently dealing with a child under the age of 16 years, two counts of indecently dealing with a child under 16 years with a circumstance of aggravation, and two counts of rape (counts 3, 4, 5, 6, 11) – where the appellant appeals his convictions on the ground that the jury’s verdict of guilty was unreasonable given the inconsistency of the verdicts – where all counts relate to the same complainant – where the complainant was the appellant’s niece – where the evidence suggests that the most likely explanation for the not guilty verdicts is that the jury harboured a reasonable doubt about the accuracy of the complainant’s evidence on those counts – whether the inconsistent verdicts demonstrate that the convictions were unreasonable and should be set aside

Criminal Code (Qld), s 210, s 349, s 644, s 668E
Evidence Act 1977 (Qld), s 21AK , s 93A

Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51, cited
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, cited
Hargraves v The Queen (2011) 245 CLR 257; [2011] HCA 44, cited
Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56, cited
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, cited
Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, cited
M v the Queen (1994) 181 CLR 487; [1994] HCA 63, applied
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited
MFA v the Queen (2002) 213 CLR 606; [2002] HCA 53, cited
Norris v The Queen (2007) 176 A Crim R 42; [2007] NSWCCA 235, followed
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, considered
R v CAH (2008) 186 A Crim R 288; [2008] QCA 333, cited
R v CX [2006] QCA 409, cited
R v D [2000] QCA 417, cited
R v GAN [2012] QCA 50, cited
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, cited
R v Mogg (2000) 112 A Crim R 417; [2000] QCA 244, cited
R v R (1989) 18 NSWLR 74, cited
R v Spencer [1987] AC 128; [1987] UKHL 2, cited
R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151, considered
Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, cited
RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, considered
Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28, cited

COUNSEL:

L D Reece for the appellant
D Balic for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    FRASER JA:  I have had the advantage of reading in draft the reasons of Morrison JA and Davis J.
  2. [2]
    The real question in the appeal is whether the guilty verdicts are unreasonable when regard is had to the whole of the record of the trial, including the verdicts of not guilty of five of the eleven charged offences.  I respectfully agree with Davis J’s conclusion that the verdicts must be set aside upon this ground.  His Honour’s detailed exposition and extensive analysis of the relevant evidence enables me to succinctly state the main features of the case, the combination of which has led me to that conclusion.
  3. [3]
    First, the complainant’s account of the eleven sexual offences alleged to have been committed by the appellant on seven separate occasions was uncorroborated and denied in detail in evidence given by the appellant which was not implausible on its face.
  4. [4]
    Secondly, in cross examination there was no real challenge to the detail of the appellant’s evidence or other evidence that was consistent with his evidence.
  5. [5]
    Thirdly, the only material respect in which the complainant’s evidence was arguably corroborated[1] concerned only the question whether the appellant had the opportunity to commit one of the offences; Mrs GPL’s evidence relating to that point was not consistent with the complainant’s evidence of his recollection;[2] and to the extent that Mrs GPL’s evidence, when considered in the context of the other evidence to which Morrison JA refers, might be regarded as contradicting the evidence of the appellant, that does not justify a conclusion that his evidence upon that point was other than honest, even if mistaken.[3]
  6. [6]
    Fourthly, for the reasons given by Davis J[4] the evidence suggests that the most likely explanation for the not guilty verdicts is that the jury harboured a reasonable doubt about the accuracy of the complainant’s evidence upon those counts.
  7. [7]
    Having regard particularly to those features of this trial I am driven to the conclusion that, despite the jury’s advantage in assessing the evidence at the trial and the primacy of its role in that respect, the guilty verdicts were not reasonably open.
  8. [8]
    In all other respects, I agree with the reasons of Davis J and I agree with the orders proposed by his Honour.
  9. [9]
    MORRISON JA:  I have had the advantage of reading the draft reasons of Davis J.  His Honour’s extensive recitation of the evidence, and synopsis of the relevant legal principles, permits me to express my own reasons in respect of the issues in a relatively truncated way, though it is the case that I have reviewed the whole of the evidence before coming to those conclusions.
  10. [10]
    The defence case at the trial was not that because of the lapse of time or the age of the complainant, the complainant should be considered an unreliable witness.  Any such suggestion was raised only fleetingly.  To the contrary, the defence case as opened was that the complainant was a liar about whose truthfulness the jury should be gravely concerned, because the events did not happen.  In address that approach was reinforced with the jury being urged that the complainant should be “considered a contradiction of the truth”[5] because: “She is a liar.  Plain and simple.”[6]; “My friend will say to you, “No, she’s a kid.  She’s confused.  She’s mistaken.”  She’s not.  She’s just a liar, plain and simple.”[7]; “she’s downright dishonest”[8]; and “The reasonable explanation [for inconsistencies] is that she’s lying”.[9]
  11. [11]
    Whilst it is true to say that the appellant never assumed the onus of proof, the case framed for the jury was that each allegation on each of the 11 counts was a complete fabrication.  The jury were urged to assess the complainant’s evidence in that prism.
  12. [12]
    When the complainant was interviewed by police in June 2015 she was then 14 years and five months old.  She told police she had a general memory, but not a particular one, of offending conduct against her in the years prior to 2013.  It was the events in 2013 that she said she could recall, and which formed the basis of each of the 11 counts with which the appellant was charged.
  13. [13]
    Further, the complainant did not pretend to remember the sequence in which the 11 counts occurred, nor some of the detail of the surrounding facts on each count.  The transcript of her police interview reveals the stress she was under in being interviewed about personal matters of such a private nature, and as well, a couple of years after the events.[10]
  14. [14]
    A further feature of the police interview that the jury would have assessed was the fact that if the complainant was fabricating her accounts, she did not take the opportunity to make the allegations worse.  Thus, for counts 1 and 2 the allegation was restricted to touching her genital area or rubbing against her, with no suggestion of penetration of any kind.  Similarly, for counts 7 and 8 her account was again of mere touching and rubbing with no suggestion of penetration of any kind.  The same applies for counts 9 and 10.  Her description of those events in her oral evidence was consistent with what she had said to police, in the sense that there was no attempt to expand the allegations beyond touching.
  15. [15]
    The complainant made it plain in the police interview, and again in her oral evidence, that she could not put an accurate timeline or sequence on the events.  However, the ones that she said she could remember with some detail all occurred when she was living with the appellant and his family.  That was in 2013, and at no earlier time.  That the complainant left her mother’s house to live with the appellant’s family was not contested.  The evidence was that there was a discussion between the two sets of parents, and relevant children, before the arrangement was accepted.  The source of the arrangement was that there was friction between the complainant and her stepfather.  Whatever the reason, the complainant gave evidence that all of the offences with which the appellant was charged occurred after she commenced to live in their house.
  16. [16]
    The appellant’s evidence included an acceptance by him that over the period of January to August 2013 when he was working away from home, nonetheless he came home on four to five occasions.[11]  Thus, the appellant himself accepted that there were a number of occasions over that period when he was present at the same house where the complainant was living.
  17. [17]
    In cross-examination the appellant was challenged on all counts, though the challenge was dealt with in a global way:[12]

“Okay. Now, Mr MDH, you’re well aware of the allegations against you?---Yes, I am.

You understand all those allegations?---Yes, I do.

Every one of those allegations happened, didn’t it?---No, it did not.”

  1. [18]
    There are several points to be made about that approach.  Firstly, by the time those questions were asked the complainant had already been interviewed by police and had given her oral evidence and been cross-examined based on the instructions of the appellant.  Secondly, the appellant had the transcripts of that evidence, and had a substantial time, nearly two years, to become familiar with the allegations against him.  Thirdly, the questions were not confined to “offences”, but referred to “allegations”.  That comprehended what the complainant said as to how the offences occurred, not just the elements of those offences.
  2. [19]
    Whilst it might be that not everyone would challenge an accused by that method, nonetheless the appellant was challenged on all counts, and on the basis that what the complainant said was true.
  3. [20]
    The issues before this Court involved no complaint about the directions given to the jury, nor that the jury may have been led into misusing the evidence in any way.  The issues centred solely on whether the inconsistent verdicts rendered the guilty verdicts unreasonable.  Further, no issue before this Court involved criticism of redirections in response to the jury’s questions, nor was it suggested that there was any relevant conclusion that might be drawn from that process.
  4. [21]
    Further, no issue before this Court involved a suggestion that conduct on the part of the prosecutor was either worthy of criticism or had an impact that was in some way relevant to the issue raised on the appeal.
  5. [22]
    There were, in my view, rational reasons why the jury found the appellant not guilty of counts 3 (the towel incident), counts 4-6 (Poppy’s house) and count 11 (the picture frame incident).  These can be stated fairly simply.
  6. [23]
    As for count 3, in the police interview the complainant said that she had walked to her room after a shower with a towel wrapped around her.  The appellant tried to take the towel off her by unwrapping it, but she resisted by holding onto the towel.  Then she said that the appellant got the towel off her and started touching her on her breasts and buttocks.[13]  In her evidence in chief she said that what she had told the police was true.  Then, in cross-examination, it having been put to her that every one of the allegations had been fabricated by her,[14] she maintained her account with the exception that she said the appellant did not get the towel off her.[15]  Then in re-examination she explained that whilst the whole towel did not come off he did get the front part of it off her, exposing her breast and lower parts.  She explained that the towel was still under her arms and when he pulled it off a bit she put it back on, wrapping it around her.[16]  As for the touching, she said that the appellant “tried to touch my breast, but he didn’t really get to”.[17]
  7. [24]
    Thus, the jury could well have had a doubt about whether actual touching occurred, without disbelieving the complainant, let alone concluding that she had fabricated the account.
  8. [25]
    As for counts 4-6, the complainant’s evidence as to finding a spare key and opening up the back door was challenged by the evidence of Poppy who asserted there was no spare key with which to open the back door, and the back door could not be opened from the outside.  That the back doors could not be opened from the outside was also supported by the evidence of the appellant’s wife and photographic exhibits.
  9. [26]
    However, the complainant’s evidence in respect of counts 4-6, and in particular how she entered the house, was accompanied by qualifications she put on her own memory.  In the police interview she said that the appellant asked her to jump the fence and see if there was a spare key in the room under the house which she did, and she said “I think there was”.  The appellant told her to “see if I could open up the back door”, and she did, saying “it opened up the back door”.[18]  In her oral evidence she said she retrieved the key and “walked up the stairs to the back door and I opened up the back door”, then walked through the house.[19]  She was asked whether she opened the door with the key she had retrieved and the complainant said “Yes.  I believe so”.[20]  She was then asked whether she had unlocked the door and the complainant responded “I’m pretty sure.  That’s how I remember it”.[21]
  10. [27]
    Thus, whilst the complainant said she retrieved a key and used it to open the back door, she did put qualifications on her memory in that regard.
  11. [28]
    Further, whilst the complainant said the appellant took Coke from the fridge, that was not something that Poppy did.[22]  That evidence could have been understood as meaning that Poppy did not keep Coke in the fridge at the time that the complainant had contact with him.  In his evidence in chief Poppy was only asked “… do you keep Coke in your fridge?”[23]  The question was framed in the present tense, not as at 2013.  The answer was not evidence as to what was the case in 2013.
  12. [29]
    It was those discrepancies which were highlighted to the jury, and it cannot be doubted that they had an influence on whether they could place sufficient reliance on her account of that particular incident to convict.  However, whilst it is true to say that the cross-examination of Poppy and the appellant’s wife did not directly challenge their evidence that the sliding doors could not be unlocked from the outside, it is not right to say that their evidence was uncontested.  The complainant had already given her evidence, and it was a matter for the jury to weigh the differences in their consideration.
  13. [30]
    The jury therefore may have been unpersuaded that the events of counts 4-6 occurred as the complainant said they had.  However, that does not, in my view, inexorably lead to the conclusion that the complainant was a liar, or so lacking credibility that their doubts on those counts should necessarily infect all the others.
  14. [31]
    As for count 11, there were two features that the jury were confronted with, which may well have caused them to not reach satisfaction of guilt beyond reasonable doubt.  The first was that this was the only incident in which there was penile penetration.  The jury were urged that ordinarily one might think that would cause the event to be fixed firmly in memory, but the complainant remembered this last in her recounting of events in the police interview.  Of course, she was at pains to point out that she was not remembering the chronological sequence of events, but nonetheless other incidents were recounted before that one.  Secondly, there was evidence from the complainant’s cousin M that she did not keep anything on top of the upright mattress which was placed between the bunk bed and the wall.  The complainant had said that while lying on the bed and being assaulted she bumped her head on the upright mattress causing a small picture frame to fall off and hit her on the lip.  She did not suggest that the photo frame which fell was of any size, describing it as “only a little one”,[24] nor did she suggest that she received a cut on her lip from the impact, but rather simply that it “hurt my lip”.[25]
  15. [32]
    There was also a degree of tension between what the complainant said as to things on the upright mattress and what was asked of cousin M and the appellant’s wife.  The complainant said that cousin M had things sitting on top of it, but she did not describe them as leaning against or touching the wall.  She described them as an iPod dock with a “radio thing” and photo frames,[26] and then “photo frames and stuff”.[27]  She said what fell down was a “little grey” photo frame.[28]  The appellant’s wife was asked whether any “photo frames, lamps, clocks” were “stored” there.[29]  Cousin M was asked whether anything was ever “stored or held” there, such as the “pictures or lamps or clocks, or any items”.[30]  Cousin M said that there was nothing stored there because the house was a rental and “nothing could mark on the walls”.  But nothing that the complainant said referred to something that could do that.
  16. [33]
    Be that as it may, the jury therefore had a piece of conflicting evidence from another witness about one of the aspects of her account.
  17. [34]
    More significantly, the jury’s inability to be satisfied beyond reasonable doubt on this count may well have been affected by the fact that this event was said to have occurred while the cousins were in the lounge room watching TV, in relatively close proximity to the room where count 11 occurred.
  18. [35]
    Once again, the jury’s failure to reach the requisite state of satisfaction has an explanation that does not necessarily require them to have disbelieved the complainant as a liar or fabricator, but rather simply had enough doubts that they could not be persuaded.
  19. [36]
    As for all of the other counts on which guilty verdicts were returned, there was a consistency between the account given by the complainant in the police interview, and the account in oral evidence.  Not only consistency but a considerable level of detail.  Notably in each case the cross-examiner gave free rein to the complainant by simply asking her to say what happened.[31]  In each case the account was consistent with what she had said in the police interview, and was not embellished, nor diminished.  In each case the complainant accepted, as she had proffered in the police interview, that she had told no-one about the events until the matters came to light as a result of her entries in a school exercise.  Just as she did in the police interview, the complainant explained that the reason she did not reveal anything was because she felt threatened by the appellant.
  20. [37]
    That consistency in the account of each of the offences was something the jury was entitled to take into account in assessing whether the complainant was, as the defence case would have it, a complete and utter liar who had fabricated her stories, and also whether her evidence could be accepted on those counts, even though it was rejected on other counts.  Once the jury reached the conclusion, as they evidently did, that the complainant was not a complete and utter liar who had fabricated the stories, the assessment of the evidence on each count then became a more orthodox analysis which did not necessarily call for wholesale rejection of her evidence simply because it was not accepted on some counts.
  21. [38]
    Furthermore, in my view, it is wrong to parse and analyse what was said in the police interview as though it was the considered response of an adult, or someone experienced in giving evidence, and familiar with the whole process.  This was a teenage girl in a totally foreign setting, recounting matters of a deeply personal and embarrassing kind, and to strangers.  And she was pressed to go into levels of detail.  Moreover, this was the first time she had ever had to relate the events for recording, and with no time outside of the interview to order her thinking.  The interview transcript makes it apparent that she was under stress.  Her own account did not pretend to be accurate as to the sequence, timeline, and some details of what occurred.  And, of course, this Court does not have the advantage enjoyed by the jury, of seeing the recorded interview and seeing the complainant in the witness box.
  22. [39]
    In one material respect there was corroboration of the complainant’s evidence.  The sequence is significant.  In respect of count 10, it was put to the complainant that the only time she had ever been to the GS’s house was when she, along with other children, had visited there and all children were riding bikes and playing on the trampoline.[32]  What was expressly put was “that’s the first and only time you’ve actually been there”.[33]  The appellant gave evidence that he had never taken the complainant alone in the car to the GS’s house, nor had he ever taken the complainant and cousin Z to that house.[34]  However, Mrs GPL gave evidence that on an occasion quite separate from that when all the children were present playing, the appellant brought some car parts to help her husband work on a car and he had two girls with him.  In evidence in chief she thought it was cousin M with the complainant,[35] but then said she could not be completely sure that cousin Z was not in the car.[36]  In cross-examination she reiterated that the appellant was bringing over car parts to assist working on a car, and there were definitely two girls with him, one of whom was the complainant.  She also said she could not be sure whether or not it was cousin Z or cousin M.[37]
  23. [40]
    Significantly, when cousin M gave evidence[38] she did not say that there was ever an occasion when she went with the complainant and the appellant to the GS’s house.  Cousin Z was not called by either side to give evidence at the trial.  The jury were therefore left in the position that if they accepted Mrs GPL’s evidence, there was an occasion when the appellant arrived at the GS’s house accompanied by the complainant and one of the female cousins, and that could not have been cousin M.  The jury could therefore have reasoned that the other person was cousin Z, thus lending weight to the conclusion that the complainant was truthful in her account of this incident.
  24. [41]
    The significant features from that evidence are not just that it contradicted the appellant’s account, but that it told heavily against the proposition that the complainant was fabricating a story.  The complainant had told the police that she and the appellant had driven to that house to pick something up from the appellant’s mate, and on that occasion cousin Z was taken as well.[39]  In her cross-examination the complainant maintained that account[40] and she maintained that account even when it was put to her that the only time she had ever been to that house was on the occasion when all the children were there and playing.[41]
  25. [42]
    Thus the jury had, in respect of count 10, independent evidence from Mrs GPL which confirmed that there was an occasion when the appellant brought the complainant to their house, in the company of cousin Z, and that it was connected with something to do with car parts and working on the car.  In a case where the jury were being urged to find that the complainant was a liar rather than simply someone with a poor memory, that piece of corroboration was important.  It was a basis for concluding that the complainant was telling the truth.  It eloquently demonstrates, in my view, why rejection of the evidence on those counts where a not guilty verdict was returned, did not compel the wholesale rejection of the complainant’s evidence on other counts.
  26. [43]
    The complainant’s evidence in respect of the dirt trail incident (counts 7 and 8) should not be confused with that given in relation to count 10.  Count 10 concerned an occasion when the appellant arrived at the GS’s house, with the complainant and cousin Z in the car.  The complainant’s account in respect of counts 7 and 8 was that it was just herself and the appellant who were in the car.  Thus, the complainant’s account in respect of counts 7 and 8 could not have been the occasion when Mrs GPL saw the appellant with the complainant and cousin Z in the car.[42]
  27. [44]
    In my view, no occasion arises to question how the jury might have used Mrs GPL’s evidence.  No such point was raised on the appeal.
  28. [45]
    One must add the fact that, contrary to the defence case, there was evidence that the appellant was at times alone with the complainant in the car and present at the house when the complainant was as well.  It is true to say that the appellant was absent for employment reasons and returned only periodically, but equally the evidence sustained the conclusion that there were opportunities where the appellant and the complainant were alone together.
  29. [46]
    The complainant made it plain in the police interview, and again in her oral evidence, that she could not put an accurate timeline or sequence on the events.  However, the ones that she said she could remember with some detail all occurred when she was living with the appellant and his family.  That was in 2013, and at no earlier time.
  30. [47]
    There is, in my respectful view, nothing that can usefully be drawn from the fact that the complainant went to live in the appellant’s house notwithstanding that she said he had assaulted her before.
  31. [48]
    That the complainant left her mother’s house to live with the appellant’s family was not contested.  The evidence was that there was a discussion between the two sets of parents, and relevant children, before the arrangement was accepted.  The complainant explained that the reason she moved out of her mother’s house, and in with the appellant’s family, was because of the unfair and physically hurtful treatment she received from her stepfather.[43]  That conduct by the stepfather reached the point where the complainant’s school had people come over to speak to the family about it.[44]  The appellant’s wife gave similar evidence, saying that she knew of “some of the things from what [the complainant’s brother] had told me a few things prior”.[45]
  32. [49]
    The complainant described the dilemma she felt because she did not want to remain in the appellant’s household when he moved back in from having worked away from home so often.[46]  The dilemma was that she did not want to remain in the appellant’s household, but also did not want to say that she wanted to go back home, so as a result she started to misbehave to the point where the appellant’s wife threatened to send her home, and then finally did.[47]
  33. [50]
    Whatever the reason, the complainant gave evidence that all of the offences with which the appellant was charged occurred after she commenced to live in their house.  She received outwardly preferential treatment from the appellant in the sense that he would take her out to various places and got her an MP3 player.[48]  However, that evidence was not advanced to explain why she moved into the appellant’s house in spite of the fact that she had been assaulted from a younger age.  That evidence arose out of questions in cross-examination about whether she had spoken to anyone else about what had happened to her whilst living in the appellant’s house.[49]  The context was that the complainant was talking to her brother about “my aunty and stuff”, and it was the brother who had suggested that the appellant “was always a lot nicer to me than he was to them”.[50]  It was the brother’s suggestion that the appellant was extending privileges to the complainant because of what he was doing.  It was in that context that she was asked what those privileges were, that the brother had referred to.  The complainant’s response was to identify that the appellant would take her out to places and got her an MP3 player.  She also referred to going camping at Rainbow Beach with them but that was when she was younger.[51]
  34. [51]
    Notwithstanding what the complainant’s brother had said about his perception of the appellant extending privileges to the complainant, the complainant consistently described feeling threatened and scared of the appellant.
  35. [52]
    Within the confines of the case before this Court, based upon what is said to follow from the inconsistent verdicts, I am not persuaded that the jury were compelled to entertain such a doubt about the complainant’s evidence on counts 3, 4-6 and 11, that that doubt either compelled the rejection of the complainant’s evidence, or created such a doubt that the jury could not find the appellant guilty on the remaining counts.
  36. [53]
    I would dismiss the appeal.
  37. [54]
    DAVIS J:  On 12 June 2018 the appellant was convicted of two counts of indecent dealing with a child under the age of 16[52] and four counts of indecent dealing with a child under the age of 16 with a circumstance of aggravation, namely that the complainant was under his care.[53]  He had previously been tried but the jury was discharged after being unable to reach verdicts.
  38. [55]
    At the time of his convictions he was acquitted of one count of indecently dealing with a child under the age of 16 years, two counts of indecently dealing with a child under 16 years with a circumstance of aggravation that she was under his care and two counts of rape.[54]  There was only one complainant, common to all 11 counts.
  39. [56]
    The appellant appeals against the convictions on two grounds:
  1. The verdicts of guilty in respect of counts 1, 2, 7, 8, 9 and 10 are inconsistent with the verdicts of not guilty returned for counts 3, 4, 5, 6 and 11; and
  2. The verdicts of guilty in respect of counts 1, 2, 7, 8, 9 and 10 are unreasonable or cannot be supported having regard to the evidence.
  1. [57]
    Section 668E of the Code provides four bases upon which this court may quash a conviction:
    1. (a)
      The verdict is unreasonable.
    2. (b)
      The verdict cannot be supported having regard to the evidence.
    3. (c)
      There has been an error of law.
    4. (d)
      There has otherwise been a miscarriage of justice.
  2. [58]
    Ground 1 relies upon the circumstance of there being different verdicts returned on different counts on the indictment.  Where different verdicts are returned and there is no apparent explanation for the acquittals on some counts and the convictions on others, that fact may lead to a conclusion that the guilty verdicts are unreasonable on the basis that they are an affront to common sense.
  3. [59]
    Ground 2 alleges that the verdicts of guilty are “unreasonable” or “cannot be supported having regard to the evidence”.  It was not seriously argued though that the verdicts could not be supported having regard to the evidence.  The complainant’s evidence, if accepted, was capable of supporting each of the guilty verdicts.[55]  The appellant’s real point on ground 2 was that having regard to all the evidence and the fact that the jury, by their acquittals, rejected at least part of the complainant’s evidence, it was unreasonable of the jury not to hold a reasonable doubt as to guilt on the counts on which they convicted.[56]
  4. [60]
    Both grounds of appeal against the guilty verdicts rely then upon the acquittals.  As explained by Simpson J (as her Honour then was) in R v TK,[57] unreasonableness based solely on the circumstance of alleged inconsistent verdicts raises a different inquiry to unreasonableness of verdicts based on damage to a witness’s credibility or reliability evidenced by the acquittals.[58]
  5. [61]
    Both grounds of appeal are separate and different examples of reliance upon the one basis of appellate intervention (unreasonableness) even though both rely on the acquittals.

The charges and the course of the trial

  1. [62]
    The complainant was born on 24 January 2001.  Her mother was a witness called by the Crown (the complainant’s mother).  The complainant’s mother’s sister is married to the appellant.  The complainant is therefore the niece of the appellant.[59]
  2. [63]
    The complainant’s maternal grandfather is known to the complainant as “Poppy”.  I shall, for convenience, refer to him as “Poppy”.  Poppy is the father of both the complainant’s mother and the appellant’s wife.
  3. [64]
    The uncontested evidence was:
    1. (a)
      The complainant lived with her mother and her step father.
    2. (b)
      The appellant and his family lived in a house at Brassall (the first Brassall house).
    3. (c)
      In the period up to 2010 the complainant would visit the appellant’s family at the first Brassall house.
    4. (d)
      In 2010 the appellant’s family moved to another house in Brassall (the second Brassall house).
    5. (e)
      The complainant would visit the appellant’s family at the second Brassall house.
    6. (f)
      The complainant did not get along with her step father.
    7. (g)
      The complainant’s mother married the complainant’s step father on 1 January 2013.
    8. (h)
      From just before the wedding and into the new year the complainant and her sister stayed at the second Brassall house.
    9. (i)
      On 14 January 2013 the appellant’s family went on a camping holiday to Rainbow Beach.
    10. (j)
      The complainant and her sister accompanied the appellant’s family on the holiday to Rainbow Beach.
    11. (k)
      At the end of the Rainbow Beach holiday, the complainant refused to go home.  A compromise was reached where the complainant returned to her home but then commenced living with the appellant’s family at the second Brassall house from 28 January 2013.[60]
    12. (l)
      The complainant lived with the appellant’s family until 2 September 2013.[61]
    13. (m)
      The complainant was sent back to live with her mother and step father because she was involved in disagreements with the appellant’s wife and children.[62]
  4. [65]
    On 19 February 2015, while in class at school, the complainant was asked by her teacher to prepare a timeline of her life.  The activity was designed to have the students identify significant incidents and events in their lives.[63]  In this timeline,[64] she wrote:

“2008 my uncle rapped[65] me.”

And also:

“2013 I moved in with my aunty and my uncle rapped me again so I moved back with my mum.”

  1. [66]
    The school did not report the matter to the police but reported it to the complainant’s mother.  Sometime later, a complaint was made to police, the complainant was interviewed and the interviews were recorded.  Both interviews were admissible on the appellant’s trial by force of s 93A of the Evidence Act 1977.  The interviews occurred on 4 June 2015 (the first s 93A interview)[66] and on 11 June 2015 (the second s 93A interview).[67]  The first s 93A interview contained the allegations which supported the 11 counts on the indictment.  In the second s 93A interview, the complainant was asked to clarify some of the statements she made in the first s 93A interview.
  2. [67]
    As a result of the complainant’s allegations, the appellant was ultimately tried on an indictment containing 11 counts.  Those counts, and the verdicts that were returned by the jury, are as follows:

Count

Charge

Verdict

Count 1

That on a date unknown between the twenty-third day of January 2009 and the first day of January 2014 at Brassall in the State of Queensland, [the appellant] unlawfully and indecently dealt with [the complainant], a child under 16 years.

Guilty

Count 2

That on a date unknown between the twenty-third day of January 2009 and the first day of January 2014 at Brassall in the State of Queensland, [the appellant] unlawfully and indecently dealt with [the complainant], a child under 16 years.

Guilty

Count 3

That on a date unknown between the thirty-first day of December 2012 and the first day of January 2014 at Brassall in the State of Queensland, [the appellant] unlawfully and indecently dealt with [the complainant], a child under 16 years.

And the offence is a domestic violence offence.

Not Guilty

Count 4

That on a date unknown between the thirty-first day of December 2012 and the first day of January 2014 at North Ipswich in the State of Queensland, [the appellant] unlawfully and indecently dealt with [the complainant], a child under 16 years.

And [the appellant] had [the complainant] under his care, for the time being.

And the offence is a domestic violence offence.

Not Guilty

Count 5

That on a date unknown between the thirty-first day of December 2012 and the first day of January 2014 at North Ipswich in the State of Queensland, [the appellant] unlawfully and indecently dealt with [the complainant], a child under 16 years.

And [the appellant] had [the complainant] under his care, for the time being.

And the offence is a domestic violence offence.

Not Guilty

Count 6

That on a date unknown between the thirty-first day of December 2012 and the first day of January 2014 at North Ipswich in the State of Queensland, [the appellant] raped [the complainant], a child under 16 years.

And the offence is a domestic violence offence.

Not Guilty

Count 7

That on a date unknown between the thirty-first day of December 2012 and the first day of January 2014 at Brassall or elsewhere in the State of Queensland, [the appellant] unlawfully and indecently dealt with [the complainant], a child under 16 years.

And [the appellant] had [the complainant] under his care, for the time being.

And the offence is a domestic violence offence.

Guilty

Count 8

That on a date unknown between the thirty-first day of December 2012 and the first day of January 2014 at Brassall or elsewhere in the State of Queensland, [the appellant] unlawfully and indecently dealt with [the complainant], a child under 16 years.

And [the appellant] had [the complainant] under his care, for the time being.

And the offence is a domestic violence offence.

Guilty

Count 9

That on a date unknown between the thirty-first day of December 2012 and the first day of January 2014 at Brassall or elsewhere in the State of Queensland, [the appellant] unlawfully and indecently dealt with [the complainant], a child under 16 years.

And [the appellant] had [the complainant] under his care, for the time being.

And the offence is a domestic violence offence.

Guilty

Count 10

That on a date unknown between the thirty-first day of December 2012 and the first day of January 2014 at Springfield or elsewhere in the State of Queensland, [the appellant] unlawfully and indecently dealt with [the complainant], a child under 16 years.

And [the appellant] had [the complainant] under his care, for the time being.

And the offence is a domestic violence offence.

Guilty

Count 11

That on a date unknown between the thirty-first day of December 2012 and the first day of January 2014 at Brassall in the State of Queensland, [the appellant] raped [the complainant].

And the offence is a domestic violence offence.

Not Guilty

  1. [68]
    Although there were eleven counts on the indictment these were allegedly committed during seven separate incidents as particularised by the Crown.
  2. [69]
    Counts 1 and 2 stood together.  The complainant told police that she was nine years old at the time of these events.  The appellant took her from her bed to a couch in the lounge room and undressed her.  He also undressed himself.  Counts 1 and 2 were particularised by the Crown as follows:

Count 1

[The appellant] touched [the complainant’s] genital area with his hand/s.

Count 2

While [the appellant] was undressed he touched/rubbed himself against [the complainant], who was also undressed.”

  1. [70]
    During the trial counts 1 and 2 were described as “the couch incident”.  The appellant was convicted of both counts 1 and 2.
  2. [71]
    Count 3 was alleged to have occurred when the complainant was 12 years of age.  She said that she had taken a shower and the appellant removed the towel which she had around her and sexually assaulted her.  Count 3 was particularised as follows:

Count 3

In a bedroom, [the appellant] touched [the complainant’s] breast/s with his hand/s.”

  1. [72]
    Count 3 was described during the trial as “the towel incident”.  The appellant was acquitted of count 3.
  2. [73]
    Counts 4 to 6 also allegedly occurred when the complainant was about twelve years old.  The complainant alleged that the appellant had taken her to her grandfather’s house while her grandfather was away.  Counts 4 to 6 were particularised as follows:

Count 4

In the kitchen, [the appellant] touched [the complainant’s] breast/s with his hand/s.

[The complainant] was under [the appellant’s] care.

Count 5

In the kitchen, [the appellant] touched [the complainant’s] buttock/s with his hand/s.

[The complainant] was under [the appellant’s] care.

Count 6

In the dining area, [the appellant] inserted his finger/s into [the complainant’s] vagina, without her consent.”

  1. [74]
    Counts 4 to 6 were called at the trial the “Poppy’s house incident”.  The jury acquitted the appellant of each of counts 4, 5 and 6.
  2. [75]
    Counts 7 and 8 also allegedly occurred when the complainant was about twelve.  The appellant took the complainant in his gold four-wheel-drive vehicle to run an errand to the house of Mr and Mrs GS.  The complainant said that the appellant drove up a dirt trail and sexually assaulted her.  The particulars of counts 7 and 8 are as follows:

“Count 7

[The appellant] removed [the complainant’s] pants and underpants and touched [the complainant’s] genital area with his hand(s).

[The complainant] was under [the appellant’s] care.

Count 8

[The appellant] removed his pants and rubbed his penis against [the complainant’s] genital area.

[The complainant] was under [the appellant’s] care.”

  1. [76]
    Counts 7 and 8 were described at the trial as the “dirt trail incident”.  The jury convicted the appellant of each of counts 7 and 8.
  2. [77]
    Count 9 stood alone.  Again this allegedly occurred when the complainant was about twelve.  The appellant and the complainant travelled together to a McDonalds restaurant to buy ice-cream.  Count 9 was particularised as follows:

“Count 9

While [the appellant] was driving to McDonalds he rubbed [the complainant’s] thigh.  Immediately prior he said, ‘Only if you do something special for me’.

[The complainant] was under [the appellant’s] care.”

  1. [78]
    Count 9 was referred to at the trial as the “McDonalds incident”, sometimes also called the “Maccas incident”.  The jury convicted the appellant of count 9.
  2. [79]
    Count 10 stood alone.  Again, this was alleged to have occurred when the complainant was twelve years of age and is also alleged to have occurred in a car.  On this occasion a cousin of the complainant was in the car but was asleep.  Count 10 was particularised as follows:

Count 10

While outside a house, [the appellant] touched [the complainant’s] breast/s with his hand/s.

[The complainant] was under [the appellant’s] care.”

  1. [80]
    Count 10 became known during the trial as the “MKE[68] sleep incident”.  This also allegedly occurred when the appellant visited the house of Mr and Mrs GS.  The jury convicted the appellant of count 10.
  2. [81]
    Count 11 also stands alone and was said to have been committed just before the June/July school holidays in 2013, about four or five months after the complainant turned twelve.  She was in a bedroom with the appellant with the door locked and he penetrated her vagina with his penis.  A picture frame fell from a shelf and hit the complainant on the lip.
  3. [82]
    Count 11 was particularised in these terms:

“Count 11

In a bedroom, [the appellant] inserted his penis into [the complainant’s] vagina, without her consent.  A picture frame fell down and struck [the complainant’s] lip.”

  1. [83]
    Count 11 became known during the trial as “the picture frame incident”.  The jury acquitted the appellant of count 11.
  2. [84]
    On 8 July 2016 the complainant’s evidence was recorded (the pre-recorded evidence).  That recording was admissible on the appellant’s trial pursuant to s 21AK of the Evidence Act.
  3. [85]
    At the trial the Crown tendered the two s 93A statements and the pre-recorded evidence of the complainant and called three other witnesses:
  1. The complainant’s mother;
  2. BQS who is the school teacher, who conducted the class where the timeline was produced, and
  3. Mr SHN, the principal of the school.
  1. [86]
    Two groups of mutual admissions were made.[69]  These were reduced to writing and tendered as exhibits.[70]  They were as follows:

“1. [The complainant] was born on 24 January 2001.

  1. [The complainant] turned 12 years old on 24 January 2013.
  1. In 2013 the Queensland school holidays were as follows:

Easter Holidays

June/July Holidays

September

Holidays

Christmas Holidays

29 March – 14 April 2013

22 June – 7 July 2013

21 September – 8 October 2013

14 December until 28 January 2014

  1. On 3 May 2013, [the appellant’s] de facto partner, purchased a gold 2000 Nissan Pathfinder Wagon, registration [Redacted].
  1. In February 2013, [the appellant] worked for [Redacted] at Childers as follows:

a. Tuesday, 5th – Thursday, 7th February;

b. Saturday, 9th – Sunday, 10th February; and

c. Monday, 11th – Friday, 15th February.

  1. In 2013, [the appellant] worked for [Redacted] in Hervey Bay as follows:

a. Thursday, 21st March – Saturday, 23rd March;

b. Monday, 25th March – Thursday, 28th March;

c. Tuesday 3rd April [day after Easter Monday] – Friday, 5th April;

d. Monday, 8th April – Saturday, 13th April;

e. Monday, 15th April – Friday, 19th April;

f. Monday, 22nd April – Saturday, 27th April;

g. Monday, 29th April – Friday, 3rd May;

h. Monday, 6th May – Saturday, 11th May;

i. Monday, 13th May – Friday, 17th May; and

j. Monday, 20th May – Thursday, 23rd May [mid-morning] and Saturday, 25th May 2013 [last shift].

  1. In May and June 2013, [the appellant] worked for [Redacted] which had a depot at Childers.  [The appellant] worked as follows:

a. Thursday, 23rd May at Maryborough;

b. Monday and Tuesday, 27-28th May, training in Virginia; and

c. Thursday, 30th May – Saturday, 1 June.”

And further:

“1. In 2013, [the appellant] worked for [Redacted] as follows:

a. 11 – 17 June 2013 at Yarraman;

b. 18 – 20 June 2013 at Gayndah;

c. 20 – 25 June 2013 at Eidsvold;

d. 25 June – 1 July 2013 at Bunya Mountains; and

e. 23 July – 1 August 2013 at Stanthorpe.

  1. Payslips from [Redacted] indicate that [the appellant] did the following hours:

a. Week of 29 July 2013 to 4 August 2013 – 36 hours;

b. Week of 5 August 2013 to 11 August 2013 – 30 hours and 5 hours travel allowance;

c. Week 12 August 2013 to 18 August 2013 – 30.5 hours and 3 hours travel allowance;

d. Week of 19 August 2013 to 25 August 2013 – 32.25 hours and 2 hours travel allowance; and

e. Week of 25 August 2013 to 1 September 2013 – 14.5 hours.

  1. On 3 September 2013, [the appellant] ceased employment with [Redacted].
  1. On 6 September 2013 [the child] was enrolled in Year 7 at [Redacted] State School.”
  1. [87]
    The appellant gave evidence at the trial and he called six witnesses:
  1. His wife;
  2. Poppy;
  3. The appellant’s niece, being his sister’s daughter;
  4. The appellant’s daughter;
  5. GMN; and
  6. GPL.
  1. [88]
    It is necessary to identify the evidence which supports each of the counts.[71]

The couch incident (counts 1 and 2)

  1. [89]
    In the first s 93A interview the complainant said:[72]

“BLP:  Um he took me into the lounge room, and he laid me on the couch, and he undressed me.  And then he started touching me and like laying on top of me, and he would undress himself and do all those things.[73]

SCON WHEATLEY:  When you’re saying, do all those things, what do you mean by that?

BLP:  Um like touch me and everything.

SCON WHEATLEY:  Touch you where?

BLP:  Um in private parts.

SCON WHEATLEY:  In which private parts?

BLP:  All of them.

SCON WHEATLEY:  BLP, I’m, you’re going to have to, when you’re ready, actually tell me which word, you know the other words for the private parts, and how he would touch them.  Do you need some tissues darl? [INDISTINCT].  How old were you when this incident that you’re thinking about occurred?

BLP:  Ah about um nine.[74]

SCON WHEATLEY:  About nine.  I’m just gonna go out and grab some tissues darl.  There you go darling.  So you said you were about nine, what makes you th-, remember that it was around that age?  What helps you make, remember?

BLP:  Um I’m not sure, I just remember being around that age.

SCON WHEATLEY:  Mmhmm.

BLP:  I remember being fairly young.

SCON WHEATLEY:  Okay.  And the address you’re talking about in the, the lounge room, which, which address wo-, is that?

BLP:  Um I’m not sure, I think that was the one that um one at number 17.[75]

SCON WHEATLEY:  So the address that you said they lived at at the moment?

BLP:  Um yeah.

SCON WHEATLEY:  17, Ipswich?

BLP:  Yeah.

SCON WHEATLEY:  Have you known, how many houses have you known MDH to live at?  MDH[76] and MHY.[77]

BLP:  Um I think it was about, um quite a few, like –

SCON WHEATLEY:  Quite a few.

BLP:  Yeah.

SCON WHEATLEY:  And when you’re talking about these incidences that you’re talking about, how many different houses did they occur at?

BLP:  Um I can’t remember exactly.  I can’t remember like, I do [seem] to remember it being at their most recent house –

SCON WHEATLEY:  Mmm.

BLP:  The most.

SCON WHEATLEY:  At the most.  So the time, the, the one that you’re talking about now, um about when he took you to, into the lounge room, laid you on the couch and undressed you, and he started touching, which house was that?

BLP:  Um the number 17.

SCON WHEATLEY:  So the most recent?

BLP:  Yeah.

SCON WHEATLEY:  Their current one.  Okay.  So tell me everything about what the couch looked like.

BLP:  It was like a, like, like, like a blue, bluey grey-ey colour, but like a dark bluey grey colour.

SCON WHEATLEY:  Yeah.

BLP:  But not like, not quite as dark as this –

SCON WHEATLEY:  Okay, yeah.

BLP:  But a bit lighter.

SCON WHEATLEY:  Mmhmm.

BLP:  And it was soft, and ah I think that’s like all I really remember [INDISTINCT].

SCON WHEATLEY:  Alright.  And what was the size of the couch?

BLP:  Ah I think it was a three seater.

SCON WHEATLEY:  Three seater.

BLP:  Yeah.

SCON WHEATLEY:  And what was the material that it was covered in?

BLP:  Ah probably the same as this or-

SCON WHEATLEY: Mmm.

BLP:  A bit different to this, like a.

SCON WHEATLEY:  That sort of.  Do you know what a word for this stuff would be?

BLP:  Um it was like a, um, a soft material.

SCON WHEATLEY:  Like a soft material.

BLP:  Yeah.

SCON WHEATLEY:  [INDISTINCT].  What were you wearing that day?

BLP:  Ah I can’t remember what I was wearing.

SCON WHEATLEY:  And what was um MDH wearing that day?

BLP:  I can’t remember what he was wearing.

SCON WHEATLEY:  What time of the day was it?

BLP:  It was at night time.

SCON WHEATLEY:  Night time.

BLP:  Yeah.

SCON WHEATLEY:  Was there anyone else in the house?

BLP:  Um yeah I think there was.

SCON WHEATLEY:  Who do you remember being in the house?

BLP:  I think everyone was in the house.

SCON WHEATLEY:  Everyone.  And when you say, night time, sort of what part of the night time?

BLP:  It was, I think everybody was sleeping?

SCON WHEATLEY:  Everyone was sleeping?

BLP:  Yeah.  So it would’ve, like fairly early in the morning, or fairly late at night.

SCON WHEATLEY:  Alright.  You said that he took you into the lounge room.  Where did he take you from?

BLP:  He took me from my cousin’s bedroom.

SCON WHEATLEY:  From your cousin’s bedroom.

BLP:  Yeah.

SCON WHEATLEY:  Which cousin?

BLP:  MGN.

SCON WHEATLEY:  Do you remember um what you were doing before he came and took you from your cousin’s bedroom?

BLP:  I was sleeping.

SCON WHEATLEY:  You were sleeping.  Did he say anything to you?

BLP:  No.

SCON WHEATLEY:  And how did he take you?

BLP:  He just like, he woke me up, well he did say, he said um-

SCON WHEATLEY:  [INDISTINCT]

BLP:  Well it wasn’t like, it was kinda, he woke me up, I don’t exactly remember but-

SCON WHEATLEY:  Yeah.

BLP:  He woke me up and like, and he told me to go into the lounge room.  Like in like, like I was fairly threatened by him.

SCON WHEATLEY:  Mmm.

BLP:  So like he was really scary to me.  So I did, I would just listen to what he said.

SCON WHEATLEY:  And where was MGN?

BLP:  Um MGN was also in the bedroom.

SCON WHEATLEY:  Was she awake?

BLP:  No, she was sleeping.

SCON WHEATLEY:  Sleeping.  And was there anyone else in the bedroom?

BLP:  Um no.

SCON WHEATLEY:  Alright.  So he’s told you something like um, to go into the lounge room, and you just listened to him because you were threatened by him.

BLP:  Yeah.

SCON WHEATLEY:  And you went into the lounge room, and then what was the next bit that happened then?

BLP:  He started to undress me and touch me.

SCON WHEATLEY:  Alright.  How, you said he laid you on the couch, how did he do that?

BLP:  He like picked me up and laid me down on the couch.

SCON WHEATLEY:  Mmhmm.  And then he undressed you?

BLP:  Yeah.

SCON WHEATLEY:  Alright.  And then you said he started touching.  Which, which part of your body did he start touching first?

BLP:  Um I think it was my stomach.

SCON WHEATLEY:  Yeah.  And then, and what was he touching you with?

BLP:  His hands.

SCON WHEATLEY:  And then what, what happened next?  What was the very next bit?

BLP:  Um he went down-

SCON WHEATLEY:  He went—

BLP:  [INDISTINCT]

SCON WHEATLEY:  Down.

BLP:  Onto my legs.  And then he like would just rub up and down for a bit.

SCON WHEATLEY: Your le-, your legs?

BLP:  Yeah.

SCON WHEATLEY:  With what?

BLP:  His hands.

SCON WHEATLEY:  You said, then, sorry, what happened next?  What was the next bit that happened?

BLP:  And then he would start to touch me on my vagina, and on my bum.

SCON WHEATLEY:  And which part of your bum?

BLP:  Um like my bum cheeks.

SCON WHEATLEY:  Your cheeks.

BLP:  Yeah.

SCON WHEATLEY:  Yeah.  And when you say, touch your vagina, what exactly, which parts, and how did he touch them?[78]

BLP:  Um like the outside.

SCON WHEATLEY:  The outside.

BLP:  Yeah.

SCON WHEATLEY:  And then what happened?

BLP:  And then, um I just remember it like that, that’s.

SCON WHEATLEY:  For that.  You said when you first talked to me, you said something about, he was laying on top of you.

BLP:  Yeah.

SCON WHEATLEY:  Which, when did that but happen?

BLP:  Like that was, like he was touching me and then he would, like after he touched my vagina he would lay, he like layed on top of me.

SCON WHEATLEY:  Mmm.

BLP:  And touched me while he was laying.

SCON WHEATLEY:  So he’d be laying on top of you and touching you?

BLP:  Yeah.

SCON WHEATLEY:  Do you remember which hand he used?

BLP:  He used both.

SCON WHEATLEY:  Both hands.  And you said something about him undressing himself.  When did he do that bit?

BLP:  Um he did that bit like before he layed on me.

SCON WHEATLEY:  So before he layed on you.

BLP:  Yeah.

SCON WHEATLEY:  Before or after he started touching you?

BLP:  Um after.

SCON WHEATLEY:  After.  [INDISTINCT].  And what did you notice about him when he layed, undressed himself?

BLP:  Um.

SCON WHEATLEY:  So tell me what his body looked like.  Was there anything different about his body or, anything that you can remember?

BLP:  Um he, he was like a bit fat.

SCON WHEATLEY:  A bit fat.

BLP:  Yeah.

SCON WHEATLEY:  Yeah.

BLP:  And I think that’s it really.

SCON WHEATLEY:  [INDISTINCT].  And what part of his body touched what part of your body when he was laying on you?

BLP:  Um his stomach touched my stomach.

SCON WHEATLEY:  Yeah.

BLP:  And his legs touched my legs.

SCON WHEATLEY:  Yeah.

BLP:  And his hands touched my stomach, and my legs.

SCON WHEATLEY:  And when you say, he undressed himself, what pieces of clothing did he take off?

BLP:  He took off his shirt, and his pants.

SCON WHEATLEY:  Was he wearing any clothing after he undressed himself?

BLP:  Um no.

SCON WHEATLEY:  No.  Do you remember whether or not he had underpants on?

BLP:  Um he took them off.

SCON WHEATLEY:  He took them off.

BLP:  Yeah.

SCON WHEATLEY:  Do you remember what they looked like?

BLP:  No.

SCON WHEATLEY:  So when his body was lying on your body, could you f-, you, you said his stomach was touching your stomach, your legs were touching his legs, his hands were touching your stomach and your legs, any other part of his body touching any other part of your body?

BLP:  Um no.

SCON WHEATLEY:  Okay.  What about your um private parts?  What could you, what could you feel that they were touching?

BLP:  Um I thought they were touching his private parts.

SCON WHEATLEY:  His private parts.  What part of his private parts?

BLP:  Um his penis.

SCON WHEATLEY:  And what was his penis doing?

BLP:  Um just like nothing really.

SCON WHEATLEY: Mmhmm.  Do you know what I mean when I’m asking that question?

BLP:  Yeah.

SCON WHEATLEY:  Yeah.  So what do you think I’m, I’m saying?

BLP:  Ah like it, it wasn’t doing anything, it was, like he was just, it was more with his hands.

SCON WHEATLEY:  It was more with his hands.

BLP:  Yeah.

SCON WHEATLEY:  Okay.  So when, when we talk about a penis, I don’t mean to embarrass you I just need to make sure that you and I understand the same thing, [INDISTINCT] you’re trying to, what you’re telling I understand, um a-, what’s your understanding of what a function of a penis is?  Not having had one, [INDISTINCT], you know, but just your understanding.

BLP:  Um it’s like, I don’t understand like function, like.

SCON WHEATLEY:  Okay.  Does, does the penis always look the same, or can it change it’s appearance?

BLP:  Um I know that it can change it’s appearance.

SCON WHEATLEY:  Okay.  And what’s your understanding of, do you know what that’s called, when it changes it’s appearance?  Or what is it, like what’s, what does it look like when it changes?

BLP:  It looks like it’s like hard and—

SCON WHEATLEY:  Hard.

BLP:  Long.

SCON WHEATLEY:  Hard and long.  Okay.  So, I s’pose what I’m asking is, was there any change of appearance?

BLP:  Um—

SCON WHEATLEY:  When you said that h-, that you could feel his penis.

BLP:  No, I think it was the same—

SCON WHEATLEY:  Was the same?

BLP:  The whole time, which was hard and long.

SCON WHEATLEY:  Oh so it was hard and long—

BLP:  Yeah.

SCON WHEATLEY:  The whole time?

BLP:  Yeah.

SCON WHEATLEY:  Yeah.  Alright.  So he was laying on top of you.  Tell me what he was saying when this was happening?

BLP:  He wasn’t really saying anything.

SCON WHEATLEY:  Was he making any sounds or anything?

BLP:  Um I don’t remember.  I think he was making like a few like, sort of like grunting noises, like not really grunting though, it’s like.

SCON WHEATLEY:  [INDISTINCT].  So how long did this, did, did this sorta touching go for, or this incident go for?

BLP:  Um I’m not sure how long it went for, um but I remember it went for a little while.

SCON WHEATLEY:  Can you remember whether you were wearing summer or winter clothes, or whether it was like cold or hot, or anything like that, like temperature?

BLP:  Um I think it was just normal.

SCON WHEATLEY:  Mmm.

BLP:  [INDISTINCT]

SCON WHEATLEY:  If you don’t remember that’s okay, I don’t want you to make anything up, it’s just if—

BLP:  Okay.

SCON WHEATLEY:  If you can remember or not.  So how did it, how did this incident sort of stop happening?  This incident, how did it sort of end?

BLP:  Um he just stopped and put his clothes back on.

SCON WHEATLEY:  Did anything happen prior to him stopping and putting his clothes back on?

BLP:  Well I think it was just that like I wouldn’t, like, I don’t know, like he just.

SCON WHEATLEY:  He just stopped and put his clothes back on?  What about you?

BLP:  I would sit there and I’d, like I would lay there, and I just didn’t like it.  [INDISTINCT]

SCON WHEATLEY:  Did you say anything to him while he was doing this?

BLP:  I would say like no, stop, and everything.

SCON WHEATLEY:  Okay.  And how was your voice? Sort of how loud was your voice?

BLP:  Um I wasn’t very loud ‘cause I didn’t have a very loud voice.  But I would say it quietly because like, but loud enough for him to hear.

SCON WHEATLEY:  Mmm.

BLP:  And he would tell me to be quiet.

SCON WHEATLEY:  He’d tell you to be quiet.

BLP:  Yeah.

SCON WHEATLEY:  And did he tell you to be quiet?

BLP:  He would just say like, shhhh, like—

SCON WHEATLEY:  Shoosh?

BLP:  Yeah.

SCON WHEATLEY:  Okay.  And did he do anything else to, to sort of suggest to you, be quiet, or tell you to be quiet?

BLP:  [INDISTINCT]

SCON WHEATLEY:  No.  And um you said that his penis was hard the [INDISTINCT], whole t-, hard and long the whole time, did anything else happen to his penis?

BLP:  No.

SCON WHEATLEY:  No.  [INDISTINCT].  And you said he just stopped and put his clothes back on.  And then what happened then?

BLP:  And then I put my clothes back on, and then I went back to bed.

SCON WHEATLEY:  Did he tell you anything while you were putting your clothes on or?

BLP:  Well he told me to go back to bed.

SCON WHEATLEY:  He told you to go back to bed.

BLP:  Yeah.

SCON WHEATLEY:  Did he tell you about this incident at all, did he talk about this at all?

BLP:  No.

SCON WHEATLEY:  Did he tell you anything about this at all, when you were going back to bed?

BLP:  No.

SCON WHEATLEY:  [INDISTINCT].  And when you got back to bed, where was [Redacted], MGN?

BLP:  She was, like they were [bunk] beds, so she was on the lower bunk.

SCON WHEATLEY:  She was on the lower bed.  And was she ah s-, awake or asleep?

BLP:  Um actually I’m not sure if she was on the lower bunk or the—

SCON WHEATLEY:  Okay.  Can’t—

BLP:  Higher bunk.

SCON WHEATLEY:  Remember.

BLP:  But she was asleep.

SCON WHEATLEY:  Still asleep.

BLP:  Yeah.

SCON WHEATLEY:  Okay.  Did um, did you need any help putting your pyjama, ah your clothes back on?

BLP:  No.

SCON WHEATLEY:  And was MDH there while you were putting your clothes back on?

BLP:  Yeah.

SCON WHEATLEY:  He was.  And did he walk with you to the room?

BLP:  Um he waited there until I started walking to the room.

SCON WHEATLEY:  Mmm.

BLP:  And then um I think he went into the kitchen.

SCON WHEATLEY:  Mmhmm.  And then what happened?

BLP:  Um, and I’m not sure what happened after that.

SCON WHEATLEY:  [INDISTINCT].  So you reckon it happened early morning, sort of everyone was asleep and it was dark, it was ni- , evening time.

BLP:  Yeah.

SCON WHEATLEY:  If we had to, have you told anyone about this particular incident before?

BLP:  No.

SCON WHEATLEY:  No, so I’m the first person that you’ve actually talked to about that incident?

BLP:  Yeah.

SCON WHEATLEY:  [INDISTINCT].  If we have to talk about this particular incident, what’s sort of s-, sort of something that we can call it that would prompt you that that’s the one that we’re talking about?  You know like name it.

BLP:  Um the couch one.

SCON WHEATLEY:  The couch time.  Couch one.

BLP:  Yeah.

SCON WHEATLEY:  Couch one, or couch time?

BLP:  Couch one.

SCON WHEATLEY:  Was there any other times on the couch?

BLP:  Um.

SCON WHEATLEY:  That you can recall.

BLP:  I, I think so, but that’s the one that I, I don’t remember—

SCON WHEATLEY:  Don’t remember the details of [those] other ones?

BLP:  Yeah.

SCON WHEATLEY:  But you think there might have been other times on the couch?

BLP:  Yeah.

SCON WHEATLEY:  You said that um he touched, he touched your vagina and on your bum with his hands, which part of his hands was he touching those parts of your body with?

BLP:  Um his palm, and his fingers.

SCON WHEATLEY:  His palm and his fingers?  And what was his fingers doing?

BLP:  Um like just, like just rubbing.

SCON WHEATLEY:  Just rubbing.

BLP:  Yeah.

SCON WHEATLEY:  And you said it was on the outside of the vagina.

BLP:  Yeah.

SCON WHEATLEY:  And just on the bum s-, the cheek bums.

BLP:  Yeah.

SCON WHEATLEY:  Okay.  Um and you said your sto-, your stomach he was touching, was there any o-, and your legs, any other part of your body?

BLP:  Um I think it was just, no I think it was just my legs.

SCON WHEATLEY:  Okay.  And was he doing anything else—

BLP:  [INDISTINCT]

SCON WHEATLEY:  With any other part of his body other than his hands?

BLP:  Um no, I don’t think so.

SCON WHEATLEY:  [INDISTINCT].  No.  Okay.  Anything else about that incident that you can remember?

BLP:  Um no.”[79]

  1. [90]
    The pre-recorded evidence (cross-examination) was as follows:

“Okay.  I want you now to tell me about the first time that you say something that you can remember – and you told the police about – happened to you?---The first time that I remember that I told the police about[80]

Yes?---I believe – I don’t remember what the first thing I told them was, but there was a number of things that I told them.

Okay.  Let me ask you - - -?---There was - - -

Sorry?---There was the time on the couch.

Well, just hold on a second.  I just want to clarify something with you.  When you spoke to the police about the things that you say happened to you, did you speak to them in the order in which they occurred or was it just random bits and pieces and you picked out and told them about?---It was just whatever I remembered.  It wasn’t in any specific order.

Okay.  Well, what I want to do with you today is to put it into a specific order, if we can.  I want you to tell me about what was the first occasion in 2013 that you remember occurring to you?---I believe it was the couch incident.

Okay.  And when you say the couch incident, describe to me what you mean by the couch incident, describe to me what time of day it happened – you’ve said it was the lounge incident – and I want you to tell me what happened?---It was at night time.  He got me – he woke me up from the top bunk in my cousin’s room, then he took me out to the lounge in the – the couch in the lounge room.  And he undressed me and undressed himself and then he was touching me and rubbing against me.  And then after about 10, 20 minutes or so, he stopped and told me to go back to bed.

All right.  Now – and this is the first incident you can recall in 2013?---Yes.

How long had you been living at the house when that first incident occurred?---Not very long.  Probably – that was just after I moved in.

Okay.  And so you believe you moved in in early January?---Yes.

And was it in January or was it after Rainbow Beach or – when was it?---I believe that was before Rainbow Beach in around January, February.

Now, it might seem like a strange question, but this was, according to you, something that had been going on for the previous five years, is that right?---Yes.

In 2008 when this first happened, did – you didn’t say anything to anyone?---No.

You didn’t stop going to the house?---No.  Because I didn’t tell anyone, so nobody knew - - -

All right?--- - - - so they didn’t know not to take me to the house.  And I felt threatened by him, which I why I didn’t tell anyone.

Okay.  You never said to your mother or father or step-father, “I’d just rather not go over there”?---No.  I enjoyed going over there to see my cousins.  It’s – I just didn’t enjoy seeing him.

Okay.  So that was the first in time, you say? What time of - - -?---Yes.

Can you give me some indication of what time of the day or night that was?---That was during the night when everybody was sleeping.  So it would have been around early in the morning when it was still dark or late at night - - -

Okay.  And you - - -?--- 5 - - - when everybody was asleep.

And at that – on that occasion, you would’ve just turned 12, is that right?--Yes.

Did you say anything to him when he was doing this to you?---I would tell him to stop and I would try and stop him from doing it.  I would put my hands in the way and I would not let him do it, but he would always end up doing it anyway.

How did you get on with your aunty?---My aunty – I’m not sure.  We got along a bit, but I didn’t really speak to her much because whenever we went over there, I would play with my cousins and everything and I wouldn’t talk to my aunty much.  My mum would always talk to my aunty and we would – I would play with my cousins.

But, obviously, you felt that being at your aunty’s house, I’d suggest, was a safe place for you because you didn’t want to be at home because that was an unsafe place.  Is that right?---Yes, because, at the time, my uncle was working away from home.  He was – I’m not sure where he was working, but he wasn’t working at home so he wasn’t really at home very often.”[81]

And further:

“I want to suggest that, in relation to the couch incident that you have described, that did not happen?---That did happen.”[82]

Then in re-examination:

“If you think about that couch incident, how old were you at the time of that couch incident?---I believe I would have been 12.  Just turned 12.

So that couch incident happened after you moved into that house, is that what you’re saying?---Yes.”[83]

  1. [91]
    In the first s 93A interview the complainant said that she had not made the complaint about the couch incident to anyone before her interview with police.
  2. [92]
    The appellant specifically denied committing the offences charged as counts 1 and 2.[84]
  3. [93]
    In the first s 93A interview, the complainant said that the couch incident occurred after she was about nine years old.  That would date the event at about 2010.  In the pre-recorded evidence, she said the event occurred in 2013, and it seems after she moved into the second Brassall house.
  4. [94]
    The appellant’s wife gave evidence relevant to the complainant’s first version of when the couch incident occurred which was some time before the complainant moved into the second Brassall house.[85]  Her evidence was:

“All right.  Were there times that BLP did, in fact, have a sleepover?---Only when my sister had left her there for some concert that she went to.

Do you remember when that was?---It was October 2009.

What was the concert?---I think it was Green Day.

And she stayed the night, that is?---It was a couple of nights for some reason.

All right?---I think it was the Friday and the Saturday night.

Okay.  So it wasn’t a regular thing that she would stay over?---No.

It wasn’t as if she came over every fortnight or every month?---No.

And most of the times that she did come, she would be accompanied by her mother just for a visit, effectively?---Yep.”[86]

The towel incident (count 3)

  1. [95]
    In the first s 93A interview the complainant said this:

“BLP:  Um there was a time where I had, this was when I was living with my aunty.  He was home and I’d just gotten outta the shower, and um we have to have like quick, a quick shower ‘cause there’s a lot of people, and we had a certain amount of hot water, so we had to have a really quick shower, so.  And also like we all had a bed time, a certain bed time so what ah, what we would do would, was we would like just go and have a shower, then we’d wrap a towel around us and walk into our room and get dressed in there with the door shut.  And one time I’d just gotten outta the shower, I had the towel wrapped around me, and I walk into my room, which was, I shared it with my cousin, MGN--[87]

SCON WHEATLEY:  Yeah.

BLP:  And he came in as I was getting my clothes outta my drawers, like I’m not sure where everybody else was, but he like I’m not sure if they realised that I was getting dressed or anything--

SCON WHEATLEY:  Mmhmm.

BLP:  But he came in and he started touching me, and I just said, no, go away.  And, but he just, he said, no, and kept touching me.  And then he, he um, I can’t remember exactly what happened, but I think he just eventually just stopped and walked out.

SCON WHEATLEY:  So when you, you, you said you had a shower.  So what time in the day would this have been roughly?

BLP:  Oh this is around ah 6.00 o’clock at night.

SCON WHEATLEY:  At night.  Alright.  And do you remember whether it was dark or it was still light at this time?

BLP:  Ah I think it was still light.

SCON WHEATLEY:  Still light.

BLP:  Yeah.

SCON WHEATLEY:  And you said you had a shower, and you’d wrapped yourself in towel and your normal sorta thing that you do is wrap yourself in a towel, and then go to your bedroom to get dressed.  [INDISTINCT]

BLP:  Yeah, [INDISTINCT].

SCON WHEATLEY:  And when you when you went into the bedroom was there anyone in the room?

BLP:  No.

SCON WHEATLEY:  No.  So what happened to the door?

BLP:  Um I shut the door.

SCON WHEATLEY:  So shut the door.  And then what did you do next?

BLP:  Um I had, my drawers were inside the cupboard.

SCON WHEATLEY:  Yeah, drawers inside the cupboard.

BLP:  And so I opened up the cupboard doors and they sort of, I left ‘em like that so that if somebody did walk in not realising that anybody was in there, I had the cupboard door so that they still wouldn’t see me and they’d realise that I was getting dressed because the cupboard door was open.

SCON WHEATLEY:  Oh okay, yeah.  So you had the cupboard door open and the drawers inside the cupboard.

BLP:  Yeah.

SCON WHEATLEY:  Did you still have the towel around you?

BLP:  Yeah.

SCON WHEATLEY:  Yeah.  Do what was the next bit that happened?

BLP:  Um he like tried to ta-, he came in, and—

SCON WHEATLEY:  Mmhmm.

BLP:  He tried to take the towel off of me.

SCON WHEATLEY:  How did he do that? What did he d-, what was his actions?

BLP:  Um he was like, he was fairly gentle about it.

SCON WHEATLEY:  So what did he do?

BLP:  He just like tried to like unwrap it from me.

SCON WHEATLEY:  And what were you doing?

BLP:  I was like not letting him.

SCON WHEATLEY:  And what were you doing to, to stop him from doing this.

BLP:  Um I would say, no, stop it.  And no, go away.  And I would like hold the towel on.

SCON WHEATLEY:  And then what was the next bit that happened?

BLP:  And then he got the towel off of me and he started touching me on my boobs, and on my bum.  And then he did that for like two minutes, I think, maybe.

SCON WHEATLEY:  Yeah.

BLP:  And then I think, um I’m not sure, I think he just got a bit worried about somebody walking in or something—

SCON WHEATLEY:  Mmhmm.

BLP:  So he, like and I was like, I just kept saying, no, stop it.  And no, stop it.  And then, so I think he just kinda stopped and walked out.

SCON WHEATLEY:  Alright.  And how loud were you saying, no, stop it?

BLP:  Um I said it about like, no, stop it.  Like that loud.

SCON WHEATLEY:  Okay.  And where was everyone else in the house?

BLP:  Um I think my aunty was, no my cousins were in the lounge room I think.

SCON WHEATLEY:  Mmhmm.

BLP:  And I think my aunty was in the kitchen, or in her bedroom.

SCON WHEATLEY:  Could they have heard you from where they were?

BLP:  Um I don’t, I’m not sure.  I mean the kitchen was f-, fairly close to the—

SCON WHEATLEY:  Mmm.

BLP:  Bedroom, but the door was closed.

SCON WHEATLEY:  Yeah.  And when you say that, he started touching you on your boobs, what did he touch you with?

BLP:  His hands.

SCON WHEATLEY:  And how was he touching you on your boobs?

BLP:  He would like squeeze.

SCON WHEATLEY:  Squeeze.

BLP:  Yeah.

SCON WHEATLEY:  And how did that make you feel?

BLP:  Um, um really like invaded.

SCON WHEATLEY:  And then you said he was touching you on your bum.  Which part of your bum?

BLP:  Um my bum cheeks again.

SCON WHEATLEY:  Bum cheeks.  And you said that it last for about a m-, two minutes?

BLP:  Yeah.

SCON WHEATLEY:  And what was he saying when this was happening?

BLP:  He didn’t really say anything.

SCON WHEATLEY:  [INDISTINCT].  And describe the towel that you were wearing.

BLP:  It was just a, just, I think, I can’t remember, it was either blue or purple.

SCON WHEATLEY:  Blue or purple.

BLP:  Yeah.

SCON WHEATLEY:  Did you, when you were in the house, did you have your own towel that was yours, or you just had one that you had while it was dirty, and then you got a new one then or—

BLP:  Yeah.

SCON WHEATLEY:  Whatever?  That was just how it is?

BLP:  Yeah just have one.

SCON WHEATLEY:  Yeah.

BLP:  And then—

SCON WHEATLEY:  Just—

BLP:  [INDISTINCT]

SCON WHEATLEY:  Just a random towel?

BLP:  Yeah a random towel.

SCON WHEATLEY:  Yeah.  Okay.  Alright, so he’s then walked out.  When he walked out, what’s happened to the door?

BLP:  Um he closed the door behind him.

SCON WHEATLEY:  Closed the door.  Did anyone else come in?

BLP:  Um no.

SCON WHEATLEY:  Did you t-, tell anyone else about this incident—

BLP:  No.

SCON WHEATLEY:  Ever?  Am I the first person you’ve told?

BLP:  Yeah.

SCON WHEATLEY:  Okay.  Why don’t you think you were able to, that you shouted, like shouted when you said, no, stop?  Why do you think that was?

BLP:  Because I was really scared of what he would do.

SCON WHEATLEY:  What did you think he would do?

BLP:  Um I’m not sure, I just, yeah I’m not sure, he just.

SCON WHEATLEY:  Yeah.  So you said this one happened when you were actually living with them.  And what, oh how old were you when you were living with the family?

BLP:  Um twelve.

SCON WHEATLEY:  You were twelve years old.

BLP:  Yeah.

SCON WHEATLEY:  Okay.  And which house did this happen at?

BLP:  Ah the most recent one.

SCON WHEATLEY:  Most recent one.

BLP:  Yeah.

SCON WHEATLEY:  The number 17 house?

BLP:  Yeah.

SCON WHEATLEY:  Okay.  And do you remember whether or not you’d gone to school that day or anything like that?

BLP:  Um—

SCON WHEATLEY:  Is there anything else that you remember sort of outside [INDISTINCT]?

BLP:  I can’t remember if it was a weekend, or if I went—

SCON WHEATLEY:  Can’t remember.

BLP:  To school.

SCON WHEATLEY:  That’s okay.  Yeah.  So if you had to um put a word to this story, or this incident, what word would you use, or what, what could we call it that we’d know that we’re talking about?

BLP:  Um—

SCON WHEATLEY:  The towel incident, or, was there another similar to the towel incident?

BLP:  Um no.

SCON WHEATLEY:  No.

BLP:  I’d just say, yeah the towel—

SCON WHEATLEY:  Yeah the towel—

BLP:  Incident.”[88]

  1. [96]
    In the complainant’s pre-recorded evidence (in cross-examination), this was said in relation to this count:

“Tell us about the other things that happened in that three or four weeks after he came back as best you can?---I don’t remember exactly, but I do believe the towel incident was after he came back from work.[89]

Okay.  Tell us about the towel incident?---The towel incident was I had just gotten out of the shower and I wrapped a towel around myself and gone into the room to get dressed so that the next person could quickly have a shower.  My aunty, I believe she was in the kitchen making dinner or in her room, and my cousins were in the lounge room watching TV.  I’d gone into the room and closed the door so that people knew I was getting dressed.  And then my drawers were inside the cupboard and the cupboard doors opened out, so I’d have those open while I was getting dressed so that if anybody did walk in they still wouldn’t see me when I was getting dressed.  And then he walked in and he walked behind the door.  He locked the door behind him and he tried to take my towel off and I wouldn’t let him.  He kept trying and I kept saying no and I wouldn’t let him.  And then he ended up walking back out of the room and closing the door behind him.

Okay.  So he didn’t get the towel off you?---No.

Okay.  And there would have been – the way you’ve just described it, there would have been a bit of a wrestling match going on, trying to get this towel off you?---No, it wasn’t really rough.  He just tried to take it off, but he wasn’t rough about it.

Okay.  But you would have been saying things to him and verbalising, wouldn’t you?---Yes.  I kept saying no, I don’t want you to.

Now, that’s two occasions we’ve spoken about since he came back in some time around June to live with the family.  What other occasions can you remember after he moved back into the house in June?---I believe there was, like, occasions happening every day after he moved in, but I don’t remember them.

Well, when you say there were occasions every day after he moved back in, why is it that you weren’t able to tell the police about each and every one of those occasions?---Because I don’t remember the details of them.

Okay.  Well, tell me about the details of the ones that you do remember after he moved back in?---I believe that was all after he moved back in that I can remember the details of.

And those two that you’ve just described to us, about when he moved back in, the towel time and I think you said the photo frame time?---Yes.

Were they during the week, were they at the weekend? When were they?---I believe they were after school.  The photo frame incident was on a weekend, but the towel incident, I believe that was on a school night, just after school.

Okay.  Was it your usual practice, that you’d walk around the house with just a towel around you?---No, just from the bathroom to the bedroom, and we would get dressed in the bedroom with the door closed so that we could get the – because there was a lot of people living in the house so we’d get the showers done nice and quickly, and that was the quicker way of doing it.”

And further:

“I want to suggest to you that the towel time that you have described did not happen?---That did happen.”[90]

Then in re-examination:

“MR O’CONNOR: The towel incident, you were being asked about that.  You know which one I’m referring to there?---Yes.[91]

All right.  You were asked whether he got the towel off you and you said no.  Do you remember that?---Yes.

Did you have any clothes on at all underneath that towel?---No.

Did he get any part of the towel away from your body at all?---Yes.

Right.  And - - -?---But he didn’t get it off.

The whole towel didn’t come off?---Yeah.

Right?---But he did get a part of it off me.  Like, the front part.

Right.  So was any part of your body exposed when he pulled the towel off? That part of the towel off?---Yes.  Yes.

Which part of your body was exposed when he pulled the part of the towel off?---My breast.

Right?---And my lower parts.

All right.  So where, exactly, was the towel still covering you up?---It was still underneath my arms.  Like, I still had it underneath my arms and around my back.  He just pulled it off a bit and I put it back on.

All right.  After that part of the towel came off and your breasts were exposed, can you – what happened then?---I put it back on.  I wrapped it back up and around me.

All right.  Did he do anything?---Like, I wrapped – yeah.  He tried to touch me but I wouldn’t let him and I put the towel back around me.

All right.  When you say he tried to touch you, can you say what he did?---He tried to grab my breast but I pushed him – I stopped him from doing it.  Like, I put my hands in the way and I put the towel back around me and I told him no and I told him to go away.

So can you say precisely where his hands went?---On my breasts. Like, he tried to touch my breast, but he didn’t really get to.

Well, we’re trying to be specific here. So when you say it didn’t really touch my breasts or he tried to, was – did he - - -?---Like, his hands – his hands went towards my breasts, but I was putting the towel back around me as he went to.  So he didn’t get to.”[92]

  1. [97]
    The appellant’s wife gave some general evidence about arrangements within the second Brassall house for the children to bath.  She said:

“Okay.  Now, just talking about the regime in the house.  Obviously you’re there with the four children, five children?---Five.

One a baby.  Your husband is working away.  Was there a routine in the house? Did you establish a routine?---Very much so.  The kids would get up in the mornings.

They would all get ready for school with me, you know, telling them what to do and whatnot.  I’d drop them off at school, come home, do my usual housework.  My son was a really good sleeper so I got a lot done while he slept.  Also in between that I’d sometimes do my shopping or, you know, grocery shopping, run errands and stuff like that.  And when school finished every day, if I didn’t pick them up at the school, which was only one kilometre walk away, they would walk home.  And then it was basically do your homework, do your chores.  Sometimes it was emptying the dishwasher or something like that.  Get ready, you know, have dinner, have a bath, shower.  Sometimes they had it earlier.

When you talk about having a bath or a shower, was it first in, best dressed as far as showers went or did you have - - -?---I’d just rattle off a name and say “you go and have a shower” because someone could have been doing their homework.

And was there a particular time for dinner at all?---It was usually by 6 o’clock because with a young baby who was starting solids, yes, we pretty much ate before 6 o’clock.”[93]

  1. [98]
    There was no evidence of preliminary complaint given by the complainant specifically relevant to this count.  The complainant told the police in her first s 93A interview that they were the first people she had told of the towel incident.
  2. [99]
    The appellant specifically denied committing the offence charged as count 3.[94]

Poppy’s house incident (counts 4, 5 and 6)

  1. [100]
    In the first s 93A interview the complainant said:

“BLP:  Um there was one time when we went to my Poppy’s house, and he was um, I think he was on holiday, he was driving around Australia, I think?[95]

SCON WHEATLEY:  Who was on holiday?

BLP:  My poppy.

SCON WHEATLEY:  Poppy, yeah.

BLP:  Yeah.  And my uncle took me and went to his house to work on his car.  Um his car’s like a four-wheel-drive, ‘cause he competes in four-wheel-drive competitions and everything, and he’s got like a, well his car was at my Poppy’s house under one of his um carports in the back yard with all his tools and everything.  And so he forgot the key to open the door, o-, at my Poppy’s house, so he asked me to jump the fence and grab one out of, I think it was like the bottom, there’s like a big room at the bottom of his house, it’s like underneath his house.

SCON WHEATLEY:  Mmhmm.

BLP:  And it wasn’t really, it didn’t really get used, it just had, it was used for storage really.

SCON WHEATLEY:  Mmhmm.

BLP:  And most of the rooms in his house were as well, because he didn’t have anyone living there apart from himself.  So he um, my uncle got me to jump the fence and see if there was a spare key in that room under the house.  And so I jumped the fence and I went to see if there was.  And I think there was.  And he told me to just open up the, see if I could open up the back door and come in through, and come out the front, so I didn’t to jump the fence again.  And then, so I did, and it opened up the back door, and I went through and opened up the front door.  And he went, no he went to go through the front door and out the back door, but he stopped in the kitchen and he picked me up and put me, and like made me sit on the bench.  And he started touching me with his hands.  He touched my boobs, and he touched my bum, but he would like put me down on the ground.  So he’d touch my boobs and then he put me back down on the ground so I was standing up and he started touching my bum with his—

SCON WHEATLEY:  Mmhmm.

BLP:  Hands as well.

SCON WHEATLEY:  And what were you wearing?

BLP:  Um I was wearing I think jeans, and undies, and a shirt, bra, and a jumper.

SCON WHEATLEY:  Yeah.  What colour jumper was it?

BLP:  I think it was blue.

SCON WHEATLEY:  What about the shirt?

BLP:  Ah I can’t remember what colour the shirt was.  I think it mighta been white.

SCON WHEATLEY:  So you said he put you up on the, the bench—

BLP:  Yeah.

SCON WHEATLEY:  In the kitchen, and he was touching your boobs.  How, what was he touching your boobs with?

BLP:  His hands.

SCON WHEATLEY:  His hands.  And when you say, touching, describe that touch to me.

BLP:  Um like squeezing.

SCON WHEATLEY:  Squeezing.

BLP:  Yeah.

SCON WHEATLEY:  And was this on top of the jumper or underneath?

BLP:  Um I think it was a bit on top, and then he moved underneath.

SCON WHEATLEY:  And when you say, underneath, what part of his hand could you feel where?

BLP:  I could feel his fingers and his palm like on my boobs, like.

SCON WHEATLEY:  Directly on your boobs, or—

BLP:  Yeah.

SCON WHEATLEY:  Underneath clothing?  Like—

BLP:  Where he put—

SCON WHEATLEY:  On your skin or not?

BLP:  Oh on my skin.

SCON WHEATLEY:  On your skin.  And how long did that bit that he was touching your boobs last for?

BLP:  Um about five minutes.”

SCON WHEATLEY:  Yeah.  And then what, when was the next, what was the next bit?

BLP:  He picked me up and put me back on the ground so I was standing up—

SCON WHEATLEY:  Yeah.

BLP:  And then he started to touch my bum.

SCON WHEATLEY:  And how was he touching your bum?

BLP:  With his hands um on top of my jeans.

SCON WHEATLEY:  Yeah.

BLP:  And then he moved and went underneath my jeans, so he was touching my skin.

SCON WHEATLEY:  And how did then how was he able to get under your jeans?

BLP:  He just, he stuck his hands in, like he just like went in—

SCON WHEATLEY:  In?

BLP:  Un-, underneath my jeans, like—

SCON WHEATLEY:  Underneath your jeans?

BLP:  Yeah.

SCON WHEATLEY:  Okay.  And you felt him on your, your bum.  And what part of your bum was it?

BLP:  Um my bum cheeks.

SCON WHEATLEY:  Your bum cheeks.

BLP:  Yeah.

SCON WHEATLEY:  And how long was he touching you like that?

BLP:  Um, ah probably another five minutes.

SCON WHEATLEY:  And what was he saying when this was happening?

BLP:  Um he was saying that I had a really nice bum and everything.

SCON WHEATLEY:  And what about when he was touching your boobs?

BLP:  He didn’t really say anything.

SCON WHEATLEY:  And what about him, what was he wearing?

BLP:  Ah I think, I can’t remember, but I think he was wearing jeans.

SCON WHEATLEY:  Okay, if you can’t remember that’s okay.  And what happened to his clothes when he was touching you?

BLP:  Um they stayed on.

SCON WHEATLEY:  Stayed on.

BLP:  Yeah.

SCON WHEATLEY:  And then what happened after he finished touching your bum?

BLP:  Um he took me just outside of the kitchen and there was like, it’s all carpeted just outside the kitchen, and there was a dining area, and like a hallway next to the couch, and basically next to the front door, and he lay me down in, on the floor in the like dining area, and he layed on top of me and he started to touch me in the same way as he was before, like, but he, he would touch my private areas again and he would go underneath my clothes, but leave my clothes on.

SCON WHEATLEY:  So you said he laid you on the floor, so what happened to your clothes?  You, [INDISTINCT], you said he left them on.

BLP:  Yeah.

SCON WHEATLEY:  Um how was he able to touch your private parts if your jeans were still on?

BLP:  Um like he just went, he like went underneath, like um he just like slipped his hand—

SCON WHEATLEY:  Slipped his hand, yeah.

BLP:  Down my pants.

SCON WHEATLEY:  And which part of your pants?

BLP:  Um down like, I can’t remember, but um, so when we were laying down—

SCON WHEATLEY:  Mmm.

BLP:  Um like he didn’t like keep my clothes on, but he kept them on more than he had before, like in—

SCON WHEATLEY:  Okay, so—

BLP:  [INDISTINCT]

SCON WHEATLEY:  Explain to me, just close your eyes and just walk me through it.  So when you layed down on the, lay down on the, in the dining area, where were you laying down?

BLP:  We were laying down on the carpet.

SCON WHEATLEY:  On the carpet.

BLP:  Yeah.

SCON WHEATLEY:  And what part of your body was lying down?

BLP:  My back.

SCON WHEATLEY:  So you were lying on your back.  Okay.  And you said he sort of, sort of did something with your clothes.  So tell me exactly how he sorta changed your clo-, changed the position of your clothes?

BLP:  He just, he lifted up my shirt, but my shirt didn’t come off.

SCON WHEATLEY:  Mmhmm.

BLP:  He just lifted it up.

SCON WHEATLEY:  From what part did he lift it up?

BLP:  Ah he lifted it up from my wa-, like my waist.

SCON WHEATLEY:  Yeah.

BLP:  And he just lifted it up to underneath my arms.

SCON WHEATLEY:  Okay.

BLP:  And—

SCON WHEATLEY:  Yeah.

BLP:  Then he, he just like rubbed up and down, like he rubbed up my legs, and up to my, like my chest.

SCON WHEATLEY:  Mmhmm.

BLP:  And he would rub up and down that.  And then he would, he pulled my pants down a bit, and he was touching my bum—

SCON WHEATLEY:  [INDISTINCT]

BLP:  My bum cheeks with his hands.  And he touched my boobs with his hands.  And he touched my vagina with my hands.

SCON WHEATLEY:  Mmm, which part?

BLP:  With, with his hands.

SCON WHEATLEY:  Yeah with his hands.  What part of his hands were doing what, to what part of your vagina?

BLP:  Um that’s when he started to, like his fingers would go inside my vagina.

SCON WHEATLEY:  And how many times would that happen?

BLP:  Ah quite a few.

SCON WHEATLEY:  If you had to, on this incident, how many times do you remember his fingers going in and out?

BLP:  Ah I don’t remember.

SCON WHEATLEY:  What, well what’s the minimum amount of time that you, you think it could have happened?

BLP:  About five.

SCON WHEATLEY:  About five.  And how far did his fingers go in?

BLP:  Um like, like all, like—

SCON WHEATLEY:  All.

BLP:  All the way up to his knuckles.

SCON WHEATLEY:  And how many fingers went in?

BLP:  Um sometimes it was one, sometimes it was two.[96]

SCON WHEATLEY:  And how did that make you feel?

BLP:  Um it made me feel like really upset, and I didn’t like it.

SCON WHEATLEY:  And physically how did it feel?

BLP:  Um it felt weird, and like it hurt.

SCON WHEATLEY:  Alright.  Can you explain to me, just in your words, um you said he sort of changed, he sort of took your, your, your jeans off [INDISTINCT] sort of, how did he do that, and sort of where, what position were the jeans in when he was doing, touching your vagina?

BLP:  Um he just pulled them down.

SCON WHEATLEY:  Did he had to do anything to be able to pull them down? So what was holding your jeans up?

BLP:  They were just like tight enough to hold themselves.

SCON WHEATLEY:  And how di-, how was he able to move the jeans?

BLP:  He just grabbed onto the side and pulled them down.

SCON WHEATLEY:  And how far did he pull ‘em down?

BLP:  He pulled them down to just below me knees.

SCON WHEATLEY:  Your knees.  Alright.  And do you remember, you said you were wearing, you were wearing undies, I think, do you remember what undies you had on?

BLP:  Um I, I think I was wearing just like purple ones—

SCON WHEATLEY:  Mmm.

BLP:  I think.

SCON WHEATLEY:  You think.  But if you don’t remember that’s okay.  And so what happened to your undies?

BLP:  Oh he pulled them down—

SCON WHEATLEY:  Pulled them down.

BLP:  As well.

SCON WHEATLEY:  So the bit in the um dining room, how long did that, that go for?

BLP:  Oh, um probably just like a bit longer than five minutes.

SCON WHEATLEY:  A bit longer.  And was he still wearing clothes?

BLP:  Yeah.

SCON WHEATLEY:  Alright.  Did you see anything happening to any parts of his body?

BLP:  No.

SCON WHEATLEY:  And what was he saying to you when this was happening?

BLP:  He didn’t really say anything.

SCON WHEATLEY:  And what were you saying?

BLP:  I was telling him to stop, and I said um, I didn’t like it.  And I told him that um I came with him to work on his car with him, like I came with him to learn about cars really, and like fixing cars, and didn’t come for him to do that to me.

SCON WHEATLEY:  How old were you when this incident happened?

BLP:  Ah I think I was also twelve at the time.

SCON WHEATLEY:  So can you remember whether this was during the time that you were actually living there, or was it time that you were visiting?

BLP:  I think it was time that I was living there.

SCON WHEATLEY:  Living there.  And had any of the other kids come, or any other people come with you with—

BLP:  No it was—

SCON WHEATLEY:  With your uncle?

BLP:  Just him and I.

SCON WHEATLEY:  And why you say, uncle, which uncle are you talking about?

BLP:  Ah my uncle that’s my [INDISTINCT]—

SCON WHEATLEY:  So what’s his name?

BLP:  MDH.

SCON WHEATLEY:  MDH.  Yeah.  Um so you said that you were on the floor, he’s, he’s putting his finger in and out of you, um what happened next?

BLP:  Um he got up.

SCON WHEATLEY:  He got up.  Yeah.

BLP:  And he told me to get up, and I pulled my pants up and my shirt down.  And then he grabbed out two cups and he went to the fridge, and he grabbed out a bottle of Coke, and he poured himself and I a cup each, and then he told me to drink it.  I told him that I didn’t like Coke.  And he said, oh well, just drink it, ‘cause I’ve already poured it now.  And then he put the Coke back in the fridge and he drank his cup, and I drank my cup, and put my cup in the sink, and we went downstairs out in the back yard to, where his car was, and we started to work on his car.  And then ah I think it was about half an hour later my aunty came with my cousins.  And then um, I think that’s all I really remember.

SCON WHEATLEY:  Mmm.  So your aunty came with your cousins and that’s all that happened then.

BLP:  Yeah.

SCON WHEATLEY:  What time of the day roughly do you think this time happened?

BLP:  Ah about lunch time—

SCON WHEATLEY:  Around lunch—

BLP:  [INDISTINCT] just before—

SCON WHEATLEY:  Time.

BLP:  Lunch time.

SCON WHEATLEY:  And do you remember whether it was sort of a school day, or—

BLP:  Um—

SCON WHEATLEY:  Weekend, or holidays, or?

BLP:  Um it wasn’t a school day, but it mighta been weekend, or school holidays.

SCON WHEATLEY:  Okay.  And what colour was the carpet?

BLP:  A-, ah I think it was grey.

SCON WHEATLEY:  You think, but you’re not sure?

BLP:  Yeah.

SCON WHEATLEY:  That’s alright.  [INDISTINCT].  And what’s your Poppy’s name?

BLP:  JQN, no, JQN.

SCON WHEATLEY:  JQN.  And whose, like whose dad is he?  Is he—

BLP:  He is my Mum’s and—

SCON WHEATLEY:  Your Mum, Mum’s dad.

BLP:  My aunty’s dad.

SCON WHEATLEY:  And what address does um Poppy have?

BLP:  Ah 17 [Redacted] Street.

SCON WHEATLEY:  [Redacted]?

BLP:  [Redacted], yeah.

SCON WHEATLEY:  And what suburb’s that darl?

BLP:  Um Ipswich.

SCON WHEATLEY:  Ipswich.

BLP:  I can’t remember, it coulda been [Redacted] or—

SCON WHEATLEY:  Or something like that?

BLP:  [Redacted] like—

SCON WHEATLEY:  And what’s, what’s JQN’s last name, do you know?

BLP:  Um JQN.

SCON WHEATLEY:  JQN?

BLP:  I think.

SCON WHEATLEY:  Okay.

BLP:  Yeah I think it would be JQN, ‘cause my Mum’s last name used to be JN.

SCON WHEATLEY:  [INDISTINCT].  The um, this time that he put his fingers into you, was that the first time that that had ever happened?

BLP:  Um I don’t think so.

SCON WHEATLEY:  You don’t think so.  Okay.  How um, was there anything that, that was different in relation to that area after he’d done that?

BLP:  Um it got really sore.

SCON WHEATLEY:  Really sore.  And how long was it really sore for?

BLP:  About a week.

SCON WHEATLEY:  About a week.  And what do you think was the reason why it was really sore?

BLP:  Because um he just, he constantly like rubbed on it.

SCON WHEATLEY:  [INDISTINCT].  So is there anything else about that incident—

BLP:  Nnn no.

SCON WHEATLEY:  At Poppy’s house?  Was there any other incidences that happened at Poppy’s house?

BLP:  Um no.

SCON WHEATLEY:  Okay.  So if we call this Poppy’s house, would that be a good memory sort of reminder?

BLP:  Yeah.”[97]

  1. [101]
    And further:

“BLP:  Oh I’ve been to Poppy’s house quite a lot.

SCON WHEATLEY:  Lots of times?

BLP: Yeah.

SCON WHEATLEY:  Okay.  How many times did you go with MDH by yourself?

BLP:  Just the once.

SCON WHEATLEY:  Just the once when that thing happened?

BLP:  Yeah.”[98]

  1. [102]
    In her pre-recorded evidence (in cross-examination) the complainant said:

“Now, you spoke to the police about an incident that you say occurred at Poppy’s house.  Remember that one?---Yes.[99]

When - - -?---Yes.

When – between January and June, when did that occur?---I’m not sure.

Well, was it a long time after the couch one or was it a short time before the towel one?---I believe it was on the school holidays, but not the June/July school holidays.  I believe it was just the, like, holidays in between the first and second term of school.

Okay.  So that would have been the Easter school holidays?---Yes.

Okay.  So Easter of 2013, you talk about the incident at Poppy’s house?---Yes.

I want you to tell me, first of all, if you can recall, what day of the week it was, whether it was daytime or night time as well?---I don’t recall what day of the week it was, but I know that it was during the day, around lunchtime or in the afternoon.

And Poppy’s house is JQN’s house; is that right?---I don’t know his first name properly, but it’s JQN or JQN or something.

Okay.  And how did you get to the house?---We drove in my uncle’s car.

What car was that?---That was a gold colour Toyota four-wheel drive.

Gold coloured Toyota four-wheel drive?---Yes.

Okay.  How many seats did that car have in it?---I believe it was five or seven.

Okay.  So it was like a big wagon; is that right?---Yeah, it was a big four-wheel drive.

Okay.  If I was to suggest that it was, in fact, the gold Nissan Pathfinder wagon, would you disagree with that?---Yes.

Is that what it was?---No.

No?---I believe that’s what it was, yes.

Okay.  Not a Toyota, a Nissan?---Yes.

Okay?---I believe – it might have been my aunty’s car that was a Toyota.

Okay.  And when you got to the – when you got to Poppy’s house, how did you get in?---I had to jump the fence and go into a room which was under the house which was used as storage, because my uncle had forgotten the key and there was a spare key under there.

Yeah?---I - - -

Where – I’ll stop you there.  Where was the spare key kept?---In the – a spare room underneath the house which was used for storage.

Okay.  Was it just hanging on a hook or was it just lying on a table, or where was it?---I can’t remember.  I think it was around with the mowers and the saws and stuff.

Okay?---Like, around with their gardening equipment.

Okay.  And you got the key, and where did you go? To the back door?---Yeah, I walked up the stairs to the back door and I opened up the back door.

Did you open the - - -?---And then walked through the house.

Sorry.  Did you open the door?---Yes.  I – I opened the back door and walked through to the front door and opened the front door.

Are you able to - - -?---So that my uncle could get in.

Are you able to describe the back door to me?  Was it like a glass sliding door?---Yes, a glass sliding door.

There were actually two glass sliding doors next to each other, weren’t there?---Yes, one in the kitchen and one through the lounge room.

Okay?---I went through the one in the kitchen, because it was the closest to the back stairs.

And you opened that door with a key that you had retrieved from under the house?---Yes.

Okay?---I believe so.

Well, you’ve told us that you found the key and you went upstairs and you unlocked the door?---Yes.  Yes.

That’s what happened, is it?---Yes.

Okay?---I’m – I’m – I’m pretty sure.  That’s how I remember it.

Okay.  So, well, tell me what happened once you got inside the house?---Well, once I got inside the house I went to the front door and opened up the front door for my uncle.

Yeah?---And then he came in and we were walking back down to the back door when he stopped in the kitchen.  And he put me up on the bench and he started touching me under my shirt and then he took me off the bench and stood me up to touch me in my pants.  And then he took me out – just outside of the kitchen to the hallway bit that was there, like, in the dining room, and it was carpeted.  And he laid me down on the floor and he touched me, pulled my pants about halfway down, and he pulled my shirt up.”[100]

  1. [103]
    The complainant was shown some photographs of Poppy’s house and the cross-examination continued: 

“MR SEAHOLME: So just going back to that, I think your evidence is there were two things that happened at that house when you went there on that occasion.  Two separate incidents – one in the lounge, one in the dining room – sorry – one in the kitchen, one in the dining room.  Is that right?---Yes.  But they were the same in – like they happened at the same time.[101]

Yes, that’s what I mean?---Yeah.

There wasn’t any other time you went to Poppy’s house and anything ever happened?---No.

Okay.  And did you happen to know where Poppy was?---I believe Poppy was driving around Australia or off to Perth or something at the time.

And what time of the day was it that – I think you told us it was about lunchtime that you went there?---Yeah, around lunchtime and towards the afternoon.

And what day of the week would that have been?---I don’t remember.  I believe it was during the Easter school holidays.

During the Easter school holidays. Okay?---Yes.

And I want to suggest to you that, whenever you did go out, you would go out with your aunty and not your uncle. Your uncle wouldn’t take you out on his own.  You would go out with your aunty on your – if you were on your own with her?---No, my uncle would take me out on my own quite a lot.

Okay.  Where would he take you?---He would just take me to wherever he’s going, whether it was just to the shops or to pick up something from his mate’s house or to Macca’s or wherever he would - - -

All right.  Would anyone else go with you?---Sometimes one or two of my other cousins would go with me.  Sometimes it was just me.”[102]

And further:

“Okay. Excuse me a second.  When did – how well did you get on with Poppy?---I don’t really know because we just – we would go there and we would talk to him a little bit.  It was mainly just my auntie and Mum that would talk to him and then we would play with the dogs in the backyard or something.

All right. And - - -?--- - - - or play in the spare room which had lots of toys and stuff in it every time.

All right. And he – when you were there, he’d give you – would he give you drinks – I think you told the police he’d give you drinks of Coke.  Is that right?---No, not my poppy.  That was that time – the incident at my Poppy’s house where my uncle had grabbed out, I think, a Coke.

Just say that again?---That wasn’t – my poppy doesn’t do that, though my poppy used to always give us lollies when we were there, but that was the incident at my poppy’s house with my uncle where my uncle gave me a drink of Coke.

Okay. And where did the Coke come from?---Out of the fridge.”[103]

And further:

“I just want to go back to something we spoke about earlier at Poppy’s house and I didn’t make a note of – a full note of what you said.  You said that something happened in the dining room.  Is that right?---Yes.[104]

Now, where’s the dining room in relation to the lounge room? Next to it?---Not quite next to it.  It’s just outside the kitchen and then the dining room – the lounge room is just outside the dining room.

So am I to understand the dining room might be a separate room to the lounge room?---Yes, yes.  It’s a separate room to the lounge room.

Okay?---There’s just a little doorway bit where you walk through.

And you said he took you into the dining room and – I don’t recall – what did you say he had done to you in the dining room?---He pulled my pants down and he was touching me and feeling me and he put his fingers in me.”[105]

And further:

“I suggest the two occasions that something happened at Poppy’s house at the one time did not occur?---Yes, it did occur.”[106]

  1. [104]
    The complainant’s mother gave this evidence about her father’s movements:

“Okay.  Now, if we go to - back to 2013.  Was your da - did your dad ever go on any trips?---My dad did.  He has been on a couple of trips.  I’m not sure when.

Okay.  Do you know what trips they were?---Round various parts of Australia.  I’m not sure where the first trip.  The second trip was over - up above - up Darwin and then down through WA on the way back.

Okay.  And you said you were unsure when they happened?---That’s correct.

Do you know if they happened when BLP was living with your sister and the defendant?---I don’t know”[107]

  1. [105]
    Poppy gave evidence on these counts:

“Where do you live, Mr Jones?---11 [Redacted] Street.[108]

How long have you lived there?---Thirty-three years.

And do you know a person by the name of MHY?---Yes, yes.

How do you know her?---She’s my daughter.

Do you also have a daughter called PLI?---Yes.

And you know MDH?---Yep.

He’s your?---Son-in-law.

And you know BLP?---Yep.

She is - - -?---She’s my granddaughter.”

  1. [106]
    Poppy was shown some photographs of the back of his house and his evidence continued:

“Exhibit 18, can you tell us what that’s a picture of?---That’s my back - back of the house.[109]

Okay. There’s a glass sliding door here?---Yes.

Where does that door go to?---Into the kitchen.

There’s a glass sliding door here?---It goes into the lounge room.

And over here there’s a wooden door?---Yeah, that goes into the hallway.

All right.  Have you always been able to access the house through that wooden door?---You can, yeah.

Yeah, you can?---You can.

Have you always been able to?---No, I’ve had it locked for about 18 years.

Okay.  And why was it locked for about 18 years?---Because I don’t use it.

And the key to that door, is that kept on the inside or outside or somewhere else out in the yard?---It’s on the inside.

This particular door here, the kitchen sliding door, can that be opened from the outside?---No.

There was a storage area underneath the house; is that right?---There’s - yeah, there’s a spare room.

Look at exhibit 18.  This area here?---Yes.

Did you ever keep a spare key to the property in that area?---There’s a key in the door there all the time.

But it was inside of this area, once you enter into that area, was there ever a spare key to the house in that area?---In here?

Yeah?---No.

But you’re indicating where the Besser brick wall is?---Yeah, Besser brick wall.

Along this area.  So in this storage area, under the house, there was never a key. - - -?---No.

- - - for the house.  Has BLP been to your house many times?---Yeah, plenty of times.

And who would she come there with?---Her mother and father, or step-father, I should say.

Has she ever, to your knowledge, been there while you’ve been there with BLP - have MDH and BLP ever come to your building - - -?---Yeah.

- - - your house to your knowledge?---Yep.

On their own?---No, always had the - one of the daughters with them.

Okay.  And you went away on a trip at some stage; is that right?---Yep.

Where did you go?---All - it would be like a year or a while - - -

Pardon?---It would have been like - - -

I’m talking about 2013, sorry?---Yep.  I went up to the Northern Territory.

Okay.  When did you go?---I think it was the end of July.

Okay.  And when did you come back?---Around the middle of August.

All right?---Only gone for just over two weeks.

At Easter of 2013, were you at your house?---Yeah.

Did you see BLP during that period at all?---I couldn’t tell you.

Was there ever an occasion where BLP was left with you and her mother picked her up?---She was left there one night, but MHY picked her up.

And, finally, do you keep Coke in your fridge?---No.[110]

That’s all I have, thank you, your Honour.”

And later under cross-examination:

“Now, Mr Jones, you said you went travelling in 2013?---Yep.[111]

And that was in July some time until mid-August?---Yeah.

And you went to the Northern Territory?---Yes.

So you were away from your house?---Yeah.

Were you able to monitor the comings and goings - - -?---No.

- - - of people at your house?---No.

No cameras there?---No.

Okay. Did you - did anyone else have a key to your house?---My daughter.  Both - well, both daughters have got a key for it.

Okay.  By both daughters, do you mean MHY and PLI?---That’s correct, yeah.

Okay.  And you yourself had a key?---Yeah.

Okay.  Has MDH ever lived with you at all?---Yes.

When did he live with you?---On and off over the years.

Did he have property stored at your house?---Yeah, he’s got property there.  Yeah.

Where was his property stored?---Mostly under the house in the spare room and in the shed.”[112]

  1. [107]
    The appellant’s wife gave the following further evidence relevant to these counts:

“Now, if you can just move forward a little, you say that MDH was away a fair bit of the time working but did come home from time to time.  What can you tell us about Easter of 2013?---Easter, I had asked my sister to take her home[113] for the Easter break and for a week to just to give everybody a break and so she could also have time with, you know, her younger sister and her two brothers and her mum.[114]

Yep?--- And my sister agreed to that.

Yep?---But leading up to it, BLP wasn’t happy about it because she just knew that she, you know, she wasn’t going to have a bit more relaxation and an easier time.

Yep?---My sister picked her up on Good Friday.

And did you go anywhere over Easter?---Yes, I did. I went on a bushwalk with some friends.

Yeah?---My dad came along as well.  We took a few cars down to a four-wheel drive bushwalk area down near Warwick and then in the middle of the school holidays, which was the end of the first week, I actually went to Hervey Bay for a few days so the kids could see their dad before and after work and Sunday as well when he wasn’t working.

All right.  Was MDH working in Hervey Bay at that time?---Yes, he was.  He was working for a mechanic shop.

Okay.  And what about his mother, where was she living?---She was living in her unit.

And do you know if he was spending time with her?---Yeah, he actually lived with his mum.

Okay?---She had dementia and Alzheimer’s.

Now, we know – excuse me a second.  So you went away over Easter; BLP went back to her mother’s?---Well, she was still at her mum’s from the Easter long weekend.

Okay.  And BLP didn’t travel with you up to Hervey Bay?---Not at all.

Where is Burrum Heads?---It’s just up from Hervey Bay.  It’s sort of – if you go the long way around, it kind of overlooks towards the Bundaberg area.”[115]

And further:

“MR SEAHOLME: There was some plan to pick up BLP, though, wasn’t there?---I had originally said I was going to be home on the Monday.  We had actually been enjoying ourselves because one of MDH’s family members was visiting from Townsville and the cousins were catching up so my kids asked if we could stay an extra day.  So I asked my sister if she could take – well, I asked her to keep her for an extra day and said she couldn’t because she had work.  So I organised that she would go to my dad’s on the Monday night and then - - -[116]

When you say your dad’s, you mean JQN - - -?---JQN, yes.

JQN.  Yep?---So my sister dropped her off there at some point on that Monday and I got home late on the Tuesday.

And you picked her up?---Yeah.  I picked her up at my dad’s that night.

Described as Poppy’s house?---Yeah.  Poppy’s house.

Now, while we’re on the subject of Poppy’s house.  Poppy’s house is a house where you grew up?---Yes.

You’re familiar with the house?---Very.

And the layout of the house?---Very.

Was there ever a key hidden under the house?---Never a key under the house.

All right.  Was there ever a key hidden anywhere?---Yes.  There was a key hidden.  At some point I knew of one above a fish tank which was like a concrete fish tank.  Then my dad moved it out without me knowing but I knew of it beside the carport.

All right.  Where was that key to?---It was to the front door?---Okay.

Were you able to access the house from the back through the screen doors?---There’s no screen doors.  There’s two glass doors.

That’s what I meant, the glass doors?---From the inside if they’re locked, yes.  But if from the outside you can’t access them any way, shape or form.”[117]

And under cross-examination:

“MR WILKINS: Now, Ms MHY, I’ll start with this: you said your husband was working away and that he’d come home once a month and then he said he carried on once a fortnight.  When was that?---When he first left in February I recall him probably coming home once in two months.[118]

Okay?---And then – he did come home a second time in March actually because we had MUH’s christening.  He got home late on the Saturday because he worked on the Saturday.

Is this in 2013?---Yes.

Okay.  And you said – so he’d come home once a month, once a fortnight but then he didn’t come home for two months and then he came home at one point for MUH’s christening?---Yeah.  That was the 10th of March, yes.

The 10th of March.  Okay.  Was there any other times?---He came home for the Easter weekend because that’s when we went for the bushwalk with family and friends.  And then we didn’t – we went and saw him over the Easter break as well and then we didn’t see him again until the end of April where we went to visit.  We met up halfway – he worked on the Saturday and went to Rainbow Beach and we came up as well, and I dropped BLP at her mum’s on that Saturday on the way up and picked her up on the way back.  And then after that he – we saw him on Mother’s Day.  And then it was pretty much – from probably Mother’s Day till September, probably saw him once one month, twice the next.  It wasn’t exactly regular because the job he was doing, it wasn’t a Monday to Friday job.  Sometimes it was Thursday to Monday and then he might go home to Hervey Bay where his mum was for a day.  Then he’d go back out for another few days to where he was.

All right.  So when he did come home, was BLP there?---Very rare.  I don’t recall how many times.  I think it might have been twice from Mother’s Day, after Mother’s Day until September.

All right.  So there were - - -?---I couldn’t give you a date.

So there were occasions then when the defendant came home and BLP was there?---Yes.”[119]

  1. [108]
    The appellant’s wife was not cross-examined at all about Poppy’s house, the keys or the back sliding door.
  2. [109]
    The appellant’s niece gave this evidence:

You are the niece of MDH?---Yes.[120]

So you are, in fact, MDH’s sister’s daughter?---Yes.

Can you tell us where you were living in 2010?---In Hervey Bay.

And who were you living there with?---My mum and my brother.

All right.  Did you have a grandfather that lived there as well?---Yeah, but he passed away.

Okay.  When did he pass away?---I don’t know the exact date that he passed.

All right.  In 2013 where were you living?---In Hervey Bay still.

All right.  And was your grandmother living in Hervey Bay?---Yes.

And when I say your grandmother, that’s MDH’s mother?---Yeah, MEM.

Pardon?---MEM.

MEM.  She’s now passed on?---Yeah.

When did she pass on?---A few years back now.

She was alive in 2013 though?---Yeah, yeah.

Are you able to tell us anything about the Easter period of 2013?---Uncle MDH was in Hervey Bay that Easter period, because he was working.  I do know that MHY and the kids came up for a few days to see him.

All right.  Do you know BLP?---No, I don’t know her.

Never met her?---No.

When they came up for a few days, who came?---It was MHY, the girls and MUH.

All right.  And when you say “the girls” do you mean her children?---Yeah.

There was no strange other child there that you’d never met before?---No.

There was no one that you identified as being the niece - - -?---No.

- - - that came? And you said that MDH was working in Hervey Bay.  Do you know where he was staying when he was working there?---With my nan.

With your nan?---Yeah.

Do you know why that was happening?---My mother was looking after her during the day while Uncle MDH was at work and he’d look after her at night.

Okay.  Were there occasions when he would meet with his family up in Hervey Bay other than the Easter period?---I think there would have been a few times that they would have come up, but I think that was it.

Okay.  Were you aware of any times where he actually left Hervey Bay and came down to visit his family?---No.”[121]

Then, in cross-examination:

“Just briefly, Ms GRS, you said you were unaware of any times that MDH left Hervey Bay and returned to visit his family?---Yeah, I’m not aware.

Are you positive he didn’t return at all?

HIS HONOUR: Well, that’s not what she said.  She’s unaware.

MR WILKINS: You’re unaware of any times?---Yeah, I’m unaware.”[122]

  1. [110]
    The complainant’s mother gave evidence confirming that the glass sliding doors at the back of Poppy’s house could not be opened from the outside.[123]
  2. [111]
    The appellant specifically denied the offences the subject of counts 4 - 6.  He gave evidence that access into Poppy’s house could not be gained through the sliding glass door.[124]  He was not specifically cross examined about any aspects of the Poppy’s house incident.[125]

The dirt trail incident (counts 7 and 8)

  1. [112]
    In her first s 93A interview the complainant said:

“BLP:  Um he um, we, we went for a drive and he told my aunty that we, that he was going to pick something up, um Springfield, from like a f-, mate of his that lived in Springfield who was my aunty’s friend’s husband.  And he took me with him, and he, on the way there um we went on the highway or something like that, and on the way there he s-, like went up this dirt trail, and it was like near, I think it was like near a electricity company or something.  And then he got out of the car and he went around to, I was sitting on the pas-, in the passenger seat, and he came around to the door and he opened up the door, he undid my seatbelt and he told me to hop out.  So I hopped out.  And then he um started, like he, pulled me shirt up and he started rubbing his hands on my um, like on my hips and on my stomach.  And then he, um he tried to pull my pants down but I wouldn’t let him.  And then he, ah he ended up pulling my pants down, and then he pulled his pants down, and he tried to touch me on hi-, on my vagina but I wouldn’t, I wouldn’t let him.  And then he, he did.  And then um I think after a while he just told me to hop back in the car.[126]

SCON WHEATLEY:  And then what happened?

BLP:  Um then we went and picked up something from, from his mate’s house, and drove back.

SCON WHEATLEY:  Okay.  So what time in the day roughly do you think you left to go for this drive?

BLP:  Um in the afternoon.

SCON WHEATLEY:  And how long were you into your journey to when he sorta pulled over into this dirt trail?

BLP:  Um not very long, probably like ten minutes.

SCON WHEATLEY:  And do you know what suburb that this woulda been in?

BLP:  No.

SCON WHEATLEY:  And where had you left, started your journey from?

BLP:  Um my aunty’s house.

SCON WHEATLEY:  Aunty’s house.  And you said it was somewhere near an electrical company or something like that.  And he’s—

BLP:  Yeah.

SCON WHEATLEY:  He’s got outta the car, what car was he in?

BLP:  He was in his car.

SCON WHEATLEY:  And what type of car’s that?

BLP:  Ah it was a four-wheel-drive.

SCON WHEATLEY:  Do you know what company the car is, or make and model?

BLP:  Um—

SCON WHEATLEY:  Or colour?

BLP:  Ah it was like a gold colour.

SCON WHEATLEY:  Gold.

BLP:  Yeah.  And I think it was a Toyota I think.

SCON WHEATLEY:  Yeah.  Alright.  And you said that you were sitting in the passenger seat, which passenger seat?

BLP:  Um the front passenger.

SCON WHEATLEY:  Front—

BLP:  Seat.

SCON WHEATLEY:  Passenger.  And you said that you had seatbelt off and he got out of the car.  Did he stop the car?

BLP:  Yeah.

SCON WHEATLEY:  Did he turn the car off?

BLP:  Yeah.

SCON WHEATLEY:  Okay.  And do you recall what happened with the keys of the car?

BLP:  The keys were still in the car I think.

SCON WHEATLEY:  Keys still in the car.

BLP:  Or no, I think he might’ve taken them out.

SCON WHEATLEY:  Mmm.  If you don’t remember that’s okay.

BLP:  Yeah.

SCON WHEATLEY:  Just say, I don’t remember.  So he’s gotten, he’s come around to your door.  Which, which way has he c-, walked around to your door?

BLP:  Um I don’t remember.

SCON WHEATLEY:  Alright.

BLP:  [INDISTINCT]

SCON WHEATLEY:  So he’s opened your door and he’s undone your seatbelt, and he told you to hop out, so you hopped out.  And how far from the car did he hop out?

BLP:  Um like I just stepped out of the car.

SCON WHEATLEY:  Stepped out.  And then you said that he’s um pulled up your shirt.

BLP:  Yeah.

SCON WHEATLEY:  How did he pull up, which part of your shirt did he touch to pull it up?

BLP:  Um the bottom.

SCON WHEATLEY:  Bottom bit.

BLP:  Yeah.

SCON WHEATLEY:  And what type of shirt were you wearing?  If you can remember.

BLP:  Ah just a t-shirt.

SCON WHEATLEY:  T-shirt.  And what colour?

BLP:  Don’t remember what colour.

SCON WHEATLEY:  Yeah.  And so he’s pulled it up from the bottom.  And how far has he pulled it up?

BLP:  Um he just pulled it up to below my arm.

SCON WHEATLEY:  Below your arm.  And were you wearing anything underneath your shirt?

BLP:  Ah yeah, I was wearing a bra.

SCON WHEATLEY:  Bra.  And what’s happened to the bra?

BLP:  Ah he left it on.

SCON WHEATLEY:  Left it on.

BLP:  Yeah.

SCON WHEATLEY:  And whe-, you said he started rubbing, what was he rubbing?

BLP:  He was rubbing my, like my stomach and my hips.

SCON WHEATLEY:  Stomach and hips.  And then what was the next bit that happened?

BLP:  Um and then he pulled down my pants.

SCON WHEATLEY:  What type of pants were you wearing?

BLP:  Um, I’m not sure.

SCON WHEATLEY:  Not sure.  Do you remember how he pulled down your pants?

BLP:  Um he just pulled them down.

SCON WHEATLEY:  With what?

BLP:  With his hands.

SCON WHEATLEY:  And whereabouts did he um put his hands on your pants to pull down?

BLP:  I don’t remember.

SCON WHEATLEY:  You don’t remember.  Okay.  You said that he um, first off you said he tried to pull your pants off—

BLP:  Yeah.

SCON WHEATLEY:  And then he pulled them down and then you, you were trying to stop him.  What were you doing to try to stop him?

BLP:  Um I tried to stop him by, like I would put my hands in the way so he couldn’t.

SCON WHEATLEY:  Put your hands in the way.

BLP:  Yeah.

SCON WHEATLEY:  But then he eventually, how long was he trying before he was able to pull your pants down?

BLP:  Um about thirty seconds.

SCON WHEATLEY:  About thirty seconds.  And how far did he pull your pants down?

BLP:  To just below my knees.

SCON WHEATLEY:  Alright.  And you said he tried to touch you on your vagina, what do you mean by that?

BLP:  Um he tried to touch me, like.

SCON WHEATLEY:  What was he using to touch you?

BLP:  Um his hands.

SCON WHEATLEY:  And what were his hands doing?

BLP:  Um they were trying to like, well he was only trying, he, I kept putting my hands in the way.

SCON WHEATLEY:  Oh you kept putting your hands in the way.

BLP:  Yeah.  But then he um did start touching.

SCON WHEATLEY:  Then he did.

BLP:  Yeah.  [INDISTINCT]

SCON WHEATLEY:  Was he saying anything to you while you were trying to stop him?

BLP:  Um I don’t remember.

SCON WHEATLEY:  And then you said he was able to touch you.  So what did he do, how was he touching you?

BLP:  Um he was just rubbing.

SCON WHEATLEY:  Rubbing.  And what parts was he rubbing?

BLP:  Um my, the outside of my vagina.

SCON WHEATLEY:  The outside.  And what was he rubbing with?

BLP:  Um his thumbs.”[127]

And further:

“SCON WHEATLEY:  His thumbs.[128]

BLP:  Yeah.

SCON WHEATLEY:  Mmhmm.  And then what was the next bit that happened?

BLP:  Um and then he pulled down his pants—

SCON WHEATLEY:  Yeah.

BLP:  And he started to touch me more on my vagina.

SCON WHEATLEY:  And when you say that, he pulled down his pants, what sort of pants was he wearing?

BLP:  Um like denim shorts.

SCON WHEATLEY:  And how did he pull down his shorts?

BLP:  Um he undid his belt, and he just pulled them down.

SCON WHEATLEY:  Was there a zipper or anything on these shorts that you remember?

BLP:  Um yeah.

SCON WHEATLEY:  Did he do anything with the zipper?

BLP:  Um he undid the zipper.

SCON WHEATLEY:  So he’s pulled down his shorts, and then you said then he touched you some more.  So what was happening with his body when he was touching you some more?

BLP: Um—

SCON WHEATLEY:  So what part of his body could you see?

BLP:  His hands, his face, and his penis.

SCON WHEATLEY:  Okay.  So were these parts of the body doing in respect to you?

BLP:  Um his hands were still touching me, and then his hands moved up to my hips and stomach again.

SCON WHEATLEY:  Mmhmm.

BLP:  And then his, he started to touch me with his penis.

SCON WHEATLEY:  So what was he doing?

BLP:  Um he was just like [INDISTINCT], he was just touching me.

SCON WHEATLEY:  And what part of your body was he touching with his penis?

BLP:  Ah the outside of my vagina.

SCON WHEATLEY:  And what was his penis doing?

BLP:  It was just like sitting there.

SCON WHEATLEY:  And sort of what, you know when we talked a bit earlier about what sort of different things the penis, sorta how it looks and stuff like that, what, what d-, what did it look like?

BLP:  Ah hard and long.

SCON WHEATLEY:  Hard and long.  So it was um touching the outside of your vagina.  So what was it doing?

BLP:  Um it was like just, he was just like standing up close to me and it was touching me.

SCON WHEATLEY:  It was touching you, [INDISTINCT] so he was standing up.  So what part of his chest, just so I can get the bearings, what [INDISTINCT], part of his chest was facing what part of your body?

BLP:  His chest was facing my chest.

SCON WHEATLEY:  Yeah.  So you were face to face?

BLP:  Yeah.

SCON WHEATLEY:  So he was just standing there and his, um you could feel i-, his hard, long penis rubbing your vagina.

BLP:  Mmm.

SCON WHEATLEY:  Which part of your vagina?

BLP:  Um the outside.

SCON WHEATLEY:  The outside.  Alright.  And then what was the next bit that happened?

BLP:  Um and then um that went on for a few minutes, and then he pulled up his pants and he told me to get back in the car.

SCON WHEATLEY:  Did anything happen for him to stop doing what he was doing?

BLP:  Um I’m not sure.

SCON WHEATLEY:  Did anything change in relation to any parts of his body parts?

BLP:  No.

SCON WHEATLEY:  No.  Okay.  So he told you to get back in the car, so what was the next thing that happened?

BLP:  Um so I pulled down my shirt and pulled up my pants, and I got back in the car.

SCON WHEATLEY:  And what about him?

BLP:  He also got back in the car.

SCON WHEATLEY:  And what did he do with his clothes?

BLP:  Oh he pulled up his pants.

SCON WHEATLEY:  And did he say anything about this?  What had just happened?

BLP:  [INDISTINCT], it just happened.

SCON WHEATLEY:  Just happened?  Didn’t say anything about it?

BLP:  No.

SCON WHEATLEY:  Okay.  So he’s gotten back in the car, and then what’s happened next?

BLP:  Um we went and drove him, we went and drove to his mate’s house—

SCON WHEATLEY:  Yeah.

BLP:  And picked up a thing that he was picking up.

SCON WHEATLEY:  And then what happened?

BLP:  Um then we drove back to my aunty’s house.

SCON WHEATLEY:  Yeah.

BLP:  And picked up a thing that he was picking up.

SCON WHEATLEY:  And then what happened?

BLP:  Um then we drove back to my aunty’s house.

SCON WHEATLEY:  At what time would you have arrived, how long do you think you would’ve been away for since you left the house and then came back?

BLP:  Um maybe an hour—

SCON WHEATLEY:  Maybe an hour.

BLP:  [INDISTINCT] maybe two hours.

SCON WHEATLEY:  And do you recall what day of the week it was?

BLP:  Um I don’t remember.

SCON WHEATLEY:  And you said it was in the afternoon.

BLP:  Yeah.

SCON WHEATLEY:  [INDISTINCT].  And when you say, he, who are you talking about?

BLP:  My uncle.

SCON WHEATLEY:  Uncle?

BLP:  MDH.

SCON WHEATLEY:  MDH.  Have you told anyone about this incident?

BLP:  No.

SCON WHEATLEY:  No.  And if we had to talk about this incident again, what would be a, a word or something that we could call it that you’d remember which incident we’re talking about?

BLP:  Um the dirt trail.

SCON WHEATLEY:  The dirt trail.  How you doing?

BLP:  Good.”[129]

  1. [113]
    Her pre-recorded evidence (cross-examination) was:

“Okay.  One other incident – or a further incident that you spoke to the police about was called the dirt trail incident?---Yes.

Tell me about that.  Where were you going?---I don’t remember where we were going, but I remember we just got onto the highway.

Which – I’ll stop you there.  You know, when you say you got onto the highway, which highway are you talking about?---I believe it was the highway near Brassall.  Like you go up – I don’t know what street it was, but you turn up a street at the lights near the school, near the mower shop and the car shop, and you go straight up and it takes you out to the highway and you turn right and go onto the highway.

All right.  And you had no idea where you were going?---No, I can’t remember where we were going.

So tell me what happened?---We were – well, we just got onto the highway and there was a dirt trail and he drove up onto the dirt trail and it was near – it was like a dirt trail leading to like an electric company or something.

Yeah?---And we drove a bit past that and we stopped and he got out of the car and I got out of the car – he got out of the car and went around to my door and opened it and told me to get out of the car so I got out and I just stood out of the car, like only just out of the car, and then he pulled – he pulled my pants down and pulled my shirt up and he was touching me and rubbing against me with his pants pulled down as well.

Okay.  And how far away from - - -?---And - - -

How far away from the highway was this?---Not very far.

Well, what does not very far mean?---It was like along the side of the highway, but there was trees and stuff there so that you couldn’t see where we were from the highway.”[130]

And further:

“I suggest that the dirt [trail] incident did not occur?---Yes, it did occur.”[131]

  1. [114]
    In her evidence in support of the MKE sleep incident, which is count 10, the complainant speaks of visiting a house in Springfield, the house of Mr and Mrs GPL.  In her evidence on count 10, the complainant said that she and the appellant “drove to Springfield to pick up something from my uncle’s mates house again”.[132]  The earlier occasion must have been the dirt trail incident.
  2. [115]
    In the first s 93A interview the complainant said that she had not previously made complaint.
  3. [116]
    The appellant gave evidence specifically denying the offences the subject of counts 7 and 8.  He was not cross-examined specifically on any aspect of the dirt trail incident.
  4. [117]
    The applicant’s wife gave evidence as follows:

“All right.  Did he take her out on his own in the car?---Not that I’m aware of.”[133]

The Maccas incident (count 9)

  1. [118]
    The complainant in the first s 93A interview said:

“BLP:  And my aunty told my uncle to go and get some Maccas, ‘cause she felt like Maccas.[134]

SCON WHEATLEY:  Yeah.

BLP:  And so we were all gonna get an ice-cream.  And before my uncle left he asked everybody what they wanted, and he took um, he went to Maccas but he took me with him.  So I got in the car and we drove to Maccas and we stopped on the side of the road, well no, what happened was um he asked me what I wanted when we were in the car, and I asked him, I said, oh there’s like a um, a like a Malteser sundae, ‘cause we were all gonna get a sundae, but like he, he just had to get different flavours for everyone, and I told him that there was a Malteser one, and it was like limited edition.

SCON WHEATLEY:  Mmhmm.

BLP:  And I asked him if I’d be able to get that.  And he said, only if you um do something for me.  And I said, like what?  And he um pulled over on the side of the road and he started like rubbing up and down my leg.  And he said, I think you know what.  And then I said, no.  And he’s like, okay, so you don’t want the Malteser sundae, you just want a normal sundae?  And I said, yeah.  He’s like, or do you just want a thirty cent ice-cream cone?  And I said, no, I’d like a sundae please.  And he s-, he said um, oh okay, well you can only have a sundae like everyone else if you do something for me.  And I said no.  And then, so he just, like he was a bit angry at the time.  And then so um he just kept, he like, he just drove off then, and drove to Maccas.

SCON WHEATLEY:  Did he actually say what he wanted you to do for him?

BLP:  Um he said, he just, no he just said, do something for me.

SCON WHEATLEY:  And what did you think he was talking about?

BLP:  Um sexual things, because he started to rub up and down my leg.

SCON WHEATLEY:  So when he was rubbing up and down your leg, how was that?  What sort of rubbing was that, and what part of your leg?

BLP:  Um it was like with his hand.

SCON WHEATLEY:  Yeah.

BLP:  Um and he just rubbed like up and down like that.

SCON WHEATLEY:  On, on, where you’re showing me there?

BLP:  Yeah.

SCON WHEATLEY:  And what words were, was he using when he was saying, like did he use any sexual words or tell you what he wanted you to do?

BLP:  He just said, something special.

SCON WHEATLEY:  Something special.

BLP:  Yeah.

SCON WHEATLEY:  And then how did that bit end?  You said he got angry.  What do you mean by that?

BLP:  Um he got angry because I kept saying no.

SCON WHEATLEY:  And what made you think he was angry?

BLP:  Um he just like, he just had an angry tone.

SCON WHEATLEY:  Angry tone.  And then you said he then just drove off and drove to Maccas.

BLP:  Yeah.

SCON WHEATLEY:  Okay.  And what, how did you, um what’d you do when you get to Maccas?

BLP:  We ordered the—

SCON WHEATLEY:  Did—

BLP:  Things.

SCON WHEATLEY:  Did you order from the car, or did you go in?

BLP:  Ah we ordered from the car.

SCON WHEATLEY:  From the car.

BLP:  Yeah.

SCON WHEATLEY:  And what did you end up getting?

BLP:  I ended up getting a thirty cent ice-cream cone.

SCON WHEATLEY:  He gave you a thirty cent ice-cream cone.

BLP:  Yeah.

SCON WHEATLEY:  And then what happened?

BLP:  And then we drove back to my aunty’s house.

SCON WHEATLEY:  Did anyone see you with the ice-cream cone?

BLP:  Um I can’t remember.

SCON WHEATLEY:  Well was there any comment about you and having an ice-cream and others having a sundae?

BLP:  Um no, I think I finished mine in the car.

SCON WHEATLEY:  Mmm.

BLP:  And so my uncle just said that I finished my ice-cream in the car.

SCON WHEATLEY:  Mmm.  And was there anything else that happened with that one?

BLP:  Um no.

SCON WHEATLEY:  And when did that one happen?

BLP:  Ah when I was living with them.

SCON WHEATLEY:  When you were living, so you were still twelve.

BLP:  Yeah.

SCON WHEATLEY:  Okay, and if you wanna call this one anything, is that the only time anything’s happened in relation to McDonalds?

BLP:  Yeah.

SCON WHEATLEY:  So if we call it the Maccas time, or the Maltesers, which one do you wanna call it?

BLP:  Um Maccas.”[135]

And further:

“SCON WHEATLEY:  Okay.  Um can I just a-, I’m just gonna take you back to the Maccas thing.  What time of the day was that?[136]

BLP:  That was in the afternoon.”

  1. [119]
    In her second s 93A statement the complainant said:

“SCON WHEATLEY:  Okay.  Now BLP, um last week do you agree that you’ve come into this office before and you provided a statement to me in a similar situation?[137]

BLP:  Yeah.

SCON WHEATLEY:  Alright.  I just need to ask you some clarifying questions in relation to the things that you’ve already told me.  Is that alright?  Alright.  Now do you remember um you telling me about a time that we called the Maccas time?

BLP:  Yeah.

SCON WHEATLEY:  Yeah.  Okay.  And you were talking about a time that you and MDH um MDH were in a car going towards Maccas.  Is that correct?

BLP:  Yeah.

SCON WHEATLEY:  Alright.  Not do you remember what time of day that was?

BLP:  Um I think it was in the afternoon, like just early afternoon.

SCON WHEATLEY:  Early afternoon.  Now um did you a-, sorry, was, which McDonalds was it?

BLP:  Um the Brassall McDonalds.

SCON WHEATLEY:  The Brassall McDonalds.

BLP:  Yeah.

SCON WHEATLEY:  How long was the car pulled over for?

BLP:  Ah about five minutes.

SCON WHEATLEY:  Five minutes.  Alright.  [INDISTINCT] you said that you went to go into McDonalds and some purchases was made through the drive through, do you recall how the purchases were ma-, paid for?

BLP:  No.”[138]

  1. [120]
    In the complainant’s pre-recorded evidence, relevantly to this count she said:

You spoke to the police about a time called Macca’s time?---Yes.[139]

When was that in relation to – in relation to the ones that you have already described – Poppy’s house, the couch incident, the photo frame incident, the bathroom incident, the towel incident – when was the Macca’s time in relation to those? Was it before one or after another?---I don’t remember. I just remember it was on a weekend, I think, or even during the school holidays – around the same time.  I don’t remember.

So Easter again?---Yeah, around – around the same time.

So around Easter - - -?---I don’t – I don’t – I don’t remember the exact time.

I’m not asking you to remember the exact date and the exact time.  I’m just asking if you can tell us whether it was before the incident that happened at Poppy’s house or whether it was after the incident that happened at Poppy’s house?---I can’t remember.

Why can’t you remember?

HIS HONOUR:  She can’t answer that.

MR SEAHOLME:  Okay.

So who went to Macca’s with you?---It was just – my uncle drove me with him in the car.

And which Macca’s was that?---The Macca’s at Brassall.

And what time of the day was this?---Around the afternoon – lunchtime, around the afternoon – sometime around then.

So being around lunchtime, sometime around there – or then, you wouldn’t have been at school?---No.

So does that - - -?---It wasn’t – it wasn’t a school day.

Okay.  Does that help you then narrow it down to either being the Easter holidays or a weekend?---I don’t remember whether it was a weekend or the Easter holidays.

When you went to – how many times had you gone to Macca’s with your uncle in the car?---A couple of times, but that was the only time that I went alone with him.

Who’d go on the other occasions?---My cousins and my aunty.

And, obviously, you didn’t walk to Macca’s.  You drove there.  Is that right?---Yes.

And what car did you go in?---I believe it was my uncle’s car.

And what car was that?---The gold Nissan.

The one you described before?---Yes.

All right.  And tell me what happened?---We were driving to Macca’s to get everybody a sundae because it was hot weather and he asked everybody before he left what sundae they wanted and when we got in the car, he asked me what sundae I wanted – what flavour.  At the time, there was a limited edition Maltesers one so I asked if I could get that and he said only if you do something special for me.  And I said, like what? And he said I think you know what I mean.  And I said no.  And he said so you just want a normal sundae then?  And I said okay.  And he said or do you want a 30 cent ice cream cone? And I said I would rather have a sundae.  And he said then you have to do something for me.  And I said no.  And then he got a bit angry and just drove off and he drove to Maccas and we got everybody a sundae and I got a 30 cent ice cream cone.

Can we go – and did he touch you at all on that occasion?---Yeah.  He rubbed my leg with his hand.  He rubbed my thigh when he said something special for him and that he thinks I know what he meant.”[140]

And further:

“That the Macca’s time did not occur?---It did occur.”[141]

  1. [121]
    The appellant gave evidence denying the charge the subject of this count.  He said:

“We’ve heard an allegation that one afternoon – or one day, or at some stage, you took her to McDonald’s to buy ice creams and sundaes for the family; did that ever occur?---No, it hasn’t.

Was it ever the case that you took her to McDonald’s on your own and tried to seduce or sexually assault her in the car?---No, it never has.

Or indecently deal with her in the car?---No, it hasn’t.”[142]

  1. [122]
    The appellant was not specifically cross-examined on any aspect of the McDonalds’ incident.
  2. [123]
    The appellant’s wife gave evidence:

“All right.  What about McDonald’s; do you remember any occasions where he would go to McDonald’s with BLP on her own?---No.

And buy sundaes or ice-creams for all of the family?---No.”[143]

The MKE sleep incident (count 10)

  1. [124]
    In the first s 93A interview the complainant gave this evidence:

“SCON WHEATLEY:  Okay.  Alright.  So tell me about, you said there was two times that you can remember.  One that time, tell me about another time that you can remember.[144]

BLP:  Um there was one where it was night time, and, well it wasn’t night time, we left, like we drove to Springfield to pick up something from my uncle’s mate’s house again.

SCON WHEATLEY:  Same guy?[145]

BLP:  Yeah.  And this time we took my younger, my youngest cousin, well my younger cousin, not my youngest, we took MKE with us.

SCON WHEATLEY:  Took MKE, yeah.

BLP:  And um, so we drove there and we picked something up, and um my uncle told me and MKE to wait in the car while he went and grabbed, grabbed it.  And then he took quite a while, because he had like a conversation with his mate.  And while he was gone MKE fell asleep, because it became night time, and it was fairly late, ‘cause it took a while to get there.

SCON WHEATLEY:  Mmhmm.

BLP:  And then we were sitting in the car waiting as well.  And she fell asleep while sh-, we were waiting.  And then he came back and he kept up, he touched me and he put his hand up my shirt, and started touching my boobs with his hand.  And then, um I don’t exactly remember too much about that, but I just remember um refusing to let him touch me.  [INDISTINCT]

SCON WHEATLEY:  And what were you doing [INDISTINCT]—

BLP:  I was—

SCON WHEATLEY:  [INDISTINCT]

BLP:  Pushing him away, I was like pushing his hands away.  I was pushing, ah yeah I was pushing his hands away, I was putting my hands in the way so that he couldn’t touch me.  I was telling him to stop, and yeah.

SCON WHEATLEY:  Alright.  Um how long did it take to go from your house to Springfield where the mate’s place was?

BLP:  A far while, maybe forty-five minutes.

SCON WHEATLEY:  About forty-five minutes.  Do you know the address—

BLP:  No.

SCON WHEATLEY:  At Springfield?  Okay.  You said that he went inside and told um MKE and you to wait in the car.  MKE’s fallen asleep, ‘cause he was gone for a while, and then he’s come back.  Did a-, and then he’s touched you.  Were you still in the same location in the car?

BLP:  Yes.

SCON WHEATLEY:  So he hadn’t s-, moved the car at all?

BLP:  No.

SCON WHEATLEY:  Okay.  So you said he, he touching you, he put his hands up your shirt.  What shirt were you wearing?

BLP:  Um I think I was, I don’t remember what shirt—

SCON WHEATLEY:  Don’t remember.

BLP:  I was wearing.

SCON WHEATLEY:  Yeah.  Were you wearing anything under your shirt?

BLP:  I was wearing a bra.

SCON WHEATLEY:  Alright.  So you said he was touching your boobs with his hands.  Um was that over the bra, or under the bra, or?

BLP:  Under the bra,

SCON WHEATLEY:  Under the bra.  And how long was he touching you for?

BLP:  Um a couple of minutes.

SCON WHEATLEY:  And what was he saying when he was doing this?

BLP:  He wasn’t really saying anything.

SCON WHEATLEY:  And what else was he doing?

BLP:  Um that’s about it really.

SCON WHEATLEY:  And you said you were, you were f-, trying to refuse, you were pushing his hands away with your hands.

BLP:  Yeah.

SCON WHEATLEY:  Alright.  And then what happened then?

BLP:  And then he just started up the car and left.

SCON WHEATLEY:  Okay.  And when was this?

BLP:  This was still when I was living with them.

SCON WHEATLEY:  When you were twelve, living with them.

BLP:  Yeah.

SCON WHEATLEY:  And what time of the day was it?

BLP:  Night time.

SCON WHEATLEY:  Night time.

BLP:  Yeah, we left when it was like still light a bit, but—

SCON WHEATLEY:  Still light.

BLP:  We got back when it was night time [INDISTINCT].

SCON WHEATLEY:  Do you remember whether it was cold weather, or hot weather?

BLP:  I think it was cold weather.

SCON WHEATLEY:  Cold weather.”[146]

  1. [125]
    In the complainant’s pre-recorded evidence (in cross-examination):

“Now, you’ve also described to the police an event that’s called MKE asleep in the car. Do you remember that - - -?---Yeah.[147]

- - - incident?---Yes.

When it came to formulating names for all of these different things, like [indistinct] house, Maccas time, MKE asleep in the car, was that your idea or the police officer’s idea?---That was the police officer’s idea.

Okay. So it’s talking about:

Does MKE sleep in the car?

This is again in 2013.  Are you able to say - - -?---Yep.

- - - in relation to any of the other events in – like, for example, with the one we’ve just spoken about, the Macca time, was this before or after the Macca time?---I don’t remember.

And MKE was in the car?---Yes.

How was it that you were in the car?---My uncle said that he would take me and he was going to take my cousin MKE out to Springfield with him to pick up something from his mate’s house.  I believe he told my aunty that he was taking me and my cousin to give her a break for a little bit and have a bit of peace and less kids in the house.

So what day of the week was this?---I don’t remember.

Was it a school day or a weekend day?---I don’t remember.  I think it might have been a school day.

You think it might’ve been a school day?---Yeah.  That’s - - -

Okay.  So after school on this day, he has taken you and MKE to go to Springfield to pick something up?---Yes.

In which car?---In his car.

Being the gold Nissan Pathfinder?---Yes.

Is that right?---Yes.

And tell me what happened on that occasion? Did you go and pick the - - -?---Well, we - - -

I’ll just have you – stop you there.  Did you actually go to the place and pick something up?---Yes.

What did you pick up?---I can’t remember.  I think it was a part that he needed for his four-wheel drive that he was fixing up at my Poppy’s house.

Okay.  So just having said that, am I to understand that at your Poppy’s house, there was a four-wheel drive that he was fixing up?---Yes.  He had a four-wheel drive there for his – the competitions that he competed in for four-wheel driving.

Okay.  And what was that vehicle, do you know?---I don’t remember.  I just remember it being quite a large four-wheel drive that had – I think it was a dark green colour or dark blue or something and big wheels.

Okay.  So after you’ve picked this thing up from Springfield, what happened?---Well, we got to Springfield and we – me and MKE waited in the car while he went and picked the piece up that he needed from his mate.  And while he was getting it, he had a conversation with his mate, so he took a while.  And MKE had fallen asleep in the car while we were waiting for him and when he got back, he noticed that MKE was asleep, he tried to touch me and I kept telling him no and I kept trying to push him away, but he kept trying to do it.  And he would – he was just trying to touch me.  Like, he would touch me under my shirt and over my shirt and then I kept saying no and not letting him.  And then he just gave up and we drove back home.

Was – did you know the name of the person that he’d been to Springfield to see?---I can’t remember the name.

Was his name GMN?---Possibly.  I don’t remember.

How many times had you been to that house at Springfield?---I believe only about two or three times, maybe just two.

So you were familiar with the person that was there – that lived there?---No.  Not – not really.  When I – the first time we went there, I went with my aunty and my cousins and my uncle and – my aunty and uncle would have a conversation with the person who lived there and me and my cousins would play around on the equipment in the yard because the person there ran a day care or something.  So there was, like, swings and stuff in the yard and we would play on them.

Was there only ever one house that you visited in Springfield?---Yes.  I believe so.

If I was to suggest to you that your uncle and you came to the – sorry.  You came to the house at Springfield while the man was there, he - - -?---Yes.

- - - and your uncle were working on a car- - -

He was working on the car and then you were with the other kids, riding bikes up and down and playing on the trampoline.  What would you say about that?---That was the first time that we went to visit, which was also with my aunty and my other cousins.

All right.  And I want to suggest that’s the first and only time that you’ve actually been there?---No.  There was the second time where we went to pick up something.  We just drove there to pick up something and it was just - - -

Okay?--- - - - me and MKE in the car with him.

And just so we’re clear, that’s from the same person that you went and were having the trampoline and riding bikes with the kids.  That’s the same person?---Yes.”[148]

And further:

“Right.  When you went for that drive with MKE to this person’s house and – did you see what your uncle was going to pick up or did you – were you told what he was going to pick up?---No.  I wasn’t told what he was going to pick up.  I didn’t quite see, but I’m pretty sure it was a piece for his car.

So did you remain in the car [indistinct] time?---Yes.  We – me and my cousin MKE, we waited in the car - - -

So - - -?--- - - - while he went to get it, but he took a while - - -

Yes?--- - - - because he had a conversation with the guy and MKE fell asleep.

All right.  So when you say he had a conversation with the guy, did you see that taking place?---No.  But I assumed so because I’m assuming that’s why he took so long.

So – all right. So did you see anyone at the house, anyone from that address at all?---No, But I think I saw a car there.

That’s all right?---I don’t really remember.”[149]

  1. [126]
    The appellant gave evidence denying the offence the subject of this count.  He said:

“Have you been there with BLP?---I went there with BLP once.

When was that?---We went over as a family unit.  Everyone went; me, MHY and my kids, MUH, MGN, MDN, MKE and BLP went over for a barbecue.

Would you go over to GMN’s in the evening on any occasion?---I would have ‒ may have been over there once or twice, yes.

What would that be for?---To help GMN work on his car or pick up a part.

Had you ever taken BLP on your own in a car ‒ sorry ‒ no, I’ll carry on with that question.  Had you ever taken BLP in a car alone to GMN?---No, I have not.

Had you ever taken BLP and MKE to GMN’s?---No, I have not.

And left them in the car while you’ve been speaking to Mr GMN?---No, I have not.”[150]

  1. [127]
    The appellant was not cross-examined at all about count 10.
  2. [128]
    Relevantly to these counts, the appellant’s wife said:

“All right.  Are you aware of an occasion where he took BLP and MKE out to go to Mr GMN’s house?---No.

One evening and - - -?---No.

And apparently left in the afternoon and came back when it was dark and BLP went straight to bed?---Yeah.  No.  Don’t recall anything like that at all.”[151]

  1. [129]
    Mr GMN gave this evidence:

“Can you tell the court your full name, please?---GMN.[152]

And where do you reside, Mr GMN?---Number [Redacted] Street, Mount Isa.

All right.  Did you ever used to live at Springfield?---Yes, I did.

What was the address there?---[Redacted] Place, Springfield.

Okay.  Do you know MDH?---Yes, I do.

How do you know him?---He’s a friend of mine.  I met up with him through four-wheel drive competitions.

All right.  And how long have you known him for?---Eight or nine years now.

And did you and your family – you – did you have a family when you lived in Springwood?---Springfield?  Yes, I did.

Springfield, sorry?---Yes.

Would your family and his family do things together?---Yes.

What kind of things?---We’d go – do barbeques.  We would go to four-wheel drive comps together, birthdays, etcetera, yeah.

Did you ever meet a niece of MDH and MHY’s, called BLP?---Yeah, that’s the girl that come around to our place.  Yes, it is.  I only met her the once and that was that time that she come around to our place.

Well, when you say you only met her the once and that it was the time that she came round to your place, can you describe what that time was?---Yeah.  MDH and his family come around to our place to – MDH was coming around to give me a hand with my four-wheel drive at the time.  Yeah, so that was – yeah, and the – yeah.

Okay. You say MDH and his family came.  And did you know the girl, BLP, at that stage?---No, I didn’t know her.  No, it was the first time I’d met her.  At the time, you know, they may have introduced her as BLP, but I just thought she was one of MGN’s friends.

Okay.  Had you ever seen that girl before?---No.

And since the time of that barbeque, had you ever seen her again?---Not from recollection.

Okay.  Now, you’ve told us where – the address where you live.  Can you just tell us a bit about the house.  Was it on the road? Was it set back from the road? What was the situation?---The house was set back from the road.  It was what they called a “battle axe” block, so it sat behind a row of houses.

All right.  And - - -?---We had a 20 metre driveway that ran from the road up to our front gate.

Okay.  And when you say “front gates”, were those gates open or closed most of the time?---Closed, because we had dogs.

Okay.  And if someone arrived at your house, they’d have to stop at the gates?---Yep.

And if they stopped at the gates, would you have a clear view of the vehicle that was there?---Yep.

From your house, that is?---Yes.

Okay.  And would MDH often come to your place on his own?---Yeah.  Yes.

What would be the purpose of that?---Just for a catch up or working on cars.

Okay?---Yeah.

So you and he had a passion for four-wheel drives; is that fair to say?---Abs – Absolutely.

Okay. And when you say that he would stop by, was there any sort of regular routine to that? Would it be - - -?---No.  No, there was no routine to it.

All right.  It could just be any time he’d pop over?---Yeah.  There was always a phone call first, you know, make sure I’m home or – yeah.

Okay?---He let me know he was coming through, yeah.

Was there ever a time that he arrived at your place in the early evening with his daughter MKE and the girl BLP in his car?---No.  There was only just that one time that they came around.”

And later:

“When he would leave your place, would you see him off or would he just – would you just shut the front door on him and let him go, or would you go out to the gate?---No, no, generally I’d see him off, yeah. Because I’d be down in the shed, so – my shed was down near the front gate.”[153]

  1. [130]
    Then, in cross-examination, Mr GMN said:

“You said your property was on a battle axe or battle axe type - - -?---Yeah.

- - - property?---Yes.

Can you explain that in a little bit more detail.  So you have the driveway to your house?---Yeah.

If you go up the - - -?---It – yeah, the driveway would go between two houses and, yeah, up to our front gate.  Now our property – block of land was behind two front houses and one – two side houses.  Behind the house was an easement – like a nature strip – and there was another footpath on – off to one side to where there was another house on the other – other side of that.

Once you got to the top of your driveway you said there was a gate?---Yes.

How far from that gate was it to your house?---Fifteen/twenty metres maybe.

Fifteen/twenty metres?---Yeah.

Did you have a raised house or was it level with the ground?---It was a two-storey house.

Two-storey house.  What was the bottom storey used for?---My wife at the time, her day care room.

And the - - -?---There was a – just a double garage down there that was converted into a room.

And the top level of the house?---That was the living area.

Was your driveway illuminated at all?---Yeah, it could be if we turned lights on outside, yes.  I had a – a light out the front of my shed.

Whereabouts was your shed positioned?---It was – as you’re looking at the house from the driveway, my shed was on the left-hand side.

How far off to the left?---A metre.

One metre?---Yeah.

You said MDH would come over to your house?---Yeah.

Would he come over in the day or night time?---Days.  Afternoons after work.  Night times, yeah.

In the evenings?---Yeah.

And he would come to your gate?---Yeah.

Park his car there?---Yeah.

Leave his car outside the gate?---Yeah.

And walk in?---Yes.

And he would come over to you to do various things with four-wheel drives?---Yeah.

And you said you’d generally see him off?---Yeah.

Would you walk to the car with him for him to open the door?---Sometimes if we were still talking, yeah.

How far would you generally go to see him off?---Half a metre.  Depends on how close he’d parked to the gate.”[154]

Then, in re-examination:

“MR SEAHOLME: My friend asked you about the shed.  Was the shed near the gate?---Yes, it was.[155]

All right.  So if you – if he’d come over to get something from the shed or you were working on something in the shed, was the car readily visible from the shed?---Yes, it was.[156]

  1. [131]
    Mr GMN’s wife, GPL, gave this evidence:

“You currently reside in Mount Isa?---Yes, I do.[157]

In 2013 did you reside at a place called – or at a house in [Redacted] Place at Springfield?---Yes, I did.

And did you reside there with your husband GMN?---Yes, I did.

Okay.  And do you know MDH and MHY and their family?---Yes, I do.

How do you know them?---MDH was a mutual friend of another family and he also was working at the time with my husband, and he – how I met him and his family was that he was coming over to our house at [Redacted] Place and helping my husband work on his car at the time, and they used to do four-wheel drive trips, and stuff like that, together.  So that’s – that’s – he was my husband’s friend.

Okay?---And then one day they come over for a barbeque.  They were – my – my husband and MDH were working on a car in the shed and they decided that they’d come over for a barbeque, so then we all become quite good friends and, yeah, our families used to mix together quite well.

Okay.  Did you ever meet a girl called BLP?---Yes, I did.

When was the first time you met her?---It was at my house at [Redacted] Place.  I wasn’t sure, but – because there was a lot going on that day and so I wasn’t – I wasn’t aware of an extra person, I guess.  I was – my house was a two-storey house and, when they arrived, they were all downstairs on – on the driveway, which is, you know, like, two storeys, I guess, down from the house.  And so they all arrived and there was children everywhere, because there was always a lot of people at my house at different times.  And so they come for a barbeque – actually, I – yeah, I’m pretty sure the first time they come, they come for a barbeque and the – they were all down the front of our shed, which is kind of hard to explain. There was a driveway and then there was the shed off to the side and my house was up the driveway, so it was up a hill.  Anyway, so when I come down from upstairs, they were all riding a bike.  Green Machine, I think it was called.  You know those three-wheeler things.  So there were children everywhere and there was lots of noise and everything.  And I wasn’t aware at that time that there was an extra child there, but I eventually learnt that that was MHY’s niece and, because there was so much going on, I didn’t know her name.

Okay?---And, yeah, so it was – wasn’t until a few – you know, a little while after and I was like, “Hey, there’s an extra child.”  So then I was introduced to her and told who she was.

Okay.  Did you, after that – after that first meeting with her, did you ever meet her again?---Yes, I did.  Yes, I did.

When was that or what were the – what were the circumstances of that?---They – MDH had come to help my husband with a – bring – he – I think he may have brought car parts that – and he was helping my husband work on the car.  So MDH and the girls come down to, yeah, to help – to help GMN work on the car.  They weren’t there that long.  They weren’t there for a – a long time, but that wasn’t the – that was the only other time that I met her.

When you say “MDH and the girls”, who were the girls that came?---His girls.  So MGN and I think – actually, I think it was just MGN and – and BLP.

Okay.  You said that there was a driveway leading to your house and then - -?---Yeah.

- - - were there any gates between your house and the driveway?---Yes, there was.

When people would arrive at your place, were those gates open or shut?---They were always shut.

All right.  What was the reason for that?---Because I had dogs in the yard.

Okay.  And from your house, could you observe any car that was parked in the driveway?---Yes.

And was there ever an occasion where you saw BLP – the girl BLP and MKE in the car when MDH came on any occasion?---I can’t be completely sure that MKE wasn’t in the car with – because I know that there were girls – so that time that I’m talking about, I can’t be exactly sure that MKE was in the car or wasn’t in the car.

All right.  Thank you.

HIS HONOUR: Yes, just wait on.  Mr Wilkins may ask you some questions.  Yes, Mr Wilkins.”[158]

  1. [132]
    Then, in cross-examination, Mrs GPL said:

“Now, you briefly outlined the layout or the driveway to your house?---Yeah.[159]

Now, if you go up your driveway, is your house directly in front of that?---Yes, it is.

And how far from the gate at the top of your driveway, is it, to your house?---At the top of the driveway to the house was probably – I can’t be exactly sure, but it would have been about, say, six to 10 metres from the gate – actually, it would have been longer than that.  So we had our gate and then we had a double shed, which was a double shed and a workshop, so – and I think that was a six by nine shed.  So that’s nine – so it would have been about 15 metres from the house to the gate.

From the gate to your house?---Yep.

And your house is two storey?---Yes, it was.

And the living quarters, if I can term it that, is on the top storey?---Yes, it was.

Is your driveway illuminated?--- It had garden lights, yes.

Just garden lights?---Yes.

And when - - -?---Well, depending what part of the driveway you’re talking about, because the – the driveway that was straight out the front of the shed, which is just inside the gate, that had a light.  So that had a fluorescent light.

Okay?---But the driveway – so from the gate down towards the road was garden lights.

When MDH would come over to your house, he’d come up to your gate and park the car there?---Yes.

And he would then - - -?---He would.

And he would then enter?---Yes, he would.

And you spoke about two times that you saw BLP?---Yes.

One was a family barbeque-type scenario?---Yep.

And the second was another time where the girls – and you originally said MGN and BLP – came over with MDH?---Yep.

But you couldn’t be sure whether that was not – that was MKE rather than MGN?---Yes.

And they weren’t there for very long?---No.

Is that correct?---No.

And it was something to do with, I believe you evidence was, that the defendant was bringing over car parts?---Yep.  He was either bringing – he was bringing over car parts, so I know that he was definitely helping work on the car at that time [indistinct]

Okay.  But there were two girls with him?---Yes.

And one of those being BLP?---Yes.[160]

  1. [133]
    The appellant’s wife gave the following evidence:

“All right.  Are you aware of an occasion where he took BLP and MKE out to go to Mr GMN’s house?---No.”[161]

The picture frame incident (count 11)

  1. [134]
    The complainant in the first s 93A interview said:

“BLP:  Um there was um a time when my aunty went out for the day.[162]

SCON WHEATLEY:  Mmm.

BLP:  Um and he, he had me in, in my bedroom like mine and my cousin’s bedroom, with the door locked.  And I’m not sure what my cousins were doing, I can’t remember, but I remember that he, we were in there and he laid me down on my cousin’s bed, and he, so I had my legs hanging over the side of the bed, and he pulled my pants down to just below my knees, and he pulled my undies down to just below my knees, and he pulled his pants down, and his undies down, and he layed on top of me and he put his penis inside my vagina.

SCON WHEATLEY:  [INDISTINCT], and then what happened?

BLP:  And then he went in and out quite a few times.  And then he stopped and he pulled his pants up, and his undies up, and um I sat up and I pulled my undies up, I pulled my pants up, and we walked out.  Oh I do remember my cousins were in the lounge room watching a  movie.

SCON WHEATLEY:  Sorry?

BLP:  I do remember that my cousins were in the lounge room watching a movie.

SCON WHEATLEY:  Okay.

BLP:  And um, so I pulled my pants up and he pulled his pants up, we walked out of the room, and he told me to go to the toilet, and he also went to the toilet, like a different toilet though, he went to the one in my aunty’s room, and I went to the main toilet, and then we went and sat down in the lounge room.  But he went in there before me.

SCON WHEATLEY:  And then what happened?

BLP:  Oh we sat down and watched the movie.  [INDISTINCT]

SCON WHEATLEY:  Do you remember what the movie was?

BLP:  Um it was, I think it was Flight.  And it was fairly new at the time, it like just came out.

SCON WHEATLEY:  Who’s in that one?

BLP:  Flight, um I’m not sure.  It’s about a guy who, um a plane’s gonna crash and he manages to, like he flips the plane upside down so that when they land it will, more people will survive.

SCON WHEATLEY:  [INDISTINCT]

BLP:  And yeah.

SCON WHEATLEY:  Alright.  So you said your aunty went out for the day.  What time of the day was it?

BLP:  Um in the afternoon.

SCON WHEATLEY:  And how long had your aunty been out—

BLP:  Ah a few—

SCON WHEATLEY:  For when—

BLP:  A few hours.

SCON WHEATLEY:  A few hours.  And you said, he had me in the bedroom.  How, how did you end up being in the bedroom?

BLP:  Um I think, um I think I did something wrong, I can’t remember what I did wrong though, but he told me to go in my room, and so I went to my room, and then he came in.

SCON WHEATLEY:  How long after did you get told to go to your room that he came in?

BLP:  Um about f-, five, ten minutes.  I think it was about ten minutes.

SCON WHEATLEY:  Yeah.  And you can’t remember what you did wrong.

BLP:  Yeah.

SCON WHEATLEY:  And then you said, he had me in the bedroom and loc, the door was locked.  Who locked the door?

BLP:  He locked the door.

SCON WHEATLEY:  And what sorta of lock was it?

BLP:  It was just um one that you flick.

SCON WHEATLEY:  You flick.

BLP:  Yeah.

SCON WHEATLEY:  Okay, so he locked the door.  And then way was the next bit?

BLP:  Um h-, we—

SCON WHEATLEY:  [INDISTINCT], you got, he lay—

BLP:  Yeah he—

SCON WHEATLEY:  Lay—

BLP:  [INDISTINCT] he—

SCON WHEATLEY:  You down on your cousin’s bed.

BLP:  Yeah he laid me down on my cousin’s bed.

SCON WHEATLEY:  So which bed was that one?

BLP:  The bottom bunk.

SCON WHEATLEY:  The bottom bunk.

BLP:  Yeah.

SCON WHEATLEY:  And you said that he had you so your legs were hanging over the side.  Which side bit?

BLP:  There w-, there was only like one side.

SCON WHEATLEY:  Like the main side bit?

BLP:  Yeah.

SCON WHEATLEY:  Yeah.  So your legs were hanging over.  And what was the rest of your body doing?

BLP:  Um the rest of my body was laying down.

SCON WHEATLEY:  Laying down.  And which part of your body was touching the bed?

BLP:  My back.

SCON WHEATLEY:  So you were laying on your back.

BLP:  Yeah.

SCON WHEATLEY:  Alright.  And he, you said he pulled your pants and undies down just below your knees.  How did he pull those down?

BLP:  He just pulled them down.

SCON WHEATLEY:  Yeah.  Which part of your clothes did he pull?

BLP:  Um the side of my shorts.

SCON WHEATLEY:  Side of shorts.

BLP:  Yeah.

SCON WHEATLEY:  And so he’s pulled them down.  And then you said he’s pulled down his clothes, or his—

BLP:  Yeah—

SCON WHEATLEY:  Pants.

BLP:  He pulled down his pants and his—

SCON WHEATLEY:  So what was—

BLP:  Undies as well.

SCON WHEATLEY:  He wearing?

BLP:  He was wearing denim shorts.

SCON WHEATLEY:  Denim shorts.

BLP:  Yeah.

SCON WHEATLEY:  And so how did he get those down?

BLP:  He undid his belt, and unzipped his pants again.

SCON WHEATLEY:  And then you said he pulled them down to, how far did he pull those down to?

BLP: Um I’m not sure, I think they—

SCON WHEATLEY:  No.

BLP:  Kinda just fell down.

SCON WHEATLEY:  Or fell.  And you said something about undies.

BLP:  Yeah he just pulled them down to like—

SCON WHEATLEY:  What does his undies look like?

BLP:  Um his undies were like um just, I think they were black.

SCON WHEATLEY:  Okay.  And then you said he’s layed down on top of you.

BLP:  Yeah.

SCON WHEATLEY:  Okay so what part of his body was touching what part of your body?

BLP:  Um his stomach was touching my stomach.

SCON WHEATLEY:  Okay, so you were face to face.  And then you said he put his penis inside your vagina.  How did that happen?  What did he do?

BLP:  Um he just—

SCON WHEATLEY:  [INDISTINCT]

BLP:  Put it in.

SCON WHEATLEY:  [INDISTINCT].  Did anything happen, like how did he, like if you, if you were writing a book, just so people could read the book and say, oh yeah I can see, see exactly what’s happened, so step by step, has he had to do anything to any parts of your body to make that happen?

BLP:  Um—

SCON WHEATLEY:  So things like your arms, your legs.

BLP:  Um yeah he kinda like held my arms down.

SCON WHEATLEY:  How did he do that?

BLP:  Well he, he put one arm so that I was laying on it.

SCON WHEATLEY:  Yeah.

BLP:  And then—

SCON WHEATLEY:  Do you remember which arm?

BLP:  I think it was my left arm.  And then my right arm he held down himself.

SCON WHEATLEY:  Yeah.  And then what was the next bit?

BLP:  And then that’s when he used his other hand to put his penis inside my vagina.

SCON WHEATLEY:  And what sort of, what was the, what did the penis look like?

BLP:  Ah it was long and hard.

SCON WHEATLEY:  And how far did the vagi-, the penis go in the vagina?

BLP:  I’m not sure.

SCON WHEATLEY:  And how did it feel?

BLP:  It hurt.

SCON WHEATLEY:  It hurt.

BLP:  Yeah.

SCON WHEATLEY:  How far did it feel up it then?

BLP:  Um quite a fair way.

SCON WHEATLEY:  A fair way.

BLP:  Yeah.

SCON WHEATLEY:  And you said it went in and out quite a few times.

BLP:  Yeah.

SCON WHEATLEY:  If you had to put a minimum time on how many times, how, how many times do you think that happened?

BLP:  Um a minimum three.

SCON WHEATLEY:  Three.  And a-, then you said he stopped.  Why do you think he stopped?

BLP:  ‘Cause um, I think ‘cause he’d been in there for a while with me.

SCON WHEATLEY:  Mmm.

BLP:  And he didn’t want anybody to start getting su-, like suspicious or anything.

SCON WHEATLEY:  Did anything happen to any parts of his body for him to stop?

BLP:  No.

SCON WHEATLEY:  Nuh.  Did anything change in relation to his penis or anything like that?

BLP:  No.

SCON WHEATLEY:  Okay.  Did, you said it hurt, what other feelings did you have down there?

BLP:  Um not real much really, it just hurt.

SCON WHEATLEY:  Okay.  And how did, how was he able to put his penis inside your vagina?

BLP:  Um I don’t understand.  Like—

SCON WHEATLEY:  So did he have to sort of do anything to any parts of your body to sort of be able to do that?

BLP:  Yeah he held my—

SCON WHEATLEY:  He [INDISTINCT]—

BLP:  Arms.

SCON WHEATLEY:  Arms.  What about your lower part of your body?

BLP:  Um he was holding that, like he was holding my legs apart with his legs.

SCON WHEATLEY:  Oh okay, holding the legs apart.

BLP:  Yeah.

SCON WHEATLEY:  And did, did the penis go straight in or was there?

BLP:  Um I think there was a bit of difficulty for him.

SCON WHEATLEY:  And what do you think was the difficulty?

BLP:  Um just to get it in.

SCON WHEATLEY:  Why’s that do you think?

BLP:  Um I’m not sure.

SCON WHEATLEY:  What was he saying at this time?

BLP:  Um he wasn’t really saying anything.

SCON WHEATLEY:  And what about you?

BLP:  I was telling him to stop, and I kept telling him that it really hurt.

SCON WHEATLEY:  And what were you thinking?

BLP:  Um I was just thinking about how much it hurt.

SCON WHEATLEY:  Mmm.  And did you understand what was happening?

BLP:  Yeah.

SCON WHEATLEY:  What did you think was happening?

BLP:  Exactly what was happening.

SCON WHEATLEY:  Mmm.  Okay.  And you said, do you think maybe three, three, a minimum of three times it went in and out.

BLP:  Yeah.

SCON WHEATLEY:  Um then he stopped, and he pulled his pants, stopped and pulled his pants up and his undies up.

BLP:  Mmhmm.

SCON WHEATLEY:  Um and then you wa-, he’s, you’ve walked outta the room.  Who, who unlocked the door?

BLP:  He locked the door.

SCON WHEATLEY:  And you walked outta the room.  Who walked outta the room first?

BLP:  He did,

SCON WHEATLEY:  And he told you to go the toilet.  And he went to the toilet in your aunty’s room.

BLP:  Yeah.

SCON WHEATLEY:  When you went to the toilet what did you find?

BLP:  Ah nothing.

SCON WHEATLEY:  Did you notice anything different down there, or anything happening?

BLP:  No.

SCON WHEATLEY:  Did it feel any different?

BLP:  It felt really sore.

SCON WHEATLEY:  Really sore.  Okay.  And then he’s gone and sat in the lounge room first, and then you’ve sat down and the cousins were watching Flight, which is a new movie about this crash and stuff.  And it—

BLP:  Yeah.

SCON WHEATLEY:  Happened in the afternoon.  So how long do you think the incident actually happened when you were in the bedroom?

BLP:  Ah about twenty minutes.

SCON WHEATLEY:  About twenty minutes.  And how much longer after you sat in the, in the lounge room did your c-, aunty come home?

BLP:  A few hours.

SCON WHEATLEY:  A few hours.  Do you know where your aunty had gone?

BLP:  Ah I can’t remember.

SCON WHEATLEY:  And—

BLP:  But she took my youngest cousin with her.

SCON WHEATLEY:  She took the youngest one.  And what’s that one’s name?

BLP:  MUH.

SCON WHEATLEY:  MUH.  So she had MUH with her.

BLP:  Yeah.

SCON WHEATLEY:  And what time, what time in the day do you think the actual incident happened?

BLP:  Um in the afternoon, around, probably around 5.00 o’clock.

SCON WHEATLEY:  Around 5.00.  And do you remember whether it was summer or winter, or any particular time that, when it would have been?

BLP:  Um no I don’t really remember.

SCON WHEATLEY:  And when wa-, where did it happen?

BLP:  In my—

SCON WHEATLEY:  Which house?  It, it happened in MGN’s—

BLP:  Yeah.

SCON WHEATLEY:  Room.

BLP:  Yeah.  In—

SCON WHEATLEY:  In which house?

BLP:  The most recent one.

SCON WHEATLEY:  The most recent one, the 17.

BLP:  Yeah.

SCON WHEATLEY:  And, and when you’re talking about, he, are you talking about MDH, your uncle?

BLP:  Yeah.

SCON WHEATLEY:  And um, this might sound a bit of a weird question, um can you describe his penis to me?  What’s it look like?

BLP:  It was long and hard, and um.

SCON WHEATLEY:  Is there anything different about it that would make it different to any other penis that you might see?  Or considering anything that would make it look us-, unusual or different?

BLP:  I really don’t know.

SCON WHEATLEY:  Don’t know.

BLP:  Yeah.

SCON WHEATLEY:  Have you seen many penises?

BLP:  No.

SCON WHEATLEY:  No, you’ve never seen a penis when it hasn’t been hard?

BLP:  No.

SCON WHEATLEY:  Okay.  And you can’t really describe it to me?

BLP:  No.

SCON WHEATLEY:  And when you say long, how long are you talking about?

BLP:  Um about that long.

SCON WHEATLEY:  Okay.  [INDISTINCT].  That last time that you just talked to me, what w-, what could we call that that you’d remember what that time was?

BLP:  Um.

SCON WHEATLEY:  Was, was that the only time in the bedroom?  No, no we had the towel time, didn’t we?  Um, if I said, when the aunty was out, or—

BLP:  Um—

SCON WHEATLEY:  The locked room time?  [INDISTINCT]

BLP:  No I do remember um while he was doing it my head um was leaning up against the mattress and um sh-, my cousin had a mattress against the wall [INDISTINCT] side her bed that she sat like on top it, she had like s-, little iPod dock with like a radio—

SCON WHEATLEY:  Mmhmm.

BLP:  Thing, and she had like photo frames.

SCON WHEATLEY:  Yeah.

BLP:  And um one of the photo frames, it was only a little one, it fell down and hit me on the lip.

SCON WHEATLEY:  Oh okay.  So, so, so leaning on her bed there was like another mattress is that what you said?  So I’m a little bit—

BLP:  No it’s like—

SCON WHEATLEY:  Confused.

BLP:  It, h-, her, the mattress was like that way, instead of that way, and it was leaning up against the wall, and then her bed was pushed right against it.

SCON WHEATLEY:  Okay, so th-, was that how the mattress was always, or was it just for that one time that it was different?

BLP:  No it was always like that.

SCON WHEATLEY:  So her mattress was sort of opposite to what, it wasn’t longways, it was sideways, and the extra bit was leaning up against the wall?  So that’s the wall.

BLP:  There, there was two mattresses.

SCON WHEATLEY:  Oh okay.

BLP:  Yeah.

SCON WHEATLEY:  S-, so—

BLP:  So one was [INDISTINCT]—

SCON WHEATLEY:  So one was normal—

BLP:  [INDISTINCT]

SCON WHEATLEY:  And then there was another one on top?

BLP:  Yeah.  Like not on top, but it was like beside the bed leaning against the wall.

SCON WHEATLEY:  Oh, so not on the bed?

BLP:  No.

SCON WHEATLEY:  So—

BLP:  But it was—

SCON WHEATLEY:  Beside the bed, and leaning up, and then you said that she had it like an iPod dock on top of that mattress.  Is that right?  Have I—

BLP:  Yeah—

SCON WHEATLEY:  Got that—

BLP:  ‘Cause the mattress was like that wide so—

SCON WHEATLEY:  Okay.

BLP:  She just had things sitting up on top of it.

SCON WHEATLEY:  And ah sorta like a photo frame and stuff and that you remember knocking that—

BLP:  Yeah.

SCON WHEATLEY:  Your head was leaning up against that—

BLP:  Yeah.

SCON WHEATLEY:  Against the wall—

BLP:  Yeah.

SCON WHEATLEY:  And knocking it.  And then the photo frame fell and hit your lip.

BLP:  Yeah.

SCON WHEATLEY:  Okay.  I’m just trying to get the, [INDISTINCT], I just don’t wanna run out [INDISTINCT], got three minutes.  I’m just trying to get the picture of, can you just do a quick diagram of, just an aerial shot of like that bottom mattre-, the, the bottom bunk bed, and where—

BLP:  Yeah.

SCON WHEATLEY:  The mattress is, ‘cause I’m just trying to, and where you were lying, I’m just trying to work out—

BLP:  Um—

SCON WHEATLEY:  Sorta what position your body was in that it could have hit the mattress, that’s all.

BLP:  Um so the bed was like that, and that was the top bunk.

SCON WHEATLEY:  Yeah.

BLP:  And then, so it was like—

SCON WHEATLEY:  Mmm.

BLP:  That’s the top bunk, and then this was the bottom bunk.

SCON WHEATLEY:  Mmm.

BLP:  And the mattress was, like the wall is behind it, so that’s the wall, and the mattress was like leaning on the ground, there.

SCON WHEATLEY:  Mmm.

BLP:  And it went up beside her bed.  So.

SCON WHEATLEY:  So there was like a ridge, like the matt-, the bed’s so say this is the mat-, and say this is the bed, so where was the mattress positioned?  Here.  Is that what you’re saying?

BLP:  Yeah.

SCON WHEATLEY:  So it was positioned here.  So did you have to climb over that mattress to hop onto the bed?

BLP:  Oh no, no, no, like it was on the other side, like, so it wasn’t where you get on it, it was on that side—

SCON WHEATLEY:  Oh—

BLP:  Of the bed.

SCON WHEATLEY:  Excuse me.  Between the wall and the bed?

BLP:  Yep, so like [INDISTINCT]—

SCON WHEATLEY:  Oh so it was up like underneath the bed, and came up?

BLP:  Yeah like say this is the bed—

SCON WHEATLEY:  Mmm.

BLP:  And this is where you get on.

SCON WHEATLEY:  Mmm.

BLP:  This could be like the mattress leaning.

SCON WHEATLEY:  And where’s the wall?

BLP:  The wall’s right behind it.

SCON WHEATLEY:  Cool.  So the mattress sorta s-, did the mattress go under the mattress that was already there, or on top of it, or under the bed?

BLP:  No just stood by it.

SCON WHEATLEY:  It stood.  Oh it was just standing free, free-standing?

BLP:  Yeah, but it had the bed pushed up right against it—

SCON WHEATLEY:  Yeah.

BLP:  So it wouldn’t—

SCON WHEATLEY:  Oh yeah.

BLP:  Fall over.

SCON WHEATLEY:  I understand.

BLP:  Yeah.

SCON WHEATLEY:  Alright.  Now I understand.  Okay.  Alright.  So, and do you what type, the photo frame looked like?  What the photo frame looked like?

BLP:  Ah it was just a little grey one.

SCON WHEATLEY:  Little grey one.  And what sorta thing did, and what, you said it hit your lip.  Did it do anything to your lip?

BLP:  Ah just hurt my lip.

SCON WHEATLEY:  Hurt your lip?

BLP:  Yeah.

SCON WHEATLEY:  Did it, just, it was just hurt, didn’t sorta—

BLP:  Yeah.

SCON WHEATLEY:  Break the skin or anything?

BLP:  Nuh.

SCON WHEATLEY:  Alright.  Look I’m just gonna, is there anything about that incident, anything about, more about that one that you can remember?

BLP:  No.

SCON WHEATLEY:  So what do you wanna call this one, the lip, photo frame incident?

BLP:  Photo frame, yeah.”[163]

And further:

“SCON WHEATLEY:  Um and just let me know if you need anything.  Alright.  Not it’s just really important, as we said before, it um, ah you can talk about things that you heard, it’s important that you only tell me about things that you’ve, that really happened, things that you’ve heard, things that you saw, and things that you felt.  Okay.  So just before the break of the um, the tape, you were talking to me about a time that you remember um that occurred in the bedroom at, at ah the Aunty MHY and um Uncle MDH’s house where he has put his penis inside your vagina.  Is that correct?[164]

BLP:  Yeah.

SCON WHEATLEY:  Okay, and we’re calling that one a photo frame to the lip time.  Not um has anything like that ever happened to you before where a penis a gone inside your vagina?

BLP:  No.

SCON WHEATLEY:  No, that was the first time?

BLP:  Yeah.

SCON WHEATLEY:  Did anything like that ever happen again in relation to MDH?

BLP:  Um I don’t think so.

SCON WHEATLEY:  So he’s never put the vagina in, ah the, never put the penis in the vagina before—

BLP:  No.

SCON WHEATLEY:  After?  Okay.  Now when that happened, were you and MGN still sa-, sharing a bedroom?

BLP:  Yes.

SCON WHEATLEY:  Did you share a bedroom with MGN the whole time you were there, or was it, the b-, sleeping arrangements changed at any time?

BLP:  Um I shared a bedroom the whole time I was there.

SCON WHEATLEY:  Would mun-, MGN go to sleep every time in her bed, or did sometimes things change?

BLP:  Um sometimes MGN ended up sleeping in MDN’s room quite often.

SCON WHEATLEY:  Okay.  And why was that do you think?

BLP:  Um I’m not sure.”[165]

  1. [135]
    In the second s 93A interview:

“SCON WHEATLEY:  No.  Alright.  In relation to the, the incident that you were talking to me about, the photo frame on the lip incident, you talked about after the incident occurred that um, that everyone else was watching the movie, Flight.  Alright.  Do you recall how that movie was obtained?  [INDISTINCT].  Do you understand the question?[166]

BLP:  No.

SCON WHEATLEY:  Okay.  Sometimes people view movies through different mediums, um and they might buy them, or purchase them, or get them on Sky T-V or something, do you know how that—

BLP:  Oh.

SCON WHEATLEY:  Movie was obtained?

BLP:  Yeah um through a website.

SCON WHEATLEY:  Through a website.

BLP:  Yeah.

SCON WHEATLEY:  Do you know um what website that was?

BLP:  Yeah.

SCON WHEATLEY:  What was that?

BLP:  Noobroom.

SCON WHEATLEY:  Sorry?

BLP:  Noobroom.

SCON WHEATLEY:  New, Broom?

BLP:  Um N-double-O-B-R-double-M.

SCON WHEATLEY:  And what’s your understanding of sorta that, that site?

BLP:  It’s just a site with lots of movies on it.  You gotta sign to use it.  Um it says it’s a legal site though, so.

SCON WHEATLEY:  It’s illegal?  Illegal, or i-,--

BLP:  A legal.

SCON WHEATLEY:  A legal, yeah.

BLP:  So it’s legal.

SCON WHEATLEY:  It’s legal.

BLP:  Yeah.

SCON WHEATLEY:  Do you have to pay for the movies?

BLP:  Nuh.

SCON WHEATLEY:  Okay, but you just have to register, and you sign up and things like that?

BLP:  Yeah.

SCON WHEATLEY:  Have you ever done that yourself through that site?

BLP:  Nuh.

SCON WHEATLEY:  Okay.  Do you know who would have done it?

BLP:  Um I’m not sure.  [INDISTINCT]

SCON WHEATLEY:  Alright.

BLP:  So I don’t know.

SCON WHEATLEY:  So it’s a site called Noobroom.  Okay.  Um is there anything else that you wanna tell me in relation to the things that you’ve already told me about last week?

BLP:  [INDISTINCT]

SCON WHEATLEY:  Is there any new incidences that you can think of that you would like to tell me about?

BLP:  No.

SCON WHEATLEY:  Okay.  Alright.  I might just leave that there.  Um the time is 11 minutes past 9.00.  [INDISTINCT].  Yeah, I’ll just leave it at that.”[167]

  1. [136]
    In her pre-recorded evidence (in cross-examination) the complainant said:

“Okay.  Well, I’ll try and make it a little easier for you.  What was the last time something happened to you?---I believe the last time was the photo frame incident.[168]

Was what?---The photo frame incident.

Okay.  Tell me about that.  What happened?---He had me on – my – my cousins were in the lounge room watching a movie, my aunty had gone out for the day with my youngest cousin MUH and he took me – I got in trouble for something – I can’t remember what – so he sent me to the room and then he went in there not long after and he put me on the bed with my legs on the side – hanging over the side of the bed and he undressed me and touched me and he raped me and then when he was doing it, I hit my head on the mattress which was at the – which was on the other side of the bed in between the bed and the wall and it had photo frames and stuff sitting on top of it and one of them fell off and hit my lip.

Okay.  Now - - -?---And I - - -

Yeah, go on?---That’s how I remember that.

Okay.  Describe to me how your clothes came to be off and describe to me what he actually did, if you would?---He took my clothes off himself.  He pulled my pants down and he didn’t really – he pulled my shirt up and then he took his clothes off – he took his pants off and his undies and he just left his shirt on.

Do you recall what type of pants he was wearing?---I believe they were denim shorts.

And you say that the other children – your cousins – were in, where, the lounge room, watching TV?---Yes.  He put a movie on for them.  It was Flight.

Okay.  Flight?---Yes.

That was the name of the movie, was it? Was that on - - -?---Yes.  And - - -

Was that on Foxtel or on one of those things you have on the TV – Presto or - - -?---No, it was - - -

- - - Netflix or something?--- - - - through a website that they had on the laptop.

Okay?---And they plugged the laptop into the TV.

So this was - - -?---He – but I do remember that, when he went out of the room, he had to change the movie because it wasn’t appropriate for them to be watching.

And you say your aunty was out so was this daytime?---No, this was in the afternoon getting into night time.

And was it school holidays or was it after school or what was the situation?---I don’t remember.  I believe it was possibly school holidays.  No.  I believe it was just before the school holidays, on a weekend.

On a weekend just before the June-July school holidays?---Yes.

So if I’m to understand your evidence, around the – would it be the case that, around the June-July school holidays, you actually left the residence?---Yes.

And - - -?---I left the second last day of school because I wasn’t there for the last day of school.

Okay.  And by that time - - -?---So - - -

- - - by that time, your uncle had moved back into the house full-time?---Yes.  And it wasn’t the second last day, it was the last day, because it was a Friday night that I left.

Okay.  So you left around about – school holidays are usually around about the 20th, 21st of June, somewhere around that period of time.  Is that right?---Yes.

So you left maybe – you know, just towards the end of June – the latter part of June?---Yes.

And by that stage, your uncle had already moved back into the house from working away?---Yes.

And do you say that anything happened to you when he moved back to the house?---Yes, that incident happened after he’d moved back to the house.

Okay.  And was that the only incident that you say happened after he’d moved back to the house?---No, I don’t believe so.”

And further:

“And those two that you’ve just described to us, about when he moved back in, the towel time and I think you said the photo frame time?---Yes.

Were they during the week, were they at the weekend? When were they?---I believe they were after school.  The photo frame incident was on a weekend, but the towel incident, I believe that was on a school night, just after school.”

And further:

“I want to suggest that the photo frame incident did not occur?---That did happen.”

  1. [137]
    The appellant gave evidence denying the charge the subject of this count.  He was not cross-examined about count 11.
  2. [138]
    The appellant’s wife gave the following evidence:

“Okay.  And the set-up in the bedrooms, MGN and BLP slept together?---They had bunk beds.[169]

They had bunk beds?---Mmm.

Who was on the top and who was on the bottom?---BLP was on the top.

Okay.  We’ve heard some evidence that there was a mattress against the wall?---Yep.  So when the kids - - -

On the bottom bunk?---When the kids were little we’d get woken up a lot through the night by them kicking the walls from the bed being against the wall.  So we had a spare mattress that we used to put up at the wall and the bunk beds would hold it up.  And it just also saved me cleaning as well.

All right.  Was anything stored on that mattress?---No.  It just used to be either a plain mattress or a mattress with a sheet over it.

No photo frames, lamps, clocks?---Nothing like that, no.”[170]

  1. [139]
    The appellant’s daughter MGN gave evidence.  She drew a diagram[171] and then:

“And the other one is a diagram looking – the top one on the – on the picture that we have here is a diagram, effectively, looking at the bed as if you’re standing - - -?---Yes.

- - - next to the bed.  And we have the top bunk, the bottom bunk and this mattress?---Yes.

So this was a – is this, like, a spare mattress that was between the bunk and the wall?---Yes.

What was the purpose of that; do you know?---So we didn’t kick at night and put marks on the wall, because it was a rental.

Okay.  Was anything ever stored or held on this part of the mattress, such as pictures or lamps or clocks, or any items?---No, because it was a rental, so nothing could mark on the walls.”[172]

The summing up

  1. [140]
    Before the summing up, his Honour distributed a draft of what his Honour intended to tell the jury.  Then, his Honour gave the parties an opportunity to make submissions.[173]  Some minor issues were raised and then his Honour summed the case up to the jury.
  2. [141]
    The summing up contained all those directions which are required to be given in every jury trial.  His Honour then properly tailored the summing up to the specific circumstances of the case,[174] identified the relevant issues and directed the jury on the relevant law.[175]
  3. [142]
    His Honour appreciated, no doubt, that the complainant’s evidence on some counts had been contradicted by fairly compelling evidence.  His Honour directed the jury that if they doubted the complainant’s evidence on one count, that may give rise to a reasonable doubt about her evidence on other counts.  This is sometimes called a Markuleski direction”.[176]
  4. [143]
    The Markuleski direction given by the trial judge was in these terms:

“Now, separate charges are preferred or brought.  You must consider each charge separately, evaluating the evidence relating to that particular charge to decide whether you are satisfied beyond reasonable doubt that the prosecution has proved its essential elements.  You will return separate verdicts for each charge.  The evidence in relation to the separate offences is different, and so your verdicts need not be the same.  If you have a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence – that is, of BLP’s evidence – in relation to one or more counts, whether by reference to her demeanour or for any other reason, that must be taken into account in assessing the truthfulness or reliability of her evidence generally.  Your general assessment of the complainant as a witness will be relevant to all counts, but you will have to consider her evidence in respect of each count when you consider that particular count.

Now, it may occur in respect of one of the counts that for some reason you are not sufficiently confident of her evidence to convict in respect of that count.  A situation may arise where, in relation to a particular count, you get to the point where, although you are inclined to think she’s probably right, you may have some reasonable doubt about an element or elements of that particular offence.  Now, if that occurs, of course, you find the defendant not guilty in respect of that count.  That does not necessarily mean you cannot convict on any other count.  You have to consider why you have some reasonable doubt about that part of her evidence and consider whether it affects the way you assess the rest of her evidence: that is, whether your doubt about that aspect of her evidence causes you also to have a reasonable doubt about the part of her evidence relevant to any other count.”[177]

  1. [144]
    His Honour gave a conventional direction to the jury as to how they ought to approach the appellant’s evidence.  His Honour said:

“Now, I’ve already said that the defendant does not have to give evidence or call other people to give evidence on his behalf, or otherwise produce evidence.  That he has done so does not mean that he has assumed responsibility for proving his innocence.  The burden of proof has not shifted to him.  His evidence and that of the other witnesses called for the defence is added to the evidence called for the prosecution.  As I said, the prosecution has the burden of proving each of the elements of the offence beyond reasonable doubt.  And it is upon the whole of the evidence that you must be satisfied beyond reasonable doubt that the prosecution has proved the case before the defendant may be convicted.

Now, often enough cases are described as ones of word against word.  You should understand, though, that in the criminal trial it is not a question of your making a choice between the evidence of the prosecution’s principal witness or witnesses and the evidence of the defendant and his witnesses.  The proper approach is to understand that the prosecution case depends upon you, the jury, accepting the evidence of the prosecution’s principal witness, BLP, and that it was true and accurate beyond reasonable doubt despite the sworn evidence by the defendant and his witnesses.  So you do not have to believe that the defendant is telling the truth before he is entitled to be found not guilty.

Where, as here, there is defence evidence, usually one of three possibilities will result – or possible results will follow.  You may think the defence evidence is credible and reliable and that it provides a satisfying answer to the prosecution’s case.  If so, your verdict would be not guilty.  Or you may think that although the defence evidence was not convincing, it leaves you in a state of reasonable doubt as to what the true position is.  If so, your verdict will again be not guilty.  Or you may think that the defence evidence should not be accepted.  However, if that is your view, be careful not to jump from that view to an automatic conclusion of guilt.  If you find the defence evidence unconvincing, set it to one side.  Go back to the rest of the evidence and ask yourself whether, on a consideration of such evidence as you do accept, you are satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the offence in question.”[178]

  1. [145]
    His Honour did not give a direction in relation to any alleged lies told by the accused.  His Honour was not asked to do so despite going to some lengths to ensure that the parties had ample opportunity to formulate and make submissions on the content of the summing up.  However, as will become apparent, there is a danger here that the jury have misused Mrs GPL’s evidence.  I shall return to that issue later.
  2. [146]
    The jury acquitted in relation to the towel incident, the Poppy’s house incident and the picture frame incident.  The complainant’s evidence in relation to the towel incident and the Poppy’s house incident was the subject of comment by the trial judge.  His Honour gave some general directions about how the jury might approach the assessment of the credibility of witnesses and then said this about the complainant’s evidence in relation to the towel incident:

“Consider also the likelihood of his or her account.  Does the evidence of a particular witness seem reliable when compared with other evidence that you accept? Did the witness seem to have a good memory? You may also consider the ability and the opportunity the witness had to see, hear or know the things about which the witness testified.  Another matter for consideration in assessing the reliability of testimony may be whether it differs from what has been said by the witness on another occasion.  Obviously, the reliability of a witness who says one thing one moment and something different the next about the same matter is called into question.

In this case, this applies not only to what BLP may have said to others, which is a matter to which I will turn shortly, but also to what she said on the occasion of her speaking to police in the recorded interview and what she said when giving her evidence which was later pre-recorded.  And I will illustrate this consideration by reference to an example drawn from one of the counts on the indictment, which is count 3 or what has become known as the towel incident.  In speaking with police on 4 June 2015, BLP described this episode, saying that the defendant came into the room.  He tried to take the towel off her.  He was fairly gentle about it.

He just tried to, like, unwrap it from me.

She then said:

And then he got the towel off me and he started touching me on my boobs and on my bum.  And then he did that for, like, two minutes, I think, maybe.

When BLP was cross-examined on the 8th of July 2016, when asked to describe the towel incident in her own words, she said:

And then he walked in and tried to take the towel off me, and I wouldn’t let him.  He kept trying and I kept saying no and I wouldn’t let him.  And then he ended up walking out of the room and closing the door behind him.

She was then directly asked:

Okay, so he didn’t get the towel off you?

to which she responded:

No.

It was then suggested to her that there would have been a bit of a wrestling match going on, trying to get the towel off her, to which she responded:

No, it wasn’t really rough.  He tried to take it off but he wasn’t rough about it.

When re-examined by the Crown prosecutor, she was reminded of her evidence that she had said that the defendant did not get the towel off and was asked whether he got any part of the towel away from her body.  And she said:

Yes, but he didn’t get it off.

She said that he got the front part off her, exposing her breast and what she described as her lower parts.  When asked what happened when the towel came off and her breasts were exposed, she said:

I put it back on.  I wrapped it back around me.

She was asked:

When you say he tried to touch you, can you say what he did?

She said:

He tried to grab my breast but I pushed him.  I stopped him from doing it.  Like, I put my hands in the way and I put the towel back around me and I told him no, and I told him to go away.

When asked to say precisely where his hands went, she said:

On my breast.  Like, he tried to touch my breast but he didn’t really get to.

She was told by the prosecutor that:

Well, we’re trying to be specific here.  So when you say “he didn’t really touch my breast” or “he tried to”, was – did he –

at which point, she said:

Like, his hands – his hands went towards my breasts.  But I was putting the towel back around me as he went to, so he didn’t get to.

In these several attempts to have her describe the towel incident, at no point did the complainant say or suggest that the defendant grabbed or squeezed her breasts and that he did so for about two minutes.  In weighing the effect of any such inconsistency or discrepancy, consider whether there is a satisfactory explanation for it.  For example, it might result from an innocent error, such as a faulty recollection; or else could there be an intentional falsehood?  Be aware of such discrepancies or inconsistencies and where you find them, carefully evaluate the testimony in light of other evidence.[179]

  1. [147]
    In relation to count 11, the picture frame incident, his Honour said this:

“Count 11 is alleged to be the “picture frame time”.  When cross-examined, BLP said that she recalled that this was the last of the incidents in order of time.  Both in her statement to police and when cross-examined, BLP gave a very detailed account of that incident, including what occurred, what they were wearing, what the others in the house – being the children of the defendant – were doing at the time: that is, watching a movie called Flight, which the defendant went out and changed because it was not appropriate.  The circumstances in which that disclosure was made in the course of the police interview were that the police officer asked:

Is there any other times that you can remember? Like, we – you’ve talked a lot about rubbing and one time when he’s actually put his finger in you.  Is there any other times that he has – that there has been anything like that?

BLP then said that there was a time when her aunty went out for the day.  She then went on to describe remembering her uncle laying her down on her cousin’s bed with her legs hanging off the side of the bed.  She describes the defendant pulling his pants and – pulling her pants and undies down to just below her knees; pulling down his own pants; inserting his penis, which she described as long and hard, in her vagina with some difficulty; his going in and out quite a few times and it going a fair way into her vagina.  She described this as having hurt.  She said that she had told the defendant to stop.  After he stopped, she described the defendant telling her to go to the toilet but that when she did so, she did not notice anything different down there or anything happen, as she said – or as was put to her by the police – although she said that this was the first time that a penis had gone inside her vagina.  She then described going into the lounge room and watching the movie with her cousins.

There are a number of things that you would consider about this account.  What the complainant alleges in this account is the loss of her virginity to her uncle by him raping her in a bedroom in her house while his children – her cousins – were in another room of the house, watching television.  Yet this event was seemingly only recalled by the complainant after several occasions of prompting by the interviewing police officer one hour and 40 minutes into an interview the very purpose of which was to complain about sexual abuse by her uncle, and is only the seventh matter which came to her mind as she cast her memory back in the course of that interview.  You may think that it is improbable that such an event, if it occurred, would not be at the forefront of the complainant’s mind, not something that she would come to recall so far into the interview and as the seventh matter that she could recall.

You would also consider the probability or improbability of the defendant committing such an offence when his children were in the house, watching television, with the complainant telling him to stop and with the capacity to yell or scream out.  You would also consider the physical improbability of what she described.  You would consider whether it’s likely that an adult – an adult male would be able to penetrate, seemingly quite deeply, the vagina of a virginal 12-yearold girl lying in the position in which she described: on her back, legs dangling over the bed, with her shorts and underpants just below her knees, which, you might think, would act to hold her legs together.”[180]

  1. [148]
    And then his Honour again reminded the jury of the Markuleski direction:

“As I’ve already directed you, if the complainant’s evidence causes to you to have doubts about those matters – sorry, if the complainant’s evidence causes you to have doubts about that alleged offence, that must be taken into considering in relation to her evidence as a whole and whether it causes you to have doubt about her evidence in respect of all the other counts.  So I warn you that it would be dangerous to convict upon the complainant’s testimony alone unless, after scrutinising it with great care, considering the circumstances relevant to its evaluation and paying heed to this warning, you are satisfied beyond reasonable doubt of its truth and accuracy.”[181]

  1. [149]
    His Honour gave directions (the warnings):
  1. On the impact of delay;[182]
  1. On the dangers of acting on the unsupported evidence of the complainant.[183]
  1. [150]
    The jury retired to consider their verdicts at 4.54 pm on Thursday, 7 June 2019.  They were allowed to disperse at 5.20 pm.
  2. [151]
    The jury recommenced their deliberations on Friday, 8 June 2018.  Just after midday, a note was received from the jury in these terms:

“1. What is the legal definition of unlawful indecently dealing?

  1. Does the mere attempt to remove the towel count as indecent?
  1. What is the weight of the particulars document?”[184]
  1. [152]
    In response to the note:
  1. His Honour gave the jury directions on the elements of the indecent dealing counts; counts 1, 2, 3, 4, 5, 7, 8, 9 and 10;
  1. His Honour directed the jury that the attempt to remove the towel could not constitute indecent dealing; and
  1. His Honour directed the jury that the particulars were binding upon the Crown and the allegations that the jury were considering were only those particularised.[185]
  1. [153]
    At 3.24 pm, the jury delivered another note asking for some of the complainant’s evidence to be replayed.[186]  The note was:

“Can we listen to the transcript excerpts relating to:

  • Poppy’s house;
  • Picture frame;
  • Couch time.”
  1. [154]
    The evidence was replayed on the morning of Monday, 11 June 2018.  His Honour then reminded the jury of other evidence, in particular, some aspects of the evidence of witnesses called by the defence.[187]  That exercise took the entire day.
  2. [155]
    The jury recommended their deliberations on Tuesday, 12 June 2018.  Another note[188] was delivered in these terms:

We as a jury are stuck on making a decision on count 11.  Is there any guidance or direction we can be provided?  What are our options with this?”

  1. [156]
    His Honour then repeated to the jury a number of directions given in the summing up including the Markuleski direction and the warnings.
  2. [157]
    There were no objections to the way in which his Honour dealt with the various requests from the jury.  In my view, that was all handled impeccably.  The jury returned the verdicts at 2.18 pm on Tuesday 12 June 2018.

Consideration of the issues

  1. [158]
    As already observed, both grounds of appeal allege that the jury’s verdicts of guilty were unreasonable.
  2. [159]
    The approach which must be adopted by the court when faced with such a ground was explained by the High Court in M v The Queen[189] where the court observed:

“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.  But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.  On the contrary, the court must pay full regard to those considerations.”[190]

  1. [160]
    The principles were further explored by the High Court in SKA v The Queen[191] in these terms:

[20] The reasoning of the Court of Criminal Appeal exposes a fundamental problem with its approach to its task.  The Court concerned itself with whether, as a question of law, there was evidence to support the verdicts, rather than making its own independent assessment of the evidence.  The applicant submitted in this Court that this reasoning demonstrated an ‘inverting of the process’ required to be undertaken by the Court of Criminal Appeal.  The reasons of Simpson J indicate that her Honour considered what should have been the central question ‒ whether on the evidence the Court was satisfied that the applicant was guilty of the offences ‒ as rather an ancillary question to the question whether there was a sufficiency of evidence to sustain the conviction.  As Deane, Toohey and Gaudron JJ made clear in Morris v The Queen, such an inquiry is not what is required by s 6(1) of the Criminal Appeal Act.

[21] To determine satisfactorily the applicant’s appeal, the Court of Criminal Appeal was required to determine whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the applicant was guilty of the offences with which he was charged.  The applicant correctly submits that two errors are evident in the reasoning of the Court of Criminal Appeal in reaching this conclusion.  First, the Court of Criminal Appeal did not satisfactorily determine the date at which it was alleged that the applicant committed the offences the subject of counts 4 and 5.  Whilst it is true that an appellate court is not always bound to deal with all arguments put to it, this was a critical matter.  Secondly, this led the Court into error when considering the sufficiency of evidence on which it was open to a jury to have concluded beyond reasonable doubt that the applicant was guilty of committing the 2006 offences.

[22] On appeal, the task of the Court of Criminal Appeal was to make an independent assessment of the whole of the evidence, to determine whether the verdicts of guilty could be supported.  There is no doubt that the Court of Criminal Appeal was not bound by the ruling of the trial judge concerning the date of the 2006 offences.  However, the Court of Criminal Appeal was required to form an opinion as to the date of the 2006 offences in order to weigh the whole of the evidence.  The reasons for judgment by Simpson J do not disclose that the Court of Criminal Appeal made an independent assessment of the evidence concerning the 2006 offences, and therefore the Court could not weigh the competing evidence to determine whether the verdicts of guilty could be supported.

[23] It was not sufficient to say that the complainant’s account of the incidents was sufficiently particular to enable a jury to accept it.  The complainant’s evidence as to when they occurred was also part of the account and, potentially at least, a matter by which her other evidence fell to be considered.  It may be that the argument of the applicant on the appeal, which focused upon the complainant’s nomination of the evening of 23 December as the date of the last two offences and then as one of many ‘jury points’, served to distract the attention of the Court of Criminal Appeal.  Observing that the complainant had not been dogmatic about 23 December may not have sufficiently overcome her identification of the days before Christmas as essential to her recollection.  These were matters to be considered by the Court of Criminal Appeal.”[192]

  1. [161]
    This court’s assessment must be conducted against the two principles identified in R v Baden-Clay,[193] namely that primarily the determination of the facts of the case is for the jury, not a court of appeal, and secondly, due regard must be had by a court of appeal to the jury’s advantage in seeing and hearing the witnesses.  In R v Baden-Clay, the High Court observed:

“65 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.

66 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.”[194]

  1. [162]
    A jury’s verdict may be unreasonable for many reasons.  Unreasonableness may arise when there is an inconsistency between verdicts of acquittal and convictions on the one indictment.
  2. [163]
    Inconsistency of verdicts may impact upon convictions in at least two ways:
    1. where there is no apparent explanation for the differences in verdicts.  This may suggest impermissible compromise; and
    2. whether rejection of a crucial witness’s evidence on one count (demonstrated by an acquittal) renders it unreasonable to accept the witness’s evidence on another count.
  3. [164]
    In R v TK,[195] Simpson J (as her Honour then was) sitting in the New South Wales Court of Criminal Appeal observed that when determining whether there is a logical basis for different verdicts, the first question is “whether there exists any rational explanation for the acquittals (not the convictions)”.[196]
  4. [165]
    There is no difficulty here in identifying bases upon which the jury was justified in holding a reasonable doubt in relation to the charges constituting the towel incident, Poppy’s house incident and the picture frame incident.
  5. [166]
    In the complainant’s first s 93A interview, she said that the appellant removed the towel and “started touching me on my boobs, and on my bum.  And then he did that for like two minutes, I think, maybe”.  If that evidence was accepted, then the appellant’s acts would no doubt constitute unlawful and indecent dealing by the appellant with the complainant.[197]
  6. [167]
    In her pre-recorded evidence, the complainant said that the appellant entered the room where the complainant was and then “[he] locked the door behind him and he tried to take my towel off and I wouldn’t let him.  He kept trying and I kept saying no and I wouldn’t let him”.  Later, in her pre-recorded evidence, the complainant confirmed that the towel was not removed but was pulled partially off her.  She then said “[he] tried to touch me but I wouldn’t let him and I put the towel back around me”.
  7. [168]
    Also as already observed, there was evidence supporting a conviction on count 3.[198]  That evidence is contained in the first s 93A interview.  The complainant effectively withdrew that account in her pre-recorded evidence and swore that the appellant did not touch her on that occasion.  It is hardly surprising that the jury acquitted on that count.
  8. [169]
    As already observed, his Honour in the summing up, pointed out the discrepancies between the complainant’s version of the towel incident in the first s 93A interview, and her version in the pre-recorded evidence.
  9. [170]
    There were also major difficulties with the complainant’s evidence in relation to the Poppy’s house incident (counts 4 - 6).  The complainant said that she only went to Poppy’s house once when sexual things happened with the appellant.  She said that the offending occurred in the Easter holidays in 2013.  Poppy gave unchallenged evidence that he was at the house at Easter, but away from the house on holidays in July - August 2013.  The complainant’s mother gave evidence that the complainant would have been at home with her during Easter of 2013.[199]  The appellant’s niece gave unchallenged evidence that the appellant was in Hervey Bay over Easter 2013.[200]  The appellant’s daughter also gave evidence to that effect,[201] as did the appellant’s wife.[202]
  10. [171]
    The Poppy’s house incident could not have occurred at Easter 2013.  However, mistakes about dates are both commonplace and understandable by complainants who are relaying events which are no doubt traumatic to them, and which occurred years previously.  There are other reasons though to doubt the complainant’s account concerning the Poppy’s house incident.
  11. [172]
    The complainant gave a very detailed account of jumping the fence, obtaining a spare key from under the house and then entering the house through the back sliding door.  Poppy’s unchallenged evidence was that:
    1. (a)
      no spare key was kept in the room under the house; and
    2. (b)
      the sliding glass doors could not be unlocked from the outside.
  12. [173]
    The appellant’s wife also gave evidence that it was impossible to access the house through the sliding glass doors from the outside if they were locked.[203]
  13. [174]
    The Crown prosecutor, in his final address, suggested to the jury that the Poppy’s house incident could have occurred in the June - July school holidays rather than at Easter.  He then made this submission:

“Now, you heard the defendant deny the offending.  Of course he did.  We’re having a trial.  Is it not entirely possible that the defendant had a spare key to Poppy’s house and the storage area underneath?  Just exactly where BLP said it was…”[204]

  1. [175]
    That submission was very unfortunate.  The appellant was entitled to give evidence and deny the offending.  It was his right to give evidence if he chose to do so.  That denial was worthy of consideration by the jury.  The jury swore an oath to return a verdict according to the evidence which included the evidence of the appellant.  The submission suggested to the jury that the importance of the evidence of the appellant should be diminished because he is the one on trial.  Such a submission is contrary to authority and was improper.[205]
  2. [176]
    There is also another difficulty with the submission.  The Crown prosecutor suggested that the jury might conclude that the accused “had a spare key to Poppy’s house”.  Nothing of the sort was suggested to the appellant in his cross-examination.  It was not suggested to the appellant that he had one of the spare keys which existed for the front door of the house.  If the Crown prosecutor chose, as he did, to leave the defence evidence largely unchallenged, it was not then open to him to invent scenarios for the consideration of the jury when those matters had never been put to the witnesses.  Even if the submission was properly made, which it was not, it took the Crown case nowhere.  The real difficulty with the complainant’s account was not whether she obtained a key, but the fact that she said she had opened a door which, on the completely uncontested evidence of several witnesses, could not be opened from outside.
  3. [177]
    On the complainant’s version, once she and the appellant entered the house, she was molested and then the appellant poured himself and her a glass of Coca-Cola from the fridge in the house.  They then drank the Coca-Cola.  The uncontested evidence of Poppy was that he never kept Coca-Cola in the fridge.  There was therefore solid evidence which contradicted the complainant’s version.
  4. [178]
    There are many problems with the complainant’s evidence concerning the picture frame incident.  I shall return to some of these later.  However, it, like the Poppy’s house incident, is one where aspects of the complainant’s evidence are disproved by unchallenged evidence.  The complainant explained in some detail how there was a picture frame on a mattress leaning up against a wall next to the bunkbed on which the offending represented by count 11 occurred.  She described how the picture frame fell and cut her lip.  Evidence to the effect that there was no picture frame was given by the appellant’s daughter and the appellant’s wife.  Neither were challenged in cross-examination.
  5. [179]
    It therefore can be seen that there was a rational basis for the jury to distinguish between the acquittals on one hand and the convictions on the other.  With the towel incident, the complainant gave a version in her pre-recorded evidence which did not support the count.  In both the Poppy’s house incident and the picture frame incident, the complainant was contradicted by uncontested evidence which seemed undoubtedly correct.
  6. [180]
    The real question is whether, upon a consideration of the whole of the case, including the evidence and the jury’s verdict in relation to the towel incident, the Poppy’s house incident and the picture frame incident, the complainant’s credibility or reliability was so damaged that it was not open to the jury to accept her evidence and convict on the counts which they did.
  7. [181]
    MacKenzie v The Queen[206] was decided by the High Court in 1996.  Gaudron, Gummow and Kirby JJ reviewed various authorities and then stated the relevant principles as follows:

“1. A distinction must be drawn between cases of legal or technical inconsistency and cases of suggested factual inconsistency.  The former will generally be easier to resolve.  On the face of the court’s record there will be two verdicts which, in law, cannot stand together.  Examples include the case where the accused was convicted both of an attempt to commit an offence and the completed offence or of being, in respect of the same property and occasion, both the thief and the receiver.  There are other like cases.  Where technical or legal inconsistency is established, it must be inferred that the jury misunderstood the judge’s directions on the law; compromised disputes amongst themselves; or otherwise fell into an unidentifiable error.  The impugned verdict or verdicts must be set aside and appropriate consequential orders made.

  1. Suggestions of factual inconsistency have arisen both as between different verdicts affecting the same accused and different verdicts affecting co-accused or persons tried separately in relation to connected events.  The last-mentioned problem is an inevitable risk of the trial system where accused offenders are tried separately.  Thus in R v Rowley the appellant was convicted after a plea of guilty.  The principals in the offence were later acquitted after a trial.  The appellant gained an order quashing his conviction.  Yet it was pointed out that apparently inconsistent verdicts in such circumstances might be no more than the result of ‘differences in the evidence presented at the two trials’ or ‘the different views which the juries separately take of the witnesses’.
  1. Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness.  A judgment of Devlin J in R v Stone is often cited as expressing the test:

‘He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.’

  1. Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense.  Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted.  If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.  In a criminal appeal, the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt.  Alternatively, the appellate court may conclude that the jury took a ‘merciful’ view of the facts upon one count: a function which has always been open to, and often exercised by, juries.  The early history of New South Wales was affected by English juries which, in the face of clear evidence, declined to find the value of goods stolen sufficient to attract the punishment of death, thereby affording to the offender the alternative punishment of transportation.  Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect.  In R v Kirkman, in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O’Loughlin JJ) observed:

‘[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges.  Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law.  Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number.  This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries.  Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.’

We agree with these practical and sensible remarks.

  1. Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and common sense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty.  More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law.  It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside.  It is impossible to state hard and fast rules.  ‘It all depends upon the facts of the case’.
  1.  The obligation to establish inconsistency of verdicts rests upon the person making the submission.  But if, because of inconsistency between verdicts, the appellate court is persuaded that a verdict cannot stand, it must make consequential orders.  In the case of a criminal trial, where the verdict has been followed by conviction and sentence, these must be set aside.  Where the inconsistency is found between verdicts of acquittal and a verdict of guilty, the appellate court (statute apart) may not disturb the acquittal.  It may be appropriate to enter a verdict of acquittal on the subject count(s) on the footing that this merely carries forward the logic of the other acquittal verdict(s).  But once again, the relief which is appropriate depends upon the facts of the particular case.” (Citations omitted)
  1. [182]
    Jones v The Queen[207] was decided in 1997.  It, like the present case, was one concerning uncorroborated allegations of criminal sexual misconduct against a child.  The jury convicted of two counts and acquitted of one.  It is unnecessary to analyse the facts of Jones.  An assessment of the evidence led Gaudron, McHugh and Gummow JJ to find:

“… The only reasonable conclusion is that the jury were not satisfied beyond reasonable doubt of the truth of her evidence concerning the incident the subject of the second count…”[208]

And later:

“… It is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts.  There is nothing in the complainant’s evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count…”[209]

  1. [183]
    An example of the application of the principles in the case of sexual offences against a child is Norris v The Queen.[210]  There, Howie J[211] explained:

[49] As Hall J has pointed out, the verdicts of not guilty on counts 3 and 4 could only mean that the jury must have had a doubt about the credibility of the complainant on those counts.  It was not a case of the jury having a doubt about the particulars of the events giving rise to the charges such that, although they believed that the appellant had been sexually assaulting the complainant, they had a doubt as to whether he had done so on these occasions because of some question as to whether the complainant was confused about the events.  The occasions giving rise to counts 3 and 4 were unambiguous and fell within the dates specified in the indictment.

[50] Nor was it a case where there was corroboration of counts 1 and 2 but not of counts 3 and 4 so that the different verdicts could be justified on that basis.  On the contrary there was support for the complainant’s allegations in counts 3 and 4 even though the jury were entitled to, and probably did, doubt the reliability of her sister’s evidence.  Although there was evidence of opportunity for the appellant to commit the offences in counts 1 and 2 that evidence could not itself, in my view, account for the difference in the verdicts.  It may be that the jury were distracted by the conflict in the evidence as to whether the complainant could have been in the house with the appellant on the particular occasion when she alleged the offences in the first two counts occurred.  Although there was evidence that generally supported the complainant’s account of the opportunity for the appellant to commit the offence, it was no more than that.

[51] It might well be the case that they acquitted on counts 3 and 4 on the basis of the warning given by the judge that it was dangerous to convict on the uncorroborated evidence of the complainant.  But it seems to me that the evidence in support of counts 1 and 2 has to be reviewed in light of the fact that, having scrutinized the complainant’s evidence in support of counts 3 and 4 with care, as they were directed to do, they were not prepared to accept it to the necessary standard of proof, and this notwithstanding that they had seen the complainant give evidence and were in a better position than this Court to evaluate her.”

  1. [184]
    Where an inference is drawn that the jury has delivered “not guilty” verdicts based on a rejection of the reliability of a complainant’s evidence, the convictions may be unreasonable in the absence of some reason (such as corroboration) to distinguish those verdicts from the acquittals.[212]
  2. [185]
    The mere fact of rejection of a complainant’s evidence on one count will not necessitate a conclusion that a complainant’s evidence must be rejected in toto.  In MFA v The Queen,[213]  the High Court said this:

“In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant.  This may not be unreasonable.  It does not necessarily involve a rejection of the complainant's evidence.  A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt.  The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution.  A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant.  It may simply reflect a cautious approach to the discharge of a heavy responsibility.  In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others.”[214]

  1. [186]
    In Markuleski, Wood CJ at CL gave an example of a situation where a principal witness’s credibility might be thought to be so damaged as to make a verdict on a count unreasonable.  This occurs where evidence in other counts (where there were acquittals) showed the Crown witness’s evidence to be a fabrication.[215]
  2. [187]
    It is not necessary for an appeal court to conclude that a complainant’s evidence on the counts where there were acquittals is a fabrication or in any way deliberately untrue in order to find that the verdicts of guilty.  Similarly, an appeal court in quashing convictions, is not making any determination of the credibility of the complainant.  The court’s function is to assess all the evidence (and the fact of the acquittals) and, against the requisite standard, determine whether the guilty verdicts were unreasonable.[216]
  3. [188]
    In Libke v The Queen,[217] Heydon J considered the application of the M v The Queen test where the submission on appeal was that some of the evidence led at trial was contrary to guilt.  His Honour observed:

“113 It is clear that the evidence that was adduced at the trial did not all point to the appellant's guilt on this first count.  But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt.  It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.  In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park.  That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt.”[218]

  1. [189]
    The appellant’s ultimate submissions on appeal in the present case were these:

“17. The jury’s verdicts were an affront to logic and common sense and are strongly suggestive of a compromise verdict.  Alternatively, they are suggestive of a failure on the part of the jury to appreciate how findings of credit in relation to some counts could not be isolated from their consideration of other counts, despite being properly directed.

  1. If the complainant’s credibility had been so weakened that her evidence in respect of counts 3 to 6 and 11 had to be rejected, it followed that the jury, acting responsibly and rationally, could not have been satisfied of the appellant’s guilt in respect of the remaining counts beyond a reasonable doubt.”
  1. [190]
    As acknowledged in the applicant’s written submissions, the learned trial judge did properly direct the jury that findings of credit in relation to one count might impact the assessment of other counts.  The appellant though, unnecessarily and inappropriately, narrows this court’s enquiry.  The issue is not whether the acquittals make the convictions unreasonable verdicts.  The court in discharging its function must look not only at the acquittals, but the entirety of the evidence in order to ascertain whether the convictions are unreasonable.[219]  The fact of the acquittals, and the apparent reasons for these verdicts, is just one consideration in the exercise.
  2. [191]
    As the Crown conceded on appeal, there is no evidence capable of corroborating the complainant’s version on any of the 11 counts.  Corroboration is not legally necessary, and given the nature of this type of offending, there is often no corroborative evidence.  An absence of independent support for the complainant’s evidence is, though, a relevant consideration.
  3. [192]
    In cases where there is a significant delay between the alleged offending and the complaint, an accused is invariably disadvantaged in his defence.  It is often difficult in such cases for the Crown to pinpoint and particularise the time and occasion of the offending and this necessarily limits an accused’s ability to meet the allegations.  These considerations were acknowledged in Longman v The Queen.[220]  Despite this, the appellant mustered evidence which cast significant doubt upon the complainant’s account relating to the Poppy’s house incident and the picture frame incident.  The jury have acquitted on those counts (and the towel incident) but convicted on counts where, in reality, the only evidence comes from the complainant.  In other words, notwithstanding the fact that she was contradicted in relation to the Poppy’s house incident and the picture frame incident, the jury was prepared to accept her uncorroborated evidence where she was not contradicted.
  4. [193]
    The complainant said that she was sexually abused by the appellant from the age of about seven, which would have been in 2008.  She said that she was constantly sexually assaulted by the appellant and this occurred virtually every time she saw him.  She was living with her mother and her stepfather in 2013.  She did not get on well with her stepfather and so she asked to move and live with her aunt and the appellant, a man who was allegedly sexually abusing her.
  5. [194]
    Experience shows that often children who are being sexually abused do not make prompt complaint.  There are many reasons for this.  By itself, failure to make proper complaint may mean very little.  However, here, the complainant was, before 2013, living away from the appellant.  He was therefore not in a position to hurt her.  She chose though not to make complaint but rather move into the appellant’s house to live with him.
  6. [195]
    There is evidence of preliminary complaint.  This was all general in nature and was not made until the complainant drew the timeline at school.  In the context of this case, what preliminary complaint evidence there is adds little support to the complainant.
  7. [196]
    The complainant gave evidence of the specific seven events represented by the counts.  She made general allegations about uncharged acts.  As already observed, she said that she was sexually assaulted virtually every time she saw the appellant.  When asked though, she could give no description whatsoever of the nature of the uncharged offending.[221]
  8. [197]
    Also, as already observed, the appellant gave evidence.  He denied the offending.  He was cross-examined for a total of 12 minutes.  The opening questions in the appellant’s cross-examination were:

“MR WILKINS:  Mr MDH, do you agree that BLP came to live with you in 2013 due to what you believed was happening at her home?---Yes, I do.

All right.  So you agree you were trying to protect her?---Yes.

Okay ‒ because you love her?---No, I don’t love her.

You don’t love your niece?---I love my niece as my niece, yes.

You brought her into the house?---Not just myself, no.

Okay.  But she came to live at your house?---Yes, she did.

Because you were wanting to protect her?---As a family unit, yes.

Okay.  And then you raped her?---No, I did not.”[222]

  1. [198]
    The jury knew that the complainant moved to the appellant’s household in 2013.  That was not contentious.  The jury knew that the Crown alleged that the appellant raped the complainant.  The line of questioning had no real use.  In reality, it was just a piece of drama designed to give rise to prejudice against the appellant.
  2. [199]
    What followed was an examination of the appellant’s movements in 2013.  The appellant and his wife both gave evidence, the effect of which bore on the opportunity, or lack thereof, that the appellant had to offend against the complainant.  The point of the cross-examination of the appellant is seen in this passage:

“Okay.  You [say] – or it’s been said that you’re not the best historian.  But you can remember all these weekends?---Not all of them, no.

No, but the ones that you’ve just rattled off?---Yeah, because – I can remember them ones, yeah.

Okay.  And it’s also the case as well then that you’re not the best historian, but you seem to remember all time that you’re never alone with BLP; is that the case?---I was never alone with BLP.  I was never home.

Okay.  But – you’re not the best historian, but you know that for certain.  A hundred per cent you were never alone with BLP?---No – oh, once.

Once?---Yep.

All right.  When was that?---When I took her home.

Okay.  When was that?---Day after Father’s Day.

Day after Father’s Day – so are we talking September?---Yes.

Of what year?---Twenty-thirteen.

Okay.  And why did you take her home?---Why did I take her home?

Yes?---I can’t answer that.  I don’t know why I took her home.

Okay.  So you don’t know why you took her home.  But you took her from your house - - -?---Yes.

- - - back to her house?---Yes.

How long was that drive?---I couldn’t tell you.  I’m not a – I don’t have – didn’t keep the kilometres.

Right.  Well, how long do you estimate to have taken?---Forty minutes – 40, 45 minutes.

Forty minutes.  Righto.  It wasn’t around the Ipswich area? Did you have to drive out of Ipswich to the Brisbane area?---Yes, I did.

Okay.  And it was just you and BLP?---Yes, it was just me – me and BLP.”

  1. [200]
    The appellant’s wife gave detailed evidence about the times the appellant was away for work.  She also gave evidence about how her household worked.  The effect of all this was that the appellant was rarely ever left alone with the complainant.  The complainant herself said that the appellant was rarely about the house.
  2. [201]
    Particularly, in relation to the McDonalds’ incident, the appellant’s wife said she could not recall any occasion when the appellant took the complainant to buy sundaes or ice-creams for the family.[223]
  3. [202]
    In relation to the MKE sleep incident and the appellant’s contact with the GS, the appellant’s wife gave this evidence in chief:

“Now, do you know GMN and GPL?---Yes, I do.

How do you know them?---MDH joined a four-wheel drive club many years ago and he met GMN through the club and GPL also used to go out with them in the club and then I met them after that.  I didn’t always go to a lot of the club stuff when the kids were little.

And in 2013 do you know where they were living?---Yes.  They were living at Springfield.

And did you ever take BLP to that house?---Yes.  All of us, MDH, myself and the kids with BLP, we actually went over there one day.  They were working on I think it was GMN’s vehicle at the time and it has a steep driveway at the front of the house where their big three-bay shed was.  So we all just sat there watching them and take the Mickey out of them when they dropped something on their heads or something.

All right.  But that was a family outing there.  Did you ever take BLP there, just you and her?---I went back over there one other time to pick up some toys because they were moving to Mount Isa and GPL gave me some toys from her family day care collection.”[224]

  1. [203]
    In cross-examination, the appellant’s wife was not challenged at all concerning her evidence about McDonalds or her evidence about the GS.  There were obvious lines of cross-examination which were not pursued about these and other topics.  In his address to the jury, the Crown prosecutor invited the jury to completely disregard the evidence of both the appellant and his wife.  The Crown prosecutor said this:

“I suggest, ladies and gentlemen, that you would simply put the defendant’s evidence to one side and return back to that of BLP’s.  He said himself that he is not the best historian, but you might seem to recall that he could always remember whenever he was home that BLP wasn’t there.  It’s an interesting thing to say, ladies and gentlemen, an uncle and a niece.  He said quite simply that he was never alone with BLP in his evidence.  He continued on after a brief pause, ‘Oh, once’.  You might think, ladies and gentlemen, that he knew what the very next question was that I was about to ask him.  He realised he couldn’t pull the wool over your eyes.  He also went as far as saying that he did not love his niece.  You’ll recall that.

Again, I suggest, attempting to distance himself between her at every turn.  If we look at 2007 onwards when BLP came over before and after school.  His answer to knowing whether BLP came over, ladies and gentlemen, ‘Supposedly’.  Again, I suggest, an attempt to distance himself.  A statement that I suggest defies common sense and logic, ladies and gentlemen.  You recall the evidence about the families, the close proximity they live to each other and how often BLP was over at that house.  You’ll recall that BLP was over there Monday to Fridays in the morning and after school, but then you would have heard the evidence in the defence case that defendant left before BLP came over.  He didn’t come home till after she was picked up.

Now, you might think, ladies and gentlemen, how believable is that?  An uncle and a [niece] who had spent all this time together including living together, been camping together, been to the [GS’s] house on a family barbecue, yet not once apart from one car trip when BLP was returned home in 2013.  Suggest an absolute ludicrous statement to make and you would simply put his evidence to one side and, as I said, revert back to BLP’s evidence.  As well you heard evidence about the defendant’s penis size.  You might think how incredibly fortunate, ladies and gentlemen, that the defendant and his wife have the good fortune to measure his penis in the event that down the track someone might accuse him of having a larger than average erect penis.  Bet they’re glad they measured that now.

Another absurdity, I suggest, ladies and gentlemen, with that defence evidence.  Briefly touching on the evidence of Ms MHY.  In essence, her evidence was the defendant and BLP never alone.  Again, ladies and gentlemen, I suggest an outrageous statement to make in the grand context of all the evidence that we have. She didn’t go to the shops, hang washing, go outside, go to the bathroom.  Constant observation [indistinct] questions, ladies and gentlemen.  Suggest MHY said whatever she thought would help her husband.  After putting that evidence to one side, ladies and gentlemen, we’ll return back to the Crown case.

  1. [204]
    Another very unfortunate comment by the Crown prosecutor was:

“You might think, ladies and gentlemen, that the defendant and the defence witnesses seem to have an answer for everything.  Poppy was away for Easter.  MGN did [indistinct] rooms.  MGN didn’t have picture frames.  The defendant was never alone with BLP.  That door didn’t have a key.  You can hear things from MGN’s room.  ‘It’s a tiny house and I can hear and see everything that goes on’.  The defendant was always out whenever BLP slept over.  BLP could’ve said the sky was blue, and the defence witness would have come and said it was pink.”

  1. [205]
    Much of the defence case was not contested, as I have already observed.  Much of the defence case, as it concerned the appellant’s absence from the house over extended periods, was based on joint admissions in which the Crown prosecutor joined.
  2. [206]
    The fact that the complainant was not at the second Brassall house on most weekends was confirmed by the complainant’s mother, a witness the Crown called.[225]
  3. [207]
    The complainant did not in fact say that the sky was blue but she did give evidence of many things that were sensibly not challenged by the defence.  The Crown prosecutor’s remark was unfair, inflammatory and inappropriate.
  4. [208]
    The clear import of the Crown prosecutor’s address to the jury was that the appellant’s wife was lying.  The Crown prosecutor specifically suggested “[the appellant’s wife] said whatever she thought would help her husband”.  That was never put to her.
  5. [209]
    The Crown prosecutor’s reference to the appellant and his wife measuring the appellant’s penis is a reference to her evidence:

“Okay.  Now, it might be a personal question.  Are you able to give us an estimation of the size of your husband’s penis?---We actually measured it once as a joke and it was between the five and six inch mark.

You had a tape measure?---Yeah.”[226]

  1. [210]
    The appellant’s wife’s evidence is hardly likely to be the product of some conspiracy with her husband to invent evidence to contradict the complainant’s allegation that the appellant had a large penis.  The appellant could not recall at all the incident where his wife measured his penis.[227]  The Crown prosecutor was prepared to scoff at the appellant’s wife’s evidence and clearly suggest that she was lying, even though he had not challenged her on that topic.
  2. [211]
    There were no questions asked of the appellant in cross-examination about the seven incidents, the subject of the counts.  The closest the Crown prosecutor came to challenging the appellant’s denials, was:

“Okay.  Now, Mr MDH, you’re well aware of the allegations against you? ---Yes, I am.

You understand all those allegations? --- Yes, I do.

Every one of those allegations happened, didn’t it?---No, it did not.

You indecently touched BLP on her breasts, her buttocks and her vaginal area? ---No, I did not.

You inserted your penis into her vagina? ---No, I did not.”[228]

  1. [212]
    It is the evidence concerning the picture frame incident where there are even deeper issues.  As earlier observed, the jury were clearly correct to hold a reasonable doubt as to the complainant’s evidence on the picture frame incident.  What was alleged was full penile penetration of the complainant.  This allegedly occurred whilst she was sitting on the edge of a bed with her legs dangling over the bed and her shorts pulled down but not off.  Therefore, her clothing would be restricting the extent to which the appellant could push her legs open.  There was though, according to her only, “a bit of difficulty for him” in penetrating her vagina, the vagina of a 12 year old virgin.
  2. [213]
    In her first s 93A interview, she initially said “I’m not sure what my cousins were doing”.  Then, she not only remembered that her cousins were in the lounge room watching a movie, but she could recall the name of the movie they were watching and she could recall that after the incident, she joined them to watch the movie.
  3. [214]
    The appellant’s rape of the complainant allegedly occurred in her bedroom which opens onto an open plan area which includes the lounge room where the complainant’s cousins were watching television.[229]  Apart from the enormous risk taken by the appellant in raping the complainant in a home where other children were present, the complainant, after losing her virginity, simply joins her cousins showing no outward sign of the trauma she had just endured.  Then of course, there is the fact that she gave a detailed and elaborate story about the picture frame falling on her, and that evidence is directly contradicted by evidence which was not challenged by the Crown.
  4. [215]
    The complainant said that the picture frame incident was the first time her vagina had been penetrated by the appellant’s penis.  When asked whether that was the only time she was initially somewhat equivocal.  She said “Um I don’t think so”.  It was only after a leading question by the police officer that she settled on the version that was the only occasion.[230]
  5. [216]
    The issue is not whether the complainant was being deliberately untruthful.  As unusual as they may seem, the events may have occurred.
  6. [217]
    However, on the entirety of the evidence, the jury were right to have a reasonable doubt about the picture frame incident.
  7. [218]
    The same can be said in relation to the Poppy’s house incident.  The complainant’s account of how she obtained the key, and obtained entry through the back sliding door, is an integral part of her account.  That part of her account is not and cannot be accurate, given the unchallenged evidence that was led.
  8. [219]
    The complainant’s evidence about drinking Coca-Cola after being molested in Poppy’s house is also not accurate given the unchallenged evidence of Poppy that Coca-Cola was not kept in his refrigerator.
  9. [220]
    The jury, faced with unchallenged evidence contradicting the complainant on material aspects of her account of the Poppy’s house incident and the picture frame incident, could only reasonably have a reasonable doubt as to the reliability of the complainant’s evidence on those counts.  It was not then reasonably open to the jury to reject the appellant’s sworn and effectively unchallenged denials of the counts of which he was convicted.
  10. [221]
    Further, the complainant, in the first s 93A interview, gave a very detailed account of how the appellant removed the towel she was wearing and then sexually assaulted her.  She then, under cross-examination, gave a completely different version of what occurred including that the towel was not removed and she was not touched.  There was no suggestion that there was more than one towel incident.  In fact, she told police that there was only one occasion involving a towel.
  11. [222]
    The jury sought a redirection in relation to the towel incident in these terms:

“Does the mere attempt to remove the towel count as indecent?”

  1. [223]
    At least one of the jury must therefore have been contemplating convicting the appellant on count 1 based on the account given in the s 21AK evidence, even though the evidence completely contradicted what was said in the s 93A interview.
  2. [224]
    It is difficult to see how the jury could not reasonably reject her evidence on both, completely contradictory versions of the towel incident.
  3. [225]
    There were therefore solid bases justifying the jury’s verdicts of not guilty on counts 3 (the towel incident), 4, 5 and 6 (the Poppy’s house incident) and 11 (the picture frame incident).  It must be that the jury have rejected her reliability on these counts.
  4. [226]
    The second question is whether, having rejected the complainant’s evidence on these counts and having regard to all the evidence, is it unreasonable to convict the appellant of the other counts.
  5. [227]
    There is no corroboration of any aspect of the complainant’s version.  She managed to give a detailed description of the couch, but of course that just proves she remembers what couch was in the lounge room.  The dangers of relying on peripheral details which can be objectively confirmed is demonstrated by R v CAH.[231]
  6. [228]
    While the complainant said that sexual assaults had occurred since she was about seven (therefore 2008),[232] she could not recall any incident until the couch incident.  That occurred at a home occupied by the appellant’s family between June 2010 and October 2013.[233]  There was no event or circumstances the complainant could point to in order to narrow the date.  However, under cross-examination in the s 21AK evidence, she said that it probably occurred before the family went on holiday to Rainbow Beach.  That occurred from 14 to 18 January 2013.
  7. [229]
    In that respect, this uncontested evidence was given by the appellant’s wife:

“Now, at the end of 2012 your sister got married?---It was the 1st of January 2013.

Okay.  Did BLP stay with you then?---Yes, she did.

How long did she stay with you for?---They were there from – her and her sister were there from a couple of days before New Year’s until a couple of days after New Year’s.

So when you say her and her sister?---Her little sister, MVY.

So it was BLP and MVY came to stay with you while PLI and PNE got married?---Yes.

And that was for a few days?---Yep.

Did BLP then go back home or did she stay with you?  You went on a camping trip to Rainbow Beach?---She was supposed to go home but she didn’t want to.  I think she just wanted to stay for a bit longer and she just started – she knew the day her mum was coming home and started panicking and started telling us about things that were happening at home and that she didn’t feel safe and whatnot.  And it got a bit heated and I’m like, ‘Is it definitely happening?’ And she goes, ‘Yeah, yeah, yeah’.  And I knew some of the things from what MHA had told me a few things prior.

All right.  So there was some disruption or some – she wasn’t feeling particularly happy at home?---She didn’t feel happy or safe.

Okay.  And did you allow her to stay on?---We said she could stay for a little bit longer while her mum went home - - -

Did you have a discussion with her mum about that?---Yeah.  When her mum - - -

Don’t tell us what was said but did you have a discussion?---Yeah.  We had a good discussion with her mum.

Okay.  And some time in January you went to Rainbow Beach?---Yes.

Tell us about that?---I know the date we went because it was my late grandmother’s birthday.  We left on the 14th of January.  We went up to Rainbow Beach.

When you say ‘we’, who’s we?---Myself, MDH, MGN, MDN, MKE, BLP and MUH.”

And later:

“Okay.  Came back from the camping trip.  What happened then?---Well, we had two - - -

Did BLP go home?---Well, we had two cars.  MDH had his four-wheel drive which was a two-seater.  He took MDN with him.  And I took MGN, BLP, MKE and MUH and I had to go to Gin Gin to meet my mum because we had spent Christmas with my mum and I left my dog at her house because she’s a breeder and has kennels.

Okay?---So she had accommodation, so yeah.

So when you came back, did BLP remain at your house when you came back from the camping trip?---Yep.  That was the Friday night on the 18th because it was actually MDH’s birthday and her mum picked her up the next day.

Okay.  Was there then some discussion entered into with PLI about BLP coming to live with you?---She’d actually text me while we were on the camping trip saying she was going to allow BLP to move in with us after the discussion we had a couple of weeks earlier.

Okay?---But I hadn’t told BLP that.  My sister said to BLP, “Go and pack your stuff”.  And she’s like, ‘No, I’m not coming home’.  And she goes, ‘Do as you’re told’.  And she goes, ‘No, I don’t want to go home’.  She started crying.

All right.  But she did go home?---She did go home and I said, ‘Your mum has decided you’re allowed to stay but you’ve got to go home to spend some time with your family’.

Did she seem pleased with that?---It was going to be her birthday.  I think she was happy about that.

Okay.  So was she at your house for her birthday?---No, she wasn’t.

Okay.  So she went home for her birthday and then came back to your place?---Yep.

And when was that?---She came back on the 28th of January which was a public holiday because Australia Day was on a Saturday.  So she came back on Monday the 28th and school started the next day.”

  1. [230]
    The Crown was faced with a substantial difficulty.  On the complainant’s version, she had been assaulted regularly since she was about seven.  Then, at the age of 12, she insisted on moving into the house occupied by her abuser.  That evidence was sought to be countered by evidence from the complainant that she was receiving preferential treatment in the appellant’s household.  That evidence was contradicted by the appellant[234] and the appellant’s wife.[235]  That evidence was not challenged in any way.  Obvious lines of cross-examination were simply not followed.  This was consistent with the Crown prosecutor’s approach.  He basically ignored the defence case, did not come to grips with any of the problems that the defence case caused to the complainant’s evidence and then simply told the jury to believe the complainant.  The difficulty with such an approach is that it left large parts of the defence case unchallenged.
  2. [231]
    Therefore, the sworn denials of the appellant were largely unchallenged.  The jury have convicted where the complainant has not been substantially contradicted by evidence beyond that of the appellant.  There is danger then, as in R v D,[236] that the jury have approached their task impermissibly.  Instead of assessing whether the complainant’s evidence should be accepted beyond reasonable doubt, they have been prepared to convict unless she is significantly contradicted.
  3. [232]
    A high point of the Crown case was Mrs GPL’s evidence.  She contradicted the appellant’s evidence that he did not go to the GS’s house with the complainant on any occasion other than the family barbecue.  That may have given the complainant some support.  There are problems caused for the Crown even with that evidence.  The complainant, if she was accurate must have travelled with the appellant to the GS’s house on at least three occasions; the barbecue, the dirt trail incident and the MKE sleep incident.  However, the complainant thought that she may only have been to the GS’s house twice.[237]
  4. [233]
    The appellant was specifically asked in cross-examination in chief whether he had gone to the GS’s house with the complainant and MKE.  He said that he had not.  He did give general evidence that he had only been to the GS’s house with the complainant on the occasion of the family barbecue.  However, he was never asked whether he had been to the GS’s house with the complainant and any child other than MKE.  There was no attempt in cross-examination to suggest the possibility of any occasion other than that specifically particularised.
  5. [234]
    After Mrs GPL gave evidence, the Crown case then presumably proceeded on the basis that the offending could have occurred when it was not MKE but some other child with the complainant in the car and on the basis that it was not the occasion spoken of by the complainant when the offending occurred, but rather on some other occasion when the appellant and the complainant were at the GS’s house for only a short time.
  6. [235]
    I am also concerned as to how the jury may have used Mrs GPL’s evidence.  As already observed, the Crown prosecutor put it to the jury that the appellant and his wife were lying about the movements of the appellant and his contact with the complainant.  No lies direction was given.[238]
  7. [236]
    I have taken into account the position of the jury in the trial process and that the jury enjoys an advantage in having seen and heard all the evidence.  Further, the jury quite properly may have made allowance for the difficulties encountered by children in giving evidence about sexual misconduct suffered by them at the hands of persons who are often family members.  However, when all the evidence is considered, the evidence which the complainant gave in support of counts 3, 4, 5, 6 and 11 was unreliable.  There were large problems with her evidence on those counts and the jury was not prepared to accept her evidence as reliable.  It was not open to then accept her as reliable on the counts on which the jury convicted.[239]
  8. [237]
    The fact is that much of the defence case was strong and unanswerable.  That led the Crown prosecutor, it seems, to the extraordinary decision to simply ignore it.
  9. [238]
    In addition to the issues caused by the rejection of the complainant’s credibility on the counts on which the appellant was acquitted, there are other problems with the Crown case on those counts where convictions were returned.
  10. [239]
    In relation to the couch incident (counts 1 and 2):
    1. (a)
      The complainant is completely uncorroborated.
    2. (b)
      She originally had the incident occurring when she was nine years old and living at home, but later had it occurring when she was 12 after moving into the second Brassall house.
    3. (c)
      The likeliness of the version can be doubted.  The appellant allegedly entered a bedroom where not only the complainant, but another girl is sleeping (his daughter), removed the complainant and took her into a completely open area of the house where he sexually assaulted her over an extended period.
    4. (d)
      The complainant, despite this serious sexual assault, then takes steps to persuade her mother, the appellant’s wife, and the appellant to allow her to move into, or stay in the household.
  11. [240]
    In relation to the dirt trail incident (counts 7 and 8):
    1. (a)
      The complainant is totally uncorroborated.  While her evidence might find some support in Mrs GPL’s evidence that the complainant was at the GS’s house with the appellant, that evidence is undermined by her evidence that she may only have been to the GS’s house twice.  On her version, she must have gone to the GS’s house at least three times.
    2. (b)
      The account is unlikely.  The complainant’s version is that the appellant stopped the car, directed her to leave the car, undressed her, pulled his own pants down, achieved an erection, and in that state was molesting the complainant while another child was in the car, albeit asleep.
  12. [241]
    In relation to the Macca’s incident (count 9):
    1. (a)
      The complainant is completely uncorroborated.
    2. (b)
      The incident was said to occur “around Easter” 2013.  The unchallenged evidence was that the complainant was with her mother at Easter and the appellant was away from the second Brassall house.
  13. [242]
    In relation to the MKE sleep incident (count 10):
    1. (a)
      The complainant is completely uncorroborated.  The problems caused to the Crown case by Mrs GPL’s evidence apply equally here.
    2. (b)
      The incident is unlikely to have occurred.  The car was, it seems, parked outside the GS’s house.  There is full view onto this area from inside the property.
  14. [243]
    The jury’s verdicts of guilty were unreasonable and the convictions ought to be set aside.
  15. [244]
    I would order:
  1. The appeal be allowed.
  2. The convictions be set aside.
  3. Verdicts of acquittal be entered on counts 1, 2, 7, 8, 9 and 10.

Footnotes

[1]See Morrison JA’s reasons at [39] – [42].

[2]See Davis J’s reasons at [232] – [234].

[3]I do not find it necessary to consider whether the jury should have been given specific directions about what the prosecutor submitted to the jury were lies by the appellant and his wife: see [235] of Davis J’s reasons.

[4]See [165]–[179], [212] – [225].

[5]Appeal Book (AB) 33 line 5.

[6]AB 34 line 27.

[7]AB 38 line 29.

[8]AB 41 line 7.

[9]AB 43 line 6.

[10]For example, at one point the police interviewer left to get some tissues, the plain inference being that the complainant was crying (AB 289 line 27).  On other occasions the interviewer asked whether the complainant was okay to continue (AB 316), and asked her to close her eyes in order to relate things she could actually remember (AB 288 line 54).  And the prosecutor reminded the jury that the complainant could not get through the interview without crying: AB 47.

[11]AB 159 line 25.

[12]AB 163 lines 34-39.

[13]AB 303 lines 19-21, AB 304 lines 7-22.

[14]AB 16 lines 33-36.

[15]AB 21 line 38.

[16]AB 41 line 34 to AB 42 line 17.

[17]AB 42 line 24.

[18]AB 307 lines 7-14.

[19]AB 23 lines 38-41.

[20]AB 24 lines 10-13.

[21]AB 24 lines 15-20.

[22]AB 32 lines 36-43.

[23]AB 192 line 12; emphasis added.

[24]AB 339 line 23.

[25]AB 342 line 40.

[26]AB 339 lines 14-19.

[27]AB 19 line 31.

[28]AB 342 line 33.

[29]AB 178 lines 25-28.

[30]AB 200 lines 14-16.

[31]Counts 1 and 2 (AB 17 line 12); count 9 (AB 29 line 25); count 10 (AB 31 line 10) and counts 7 and 8 (AB 33 line 4).

[32]AB 31-32.

[33]AB 32 line 4.

[34]AB 148 lines 40-44.

[35]AB 212 line 1.

[36]AB 212 lines 17-20.

[37]AB 213 lines 27-44.

[38]Called as part of the defence case.

[39]AB 327.

[40]AB 30-31.

[41]AB 32.

[42]As explained elsewhere, even though Mrs GPL could not say whether it was cousin M or cousin Z in the car, cousin M did not suggest there was any such occasion in which she was involved in going to the GS’s house in company with her father and the complainant.  Therefore, the jury were entitled to conclude that the true effect of Mrs GPL’s evidence was that she saw the complainant and cousin Z in the car.

[43]AB 285 lines 10-12; AB 350 lines 43-44; AB 351 lines 1-6.

[44]AB 350 line 48 to AB 351 line 11.

[45]AB 170 line 41 to AB 171 line 10.

[46]AB 285 lines 12-17.

[47]AB 352-353.

[48]AB 36.

[49]AB 35.

[50]AB 35 lines 35-39.

[51]AB 36 lines 1-10.

[52]Criminal Code, s 210(1)(a).

[53]Criminal Code, s 210(1)(a)(iv).

[54]Criminal Code, s 349.

[55]Doney v The Queen (1990) 171 CLR 207 and R v R (1989) 18 NSWLR 74 at 77, point C.

[56]MacKenzie v The Queen (1996) 190 CLR 348 at 376, R v CX [2006] QCA 409 at [33], R v GAN [2012] QCA 50 at [37]-[40].

[57](2009) 74 NSWLR 299; and see also Norris v The Queen (2007) 176 A Crim R 42 at [45]-[53].

[58]At [123]-[138].

[59]Appeal Record Book 1 (“ARB”), pages 91-92.

[60]ARB 2 page 173.

[61]ARB 2 page 173.

[62]ARB 2 pages 97 and 173.

[63]ARB 2 page 127.

[64]Exhibit 3.

[65]This was taken, correctly it seems, to mean “raped”.  She did not use the term in its technical meaning (understandably).  She meant that she was sexually assaulted; ARB 2 page 372, although count 11 did allegedly involve penile penetration of the complainant’s vagina.

[66]ARB 2 page 282 (transcript).

[67]ARB 2 page 357 (transcript).

[68]Anonymised in these reasons.

[69]Criminal Code, s 644; ARB 2 pages 136-137.

[70]Exhibits 31 and 32; ARB 2 pages 235-236.

[71]I have included underlining for highlighting purposes.

[72]The couch incident was not mentioned in the second s 93A interview.

[73]ARB 2 page 289.

[74]Therefore about 2010, at least two years before she moved in to live with the appellant’s family.

[75]Which must be a reference to the second Brassall house.

[76]The appellant.

[77]The appellant’s wife.

[78]These are the particularised acts.

[79]ARB 2 page 301.

[80]ARB 2 page 16.

[81]ARB 2 page 18.

[82]ARB 2 page 39.

[83]ARB 2 page 41.

[84]ARB 2 page 155.

[85]The complainant originally said that she was nine years old when the couch incident (counts 1 and 2) occurred.  That would be about 2010, at least two years before she lived with the appellant’s family.

[86]ARB 2 page 170.

[87]ARB 2 page 301.

[88]ARB 2 page 306.

[89]ARB 2 page 21.

[90]ARB 2 page 39.

[91]ARB 2 page 41.

[92]ARB 2 page 42.

[93]ARB 2 page 177.

[94]ARB 2 page 156.

[95]ARB 2 page 306.

[96]Rape, count 6.

[97]ARB 2 page 316.

[98]ARB 2 page 348.

[99]ARB 2 page 22.

[100]ARB 2 page 24.

[101]ARB 2 page 27.

[102]ARB 2 page 28.

[103]ARB 2 page 32.

[104]ARB 2 page 33.

[105]ARB 2 page 33.

[106]ARB 2 page 157.

[107]ARB 2 page 111.

[108]ARB 2 page 189.

[109]ARB 2 page 190.

[110]ARB 2 page 192.

[111]ARB 2 page 192.

[112]ARB 2 page 193.

[113]A reference to the complainant.

[114]ARB 2 page 173.

[115]ARB 2 page 174.

[116]ARB 2 page 175.

[117]ARB 2 page 175.

[118]ARB 2 page 179.

[119]ARB 2 page 180.

[120]ARB 2 page 195.

[121]ARB 2 page 197.

[122]ARB 2 page 197.

[123]ARB 2 page 117.

[124]ARB 2 page 151.

[125]ARB 2 page 154-155.

[126]ARB 2 page 316.

[127]ARB 2 page 320.

[128]ARB 2 page 320.

[129]ARB 2 page 323.

[130]ARB 2 page 33.

[131]ARB 2 page 39.

[132]ARB 2 page 327.

[133]ARB 2 page 176.

[134]ARB 2 page 324.

[135]ARB 2 page 327.

[136]ARB 2 page 329.

[137]ARB 2 page 357.

[138]ARB 2 page 358.

[139]ARB 2 page 28.

[140]ARB 2 page 29.

[141]ARB 2 page 39.

[142]ARB 2 page 156.

[143]ARB 2 page 176.

[144]ARB 2 page 327.

[145]This must connect the dirt trail incident to the visit to the GS.

[146]ARB 2 page 329.

[147]ARB 2 page 29.

[148]ARB 2 page 32.

[149]ARB 2 page 430.

[150]ARB 2 page 148.

[151]ARB 2 page 176.

[152]ARB 2 page 205.

[153]ARB 2 page 207.

[154]ARB 2 page 208.

[155]ARB 2 page 208.

[156]ARB 2 page 209.

[157]ARB 2 page 210.

[158]ARB 2 page 212.

[159]ARB 2 page 212.

[160]ARB 2 page 213.

[161]ARB 2 page 176.

[162]ARB 2 page 329.

[163]ARB 2 page 343.

[164]ARB 2 page 344.

[165]ARB 2 page 345.

[166]ARB 2 page 358.

[167]ARB 2 page 360.

[168]ARB 2 page 19.

[169]ARB 2 page 178.

[170]ARB 2 page 178.

[171]Exhibit 43.

[172]ARB 2 page 200.

[173]ARB 2 page 214.

[174]R v Spencer [1987] AC 128 at 135.

[175]RPS v The Queen (2000) 199 CLR 620 and R v Mogg (2000) 112 A Crim R 417 at 427, [54].

[176]R v Markuleski (2001) 52 NSWLR 82.

[177]ARB 2 page 163.

[178]ARB 1 pages 62-63.

[179]ARB 1 pages 60-61.

[180]ARB 1 pages 68-69.

[181]ARB 1 page 69.

[182]ARB 1 pages 66-67; Longman v The Queen (1989) 168 CLR 79.

[183]ARB 1 page 69; Robinson v The Queen (1999) 197 CLR 162.

[184]MFI “H”.

[185]ARB 1 pages 84-85.

[186]ARB 1 page 85, MFI “I”.

[187]ARB 1 pages 99-112.

[188]MFI “J”.

[189](1994) 181 CLR 487.

[190]At 493 and reaffirmed in MFA v the Queen (2002) 213 CLR 606 and SKA v The Queen (2011) 243 CLR 400.

[191](2011) 243 CLR 400 and recently in Pell v The Queen [2020] HCA 12 at [39].

[192]At 20-23.

[193](2016) 258 CLR 308.

[194]At [65]-[66].

[195](2009) 74 NSWLR 299.

[196]At [130].

[197]Count 3.

[198]Doney v The Queen (1990) 174 CLR 207 and R v R (1989) 18 NSWLR 74 at 77.

[199]ARB 1 page 97.

[200]ARB 2 page 196.

[201]ARB 2 page 200-201.

[202]ARB 2 page 174.

[203]ARB 2 page 176.

[204]ARB 1 page 50.

[205]Hargraves v The Queen (2011) 245 CLR 257 at 277 [45]-[46].

[206](1996) 190 CLR 348 at 366.

[207](1997) 191 CLR 439.

[208]At 453.

[209]At 453.

[210](2007) 176 A Crim R 42.

[211]Agreeing with the principal judgment of Hall J.

[212]R v Markuleski (2001) 52 NSWLR 82 at 92-93, [34], 100-111, [75]-[125], 126, [216]-[217] and 130-131, [234].

[213](2002) 213 CLR 606.

[214]At [34].

[215]At [234].

[216]M v The Queen (1994) 181 CLR 487 at 493.

[217](2007) 230 CLR 559.

[218]At [113].

[219]R v Markuleski (2001) 52 NSWLR 82 at 99, [66].

[220](1989) 168 CLR 79.

[221]First s 93A interview; ARB 2 pages 287-288.

[222]ARB 2 page 158.

[223]ARB 2 page 18.

[224]ARB 2 page 177.

[225]ARB 2 page 123.

[226]ARB 2 page 179.

[227]ARB 2 page 155.

[228]ARB 2 page 163.

[229]ARB 2 page 270.

[230]ARB 2 page 344.

[231](2008) 186 A Crim R 288.

[232]ARB 2 page 287.

[233]Appellant’s wife’s evidence; ARB 2 page 169.

[234]ARB 2 page 145.

[235]ARB 2 page 172.

[236][2000] QCA 417.

[237]ARB 2 page 31.

[238]Edwards v The Queen (1993) 178 CLR 193; Zoneff v The Queen (2000) 200 CLR 234.

[239]A similar position to that facing the New South Wales Court of Criminal Appeal in Norris v The Queen (2007) 176 A Crim R 42.

Close

Editorial Notes

  • Published Case Name:

    R v MDH

  • Shortened Case Name:

    R v MDH

  • MNC:

    [2020] QCA 175

  • Court:

    QCA

  • Judge(s):

    Fraser JA, Morrison JA, Davis J

  • Date:

    25 Aug 2020

Appeal Status

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