- Unreported Judgment
- Appeal Determined (QCA)
SUPREME COURT OF QUEENSLAND
Court of Appeal
Appeal against Conviction
16 March 2012
6 March 2012
Fraser and White JJA, and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the order made
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty of one count of indecent dealing, and not guilty of one count of maintaining an unlawful relationship of a sexual nature and one count of indecent dealing – where the appellant claimed that the conviction for indecent dealing was unsafe and unsatisfactory – where the appellant claimed that the conviction was unreasonable, not able to be supported having regard to the evidence – where the appellant claimed that the conviction was inconsistent with the acquittals on the other counts, and incapable of rational explanation – where the appellant is alleged to have engaged in unlawful conduct of a sexual nature with the complainant – where the appellant was the complainant’s grandfather – where the complainant was between seven and eight years of age at the time – where there was doubt as to the date and period of the alleged offending – where the complainant persisted in visiting the appellant after the initial alleged indecent dealing – whether the conviction was unsafe and unsatisfactory
Evidence Act 1977 (Qld), s 93A
M v The Queen (1994) 181 CLR 487;  HCA 63, cited
MacKenzie v The Queen (1996) 190 CLR 348;  HCA 35, considered
MFA v The Queen (2002) 213 CLR 606;  HCA 53, cited
R v CX  QCA 409, considered
R v Kirkman (1987) 44 SASR 591, considered
R v Markuleski (2001) 52 NSWLR 82;  NSWCCA 290, cited
R v PAH  QCA 265, considered
R v Smillie (2002) 134 A Crim R 100;  QCA 341, considered
J R Hunter SC for the appellant
G P Cash for the respondent
Bosscher Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent
 FRASER JA: The appellant was tried in the District Court on an indictment which charged him with three sexual offences against his granddaughter, who was aged between seven and eight years at the time of the alleged offences. The jury found the appellant not guilty of maintaining an unlawful relationship of a sexual nature with the complainant between 15 May and 26 September 2009 (count 1), not guilty of indecently dealing with the complainant on or about 16 May 2009 (count 2), and guilty of indecently dealing with the complainant on or about 25 September 2009 (count 3).
 The appellant has appealed against the conviction on count 3 on the ground that it is unsafe and unsatisfactory, in that:
(a) It is unreasonable, or not able to be supported having regard to the evidence; and
(b) It is inconsistent with the acquittals on counts 1 and 2, and incapable of rational explanation.
Is the conviction on count 3 unreasonable?
 The appellant’s contention that the conviction on count 3 is unreasonable, or not able to be supported having regard to the evidence, requires the Court to conduct an independent review of the evidence in order to determine whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. The Court must bear in mind that the jury had the benefit of seeing and hearing the witnesses give their evidence and the Court must accord respect to the jury’s resolution of the contested factual questions reflected in the guilty verdict. So far as is presently relevant, the Court’s task is set out in the following passage in Mackenzie AJA’s reasons in R v PAH:
“The relevant principles for determining whether the conviction is unsafe and unsatisfactory, to use the former terminology, are set out in M v R and MFA v R. M v R establishes a number of propositions about the exercise by appellate courts of the powers conferred by s 668E of the Criminal Code 1899 (Qld) and like provisions. 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. In most cases, a doubt experienced by an appellate court will be a doubt the jury ought also to have experienced. Where a jury’s advantage in seeing and hearing the evidence is capable of resolving the doubt experienced by the appellate court, the court may conclude that no miscarriage of justice occurred. Where the evidence lacks credibility for reasons which are not explicable by the manner in which the evidence was given, the reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.
If the evidence, on the record itself, contains discrepancies, inadequacies, is tainted, or otherwise lacks probative force in such a way to lead the court to conclude that, even allowing for the advantage enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, the court is bound to act and set aside a verdict based on that evidence. In doing so, the court is not substituting trial by the Court of Appeal for trial by jury, for the ultimate question must always be whether the court thinks that, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”
 At the time of the offences charged in the indictment the complainant lived with her brother and their mother in the appellant’s house, with the mother and children occupying the upstairs area and the appellant occupying the downstairs area. The complainant often went with her brother downstairs to visit the appellant, and the appellant often went upstairs. The offences were alleged to have occurred in the area downstairs.
 The complainant’s recorded interview with police on 28 September 2009 was admitted in evidence under s 93A of the Evidence Act 1977. The complainant said that she had told her mother that morning about what the appellant had done to her. She and her brother had been going downstairs and wrestling with the appellant, just having some fun. When her brother left and there was no-one else downstairs, the appellant pulled her underpants down and put his finger inside her “rude part”. She said that the appellant had sharp fingernails and had hurt her, and that he kept on going when she asked him to stop.
 The complainant said that the last time this had happened (count 3) was on Friday last week (that was three days before this interview). After her brother went upstairs and the complainant was wrestling with the appellant, “he just pulled my undies down and - and he put it - his um, pointy finger in my private part…[a]nd he had sharp finger nails so it hurt. And it - I said to stop but he wouldn’t. He refused to stop…[a]nd he didn’t say anything he just kept on going.” The complainant said she got really annoyed with the appellant, pretended she needed to go to the toilet and to get a drink, pulled up her pants and ran upstairs. She said that she was afraid that if she “told him” that he would “get up at me and say rude things to me and stuff”. The complainant gave details about who was home at the time, about what she and her brother were doing when they thought of seeing the appellant, and about the wrestling game. The complainant described lying down in the appellant’s bed with him. She described the clothes he was wearing. She described her attempt to push the appellant’s hands away. She described (by gestures, it seems) how far the appellant had pulled her underpants down. When asked how far the appellant’s finger had got into her “private part”, the complainant answered “…all the way in”. She said that the appellant had sharp fingernails, she could feel his fingernails “digging in”, that, “[i]t really hurt”, and “[l]ike he was scooping something up or like that”. The complainant said that when she went upstairs she did not say anything to her mother about what happened, but “…told her today what happened”. She said, and she repeated, that she did not know why the appellant had been doing this to her.
 When the police officer asked the complainant whether she could remember the first time (count 2), she responded, “…I think so. I think it was in um February”. When she was asked how she knew that it was in February, the complainant responded that she was “…not really sure…” and that her mother had said that she had a good memory and that “…I can remember telling me then.” The complainant described what had occurred on that occasion. She said that her brother was not there because he was having a sleepover. Later in the interview the police officer returned to the time “in February” when the first occasion happened. The complainant said that her brother was not at home at the time because he was on a sleepover with his friend L, because it was L’s birthday celebration. The complainant described a wrestling game with the appellant, and the appellant pulling her underpants down, putting his finger in her private part, and “…like kind of scratching…”, which hurt her. The complainant told the police officer that she thought that why her “…private parts had been hurting lately…”, and had been red inside, was because the appellant had been putting his finger inside there. She said that she had told her mother that her private parts hurt, and that her mother “…keeps on putting cream on” and that made the pain and the redness go away. She said that her mother had to put the cream on “…nearly every day now”.
 The complainant said that she felt pretty angry at the appellant “[b]ecause he’s been doing that to me all year” (count 1). When the police officer asked the complainant how long she had been at the house for she said, “…last year…we moved there June” and “…that means half of a year all year”. The complainant said that the appellant had been “…doing it all this year”. The police officer asked how many times this had happened before the last occasion and the complainant said: “…I’m not really sure. It’s been happening all year and – and mum asked me how many times do you think it has happened. More than twenty, more than thirty and I said - I said it would be more than thirty and I said - I said it would be more than thirty because it’s been going on all year.” In response to other questions about the times it happened other than the first and last time, the complainant said “I can’t really remember from because um - it’s happened all year and um - oh - I keep on forgetting about those times and worrying about the other times I remember…And worrying about other things and being stressed out and stuff”.
 The police officer asked the complainant whether the appellant had asked her to touch his “privates”. She responded that, “but when I’m down there he seems to pull his pants down with no undies underneath” and “[u]m when I go down there he’s the one - he just pulls his pants down for no reason. Um he shows his private parts and I don’t know like to see them.” Towards the end of the interview the complainant used the expression “inappropriate places”, by which she meant “places to yourself” and “…other people aren’t supposed to go there”. The police officer then asked the complainant whether she had touched anybody’s private parts and she responded: “Mmm -mmm. No ones. I have only seen mums [sic] because it’s okay with me because we’re both girls.”
 The complainant told the police officer that aspects of the appellant’s domestic behaviour (including slamming doors, coming upstairs to watch television a lot, and not wearing a shirt when putting the bin out) had been very annoying to her and to her mother. The complainant said that sometimes “we” joked that the appellant was on a “secret mission to annoy us”.
 In her pre-recorded evidence on 16 February 2011 (when she was nine years old), the complainant said that she had recently watched a video recording of her police interview on 28 September 2009. She affirmed that what she told the police officer was true. In relation to count 3, she gave evidence that the last time the appellant had put his finger inside her vagina was the Friday the week before she spoke to the police officer. She gave the following evidence:
“You said that the last time it happened was the Friday the week before you spoke to Linda, the police officer?-- Yes.
Is that true?-- Yes.
And did the same thing happen that day as well?-- Yes.
Is that also on your grandfather’s bed in his granny flat?-- Yes.
When you went on his bed in the granny flat, did he always touch you in the way that you’ve described?-- Yes.
Did you ever go on the bed when [the complainant’s brother] was there as well?-- Only one time when [the complainant’s brother] and I with Papa were wrestling.”
 The complainant said that she had lived in the house with the appellant “…for nearly a year until September”. She said that the appellant had not touched her in the way she described before the day in May when her brother was away at L’s house. She went downstairs to see the appellant about three days a week, but she said that “[n]ot the whole time” and “[s]ometimes I’ll only go down for two days or something”. She also said that the only occasion on which she went downstairs by herself was the time in May when her brother was at L’s party. When she was asked how many times the appellant had touched her inside her vagina after the time in May the complainant answered, “I’m not really sure.” When she was asked whether it would happen every time she went downstairs or just some of the times, she answered, “[s]ome of the times”. Her brother was never there when it happened. There were “some times” when her brother went up leaving her by herself with the appellant, and it was on that time when the appellant touched her. The prosecutor asked the complainant how many times a week or a month it would happen and the complainant answered, “[w]ell, a week, probably two times.”
 In cross-examination the complainant agreed that she thought that it had happened to her “a couple of times a week from some time in May through to some time in September of 2009”, happening on about two out of the “maybe” three times a week when she went downstairs. She agreed that she was a bit concerned about going downstairs because it was happening so regularly, and she always used to go down with her brother. She said that she continued to spend longer down there after her brother left because the appellant continued to tell her his navy stories, which she liked to hear. Subsequently the complainant referred to an occasion in April when she had not gone downstairs for some period because she didn’t want “that thing” to happen to me. But she then agreed that she had “…got muddled up with April after May…the month after May”, and that she meant to say June.
 When the complainant was pressed in cross-examination to explain why she kept going downstairs and stayed there after her brother went upstairs, she said that she was “not sure” and thought that it was because she liked hearing the appellant tell his stories about the navy. It was “…kind of hard to explain”.
 Defence counsel cross-examined the complainant about her memory that the first occasion was in May. The complainant agreed that she had a clear memory that it was in May because it was after Mother’s Day. She then agreed that this was something that she had remembered recently, that “…I remembered that Mother’s Day was in May because I couldn’t really remember”. She agreed that she had told the police that her memory was that it had started in February, and that the first time that she had told anybody that it was May was when she spoke with the prosecutor last week. She said that L’s birthday was on Mother’s Day and that he was going to celebrate his birthday with a sleepover the following week. She volunteered that her brother had said that it was in April, so that she just said April, and then he said it might be in May and she thought that it wouldn’t be in May because Mother’s Day was in April. The complainant agreed that at some stage she had said that it started in February, at other times she said that it had started in April, now she said that it started in May. The complainant also said that, in addition to the couple of times every week when the appellant touched her indecently, there were sometimes third and fourth occasions when he would unsuccessfully try to touch her.
 The complainant disagreed with defence counsel’s suggestions that the appellant had not done the things which she described.
 The complainant’s mother gave evidence that on 28 September 2009 she woke up to find the complainant sobbing and crying. The complainant’s mother asked the complainant to tell her what was wrong. During the following conversation the complainant was beside herself and very, very upset, to the point where she was “gasping for breath”. The complainant expressed reluctance to speak too loudly because the appellant might hear her. She subsequently told her mother that the appellant had touched her private parts, had licked her ear, had licked his fingers, rubbed her “wee-wee”, and inserted his fingers inside her, and had made her touch his penis. The complainant said that she had told the appellant to stop. He would not stop and he told her that she was not to tell anybody because she would be in trouble. The complainant’s mother said that the complainant told her that it had last happened on the previous Saturday night (two days earlier). The complainant’s mother asked the complainant whether it had happened more than once, more than five times, and more than ten times. The complainant agreed to each question. The complainant said that it had happened “maybe” three or four times a week and that the first occasion was when her brother had a sleepover at his friend L’s place. The complainant’s mother gave evidence that the complainant’s brother went for a sleepover to L’s house for L’s birthday celebration. Defence counsel informed the Court that it was admitted that this occurred on 16 May 2009.
 The complainant’s mother gave evidence that at a time when she thought that the complainant was close to eight years old, the appellant commented to her that the complainant was “…going to have a lovely figure when she gets older and that her titties were developing”. (The trial judge directed the jury that if the jury accepted beyond reasonable doubt that the appellant made that statement and that it demonstrated that the appellant had a sexual interest in the complainant, it was open to the jury to decide that this made it more likely that the appellant did the acts with which he was charged.)
 The complainant’s mother gave evidence that on 5 October 2009, in response to a question asked by her brother about whether the appellant had been doing anything inappropriate with the complainant, the appellant denied any inappropriate conduct. He said that it had been years since he had been able to get an erection, that he and the complainant were “…very close physically wise…”, that she had been hopping on top of him and jumping up and down on him, and that at one stage they were resting on the bed and she sat on his face and almost suffocated him.
 The complainant’s mother gave evidence in cross-examination that, after the police interview, the complainant told her that she had told the police about the complainant having licked her ear. The complainant’s mother agreed that the police had impressed upon her the need to be careful and accurate in recounting the complainant’s initial disclosure. She did not give any evidence about applying cream to the complainant’s genitals.
 A doctor gave evidence in the Crown case that she examined the complainant on 29 September 2009 and found no sign of recent injury. She gave evidence in cross-examination that the history taken from the mother in the complainant’s presence was that the appellant “…wrestles with her on the bed, pulls her undies to one side and puts two fingers inside my vagina. He has sharp fingernails and it hurts…”. The doctor’s evidence was to the effect that the absence of any sign of injury was neutral. The doctor agreed that the “scooping motion” described by the complainant “could well” cause a hymenal tear.
 The appellant did not give or call evidence.
 The complainant gave evidence which, if accepted, was capable of proving count 3 beyond reasonable doubt. The appellant argued, however, that a reasonable doubt about the appellant’s guilt on count 3 arose from significant inconsistencies and discrepancies in the evidence.
 The matters identified by the appellant were relevant, but it is not suggested that defence counsel did not draw them to the jury’s attention. There is no reason to think that the jury did not properly take these points into account. Nor is there any complaint about the trial judge’s summing up. I will make additional comments under headings which paraphrase the appellant’s arguments.
(a)The absence of injury was inconsistent with a seven year old child having been digitally penetrated as she described
 The medical evidence did not support the view that a doubt necessarily arose from the absence of injury caused by the act charged in this count. The jury were directed that this was not determinative but, bearing in mind the complainant’s young age and her apparent incomprehension about the appellant’s conduct, it was plainly open to the jury to conclude that the appellant had not used such force in the offence charged in count 3 as to produce lasting injury.
(b) The complainant’s evidence that her mother applied cream to the complainant’s genitals was not supported by the mother’s evidence
 The complainant’s mother was not asked about this. There was nothing which contradicted the complainant’s evidence on the point.
(c) The complainant’s mother did not notice anything untoward about the complainant’s interactions with the appellant
 The complainant’s evidence, if accepted, suggests that she found herself in a conflicted and stressful situation, in which she did not feel able to reveal the appellant’s offending to her mother. Furthermore, the complainant’s mother did give evidence that she had noticed that there was something about the complainant’s behaviour over the months leading up to the disclosure that “wasn’t quite right”. Her evidence in cross-examination suggests that she noticed this before the appellant pointed it out. The jury could take that into account in assessing count 3, which was alleged to have occurred after the time when the complainant’s mother said she noticed the change in the complainant’s behaviour.
(d) The complainant persisted in visiting the appellant and remaining alone in his company despite her evidence of the appellant’s offending
 This kind of reaction is, as the appellant’s counsel properly acknowledged in the course of oral argument, a depressingly common feature of these sorts of cases. The jury no doubt took into account that the appellant was the complainant’s grandfather and that the complainant’s evidence was that she enjoyed listening to his stories. My comments in the previous paragraph are also relevant.
(e) Inconsistently with the complainant’s mother’s evidence of the initial disclosure, the complainant did not tell the police that the appellant had procured her to touch his penis
 The significance of this inconsistency was for the jury to assess. On the evidence of the complainant and her mother, they were very close, but the policewoman was a complete stranger to the complainant until the police interview. It was submitted for the appellant that the complainant’s demeanour in the police interview does not suggest that she was shy or embarrassed, but the jury no doubt made their own assessments about the complainant’s demeanour, as they were directed to do by the trial judge. If the jury did find that this inconsistency was significant, it does not follow that they were bound to find that there was a doubt about the complainant’s evidence concerning count 3.
(f) The complainant told her mother that the most recent event occurred on the preceding Saturday but told police on the same day that it had happened on the preceding Friday
 On this point the complainant’s evidence was consistent. In her interview with police, and in response to a leading question in her pre-recorded evidence, she said that the most recent event had occurred on the Friday. The jury was not bound to accept the complainant’s mother’s different evidence about what the complainant said on this point in their fraught conversation on the following Monday; in any event, the jury were not bound to treat this inconsistency as throwing doubt over the complainant’s evidence that the appellant had committed the offence.
(g) The “family dynamic was peculiar”
 The appellant referred to evidence by the complainant - which was not supported by the evidence of her mother - that the complainant and her mother regarded the appellant as a source of annoyance and embarrassment even though the appellant had moved to a downstairs area in order to allow the complainant, her brother, and their mother to live upstairs in his house. This does not provide a substantial ground for thinking that the jury should have harboured a reasonable doubt about the complainant’s evidence concerning count 3.
(h) If the complainant’s evidence about the frequency of the appellant’s offending was correct, it was odd that the appellant would run the risk of telling the complainant’s mother that the complainant was out of sorts
 In cross-examination the complainant’s mother agreed that she had noticed that there was something about the complainant’s behaviour over the months leading up to the disclosure that “wasn’t quite right”. The complainant’s mother agreed that the appellant pointed out that the complainant seemed as “…not really being herself”. He asked whether there was anything wrong with the complainant and the complainant’s mother responded that she had asked the complainant herself, and the complainant had said that everything was okay. It is apparent from this evidence that the complainant’s mother had noticed something odd about the complainant’s behaviour before that topic was raised by the appellant. Given the regular interaction between those in the house, it would be unsurprising if the appellant believed that the complainant’s mother would notice a change in the complainant’s behaviour which the appellant had noticed. In these circumstances, the jury might reasonably have concluded that the appellant’s question of the complainant’s mother did not give rise to any doubt about the honesty and reliability of the complainant’s evidence about count 3.
Unreasonable verdict: conclusion
 It is necessary also to take into account the inconsistencies relating to counts 1 and 2, particularly those relating to the date of count 2 and the period and frequency of the offending in count 1. I will discuss those matters when I consider the second ground of appeal.
 I have concluded that, despite the presence of some inconsistencies and discrepancies which cannot be treated as being of no significance, it was reasonably open to the jury to accept the complainant’s evidence on count 3. The matters to which the appellant referred deserved serious consideration by the jury, but neither any one of those matters, or their collective effect, justifies a conclusion that it was not open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt on count 3. That is so notwithstanding the absence of any independent evidence which confirmed that the appellant had a sexual interest in the complainant, apart from the complainant’s mother’s evidence of the appellant remarking about the complainant’s “titties”.
(b): Is the conviction on count 3 inconsistent with the acquittal on count 2?
 Under the second ground of appeal, the appellant argued that the verdict of guilty on count 3 should be set aside because it is inconsistent with the verdict of acquittal on count 2, and that it was an “affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty”. The appellant argued that there was no feature of the evidence on count 3 which afforded a stronger basis for a conviction on that count than in respect of count 2. Indeed, in the appellant’s submission, the evidence on count 3 was weaker: the appellant referred to the inconsistency between the evidence of the complainant and that of her mother as to whether count 3 occurred on Friday or Saturday, and the fact that the medical examination of the complainant, which revealed no injury, occurred only shortly after the alleged offence. The appellant argued that the jury’s doubt about count 2 should have caused the jury to have entertained a doubt about count 3, because it was not possible to conceive of a rational explanation for the differing verdicts.
 The appellant drew the Court’s attention to the trial judge’s statements when the verdicts were delivered that it was “impossible to understand how such a verdict could have been rendered” and that the guilty verdict was “…entirely inconsistent, particularly in relation to the directions that must be given to a jury and which were given to the jury in Markuleski.” (The trial judge had given the jury directions of the kind discussed in R v Markuleski to the effect that if the jury had a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one or more counts, that must be taken into account in assessing the truthfulness and reliability of the complainant’s evidence generally.) The appellant submitted that, whilst the learned trial judge’s opinion was not determinative, it supported the appellant’s contention that the “perplexing verdict” on count 3 should be set aside.
 The courts afford respect to the jury’s constitutional role in determining guilt or innocence at trial. An appellate court will not lightly conclude that there is an inconsistency between jury verdicts which justifies the court in setting aside a guilty verdict. In MacKenzie v The Queen, Gaudron, Gummow and Kirby JJ said:
“…[I]f 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 R v CX, Jerrard JA referred to a number of matters of principle that were settled about an appellate court’s assessment of claims that verdicts were inconsistent, including:
“1.Where inconsistency is alleged as to verdicts of acquittal and conviction on different counts, the onus is on the party alleging that inconsistency to persuade an appellate court that the different verdicts are an affront to logic and commonsense which is unacceptable, and which strongly suggests a compromise in the performance of the jury’s duty, or confusion in the minds of the jury, or a misunderstanding of their function, or uncertainty about the legal difference between specific offences, or a lack of clarity in the instruction on the applicable law. Where that inconsistency rises to the point that the appellate court considers that intervention is necessary to prevent possible injustice, the relevant conviction will be set aside.
2.Whether the verdicts are inconsistent as so described is a test of logic and reasonableness; has the party alleging inconsistency satisfied the court that no reasonable jury, who had applied their minds properly to the facts in the case, could have arrived at the various verdicts?
3.Respect for the function of the jury requires appellate courts to be reluctant to accept submissions that verdicts are inconsistent in the sense described, and if there is a proper way by which an appellate court can reconcile the verdicts, allowing the court to conclude that the jury performed their functions as required, that conclusion will generally be accepted. …
4.The view may properly be taken in a criminal trial that different verdicts, claimed to be inconsistent, reveal only that the jury 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, an appellate court can conclude that a jury took a merciful view of the facts on one or more counts, a function which is open to a jury.”
 In R v Smillie, Holmes J (as her Honour then was) identified grounds upon which verdicts may rationally differ, including differences in the quality of the evidence on different counts:
“The jury may have found the quality of the crucial witness’s evidence variable while accepting it as generally truthful. For example, the witness may have exhibited faulty recollection on some points or been able to provide more particularity about the details of some events than others. A complainant may have failed to mention some offences in his or her original complaint, giving rise to a question about the accuracy of later recollection. The witness may have been given to exaggeration in some instances, or there may have been an inherent unlikelihood to some aspect of the evidence, which casts doubt on its accuracy in those respects, but not of the witness’s general honesty…” (citations omitted)
 It is also relevant here to bear in mind that verdicts of acquittal on some counts do not necessarily indicate that the jury found that the events recounted by the complainant did not occur; they might show only that the jury was not satisfied to the criminal standard of proof that the acts alleged in those counts occurred at the times, or in circumstances, particularised by the prosecution.
 The respondent submitted that inconsistencies in the complainant’s evidence about the date of the offence alleged in count 2 supply an explanation for the difference between the verdicts. There is substance in the submission. Count 2 charged an offence “on or about the sixteenth day of May, 2009”, but the complainant gave conflicting evidence about the date when the first offence occurred. The first date she mentioned, in statements to the police officer which are redolent of uncertainty, was February. She subsequently said that the appellant had been engaging in the conduct “…all this year”. In the complainant’s pre-recorded evidence, she referred to a day in May. And in cross-examination the complainant attributed her nomination of May to the fact that the first event occurred after Mother’s Day, but it quickly became evident that she was also unsure about that date.
 The appellant argued that those inconsistencies about the date are not significant because there was no issue that, on the date specified in count 2 of the indictment, the complainant’s brother was absent at L’s birthday sleepover which the complainant consistently associated with count 2. The argument is not without substance, but reference to other relevant circumstances suggests that it should not be regarded as determinative.
 In relation to count 2, the complainant’s evidence concerned an event which she said had occurred many months before she participated in the police interview. That may be contrasted with the event charged in count 3, which was alleged to have occurred only two or three days earlier. Particularly in the case of a young child, the jury might regard the lengthy period between the alleged occurrence of count 2, and her first recounting of it, as calling for a cautious approach. The complainant’s evidence was also more detailed in relation to count 3 (which included a reference to clothing) than in relation to count 2. Furthermore, in relation to count 2, the jury could not take into account the complainant’s mother’s evidence that she had noticed that there was something about the complainant’s behaviour over the months leading up to the disclosure that “…wasn’t quite right”. The jury might also have placed more weight in relation to count 2 upon other inconsistencies which I discussed under the first ground of appeal. In a case in which there was no independent corroboration of any of the counts, and if the jury adopted a strict approach to the requirements of proof beyond reasonable doubt, the collective effect of these various matters might have led the jury to consider that there was a doubt about the appellant’s guilt on count 2 despite it being common ground that L was absent, as the complainant said, on the date charged in the indictment.
 That the jury might have adopted such an approach is consistent with the trial judge’s directions. The trial judge warned the jury to scrutinise the complainant’s evidence with great care. In the course of that warning his Honour directed the jury to take into account the facts that this very young complainant alleged that the events occurred in the months before her police interview, and her evidence was of matters that had occurred more than 12 months before. Those considerations applied with much more force in relation to count 2 than they did in relation to count 3. The trial judge went on to give, and to repeat, the warning that the jury “…should only act on the evidence of the complainant if after considering it, and considering this warning, and bearing this warning in mind, and considering all other evidence, you are nonetheless satisfied beyond reasonable doubt of its truth and accuracy.”
 The complainant referred to numerous dates which varied by months from the date charged in the indictment, and the jury might have thought that those inconsistencies, though readily explicable, were significant in relation to the proof of count 2. Each juror was given a sheet of paper which set out the wording of the charges, including the dates. At the commencement of the summing up, after the trial judge reminded the jury of the charges, referred to count 1 (including the dates), and directed the jury that “[t]he prosecution must prove each and every element of the offence”. His Honour directed the jury that “so it is with the next two charges…”. The trial judge went on to summarise count 2 as being “that on or about the 16th day of May 2009…” at a specified place the defendant unlawfully and indecently dealt with the complainant, a child under 16 years. When the trial judge returned to discuss the elements of the offence, his Honour did not identify the date alleged in count 2 as an element which the prosecution was required to prove beyond reasonable doubt. However the directions given at the start of the summing up, the sheets setting out the counts in the indictment, and the trial judge’s warning about the need to scrutinise the complainant’s evidence with particular care, may have left the jury with the impression that the inconsistencies in the complainant’s evidence about the date were important in deciding whether they had any doubt about the appellant’s guilt on count 2.
 In deciding whether the jury wrongly failed to take its doubt about count 2 into consideration in relation to count 3, it is also necessary to take into account other clear instructions which the trial judge gave the jury. The summing up commenced on the afternoon of the second day of the trial. After the jury had been given directions about the elements of the three offences and about the complainant’s evidence being at the heart of all three charges, the trial judge turned to the question of how considerations in respect of one charge might affect the others. The trial judge directed the jury that they “…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 the essential elements of that particular charge…”. In elaborating upon the direction, the trial judge told the jury that because the evidence was different in relation to the three separate offences, their verdicts need not be the same. But if the jury had a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one or more counts, then that must be taken into account in assessing the truthfulness or reliability of her evidence generally. After giving further directions, the trial judge gave an example of a situation in which the jury might think that a finding that the defendant was not guilty in relation to one count did not necessarily mean that the jury could not convict on the other counts, or any other count: the trial judge directed the jury to consider whether a reasonable doubt about part of the complainant’s evidence “…affects the way you assess the rest of her evidence; that is, whether your doubt about a particular aspect of her causes you to have a reasonable doubt about the part of her evidence that’s relevant to any other count.”
 In the course of summing up on the morning of the third day of the trial, the trial judge substantially repeated those directions. Thus the jury was properly and repeatedly directed about the way in which they should use a doubt in relation to any one count in assessing the complainant’s evidence on another count.
 The record also suggests that the jury took their task seriously, appropriately asking for re-directions and occupying a substantial period of time in their deliberations. The jury retired to consider their verdicts at 10.11 am. They were brought back in to the Court at 10.42 am in response to their request to see the police interview with the complainant. The trial judge explained that fairness required that the jury see the cross-examination as well. After that occurred, the jury retired at 12.52 pm. When a note was received from the jury asking for clarification about directions as to the use of the mother’s evidence, the jury returned at 3.17 pm. A juror explained that the jury wished to hear directions about inconsistencies between the mother’s evidence and the complainant’s evidence and how the mother’s evidence should be used to assess the complainant’s credibility. The trial judge gave directions on those topics. His Honour referred to inconsistencies, including inconsistencies upon which the appellant relied in this appeal. At 4.50 pm, the jury was allowed to go home. The jury resumed their deliberations at 9.15 am on day four. The verdicts were delivered at 12.55 pm on that day.
 The trial judge’s immediately adverse reaction to the verdicts may have reflected a perception that, on an objective analysis, there was a logical inconsistency between the verdicts. However, such an inconsistency does not necessarily justify this Court’s intervention. In MacKenzie v The Queen, Gaudron, Gummow and Kirby JJ approved King CJ’s “practical and sensible remarks” in R v Kirkman.  Amongst other matters, King CJ said that “juries 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…”, that “…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”, and that “[a]ppellate 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”.
 Applying that and the other authorities mentioned earlier, I consider that there is no such inconsistency between the verdicts as justifies this Court in setting aside the jury’s verdict on count 3.
 The appellant did not emphasise the acquittal on count 1 in the argument on this ground, if that was relied upon at all. I will therefore give only brief reasons for my conclusion that this acquittal is not necessarily inconsistent with the verdict of guilty on count 3. My reasons in this respect largely reflect the respondent’s submissions on this topic.
 Whilst the trial judge directed the jury in relation to count 1 that the prosecution did not say “…you’ve got [to] accept that there were 30 acts or you acquit…”, his Honour added that “that’s the basis of the prosecution case, that you accept the complainant largely about that”. His Honour also told the jury that they might accept that the complainant might be wrong, “…it might have been 31 or 27 or 28. That, the prosecution says, doesn’t make any difference. That was, after all, in the way she gave her evidence. The complainant says 30 but that was a general number” and that “…if you had some real doubt about those acts themselves, any of those acts occurring, as I’ve said, it would be so fundamental to the prosecution case, I would suggest to you that you would have great difficulty in really coming to a conclusion that you could accept the complainant beyond a reasonable doubt, it’s so fundamental, it seems to be, you would have to acquit. Of course, these are matters for you.” The trial judge also told the jury that:
“The point of the matter is the complainant child says that there was insertion of the adult finger into her vagina on many occasions. I will use the word 30 again, but I don’t think anyone means to say that it was not 29 and not 31, but 30. On numerous occasions I think is the effect of the evidence.”
 The trial judge directed the jury that, whilst the doctor’s evidence was “effectively the lack of findings”, that did not mean that none of the activity took place, that the jury were not required to uncritically accept the expert evidence, and that they were entitled to use their own experience to judge the evidence and whether they accepted it. Furthermore, the trial judge told the jury that the prosecution said “…and I suggest that you consider this in assessing the evidence, can it really be the case that if there was the insertion of the finger on so many occasions in the way in which the complainant described, that there remained or was to be found no evidence whatsoever by trauma, visually or any other way, to suggest such penetration?” With reference to defence counsel’s submissions about the absence of injury, the trial judge observed that “[t]he obvious argument is by the defence nothing of a kind happened and the medical evidence bears it out, there is nothing to see because nothing happened”.
 The complainant gave various estimates of dates and periods of the offending, and the jury might have regarded her as honest but unreliable in her evidence about the frequency of the offending. Notwithstanding the medical evidence that the absence of injury was essentially neutral, and appropriately heeding the trial judge’s directions, the jury might have entertained a reasonable doubt that the conduct of the appellant spoken of by the complainant occurred nearly as frequently as she recalled; and the jury, again taking a strict view of the standard of proof, might have entertained a reasonable doubt that the appellant had maintained a sexual relationship with the complainant. Such an approach would not necessarily have required the jury to reject the complainant’s consistent evidence that, only days before she was interviewed by police, the appellant dealt with her in the way charged in count 3.
 I would dismiss the appeal.
 WHITE JA: I have read the reasons for judgment of Fraser JA and agree with his Honour’s reasons that the appeal should be dismissed.
 DAUBNEY J: For the reasons given by Fraser JA, with which I respectfully agree, I would also dismiss the appeal.
 M v The Queen (1994) 181 CLR 487 at 493-495.
 M v The Queen (1994) 181 CLR 487 at 493; MFA v The Queen (2002) 213 CLR 606 at 624 .
  QCA 265 at -.
 The front page of the transcript of the police record of interview (which was not before the jury) records the date as 28/09/2009 but the following pages record the date as 29/09/2009. The police officer gave evidence that she conducted the interview with the complainant on 28 September 2009.
 MacKenzie v The Queen (1996) 190 CLR 348 at 368.
 (2001) 52 NSWLR 82.
 (1996) 190 CLR 348 at 367.
  QCA 409 at .
 (2002) 134 A Crim R 100 at 106-7 .
 See R v SBL  QCA 130 at , per Applegarth J, Margaret Wilson J and Chesterman JA agreeing.
 (1986) 190 CLR 348 at 368 - 369.
 (1987) 44 SASR 591 at 593.
- Published Case Name:
R v GAN
- Shortened Case Name:
R v GAN
 QCA 50
Fraser JA, White JA, Daubney J
16 Mar 2012
|Event||Citation or File||Date||Notes|
|Appeal Determined (QCA)|| QCA 50||16 Mar 2012||-|