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R v PBG

 

[2020] QCA 224

SUPREME COURT OF QUEENSLAND

CITATION:

R v PBG [2020] QCA 224

PARTIES:

R

v

PBG

(appellant)

FILE NO/S:

CA No 253 of 2019

SC No 378 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 6 September 2019 (Douglas J)

DELIVERED ON:

16 October 2020

DELIVERED AT:

Brisbane

HEARING DATE:

19 May 2020

JUDGES:

Sofronoff P and Philippides and McMurdo JJA

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was charged with four counts of sexual offences committed against his half-sister, one count committed against his other half-sister and one count of drug supply, as well as two counts of indecent treatment of a child under 16, alleged to have occurred on the same occasion against each half-sister – where the appellant was found guilty of two counts of rape (counts 5 and 6) committed against his half-sister K and was acquitted of the other counts – where counts 5 and 6 occurred after the complainant attended a going away party at the appellant’s unit – where, after the complainant arrived at the party, no one was there except for the appellant’s flatmate and the appellant – where the complainant consumed alcohol and marijuana, listened to music and went to bed at the unit, with the appellant helping her up the stairs to his bedroom as she could not walk up the stairs unaided – where her next memory was waking up in the appellant’s bed the next morning – where, the next morning, the appellant gave the complainant $20 and told her to purchase the morning after pill – where count 5 concerned the appellant having non-consensual vaginal intercourse with K during the night when she was asleep – where count 6 concerned the appellant, the next morning, masturbating and requiring the complainant to put her mouth over his penis when he ejaculated – where evidence was given by the complainant K, the complainant’s half-sister, various family members including the mother of the appellant and the complainants, the appellant’s biological sister and half-sister of the complainants, the appellant’s flatmate and a police officer – where credibility featured prominently – whether, on the whole of the evidence, it was open to the jury to be satisfied, beyond reasonable doubt, that the appellant was guilty of counts 5 and 6

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant’s biological sister and half-sister of the complainants gave evidence of confessional phone calls with the appellant – where the trial judge directed the jury that in order to use that evidence, they were required to be satisfied that the appellant made those statements and that those parts relied on as indicating guilt were true and accurate – where the trial judge also gave a Longman direction on the issue of delay in accordance with the Benchbook – whether the jury should have been directed for both counts 5 and 6 that the confessional evidence needed to be corroborated – whether the jury should have been directed that the confessional evidence on count 5 needed itself to be proven beyond reasonable doubt as a Shepherd fact – whether the jury should have been directed for both counts 5 and 6 as to the prejudice of the delay in being able to disprove phone calls either as part of the Longman direction or when a jury note on the issue was addressed – whether the jury should have been given a motive to lie direction as to the confessional evidence

Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, cited

McKinney v The Queen (1991) 171 CLR 468; [1991] HCA 6, cited

R v Bevinetto [2019] 2 Qd R 320; [2018] QCA 219, cited

R v Tink [2020] QCA 193, cited

Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56, cited

COUNSEL:

K M Hillard with M A Rawlings for the appellant
S L Dennis for the respondent

SOLICITORS:

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

  1. [1]
    SOFRONOFF P:  I agree with Philippides JA.
  2. [2]
    PHILIPPIDES JA:

Background

  1. [3]
    The appellant was charged with four counts of sexual offences committed against his halfsister, K, and one count committed against his half-sister RL and one count of drug supply.  In relation to the offending against K, counts 1, 5 and 6 concerned three counts of rape and count 4 concerned one count of supplying dangerous drugs to a minor.  The appellant was also charged with two counts of indecent treatment of a child under 16, alleged to have occurred on the same occasion against each halfsister (counts 2 and 3).
  2. [4]
    On 6 September 2019, a jury found the appellant guilty of two of the rape charges committed against K (counts 5 and 6) and acquitted him of the other counts.  He was sentenced to concurrent terms of imprisonment of eight years for count 5 and four years for count 6.
  3. [5]
    The appellant appeals his convictions on the following grounds:
    1. (a)
      The verdict was unsafe and unsatisfactory (that is, that the verdicts in respect of counts 5 and 6 were unreasonable and otherwise unsupportable having regard to the evidence).
    2. (b)
      The trial judge erred in failing to properly direct the jury about the alleged confessional phone calls evidence, causing a miscarriage of justice.

The prosecution case

  1. [6]
    The prosecution case as to count 1 was that one night when the appellant was staying with the complainant’s family at their Logan home, he took K to the bedroom that he was sharing with her younger brothers and vaginally raped her.
  2. [7]
    In relation to counts 2 and 3, it was alleged that on one occasion when the appellant was staying at Logan after 1999, he placed each complainant on his knee and kissed each of them, inserting his tongue into their mouths, an event which the complainant RL said she did not recall (she recalled sitting on the appellant’s knee, but not him kissing her).
  3. [8]
    The prosecution case as to counts 4, 5 and 6 was that they occurred in May 2005 when K attended a going away party at the unit the appellant shared with GW at Hervey Bay.  It was alleged that the appellant gave K marijuana (constituting count 4) and alcohol, that she became intoxicated and was helped to bed by the appellant.  When K awoke the following morning, she was in the appellant’s bed and wearing only an oversized t-shirt.  The appellant was masturbating and required her to put her mouth over his penis when he ejaculated (count 6).  Before she left the unit, the appellant gave her $20 and told her to get the morning after pill.  It was also alleged that the appellant had non-consensual vaginal intercourse with K during the night when she was asleep (count 5).
  4. [9]
    Evidence was given by the following:
    1. (a)
      the complainants, K and RL;
    2. (b)
      KM, the mother of the appellant, K, RL and RC;
    3. (c)
      IM, the father of K and RL;
    4. (d)
      RC, the appellant’s biological sister and half-sister of K and RL;
    5. (e)
      RL’s partner, JE;
    6. (f)
      K’s partner, ZT;
    7. (g)
      GW, the appellant’s flatmate in Hervey Bay; and
    8. (h)
      Detective Sergeant Dwan.

K’s evidence

  1. [10]
    K was 28 years old at the time of the trial.  She gave evidence that in December 1997 when she was seven years old, she and her family (her parents, her sister (RL), her younger brothers, her halfsister (RC) and the appellant[1]) moved from Innisfail to Logan where they lived until 2002.[2]  She shared a room with her sister RL.  They had bunk beds until mid-1999 when they each had a single bed.  Her brothers and the appellant slept in another room, where the brothers also shared a bunk bed and the appellant had his own single bed.[3]  K’s parent’s room was adjacent to the two bedrooms.

Count 1

  1. [11]
    K gave evidence of an incident that occurred one night when she and her sister were still sharing a bunk bed.[4]  She said that she was asleep in the lower bunk and was woken up by the appellant shaking her on the arm and telling her to wake up.[5]  She said he carried her past her parents room to his single bed.  He placed her on his bed and lay behind her and was “spooning” her.  He then he took her underwear off, pulled his boxer shorts down and she could feel his penis getting hard, as his penis was touching her.[6]  She heard a “spit noise”[7] and he lifted up her right leg from behind and inserted his penis into her vagina.[8]  This was the conduct alleged to constitute penile rape (count 1).
  2. [12]
    She said that her two brothers were also present in the room.[9]  The appellant told her to be quiet and not tell anyone and said, “Mum and dad won’t believe you”.[10]  She did not say anything and felt scared.[11]  She woke the next morning in her own bed and did not recall how she returned there.[12]
  3. [13]
    She said there were other instances where the appellant would come into her bedroom at night and wake her up, but they did not lead to sexual assault.[13] (The trial judge gave directions that these uncharged acts went to the appellant’s sexual interest in her.[14])

Count 2 and 3

  1. [14]
    K gave evidence of another incident which happened in the bedroom she shared with RL.  It was sometime after mid-1999 when they had single beds.  She and RL were sitting on either side of the appellant’s lap on her single bed.  They were each sitting on one of his legs and the appellant had his hand around their waists and was kissing them.[15]  The kissing occurred after he told them to give him a kiss.  K said that the appellant kissed her, putting his tongue in her mouth (count 2).  She pulled back and said, “ew”.[16]  She said that the appellant did the same thing to RL (although she could not see whether he did anything with his tongue) who reacted in the same way (count 3).[17]  The door to the bedroom was closed.  Her mother entered the room after the kissing had finished.  The appellant said, “everything’s okay” and “we’re just talking”.  Her mother said okay and left.[18]

Counts 4 to 6

  1. [15]
    K and her family moved to Hervey Bay, where she went to school.  She got a job for some months working at Domino’s Pizza where the appellant also worked.  She was about 13 or 14 years old at the time.[19]  The appellant shared a unit with a co-worker, GW, who was her manager at Domino’s.[20]
  2. [16]
    K said that in May 2005, not long before the family was to move to Melbourne, the appellant and GW told her that there was going to be a going away party for her.  She said she did not want to go but she was made to by her mother.[21]  She said that the appellant picked her up to go to the party in his car, an orange Ford Escort.[22]  There was a carton of Vodka Cruisers in the car.  When she arrived at the appellant’s unit, she saw that there was no one there except for GW.  They went into the kitchen where there was some prechopped marijuana.  The appellant had some marijuana using his homemade bong and showed her how to use it.  It was the only time that she had done so.[23]  She said the marijuana made her feel “Lazy. Laughable. Slow” and “Giggly” and like she had “no control of [her] body”.[24]  She also drank the Vodka Cruisers that the appellant was giving her.  She could not recall how many she drank.[25]  She had only ever drunk a couple of sips of alcohol before then.  They listened to music and the evening ended up with her going to bed in the unit, with the appellant helping her up the stairs to his bedroom, as she was unable to walk up the stairs unaided.[26]  She was barely awake.  The appellant took her into the bedroom and closed the door behind them.[27]  She could not remember getting into the bed.
  3. [17]
    Her next memory was waking up in the appellant’s bed in the morning, with the appellant next to her wearing only his boxers[28] and with her wearing only an oversized T-shirt.[29]  She recalled that when she entered the bedroom, she was wearing jeans and a singlet, together with underwear and a bra.[30]  She had no memory from the time she went into the bedroom until she woke the next morning.
  4. [18]
    She said that she told the appellant that she needed to go to the toilet and shower and that he responded by saying he wanted her to suck his penis.  He asked her whether she had ever tasted semen before.  She replied no.[31]  She refused his request to suck his penis.[32]  At that time he was masturbating.[33]  She then told the appellant again that she wanted to go for a shower, but he said, “No”.  She then asked if she sucked his penis, whether she would be allowed to leave and have a shower and he replied, “Yes”.[34]  She got in between his legs.  The appellant was masturbating and when he was close to ejaculation told her to put her mouth over his penis.  He ejaculated and she spat the semen onto the blanket.[35]  She said that she did not consent to putting her mouth over the appellant’s penis.[36]  She then left the room, had a shower and got dressed.  When she went downstairs, the appellant gave her a $20 note and told her that she needed to go to the chemist and get a morning after pill.[37]  He did not explain why she needed to take the morning after pill.  That morning she was feeling “Sick, hungover” and “Sick in my stomach, sick in the head”.[38]  She could not recall what she did that day.
  5. [19]
    Subsequently, K moved to Yallambie in Victoria with her family.  She saw the appellant when he visited with his then partner and baby.[39]  One day the appellant approached her in her bedroom while the other family were outside the house and asked her to give him a kiss.  She fled the room.[40]  She left Victoria towards the end of 2006 when she was 16 and went with her family to Townsville where she attended school.  She recalled another occasion when the family was travelling between Melbourne and Townsville and she and her sister visited the appellant’s house with their parents.  She was in the kitchen and the appellant told her that her arse still looked good in the jeans that she was wearing.  She turned her back on him but did not make a comment.[41]  She saw him again in about 2009 when she was a year out of school and he stayed at her parent’s residence but not otherwise before the trial.

Preliminary complaint

  1. [20]
    K first disclosed that she had been sexually abused by the appellant’ to an Australian Defence Force counsellor in 2007 when she was in year 11.[42]  Soon after, a police officer attended at her school and she told the officer that she had been sexually abused by her brother, but did not want the police to take the matter any further.[43]  That evening her mother told her that the police had been there saying that the appellant had raped her and asked if that was true.  She replied, “Yes, it is”.  She said her mother “became abusive” and she ran away and came back later that night.[44]  Her father asked her whether it was true and she replied yes.  He told her to go to the police to make a statement but it would be in the family’s best interests if she lied, as it would break up the family if she told the truth.  The next morning, her father drove her to the police station where she spoke to Detective Sergeant Dwan.  She made a statement that she lied about the accusations because she was seeking attention and signed DS Dwan’s notebook.[45]
  2. [21]
    In 2013, she told her partner, Zac, that she had been sexually abused by her brother but did not go into details.  She also told RL’s partner, JE.[46]  In 2014, she spoke to a doctor, a psychologist and other medical professionals about the abuse.[47]

K’s cross examination evidence

Count 1

  1. [22]
    K agreed that count 1 occurred soon after the family moved to Logan from Innisfail in 1997.[48]  She rejected the proposition that the appellant never stayed at the Logan house until after 2000 because he had remained in Innisfail.  She disagreed with the suggestion that the appellant never slept on any of the beds in the boys’ room.  She did not accept that the sleeping arrangements were that one brother slept in the bottom bunk of the boys’ room while the other slept on the single bed.  She agreed that on the occasion of count 1, the appellant would have had to walk past the parents’ room to go between the boys’ room and the girls’ bedroom.  She said she did not yell out because she was scared.[49]  She did not tell her mother because the appellant had told her that she would not be believed and would be kicked out of the house if she ever told her parents.[50]  While she could not recall any similar prior incident, she was scared of the appellant before that incident.[51]

Counts 2 and 3

  1. [23]
    She maintained that on the occasion the subject of count 2, the door to her bedroom was closed, but accepted that the door to the bedroom was normally open as there was an open door policy in the house.[52]  She was not aware of the appellant having any condition that meant he could not get his tongue out of his mouth and would have prevented him from putting it in her mouth.[53]

Counts 4, 5 and 6

  1. [24]
    She rejected the suggestion that she could not have gone to the party in the appellant’s Ford Escort, as it had been involved in an accident and was wrecked, but did agree that the appellant was in an accident and had lost his license, although she could not recall whether the license was still suspended.[54]
  2. [25]
    K said that she did not say anything to her mother about staying the night but that she packed a change of clothing.  She did not discuss that it was an overnight party but then also said that her mother allowed her to stay at the appellant’s unit.  It was the first time she did so.[55]
  3. [26]
    K said that she assumed that what she was given at the unit was marijuana because she was told it was weed and she could smell it and had smelt it on the appellant before.
  4. [27]
    She acknowledged that she had no memory of any sexual act occurring during the night.[56]  She only remembered being taken up to the bedroom and waking up in the morning.[57]  She said she had “no choice” in relation to performing oral sex on the appellant.  She did not recall how she got home that morning[58] or what she was wearing when she left to go home.[59]  She answered that she did not know when it was put to her that she returned home that night and not the next morning.  She said that she did not know what the morning after pill was for and could not recall going to a pharmacy to purchase it.[60]

RL’s evidence as to count 3

  1. [28]
    RL, who was 27 at trial, gave evidence that the family lived at Logan in the middle of 1998, when she was six.  She said that she moved from sleeping in a bunk bed to a single bed during 1999.[61]  She remembered the appellant being at the house during the time when they had bunk beds.[62]  She remembered an occasion when she was sitting on the appellant’s lap in the bedroom she shared with K but did not remember him kissing her or K.[63]  She did not recall where K was at that time.[64]

Evidence of KM

  1. [29]
    KM, the mother of the appellant and K and RL gave evidence that the appellant did not move from Innisfail to Logan in December 1997 with the family,[65] nor did he visit or stay at Logan before 2000.[66]  She said that K and her sister shared a room with a bunk bed with K sleeping on the top bunk, not the bottom bunk.  The younger boys shared a room with a bunk bed but neither used the top bunk as they were too small,[67] so the single bed was always occupied by one of the younger brothers.[68]  When the appellant stayed there after 2000, he slept on the top bunk in the boy’s room.[69]
  2. [30]
    In relation to counts 2 and 3, she denied walking into the girls’ room and finding them sitting on the appellant’s legs.
  3. [31]
    She gave evidence that the family moved to Hervey Bay in 2002.  At one stage, K worked at Domino’s for some months.  She recalled that there was a going away party organised by some employees of the Domino’s store where K worked with the appellant.[70]  K asked for permission to go to the party and was picked up by one of the Domino’s staff, but she could not recall who that was.[71]  She gave evidence that the appellant had a car accident in September 2004 in a Ford Escort that resulted in the car being written off. (That was the subject of a formal admission, as was the fact that the appellant was disqualified from driving on 10 November 2004 for 14 months).  KM said that the appellant did not have his licence back by the time of the party and that she never saw the appellant drive while disqualified.[72]
  4. [32]
    KM gave evidence that she had a clear memory of K returning home between 10.30 and 11.00 pm.[73]  KM said that she was up packing until 1.00 am for the family’s move to Victoria.  She recalled hearing a car pull up.[74]  She heard K come inside and the door slam.[75]  She said K seemed “fine”.  She did not notice anything unusual.[76]  She had “had a couple of drinks”.
  5. [33]
    The first time she was made aware of K’s complaint about the appellant was when the police visited in 2018 when the family was living in Townsville.[77]  After the police left, she spoke to K and said, “When the fuck was this supposed to have happened? When, where and how?” She also asked her why she had not said anything before.  K responded by saying “fuck off” and then running out the door.
  6. [34]
    She said that the appellant and her daughter RC, both children from her first husband, had a volatile relationship and there had been extreme rivalry.  They did not get on and still did not.

The evidence of IM

  1. [35]
    IM gave evidence of the move from Innisfail to the Logan house in late 1997 with his family but without the appellant, who moved down later.[78]  Although he was not sure of particular dates, he did not think he was staying at the Logan house in 1998.[79]
  2. [36]
    The first he heard about the allegations by K against the appellant was in 2007 when the police came to his house in Townsville.  After they left, he “had words” with K, the thrust of which was, “What the hell is going on? What’s this all about?”[80] While he was talking to her she got upset and “took off”.  He did not believe the allegations and thought at the time it was “an attentionseeking thing”.[81]  He told her that she needed to go to the police station and she replied, “Yeah. Okay”.  He then said, “You need to tell the truth” and “change your statement and tell the truth” and she replied “Yep”.[82]  He took her to the police station but did not sit through the interview with her.[83]

Evidence of GW

  1. [37]
    GW, gave evidence of working with the appellant and K at Domino’s Pizza in Hervey Bay.  He shared a unit with the appellant for about six months from 2005 to 2006.  He was K’s supervisor at the store.  K visited their unit three or four times to socialise.[84]  On occasions, she would consume alcohol.  She stayed over a couple of times.
  2. [38]
    He recalled one night when he, K and the appellant were at the unit and the three of them consumed a lot of alcohol (probably premixed drinks).[85]  It was one of the only nights where just the three of them were at the unit drinking all night.  Usually there would be lots of people because of staff parties. (In cross examination, he accepted that others could have been present initially at the gathering and that the three of them were a core group left at the end).
  3. [39]
    He agreed that there was a bong in the unit and that he had seen marijuana at the unit but said that no marijuana was consumed on the evening in question.  They were drinking for hours, probably into the early hours of the morning.  They were all “very intoxicated”.[86]  He described K’s level of intoxication as being that she was “wobbly” but not falling over and she was slurring her words.[87]  He assumed she stayed overnight because of her level of intoxication and how late it was.  No one was in a state to be driving.  He was also aware that the appellant was unable to drive at the time and that he would get lifts or ride his bike to work.[88]  He did not recall seeing her the following morning.[89]

Evidence of RC

  1. [40]
    RC gave evidence of the family moving from Innisfail to Logan including her mother, IM, K and RL and the two younger brothers.[90]  She said that the appellant did not move with them to Logan, but he did subsequently come down and she recalled that he was definitely living at the property in early 2000.[91]
  2. [41]
    She referred to the family moving to Hervey Bay and then Melbourne.  By that stage, she had already moved to Sydney.  She gave evidence of receiving two telephone calls from the appellant when she was living in Sydney.  She could not remember what year she had the telephone calls but said that at the time the family had moved from Hervey Bay to Melbourne but the appellant was still in Hervey Bay.
  3. [42]
    RC said that she received an initial call from the appellant when she was at work.  He “was a little bit anxious” and told her “he had done something bad” and said that she “can’t get angry with him” but that he thought K was pregnant and that she needed to find out if their parents knew and to check if K was okay.[92]  She then rang K and asked her if she was okay, but did not ask directly about what the appellant had told her.  K responded that she was fine.  She also spoke to the rest of the family in that call.  K made no complaint to her about the appellant.[93]
  4. [43]
    RC said that about a week later, the appellant telephoned her a second time and said, “everything is fine” and, referring to K, said she “just had a late period and that she’s not pregnant, so … it’s okay now.”  RC said that, as she was not at work this time, she was able to have a longer conversation and asked the appellant “what actually had happened”.  Her evidence was that:[94]

“… he responded by telling me that they were drinking and that she initiated it. She wanted to try – try having sex before she – so she was – she wanted to try having sex, because she didn’t want to be so scared when she had – had it her first time. He agreed and, so, that they had sex and I’m like, ‘What else happened’. And he said that he let – he let her practice oral on him as well and they were just playing around with each other. I asked him how – how this could happen because he’s his – he’s her older brother and he should know better and he should of stopped it. And he’s just like, ‘It just happened’, he was drinking, and it was a big mistake, he will never do it again and that he’s sorry.”

  1. [44]
    RC denied when cross examined that she had a bad relationship with the appellant, stating that there was normal sibling fighting when they were children.  She was cross examined about the statement she gave to police in January 2018.
  2. [45]
    RC also denied that she had knowledge of K’s allegations about what happened at Hervey Bay independently of her telephone conversation with the appellant and denied that she made up the telephone conversation.[95]  She agreed that she had heard from family members that K alleged that she was sexually abused by the appellant and that K was saying that she had been pushed into withdrawing her complaint to police.[96]  But she said she only found that out when she returned to live in Townsville where the family was then living.[97]  She said that at one stage in 2007 she moved to Townsville but said she was not present when the police visited about K’s complaint.
  3. [46]
    RC agreed that she was concerned for her sister and “wanted to be there” for her.  She denied that her motive for making her statement to police in 2018 was wanting to assist K, rather than getting to the truth.  She said that there was no animosity between her and the appellant and that they were “still in a good relationship” and were “able to communicate and spend time together”.  She still visited him and his family and attended his wedding and helped him in Family Court custody proceedings.[98]

Preliminary complaint evidence

DS Dwan’s evidence

  1. [47]
    DS Dwan gave evidence as to her investigation of K’s complaint, including speaking to her parents at their home in Townsville on 8 May 2007.  She spoke with K at the police station on 11 May 2007, when she recorded K’s withdrawal of her complaint in her notebook which K signed.  K said that the complaint about her brother was untrue and that she made it because she was not coping due to her father leaving for East Timor and that she was angry at her brother as she asked if she could live with him and he refused.[99]

Evidence of RL’s partner, JE

  1. [48]
    JE, the partner of RL, gave evidence of a preliminary complaint made by K to him in August 2017.  She said she had been sexually assaulted and raped by the appellant throughout her childhood.  She said she had been scared of him since she was five, including when she was in her bedroom and that she would wet the bed.  She told him that the appellant would go into her bedroom, pick her up and carry her to his room and then sexually assault her.  To do this, they would have to walk past her parent’s room.  She also told him about a time when she and RL were sitting on the appellant’s lap as he was trying to kiss both of them and that their mother had walked in, asked what was going on and then left after the appellant said that they were just talking.[100]

Evidence of K’s partner, ZT

  1. [49]
    K’s partner, ZT, gave evidence of an occasion when they were having a “light wrestle” or were “playfighting” and she became scared and explained that she was sexually assaulted and abused by the appellant.[101]

Admitted preliminary complaint evidence

  1. [50]
    A joint admission was made in relation to preliminary complaint witnesses not called to give oral evidence and whose evidence was derived from contemporaneous notes without any independent recollection of the subject of the complaints.  That evidence[102] was that K disclosed to an Australian Defence Force counsellor that she had been raped when she was younger and that it was her brother who raped her.  She told a Townsville police officer that she had been sexually abused by her brother but did not wish police to take it further.  She told a psychologist that she had been abused by her brother up to the age of 15, where her first memory was when she was seven and that, if she told anyone, she would be kicked out of the house.  She told a general practitioner that she was sexually abused by her step brother until the age of 15 and was referred to a psychologist.  She gave that psychologist a more detailed history of abuse by her step brother.  She also told a general practitioner of a history of trauma at home and school.  She told another general practitioner that she had been sexually abused and was referred to another psychologist and disclosed to that psychologist that she was sexually abused by her half-brother from the ages of seven to 15 and that he told her not to tell anyone because she would get kicked out.  She told a child safety officer that she and RL had been abused from five to 14, which continued until the appellant moved out of the family home.  She disclosed to a social worker historical sexual abuse by her half-brother commencing when she was quite young.

The appellant’s evidence

  1. [51]
    The appellant gave evidence at trial and called no other witnesses.

Counts 1 to 3

  1. [52]
    The appellant said that he did not move to Logan in December 1997 when the rest of the family moved there and instead stayed in Innisfail where he was working at KFC.[103]  He then moved to Albury in March 1998 where he lived until 2000.[104]  The first time he stayed at the Logan house was after May 2000, when he stayed for about six months while working at KFC until the end of 2000.[105]  While there, he shared a room with the younger brothers and slept on a top bunk, though he could not recall which of the boys slept on the bottom bunk or single bed.[106]  To get from the girls’ room to the boys’ room, you would need to pass the parents’ room and the toilet.  There was an open door policy in the house.[107]
  2. [53]
    The appellant denied counts 1, 2 and 3.[108]  In relation to counts 2 and 3, he said that he had a medical condition that affects the use of his tongue which prevents his tongue from extending out of his mouth as normal.[109]

Counts 4 to 6

  1. [54]
    The appellant moved to Hervey Bay where the family was already living in March 2004 and worked at Domino’s.[110]  He moved into a unit with GW in September 2004, where they would often entertain other Domino’s employees.  He said that he had helped K get work at Domino’s and that she needed special permission to work because she was under 15.[111]
  2. [55]
    The appellant said that K came around to the unit on one occasion that he could remember.  He remembered the night because the regional manager had come from Bundaberg which enabled him and GW to take the night off have a get together with other staff.[112]  K was dropped off at the unit.  There were other people there.  At the time, he could not drive as he did not have a licence or a car and got around on a bicycle[113] and sometimes he would organise a delivery driver to pick him up.  He said he knew K had a couple of drinks during the evening and said that there would have been a conversation in a text where his mother said she was “allowed a couple of drinks, just not out on the street”.[114]  He was unsure how K got home.[115]
  3. [56]
    The appellant denied the allegation constituting count 4 that he gave K marijuana.  He denied that he raped her as alleged in count 5 or had oral sex as alleged in count 6.  He said that K was not present on the following morning when he woke up and that she never mentioned any problem to him about that night.[116]  He denied that he told her to buy the morning after pill or gave her $20 for it.[117]
  4. [57]
    The appellant agreed that RC assisted him with child custody issues in court proceedings, by sending him various documents and information about the court process.[118]  He said that RC never told him of any issues with respect to K during the period of the court proceedings.[119]  In relation to the conversation that RC said she had with the appellant about K, the appellant maintained that he “never had a conservation with [her] like that”.[120]  He was asked about when he first heard it suggested that he had had that sort of conversation and responded that it was in 2018 when he got the statements of the various witnesses.

Cross examination evidence

  1. [58]
    In cross examination, the appellant said K had never visited the unit without her parents before the night of the party in May 2005.  He said that on the night in question, she would have been dropped off by someone, but he could not recall who that was or what time she was dropped off. He did not make arrangements for her to get home.  His evidence was that she just said, “See ya” and walked out and that that happened when the delivery drivers were still working and before 1.00 am.[121]
  2. [59]
    He said that the evening was not a going away party for K.  It was not preplanned but “was just a quick get together” because the regional manager was there and offered to do the night shift, so that they were able to invite friends.  It was common for these parties to be organised at the last minute and to take place at the unit where they lived.[122]  The appellant could not say the exact time he went to bed, but it would have been in the early hours of the morning.  He agreed he was “very drunk” that night.[123]  He disagreed with GW’s evidence that it was just the three of them present that night and maintained other people were present.[124]
  3. [60]
    As to the relationship with his sister RC, he said that he invited her to his wedding in 2011 and she came (he did not invite K).  She visited him from time to time.  He agreed there was no animosity and said they “were good in a way”.[125]
  4. [61]
    He confirmed that he lived at the Logan house for six months, starting in May 2000, and he would stay most nights there during that period.[126]
  5. [62]
    As to the condition relating to his tongue, he acknowledged that he can lick his lips but said that he cannot French kiss.  So, he can put his tongue past his teeth but he cannot put it in somebody else’s mouth.[127]
  6. [63]
    He denied that he called RC and told her that he was worried about K being pregnant, that he did a silly thing or that she was wanting to practice sex.[128]

Jury directions

  1. [64]
    The trial judge gave the usual directions as to the onus of proof and the elements of the offences.  His Honour gave directions as to the need for separate consideration of the charges and as to the use of discreditable conduct.
  2. [65]
    In relation to RC’s evidence of confessional statements made by the appellant in the two telephone calls, his Honour directed the jury that in order to use that evidence, they were required to be satisfied that the appellant made those statements and that those parts relied on as indicating guilt were true and accurate.[129]
  3. [66]
    On the issue of delay, the trial judge gave a Longman[130] direction given in accordance with the Benchbook as follows:[131]

“You will need to scrutinise the evidence of [K] with great care before you could arrive at a conclusion of guilt. That is because of the following circumstances, the delay between the time of each alleged incident and the time the [appellant] was told of the complaint and the lack of any opportunity to prove or disprove the allegation by, for example, a timely medical examination; secondly, the age of [K], particularly at the time of the first alleged incident, namely, seven years; and thirdly, the difference between the accounts the complainant has given, particularly her withdrawal of her initial complaint to the police.

[K’s] long delay in reporting the first incident she says happened in 1998 and the lesser initial delay in reporting the second group of incidents in 2005 but then her withdrawal of the complaint shortly after she made it in May 2007 until sometime in 2017 or 2018 has an important consequence. Her evidence cannot be adequately tested or met after the passage of so many years. The [appellant], having lost by reason of that delay, means of testing and meeting her allegations that would otherwise have been available. By the delay the [appellant] has been denied the chance to assemble, soon after the incidents are alleged to have occurred, evidence as to what he and other potential witnesses were doing when, according to [K], the incidents happened.

Had the complaint instead been made known to the [appellant] soon after the alleged event, it would have been possible then to explore the pertinent circumstances in detail and perhaps to gather and to look to call at a trial evidence throwing doubt on the complainant’s story or confirming the [appellant’s] denial – opportunities lost by the delay. The fairness of the trial, as the proper way to prove or challenge the accusation, has necessarily been impaired by that long delay. So I warn you that it would be dangerous to convict upon [K’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.”

  1. [67]
    The jury asked a series of questions, including one asking “Was phone calls, timing and dates verified of existence”, which the trial judge took to refer to the phone calls alleged to have occurred between RC and the appellant.  His Honour redirected the jury that there was no evidence as to the timing and dates of the phone calls alleged to have occurred and that the appellant denied that they occurred.[132]

Ground 2 – errors in directions to the jury

  1. [68]
    The appellant complained of four matters concerning the directions to the jury relating to RC’s evidence of phone call conversations with the appellant as follows:
  • the jury should have been directed for both counts that the confession evidence needed to be corroborated;
  • the jury should have been told that the confession evidence on count 5 needed to be established beyond reasonable doubt (as a Shepherd[133] fact);
  • the jury should have been directed for both counts 5 and 6 as to the prejudice of the delay in being able to disprove phone calls either as part of the Longman direction or when the jury note was addressed; and
  • the jury should have been given a motive to lie direction as to RC’s evidence.
  1. [69]
    The respondent contended that the appellant has not demonstrated that these directions, which were not sought at trial, should have been given, nor that there were not good forensic reasons for not seeking them.  Nor was it shown that a miscarriage of justice occurred because it was reasonably possible that the failure to direct, as now contended for, may have affected the verdict.[134]

Error in failing to give a Shepherd direction and direct the jury as to the need for corroboration of RC’s confessional evidence

  1. [70]
    It was contended that the risk of a miscarriage of justice arose from the jury not having been told more by the trial judge than that they needed to be satisfied that the appellant made the confessional statements to RC and that they were true and accurate.  It was submitted that this was a case where the jury should have been given a direction that it would be dangerous to convict the appellant if they were not satisfied that there was independent evidence to corroborate RC’s confessional evidence.  In making that submission, reliance was placed on the discussion in McKinney v The Queen[135] and authorities concerning the need for corroboration in respect of police informants.[136]  It was submitted that the circumstances where a McKinney direction in the terms suggested in the Benchbook are required are not closed and that they arose in the present case.
  2. [71]
    It was submitted that the circumstances calling for a McKinney type direction in the present case were the very substantial delay of 13 years from when the confession was first alleged to have been made to RC (in 2005) to the first documented instance to police (in 2018), “absence of the ability to mount a defence to disprove the disputed calls by getting call records” and the matters going to the reliability of RC’s evidence, including a lack of corroborative or supporting evidence concerning the phone calls from K or other family members that RC said she spoke to when she phoned to see how K was in 2005.  Further, there was material inconsistency between the alleged confessional evidence compared to other evidence, for example, RC’s evidence made no reference to the morning after pill about which K gave evidence.  It was also said that the need for a corroboration direction was particularly called for in relation to count 5, where it was submitted the confessional evidence was the only basis on which to convict the appellant.  In relation to that count, it was also argued that, as the only evidence to convict in a purely circumstantial case, the jury should additionally have been given a Shepherd type direction.
  3. [72]
    In my view, for the reasons advanced by the respondent, the contention that there was error in not giving a corroboration direction or a Shepherd direction are misconceived.
  4. [73]
    As regards the contention that a McKinney type direction should have been given, the submission entirely fails to appreciate the special circumstances that call for such a direction, including the position of disadvantage in which an accused may be placed when making a confession in custody and the forensic difficulties that arise in responding to such a confession on the basis that it is fabricated.  These circumstances are not remotely replicated in the present case.
  5. [74]
    Further, the confessional evidence of RC was not an indispensable link in the prosecution’s case as to the guilt of the appellant of counts 5 or 6.  Clearly, the prosecution case on count 6 also relied on K’s direct evidence of what she alleged occurred.  As to count 5, RC’s confessional evidence was only one of the strands of evidence going to the prosecution’s circumstantial case of penile rape.  In addition to RC’s evidence, there was the evidence of K, which unlike RC’s evidence went both to the inference that penile intercourse took place (that she woke up beside the appellant in his bed with both of them wearing little clothing, and was told to buy the morning after pill and given $20 to do so) and to the issue of lack of consent (that she was intoxicated and asleep).  Indeed, to convict on count 5, the jury must have accepted K’s evidence over that part of RC’s confessional evidence that suggested that intercourse was consensual.  There was also another strand of evidence relied on by the prosecution in relation to count 5 which was that given by GW which was corroborative of K’s account of being intoxicated in circumstances where the three of them were drinking together late into the night.

Inadequate Longman direction

  1. [75]
    The jury were given an orthodox Longman direction which included examples of possible disadvantage caused to the appellant because of the delay and a warning that it would have been dangerous to convict on K’s evidence alone without scrutinising it with great care.[137]
  2. [76]
    The appellant complained that the Longman direction given by the trial judge was inadequate because it did not refer to the prejudice through the delay caused to the appellant in having lost the opportunity to obtain phone records to meet the allegations about the purported telephone confessions to RC.  It was submitted that the redirection given in relation to the jury note asking about telephone records also suffered from the same defect and that the note indicated the significance and weight the jury gave to that matter and demonstrated that a miscarriage of justice occurred.
  3. [77]
    The respondent’s submission was that no issue was raised by defence counsel either in the course of the trial, or in closing address, or at the time of the jury note of any difficulties faced by the appellant in getting or attempting to get telephone records arising from delay.  It was submitted that to ask the jury to consider that the appellant may have been disadvantaged by being unable to obtain telephone records called for the jury to engage in speculation at the appellant’s possible inability to obtain the records.  That submission has some merit but there is a more substantial matter raised by the respondent.  The respondent argued that there was no evidence given by the appellant, and it was not put to RC in cross examination, that the appellant and RC were not in telephone contact at the material time (when he was in Hervey Bay and she was in Sydney).  Rather, the issue in dispute, as the trial judge made clear in his summing up,[138] was whether the appellant said the things attributed to him by RC.  That is what the appellant denied having occurred, as borne out by the limited extent of the appellant’s evidence in chief on the matter of RC’s evidence of the telephone conversation which was as follows:[139]

“Did she ever – you heard her give evidence this morning about a conversation she’s alleged to have had. Did you ever have that conversation with her?---I’ve – I never had a conversation with [RC] like that.” (emphasis added)

  1. [78]
    Similarly, defence counsel’s cross examination of RC was confined to the content of the telephone conversations with RC.  Given that no dispute was raised on the defence case that the appellant and RC were in telephone contact at the material time, it is difficult to understand what assistance the telephone records could have provided in relation to the actual matter in dispute being the content of the telephone calls.  In those circumstances, the appellant has not demonstrated that the failure to add to the Longman direction, as it is now argued the trial judge ought to have done, resulted in a miscarriage of justice.

Failure to give a motive to lie direction

  1. [79]
    The appellant argued that a motive to lie direction in the terms suggested in the Benchbook[140] should have been given in relation to RC’s confessional evidence.  Complaint was made of the comment in the prosecutor’s address that there was “no evidence of witnesses having gotten their heads together”.  The jury should have been directed that there was no need for such evidence from the appellant and that if the jury was not persuaded that RC had a motive to lie to assist K, as submitted by defence counsel, it did not necessarily mean that RC was truthful.
  2. [80]
    It is to be noted that RC was not the complainant in the trial and that no motive to lie was put to K.  Nor was this a case where an issue arose as to RC’s motive to make and maintain a false allegation that created a potential for the jury to be misled into engaging in illogical reasoning in the manner explained in R v Bevinetto.[141]  In the circumstances of the present case, the issue of motive to lie was raised, as the jury would have been well aware, not because the prosecution positively asserted that RC had no motive to lie about the telephone conversations but because it was put to RC in cross examination that her motive for making her 2018 police statement was to assist K as she felt K was forced into withdrawing her 2007 complaint (rather than to get “to the truth”).[142]  This motive was put to RC in the context of cross examination that her evidence was fabricated using knowledge she had otherwise learnt of K’s complaint of being raped.
  3. [81]
    I agree with the respondent’s submission that the prosecutor did not elevate an absence of a motive to lie to being central to the jury’s assessment of RC.[143]  Nor did the prosecution mount a positive case of absence of motive as enhancing RC’s credit.  Rather, the prosecutor addressed the matter by rebutting the defence assertion of motive to lie by reminding the jury of evidence which was inconsistent with the suggested motive such as RC helping the appellant with Family Court proceedings.  In the circumstances of the present case, the jury’s rejection of the suggested motive to lie was not likely to have risked impermissibly enhancing RC’s credibility.  Nor did defence counsel raise the need to address such a risk.  That is understandable as a rational forensic decision.  To have done otherwise would have drawn attention to a motive that was weak and would have also run the risk of detracting from that part of RC’s evidence that favoured the appellant (that the sexual activity was consensual).  This ground must fail.

Ground 1 unreasonable verdicts

Principles

  1. [82]
    The relevant principles governing an appeal seeking to set aside a conviction as unreasonable and unsupportable having regard to the evidence, were recently set out in R v Tink[144] as follows:

“1. The question which an appellate court must ask itself is whether it considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the defendant was guilty: M v The Queen[145] and MFA v The Queen.[146]

2. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is “unreasonable” is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. The boundaries of reasonableness within which the jury’s function is to be performed should not be narrowed in a hard and fast way: R v Baden-Clay.[147]

3. In most cases, a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. In such a case of doubt, it is only where a jury’s advantage in seeing and hearing the evidence can explain the difference in conclusion as to guilt that the appellate court may conclude that no miscarriage of justice occurred: MFA v The Queen.[148]

4. If the evidence contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence: M v The Queen[149] and MFA v The Queen.[150]

5. The ultimate question for the appellate court must always be whether the court thinks that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: R v Baden Clay.[151] In determining that question, this Court must undertake its own independent assessment of the evidence, both as to its sufficiency and quality: Morris v The Queen[152] and SKA v The Queen.[153] In doing so, the Court must disclose the manner of that assessment: GAX v The Queen.[154]

6. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness box: Pell v The Queen.[155]

The appellant’s submissions

  1. [83]
    Six matters were raised by the appellant, the combined effect of which, it was submitted, ought to have caused reasonable doubt as to counts 5 and 6.
  2. [84]
    First, it was submitted that RC gave evidence that was contradicted in a number of respects.  These included contradictory evidence between RC and IM as to whether RC was in Townville in 2007 at the time of the police complaint compared to her assertions she was in Sydney at the time;[156] whether RC had adequate knowledge to make up or fabricate the allegations as to the appellant’s confessional statements in the 2005 phone calls;[157] what was said to be a lack of satisfactory explanation for not coming forward earlier about the confessional statements; and the inconsistency in her providing assistance to the appellant in his Family Court proceedings.
  3. [85]
    Second, it was submitted K’s account of the party offences involved internal inconsistencies which rendered it unreliable.  These were, for example, as to what year it took place;[158] whether she stayed the night at the appellant’s unit; whether her mother knew she was staying the night and whether she had brought a change of clothes;[159] how she felt the next day;[160] where she worked after June 2005;[161] and her exact age when the alleged sexual abuse ended.[162]
  4. [86]
    Third, it was submitted that K’s account was inconsistent with other evidence.  For example, her insistence that she was picked up in the orange Ford Escort for the party by the appellant was contrary to the joint admissions.[163]  Her evidence that she did not want to go to the party and was made to go by her mother and that she stayed overnight and took a change of clothes was contradicted by her mother.  Her evidence that she only sipped alcohol prior to the night of the party was inconsistent with GW’s evidence that she had consumed alcohol at other times;[164] her assertions that she only ever stayed at the appellant’s unit that one time;[165] and that she consumed cannabis that night were inconsistent with GW’s evidence.[166]
  5. [87]
    Fourth, it was submitted that aspects of K’s evidence were said to go to the implausibility of her account and were of relevance to her creditability and reliability.  These included the withdrawal of the complaint in 2007 and her assertions her father told her to lie to the police which he denied[167] and her account of being given money for a morning after pill, without a prescription, and without discussion and that that matter did not feature in RC’s confessional phone calls or follow up calls by RC to K or the family.
  6. [88]
    Fifth, it was contended that the acquittals on the other counts ought to also have caused the jury to have had a reasonable doubt as to the appellant’s guilt on counts 5 and 6.  That was said to be particularly so given that K was not reliable (or not credible) on key matters in each of the acquittals, especially in relation to count 3 where RL gave evidence that contradicted K’s evidence and count 4 (where GW gave evidence that contradicted K’s evidence) and which was alleged to have occurred on the same occasion as the party offences, being counts 5 and 6.
  7. [89]
    Sixth, it was argued that the appellant’s evidence was supported in many respects by aspects of the prosecution case (for example, that his car was written off, he had no licence, that he did rely on lifts and got around on his bicycle post the accident in 2004, that he lived at Logan only post 2000, the bunk sleeping arrangements of the girls and the boys, the single bed sleeping arrangements that he was never on the single bed).  In those circumstances, the appellant’s denials of counts 5 and 6 ought to also have caused the jury reasonable doubt.

Consideration

  1. [90]
    This was a case where credibility featured prominently.  In considering whether the guilty verdicts were open on the evidence, it is particularly important to bear in mind the advantage that the jury had in assessing the testimony and demeanour of the witnesses.  In relation to counts 5 and 6, the jury were entitled to reject the contention that RC’s confessional evidence was fabricated.  Her evidence was not entirely favourable to K in so far as her account of the appellant’s confession was that the sexual activity was consensual and initiated by K.  Her evidence of good relations with the appellant was supported by the appellant’s evidence of lack of animosity between himself and RC.  The jury were also entitled to find that RC’s report of the appellant’s concern that K was pregnant was not a detail that she had likely to have learnt from other sources.  Her evidence supported the inference concerning count 5 that penile intercourse had occurred and supported the inference arising from K’s evidence in that regard (of being given $20 to buy the morning after pill).  The jury were alive to the inconsistencies raised in relation to RC’s evidence, which were matters raised by defence counsel and dealt with in the trial judge’s summing up.  There was nothing in those inconsistencies which ought to have required the jury to view RC as an unreliable witness in relation to the confessional evidence she gave.
  2. [91]
    The jury were entitled to accept K’s evidence of her intoxicated state on the evening in question which was supported by the evidence of GW that he, the appellant and K were drinking for hours and probably into the next morning and that they were all very intoxicated and not in a state to drive.  On that basis, the jury was properly entitled to reject the evidence of K’s mother of K returning home having had a couple of drinks.  The jury was entitled to accept K’s evidence of being so intoxicated that she needed help to go up the stairs of the unit and of finding herself beside the appellant in his bed the next morning with no memory of the intervening events.  Once those matters are considered, it is difficult to see why the jury would have been left with reasonable doubt as to lack of consent.  Defence counsel did not seek any direction on the issue of consent beyond those given by the trial judge, which was forensically sensible, since any emphasis on that issue would have undermined the only real issue raised on the defence case as to count 5; that no sexual intercourse took place and indeed there was no opportunity for it to occur as K did not stay overnight at the unit.
  3. [92]
    That the jury acquitted the appellant on the other counts does not mean that they rejected K as a credible and reliable witness but rather that, in accordance with the judge’s directions, the jury gave the appellant the benefit of the doubt where there was no corroborating evidence and also adhered to his Honour’s instructions to consider each count separately.  In that regard, in relation to count 1, there was evidence casting doubt on whether the appellant was staying at the Logan address at the time asserted by K and also evidence which conflicted with K’s evidence as to the sleeping arrangements of the younger brothers.  In the case of counts 2 and 3, K’s evidence was not supported by RL.  As to count 4, K’s evidence of being given marijuana was not supported by GW.
  4. [93]
    On my own review of the whole of the evidence, I am satisfied that it was open to the jury to be satisfied beyond a reasonable doubt of the appellant’s guilt of counts 5 and 6.  This ground also fails.

Order

  1. [94]
    I would therefore dismiss the appeal against the convictions.
  2. [95]
    McMURDO JA:  I agree that this appeal should be dismissed.  For the reasons given by Philippides JA, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of these two counts, and I agree with her Honour’s reasons for rejecting the other grounds of appeal.

Footnotes

[1]  AB at 127.38‑39.

[2]  AB at 127.16‑36.

[3]  AB at 129.25‑33.

[4]  AB at 131.

[5]  AB at 131.30‑31.

[6]  AB at 132.31; 132.44-47.

[7]  AB at 132.16.

[8]  AB at 131.23‑28.

[9]  AB at 132.11‑12.

[10]  AB at 132.33‑35.

[11]  AB at 133.1‑12.

[12]  AB at 133.16‑18.

[13]  AB at 133.

[14]  AB at 133‑134.

[15]  AB at 135.16‑17.

[16]  AB at 135.21‑23.

[17]  AB at 135‑30.

[18]  AB at 135.41‑136.2.

[19]  AB at 157.31-37.

[20]  AB at 136‑137.

[21]  AB at 137.

[22]  AB at 138.1.

[23]  AB at 138.

[24]  AB at 138.35‑41.

[25]  AB at 138.44‑47.

[26]  AB at 139.

[27]  AB at 139.46‑140.2.

[28]  AB at 140.

[29]  AB at 140.26‑28.

[30]  AB at 140.11.18.

[31]  AB at 140.44‑141‑2.

[32]  AB at 142.13.

[33]  AB at 142.3.

[34]  AB at 142.15‑17.

[35]  AB at 142.19.27.

[36]  AB at 148.33‑36.

[37]  AB at 142.45‑46.

[38]  AB at 143.8‑12.

[39]  AB at 143.40.

[40]  AB at 144.17‑18.

[41]  AB at 146.44‑45.

[42]  AB at 144.45‑47.

[43]  AB at 145.21‑23.

[44]  AB at 145.38.

[45]  AB at 146.

[46]  AB at 147.

[47]  AB at 148.

[48]  AB at 158.41‑159.1‑15.

[49]  AB at 159.

[50]  AB at 161.5‑8.

[51]  AB at 161.10‑11.

[52]  AB at 162.25‑36.

[53]  AB at 161.43‑162.

[54]  AB at 152.47‑153.

[55]  AB at 151-152.

[56]  AB at 150.30‑31; 154.5‑7.

[57]  AB at 150.39.

[58]  AB at 151.

[59]  AB at 151.46‑15./3.

[60]  AB at 154.11‑27.

[61]  AB at 165.6‑7.

[62]  AB at 165.9‑13; 179.18‑23.

[63]  AB at 164.39.

[64]  AB at 165.1‑2.

[65]  AB at 166.32.

[66]  AB at 167.25.

[67]  AB at 173.13‑16.

[68]  AB at 173.31‑32.

[69]  AB at 173.20‑21.

[70]  AB at 167.33‑36; 168.46‑169.4.

[71]  AB at 169.4‑19.

[72]  AB at 171.14; 171.22‑23.

[73]  AB at 169.35.

[74]  AB at 174.22‑24.

[75]  AB at 185.19.

[76]  AB at 170.5‑11.

[77]  AB at 168‑169.

[78]  AB at 187.

[79]  AB at 188; 192.5‑9.

[80]  AB at 190.

[81]  AB at 194.

[82]  AB at 195.

[83]  AB at 194.15-20.

[84]  AB at 208.16‑18.

[85]  AB at 208.37‑40.

[86]  AB at 209.23‑25.

[87]  AB at 209.46‑210.6.

[88]  AB at 214.34‑44.

[89]  AB at 210.9.

[90]  AB at 216.21‑23.

[91]  AB at 216.28‑47.

[92]  AB at 217.38‑46.

[93]  AB at 219.25‑30.

[94]  AB at 218.27‑35.

[95]  AB at 223.

[96]  AB at 221-222.

[97]  AB at 223.

[98]  AB at 225.

[99]  AB at 202-203.

[100]  AB at 204.12‑26.

[101]  AB at 205.39‑206.16.

[102]  AB at 198.

[103]  AB at 228.46‑229.24.

[104]  AB at 229.

[105]  AB at 230.44; 233.46.

[106]  AB at 231.9.

[107]  AB at 232‑233.

[108]  AB at 233.

[109]  AB at 233.22‑38.

[110]  AB at 234.

[111]  AB at 236.

[112]  AB at 235.

[113]  AB at 235‑236.

[114]  AB at 236.31‑32.

[115]  AB at 236.43.

[116]  AB at 237.9.

[117]  AB at 237.

[118]  AB at 237.

[119]  AB at 238.22‑23.

[120]  AB at 238.

[121]  AB at 239.

[122]  AB at 241.

[123]  AB at 241.37.

[124]  AB at 243.

[125]  AB at 242.27.

[126]  AB at 243.

[127]  AB at 243.

[128]  AB at 244.

[129]  AB at 41.16‑43.10.

[130]Longman v The Queen (1989) 168 CLR 79.

[131]  AB at 44.22‑45.6.

[132]  MFI ‘E’ and AB at 74.27-40.

[133]Shepherd v The Queen (1990) 170 CLR 573.

[134]R v Van Der Zyden [2012] 2 Qd R 568 at [35] with reference to Dhanhoa v The Queen (2003) 217 CLR 1 at 13.

[135]  (1991) 171 CLR 468.

[136]  R v Politt (1992) 174 CLR 558.

[137]  AB at 45.2-6.

[138]  AB at 43.5-6.

[139]  AB 238.

[140]  Benchbook direction No 45.

[141]  [2019] 2 Qd R 320.

[142]  AB at 225.38-39.

[143]Van Der Zyden [32] and Benchbook direction No 45.

[144]  [2020] QCA 193.

[145]  (1994) 181 CLR 487 at 494-495.

[146]  (2002) 213 CLR 606 at 623.

[147]  (2016) 258 CLR 308 at [65]-[66] per French CJ, Kiefel, Bell, Keane and Gordon JJ.  See also M v The Queen (1994) 181 CLR 487; MFA v The Queen (2002) 213 CLR 606.

[148]  (2002) 213 CLR 606 at 623.

[149]  (1994) 181 CLR 487 at 494-495.

[150]  (2002) 213 CLR 606 at 623.

[151]  (2016) 258 CLR 308 at [65]-[66] per French CJ, Kiefel, Bell, Keane and Gordon JJ.  See also M v The Queen (1994) 181 CLR 487; MFA v The Queen (2002) 213 CLR 606.

[152]  (1987) 163 CLR 454 at 473.

[153]  (2011) 243 CLR 400 at 406.

[154]  (2017) 344 ALR 489 at [25].

[155]  (2020) 94 ALJR 394 at [37].

[156]  AB at 193; 221.37; 222; 223.28.

[157]  AB at 169‑170; 220; 221.

[158]  AB at 136‑137, 157.

[159]  AB at 152‑153.

[160]  AB at 269.  Entry dated 19 November 2014.

[161]  AB at 136; 143.  It should be noted that she needed special permission to get the job because of her age.

[162]  AB at 269, Entry on 14 October 2014, Entry on 22 October 2014; 143‑144; 146‑147.

[163]  AB at 138; 152; 171; 241; 268.

[164]  AB at 139; 208.

[165]  AB at 208; 152.

[166] AB at 138; 210.

[167]  AB at 155‑156.

Close

Editorial Notes

  • Published Case Name:

    R v PBG

  • Shortened Case Name:

    R v PBG

  • MNC:

    [2020] QCA 224

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Philippides JA, McMurdo JA

  • Date:

    16 Oct 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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