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R v GAP

 

[2012] QCA 193

Reported at [2013] 1 Qd R 427

 

SUPREME COURT OF QUEENSLAND

  

CITATION:

R v GAP [2012] QCA 193

PARTIES:

R
v
GAP
(appellant/applicant)

FILE NO/S:

CA No 324 of 2011

CA No 104 of 2012

DC No 165 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

20 July 2012

DELIVERED AT:

Brisbane 

HEARING DATE:

10 May 2012

JUDGES:

Muir and Gotterson JJA and Fryberg J

Separate reasons for judgment of each member of the Court, Gotterson JA and Fryberg J concurring as to the orders made, Muir JA dissenting

ORDERS:

  1. Grant leave to appeal on ground 2.
  2. Appeal against conviction dismissed.
  3. Application for extension of time to apply for leave to appeal against sentence dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where appellant convicted of one count of indecent treatment (count 2), one count of wilful exposure to an indecent video tape (count 4) and one count of rape (count 5) – where appellant acquitted of attempting to procure an indecent act (count 3) – where the complainant was the appellant’s daughter – where the complainant gave evidence of acts of sexual misconduct not appearing on the indictment – where appellant submitted the jury should have been warned against propensity reasoning – where appellant submitted count 3 was inextricably linked to count 4 – where appellant submitted verdicts were inconsistent – where appellant submitted verdicts were unsafe and unsatisfactory due to inconsistencies in the complainant’s accounts and delay – where trial judge directed the jury that consent was not an issue with respect to count 5 as a child under 12 was incapable of consenting under s 349(3) of the Criminal Code – where that section did not come into force until 5 January 2004 – where count 5 may have been committed prior to that date – whether the trial judge erred in failing to give a direction with respect to propensity reasoning – whether the verdicts were inconsistent – whether the verdicts were unsafe and unsatisfactory – whether the trial judge misdirected the jury with respect to consent

APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where appellant convicted of one count of indecent treatment (count 2), one count of wilful exposure to an indecent video tape (count 4) and one count of rape (count 5) – where appellant sentenced to concurrent terms of imprisonment of 12 months, six months and four years respectively with fixed parole eligibility – where applicant applies for an extension of time in which to appeal against the count 5 sentence – where appellant submitted sentence manifestly excessive – whether application lacks utility – whether application for extension of time should be granted

Criminal Code 1889 (Qld), s 349(3)

BRS v The Queen (1997) 191 CLR 275; [1997] HCA 47, considered

HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, considered

Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12, considered

KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11, considered

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, considered

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, considered

Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7, considered

R v AAD [2008] QCA 4, considered

R v BBE [2006] QCA 532, considered

R v Bull [2012] QCA 74, considered

R v Colless [2011] 2 Qd R 421; [2010] QCA 26, considered

R v Kirkman (1987) 44 SASR 591, cited

R v M [2003] QCA 443, considered

R v MBF [2008] QCA 61, considered

R v NH [2006] QCA 476, considered

R v SAH [2004] QCA 329, considered

R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited

R v WO [2006] QCA 21, considered

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited

COUNSEL:

J J Allen for the appellant/applicant

B J Merrin for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant/applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. MUIR JA: Introduction After a trial in the District Court, the appellant was convicted of one count of indecent treatment of the complainant (count 2); one count of wilful exposure of the complainant to an indecent video tape (count 4); and one count of rape of the same complainant (count 5).  The appellant was acquitted of a count of attempting to procure an indecent act (count 3).  In a previous trial, the appellant had been acquitted of count 1 on the indictment, an offence of indecent treatment of the complainant.  He was sentenced to concurrent terms of imprisonment of 12 months, six months and four years for counts 2, 4 and 5 respectively.  A parole eligibility date of 27 October 2013 was fixed.
  1. The appellant appeals against his convictions and against the sentence imposed in respect of count 5. Before considering the grounds of appeal, it is convenient to refer to the evidence relevant to those grounds.

The evidence of Mrs RMK

  1. The complainant, who was born in February 1996, was the appellant’s natural daughter. The complainant’s mother, Mrs RMK, gave evidence to the following effect. She had been married to the appellant, with whom she had an “on/off relationship”. The couple had two other children, a daughter born in mid 1998 and a son born in 2002. The couple separated in October 2005 and were divorced in February 2008. At about the time that the divorce was formalised, Mrs RMK, who was discussing the divorce with her then partner Mr RJA, told the complainant that she and the appellant were “getting a divorce”. The complainant then said that she did not “ever want to see [the appellant] again” as “He disgusts me. He’s disgusting”. Asked what she meant, the complainant responded:

“He always pulled his doodle up and down and made me touch it. And one night he put it in my mouth that far that it made me sick and I almost choked”.

  1. Mrs RMK asked what else had happened and was told:

“Dad and I were coming home in the little red truck from Amamoor shops… he had his doodle out and he asked [me] to pull it.”

  1. Mrs RMK also said that the complainant told her that one night when Mrs RMK was not at home, she was in the bathroom when the appellant remarked on her breasts, said that they should “watch a cool movie” and then showed a “movie… of a white chick sucking a black man’s doodle”.  The complainant said that when she went to leave the lounge room, where she had been watching the movie, the appellant told her to stay where she was.
  1. In cross-examination, Mrs RMK admitted that the complainant had told her that “he’s done it lots of times in Gilldora… and a couple of times in Tasmania”.  She accepted also that the complainant had spoken to her of an occasion on which the complainant was on the toilet when the appellant walked in and asked her to suck his penis, which she did.  The complainant said that she told the appellant “not to let the white stuff come out”.  Mrs RMK accepted also that she recalled the complainant informing her that when the appellant tucked her into bed, he started “rubbing his fingers on her rude parts, and… tried to put his fingers inside her and it hurt”.  She was told that this happened “lots of times”.  She accepted also that the complainant had told her that the appellant had asked the complainant not to tell anyone about his conduct or Mrs RMK would “get hurt”.  She said that the complainant also told her of an occasion on which Mrs RMK was cooking breakfast.  The complainant said that the appellant had “started rubbing her privates” when she went into his bedroom to wake him up.

Mr RJA’s evidence

  1. Mr RJA gave evidence to the following effect. He and the complainant’s mother met in 2006 and subsequently married. In 2008, he was having a conversation with the complainant’s mother concerning her divorce and related matters, when the complainant said that she did not want to see the appellant.
  1. She told her mother and Mr RJA that the appellant used to do things to her that made her sick. The complainant’s mother asked what happened and the complainant gave:

“…a few variations that are a bit hazy… she did refer to a time in, I think it was Gympie at this stage, where she remembers she was …in the toilet and she said that he walked in and put his doodle in her mouth and… made her choke, or she almost choked…”

  1. The complainant referred to an occasion on which she was in the bath and the appellant came in and touched her on the breasts. He said that there were “some cool movies he would put on, they could watch”. She remembered seeing “a black man with a white woman, and she heard noises coming … from the chair that [the appellant] was sitting on”. He referred also to an incident in which the complainant was driving with the appellant in a “green four-wheel drive” to a corner store when the appellant asked the complainant “to touch his doodle, or he was touching himself”. He referred also to an occasion on which the appellant came into her room and told her that if she were to say anything to her mother “she would be angry and they would get a divorce”. Mr RJA said he asked the complainant “how many times this had happened” and she said “it’d happened …Heaps”.

Ms Weber’s evidence

  1. Ms Weber, a psychologist, gave evidence of interviewing the complainant and her mother on 17 March 2008. In the course of the interview the complainant said:

“…that her father had touched her on the boob and that at one time he was pulling himself in front of her and being yucky and that when Mum had been on the phone there’d been some incidents of touching and I believe that she said that she had - he had asked her to perform some sort of oral act on him.”

  1. In cross-examination Ms Weber accepted that the complainant had also told her that the appellant had touched her in the vaginal area and would try and touch her there when her mother was on the telephone.

The complainant’s police interviews

  1. DVDs of police interviews of the complainant on 17 March 2008, 21 March 2008, and 10 July 2008 were put in evidence. In the 17 March interview, referring to the appellant, the complainant said:

“…when I was little and [when] I was watching T-V and then he just started playing with it…

And when we moved to Beaudesert and nothing happened and then it happened lots of times. And he tried to make me suck it and all that…

And I nearly spewed and I was in the bathtub and he tried to touch me…

And when I got out, um he put on a dirty movie…

And um actually he done that twice when N swallowed bubblegum and mum said I had to stay and that’s when he put on a dirty movie again.” (emphasis added)

  1. She said “The last time he done it was at Tasmania” and that “He only done it once there”.  She said that:

“…we were watching dude where’s my car. And that’s when we went to bed because it was really late and so did mum and then he started pulling himself then and he made a disgusting noise and [I] felt like punching him in the face… Because I hate that noise.”

  1. The complainant, under the prompting of the interviewing police officer, described in considerable detail what she had seen in the movie. She also described the lounge room in which the incident took place. Pressed to describe the incident in greater detail, the complainant said that “he just made it go up and down… white stuff was coming out …he wiped it on a towel … then some got on his finger and he licked it and I nearly spewed”. The complainant said that, after she went to bed, the appellant came into her room and said “oh thought you were going to tell mummy then the relationship was over and then I just said um go away and he just went back to sleep”.
  1. Asked to describe another occasion, the complainant said that, when watching a movie on television, she got up and went to the toilet. The appellant came in and wanted her to “suck on his doodle and he kept trying to put it in [her] mouth and [she] kept really choking and spewing”. She told the appellant to go away and he responded “what are you going to do? Bite it off”. She said that she “said stop it and then he went and then [she] got off the toilet”. Pressed to further describe this incident, the complainant said:

“…and then he came in and um he kept um, um trying to put his doodle in my mouth and he went ahead and put it to- put my head towards it… Um he was grabbing my head and putting my head towards his doodle… it went in my mouth and I nearly spewed… nearly choked… he was trying to put it down my throat.”

  1. This incident was the subject of count 5.
  1. Under further questioning, the complainant referred to an occasion on which her mother had to go to the doctor. She said:

“And I waved goodbye and then he came in and then um he was trying to touch me and then he got his thing out and he started tapping it on the side of the bath tub and I just said go away I’m trying to have a bath and then he um, um said oh touch it it’s all hard and then I said no just go out and then he went out...”

  1. The complainant then explained that the appellant put on a movie in which “naked people” were shown. After further questioning in relation to the incident, the complainant said that the appellant said to her “well you know your boobs are getting big and all that… let me touch them”. She refused. She subsequently explained that in the movie, which she saw after leaving the bath, a lady and a man on a couch “started doing it” and then the lady went to “this other man’s house… and then she started fucking”. This lady later went to a black man’s house where she sucked his penis. While watching the movie, the appellant “was pulling himself”, she was not watching him, but she could “just hear sloppy noises”.
  1. Count 3 related to the incident in the bathtub and count 4 was in respect of the indecent video.
  1. In her interview of 21 March 2008, the complainant recounted an incident in which she and the appellant were coming back from the shops at Amamoor in “the red truck”, which was dark red, rusty and old, when the appellant “…got out his thing and he put [her] hand on it and tried to make [her] pull him”. The appellant took her hand and placed it on his penis and “was making [her] hand go up and down on his thing”. Her sister was with her in the truck’s cabin. Count 2 related to this incident.
  1. In her interview on 10 July 2008, the complainant said that she thought that the bathtub incident occurred when she was in grade one or two “because in Tasmania [she] was in grade three”.  Reminded of saying at the preceding interview she was watching a movie, the complainant said she was “watching wizard of oz, was that it?”

The complainant’s cross-examination and re-examination

  1. In cross-examination, the complainant accepted that her complaint to the police came about because she had said things to her mother who had taken her to a counsellor who took her to the police station.  She accepted that she knew that when she was talking to the police officer that he wanted as much detail as possible and that he wanted her to be as accurate as possible and to be told “everything”.  She said, in effect, that on each occasion on which she was interviewed, she said everything she could remember.
  1. The complainant said that she thought that she was nine at the time of the “Dude, Where’s My Car?” incident in Tasmania and that it was in Tasmania that her parents broke up for good.  Explaining why she chose to stay up alone with her father that night in Tasmania, having regard to what she had said about what he had done to her when she was younger, she responded “Yeah, because he hadn’t done it – that was the only time at Tasmania he done it.  I thought he wasn’t going to do it again”.
  1. The complainant admitted that when in the truck she always wanted the window seat. She said that on this occasion, however, she was in the middle. She admitted that she told the counsellor that her father touched her “down there, and on the boob”. She accepted that by down there she meant her “private area” and that she did not tell the police about this touching. Asked if she had made that up, she said “No. It’s because I just didn’t want to…”
  1. The complainant accepted that she had told her mother:
  • that when the appellant was tucking her into bed, he was “rubbing his fingers on [her] rude parts”; and
  • about an incident in which the appellant touched her in his and her mother’s bedroom when her mother was cooking breakfast.
  1. She accepted that she had not told the police anything about these incidents.
  1. In re-examination, the complainant said that she delayed going to police because she did not “want to dramatise stuff and make a big deal”.

The trial judge erred in failing to give a direction as to the use which could be made of the evidence of uncharged acts of sexual misconduct.

  1. The appellant contended that the police interviews contained many allegations of sexual misconduct that were not within the counts on the indictment and that, accordingly, a direction against propensity reasoning should have been given.[1]
  1. Referring to an incident in Tasmania in which the trial judge informed the jury that the appellant had masturbated himself to ejaculation in the complainant’s presence, the trial judge directed the jury:

“You can only use this evidence of the Tasmanian incident if you accept it beyond a reasonable doubt. If you do not accept it then that finding will bear upon whether or not you accept the complainant’s evidence relating to the charges before you beyond a reasonable doubt.

If you do accept the complainant’s evidence that this other act of a sexual nature took place, then you can only use that against the defendant in relation to charges before you if you are satisfied that the evidence demonstrates that the defendant had a sexual interest in the complainant and that the defendant had been willing to give effect to that interest by doing that act. If persuaded of that you may think that it is more likely that the defendant did what is alleged in the charges under consideration. If you’re not so satisfied then the evidence cannot be used by you as proof of the charges before you.

Of course, whether this other act occurred and if it did, whether that occurrence makes it more likely that on a different occasion the accused did the acts which he is charged is a matter for you to determine. Remember, even if you are satisfied this other act did occur, it does not inevitably follow that you will find him guilty of the acts the subject of the charges. You must always decide whether, having regard to the whole of the evidence, the offences charged have been established to your satisfaction beyond reasonable doubt.”

  1. It was submitted on behalf of the appellant that this direction was sound, as far as it went, but that the judge should also have directed the jury as follows:

“You should have regard to the evidence of the incidents not the subject of charges only if you find it reliable. If you accept it, you must not use it to conclude that the defendant is someone who has a tendency to commit the type of offence with which he is charged; so it would be quite wrong for you to reason you are satisfied he did those acts on other occasions, therefore it is likely that he committed a charged offence or offences.

Further, you should not reason that the defendant had done things equivalent to the offences charged on the other occasions and on that basis could be convicted of the offences charged even though the particular offences charged are not proved beyond reasonable doubt.[2]

Remember that the evidence of incidents not the subject of charges comes before you only for the limited purpose mentioned, and, before you can find the defendant guilty of any charge, you must be satisfied beyond reasonable doubt that the charge has been proved by evidence relating to that charge.”

Consideration of the ground criticising the direction in relation to uncharged acts

  1. Counsel for the respondent submitted that the only evidence of offending not the subject of charges was the incident alleged to have occurred in Tasmania.  Consequently, it was submitted, the direction given by the trial judge was appropriately confined to that incident which was an isolated incident rather than a course of conduct.
  1. That submission was not accurate. Although in the 17 March 2008 interview, the complainant described only three discrete incidents, she did say that when the family moved to Beaudesert “it happened lots of times”.
  1. In cross-examination, Mrs RMK accepted that she had been told by the complainant that sexual misconduct “happened a couple of times in Tasmania”.  She accepted also that the complainant had told her that the appellant had “done it lots of times in Gilldora”.  She accepted being told by the complainant of the incident when she was in bed and the appellant “tried to put his fingers inside her”.  She said that the complainant told her of an occasion when she went to wake up her father in the bedroom and “he started rubbing her privates”.
  1. Mr RJA also gave evidence that the complainant had said, in effect, that the appellant had engaged in sexual misconduct with her “numerous times”.
  1. The trial judge gave an appropriate direction about the limited use the jury could make of this complaint evidence. However, the complainant affirmed the truth of what she had said about some of those incidents in cross-examination aimed at highlighting inconsistencies and discrepancies in and between what the complainant had told Mr and Mrs RMK and Ms Weber and what she had said in her police interviews. Consequently, there was evidence of many more sexual acts perpetrated against the complainant by the appellant than the acts the subject of the offences before the court and the Tasmanian incident singled out by the trial judge.
  1. In R v WO,[3] Williams JA, with whose reasons de Jersey CJ agreed, discussing the directions which should have been given in respect of propensity reasoning, quoted the following passage from the reasons of McHugh J in BRS v The Queen:[4]

“If evidence revealing a criminal or reprehensible propensity is admitted, the trial judge must give the jury careful directions concerning the use which they can make of the evidence. If the evidence is admitted for a reason other than reliance on propensity, the judge must direct the jury that they can use the evidence for the relevant purpose and for no other purpose. In some cases, the judge may need to be more specific. He or she may need to direct the jurors that they cannot use the evidence for an identified purpose. If the evidence is admitted because the Crown wishes to rely on the accused’s propensity as an element in the chain of proof, it is especially necessary that the judge give the jurors clear directions as to the manner in which they may use the propensity evidence.”

  1. Williams JA also quoted from Kirby J’s reasons as follows:[5]

“One common thread can be seen in most, if not all, of the cases where propensity evidence has been admitted. In such cases the trial judge will ordinarily, even ‘invariably’ require the jury to consider very carefully the use which they can make of the evidence of similar facts and to bear in mind the dangers of reasoning from a suggested propensity and their obligation to try the accused upon the counts of the indictment, not for other criminality or moral blemishes which those facts reveal.”

  1. Williams JA then said:

“Those passages, and other statements to like effect, have been regularly approved in appellate courts: see, for example, Gipp v R (1998) 194 CLR 106 at 132–3 and 156–7 and R v Huebner & Maher [2004] QCA 98. Whilst the High Court recognised in KRM that there is no absolute rule that a judge must always given (sic) a propensity warning, fairness to an accused will ordinarily require such a warning to be given, particularly where the jury may make use of propensity evidence for limited purposes in the case before them.”

  1. In his reasons in R v WO, Keane JA quoted the following passage from the reasons of Hayne J in KRM v The Queen:[6]

“As McHugh J points out in his reasons, the circumstances in which propensity evidence may be adduced are limited, and the use to which a jury may properly put propensity evidence is also limited. If evidence is led of misconduct by an accused which does not form the subject of a charge being tried, a warning against the danger of propensity reasoning will ordinarily be required. By contrast, the fact that there are multiple counts included in the one presentment does not necessarily give rise to a requirement that a propensity direction be given. Generally, the separate consideration direction is sufficient warning against misusing evidence of other charged acts.

Evidence of uncharged acts, in cases about sexual offences, does present some particular difficulties. Often enough, if evidence of uncharged acts were not admitted, each of the several transactions constituting the charged acts could only be presented as an unreal and not very intelligible event (cf O’Leary v The King (1946) 73 CLR 566 at 577, per Dixon J). In particular, knowing that a complainant alleged that a particular act occurred as one in an otherwise undifferentiated course of offending by an accused may throw an altogether different light upon what otherwise may seem to be an inexplicable course of behaviour by the complainant in submitting, without protest, to what is alleged to have occurred. I therefore agree with McHugh J that until this Court decides to the contrary, courts should treat evidence of uncharged sexual conduct as admissible to explain the nature of the relationship between the complainant and the accused, just as they have in the past. I agree that this may well mean that trial judges must warn juries of the limited use that can be made of evidence of that kind and that sometimes, perhaps often, they will have to give warnings about propensity reasoning.” (emphasis added)

  1. The principles articulated above and, in particular, in the passages emphasised were not put in doubt by the HML v The Queen.[7]  In that case, the content of the direction which ought be given “where a complainant gives evidence of sexually improper conduct, other than the conduct which is the subject of the charges preferred against the accused” was revisited by Hayne J.[8]  His Honour made the point that such directions will vary from case to case as they “must be moulded to take proper account of what has happened in the trial”.[9]  Where the evidence is being used to show that the accused had a sexual interest in the complainant and had been willing to give effect to that interest by engaging in sexually improper conduct, it will be necessary to give a direction along the lines that if on all evidence the jury are persuaded of those facts beyond reasonable doubt “the jury may think that it is more likely that the accused did what is alleged in the charge under consideration”.[10]
  1. Hayne J concluded this discussion with the following observations:[11]

“But whether any of the other events happened, and if any did, whether their occurrence makes it more likely that, on a different occasion, the accused did what he is charged with doing, are matters for the jury. And even if the other events did happen, the conclusion that the accused did what is charged is not inevitable. The jury must always decide whether, having regard to all the evidence, they are persuaded beyond reasonable doubt that the charge they are considering has been proved.”

  1. Gummow J agreed with Hayne J “respecting matters of general principle” and, in particular, with paragraphs [112] to [118] of Hayne J’s reasons in which Pfennig v The Queen[12] was discussed.  Kirby J agreed with paragraphs [102] to [133] of Hayne J’s reasons.  Those paragraphs dealt with the topics “Relevance and admissibility”, “Pfennig v The Queen” and “Jury directions”.
  1. Gleeson CJ did not accept that evidence of sexually improper conduct was admissible only if it met the Pfennig test.[13]  His Honour was of the view that if the evidence of sexually improper conduct was:[14]

“…the only evidence of the fact in issue, or is an indispensable link in a chain of evidence necessary to prove guilt, then it will be necessary for a trial judge to direct a jury that the prosecution must establish the fact beyond reasonable doubt…”.

  1. The Chief Justice added that “…generally, however, the law as to standard of proof applies to the elements of the offence, not particular facts”.[15]
  1. Heydon J found it unnecessary to decide whether evidence of sexually improper conduct was admissible only if it satisfied the Pfennig test.[16]  Crennan and Kiefel JJ did not support the restricted view of admissibility of sexually improper conduct taken by Hayne J.[17]  Crennan J’s views on the standard of proof accorded with those of Gleeson CJ.
  1. It is arguable that the failure to give the direction contended for by the appellant caused no material prejudice to the appellant. On the trial the focus was very much on the complainant’s credibility. Thus, the evidence under consideration was possibly more likely to be considered by the jury in the context of inconsistencies in the complainant’s different accounts than as showing that the appellant had a sexual interest in the complainant, making it more likely that he had offended as alleged.
  1. Not without hesitation, I have concluded that the failure by defence counsel to seek a re-direction was not reasonably explicable as a rational forensic decision. If the failure was so explicable, the failure to object may have proved fatal to the appellant’s argument.
  1. In my view, the trial judge’s direction as to the limited use to which the complaint evidence could be put may have been negated by the evidence of the complainant under cross-examination concerning what she had told her mother, her stepfather and Ms Weber. There was also the statement in her first record of interview that “it happened lots of times” at Beaudesert.
  1. Obviously, the evidence under consideration was potentially highly prejudicial and I have concluded that, without an appropriate direction as to the use which the jury could make of it, there was an appreciable risk that the jury might engage in impermissible reasoning and the fairness of the appellant’s trial may have been prejudiced.  Accordingly, I find that this ground was made out.

There were inconsistent verdicts for counts 3 and 4

  1. The submissions of the appellant’s counsel on the inconsistency of verdicts ground were to the following effect. In making “an independent assessment of the evidence, both as to its sufficiency and its quality”,[18] the Court would entertain a reasonable doubt as to the appellant’s guilt, particularly having regard to the finding of not guilty on count 3.  That count was inextricably linked with count 4 and there was a clear inconsistency in the jury’s verdicts.  The doubts thus arising should have been carried through to the other counts.
  1. Counsel for the appellant relied on the following passage from Jones v The Queen:[19]

“The jury’s finding of not guilty on the second count damaged the credibility of the complainant with respect to all counts in the indictment. Implicit in the appellant’s acquittal on the second count was a rejection of the complainant’s account of the events which were said to give rise to that count. The jury may have acquitted because the unshaken evidence of the appellant’s wife and daughter with respect to the absence of opportunity engendered a reasonable doubt about the appellant’s guilt on the second count. They may possibly have acquitted because they were of the view that the complainant had fabricated the circumstances giving rise to the second count. Having regard to the convictions on the first and third counts, the latter alternative seems an unlikely explanation of the verdict on the second count. Whatever the explanation may be, however, the jury’s rejection of the complainant’s account on the second count diminished her overall credibility. The only reasonable conclusion is that the jury were not satisfied beyond reasonable doubt of the truth of her evidence concerning the incident the subject of the second count. Having regard to the terms of the second count, we do not think that the complainant’s confusion about whether the offence took place on a Thursday or a Saturday could explain the acquittal on that count. If that was the reason the jury rejected her evidence, they would also have acquitted the appellant on the first count.”

  1. It was further submitted that the test in determining whether jury verdicts are inconsistent is one of logic and reasonableness.[20]  In this case, it was submitted, the “inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice”.[21]  The appellant was deprived of a genuine chance of acquittal and the verdicts should be set aside.
  1. Counsel for the respondent submitted that the verdict on count 3 was not inconsistent with the verdict on count 4. That was because count 3 was the only allegation of an attempt to commit an indecent act. Unlike the other counts, the jury were required to be satisfied as to the appellant’s actual intention as well as whether the appellant had begun to carry out that intention in a way suitable to bringing it about. Consequently, it was argued, the jury could have been satisfied beyond reasonable doubt as to the central core of the complainant’s evidence, but may not have been satisfied that all of the elements of the count 3 offence had been established.
  1. Another possible explanation advanced for the different verdicts was that the jury may have been concerned by the difference between the version the complainant gave police of the count 3 incident and the version she gave to Ms Weber. The latter, according to counsel for the respondent, included touching “in the vaginal area” whereas the former did not.
  1. I am not persuaded by the respondent’s contentions. Ms Weber’s evidence-in-chief in relation to the allegations of sexual misconduct was vague and general. She made it plain that she did not consider it part of her role to make a record of the complainant’s allegations. In cross-examination, Ms Weber was asked if she had been told by the complainant that the appellant had “touched her ‘down there’”. Ms Weber replied in the affirmative.  The act or acts of touching was or were not linked to any particular occasion and there is thus no inconsistency between Ms Weber’s account and the complainant’s statements to police.
  1. I am also not persuaded that the different verdicts for counts 3 and 4 can be explained on the basis submitted by the counsel for the respondent. The complainant’s evidence was clear. There could be no doubt that if the substance of the complainant’s evidence about the relevant incident was accepted, all the elements of the offence were satisfied. Counsel did not address in relation to the elements of the offences. As I have mentioned, both sides conducted the case on the basis that its outcome depended on whether the complainant’s evidence was accepted.
  1. Both the prosecutor and defence counsel addressed on credibility as a general issue affecting all counts rather than on a count-by-count basis. That was also the approach taken by the trial judge in his summing up. Even though he gave the conventional direction that each count had to be considered separately, he pointed out that the prosecution accepted “that the critical issue is the truth and accuracy of [the complainant’s] evidence”. He also directed that any reasonable doubt “concerning the truthfulness or reliability of the complainant’s evidence in relation to one or more counts… must be taken into account in assessing the truthfulness or reliability of [the complainant’s] evidence”. Neither counsel nor the trial judge commented on any perceived differences between the way the complainant had given evidence in relation to count 3 on the one hand and counts 2 and 4 on the other.
  1. Given this background, it is difficult to find a logical reason for the acquittal on count 3 and the conviction on count 4, in particular. That is particularly so as the count 3 incident, as narrated by the complainant, led into, and was inextricably linked with, the count 4 incident. There is no discernable reason why the complainant, if disbelieved about count 3 should not also have been disbelieved about count 4. The verdicts in respect of these counts are irreconcilable.

The unsafe and unsatisfactory ground – the appellant’s submissions

  1. The complainant’s accounts to the police differed considerably from her story to her mother and stepfather. Her accounts to the latter included the tucking into bed incident and the incidents which occurred when her mother was on the telephone. The complainant’s mother and stepfather, however, were not informed of the incidents which were alleged to have occurred in Tasmania.  There was no complaint for some three to three and half years after the last incident and there was a delay of some months before the complaint to police.
  1. The complainant made no disclosures to her mother whilst the appellant was living with her mother in Tasmania, despite admitting that she told her mother about other aspects of the appellant’s behaviour including his consumption of “tallie[s]”, four wheel driving and the fact that he was seeing another woman.  Although the complainant described a red truck to police, she mentioned a green truck to her stepfather.  Her sister, who was allegedly in the truck’s cabin, was accepted by the complainant as not having seen what occurred.
  1. The count 2 incident was not mentioned at the interview on 17 March 2008. The complaint to Mrs RMK was that the appellant “asked her to pull it”, whereas the complaint to Mr RJA was that the appellant asked her to touch it or was touching it himself. The appellant was most likely in Bundaberg on 17 January 2004.
  1. Other matters of concern about count 4 are:
  1. the complainant said that she did not believe that her brother had been born at that time, but Mrs RMK gave evidence that she left the complainant and the brother at home;
  2. having first said that the incident occurred when she was in grade 1 or grade 2, she changed to grade 2 or grade 3;
  3. she alleged that she did not look at the video when she knew what it was, but proceeded to describe its content in detail;
  4. she informed her police interviewer that she was lying on the ground, but later said that she and the appellant were on the couch;
  5. she alleged to her mother that she went to leave and was told to stay, but she did not mention this in her police interviews; and
  6. there was no complaint about this matter to Mr RMK or to Ms Weber, the psychologist to whom the complainant’s mother took the complainant in March 2008.
  1. The doubts in respect of count 4 should have flowed on to count 5 and, in particular, there was no complaint for some three or three and a half years after the alleged incident.
  1. The particular matters of concern in relation to count 5 are:
  1. the complaint to Ms Weber was that the appellant tried to get the complainant to suck him off, not that he accomplished his objective;
  1. in the first part of the first interview, the complainant seemed to mix up this incident with counts 3 and 4 because she suggested that the dirty video tape was put on after the attempted oral sex;
  2. the complainant alleged that they had got home from the movies, but then said it was “free to air” and then “a video as well”;
  3. the complainant was led into mentioning the title of the movie as being “The Wizard of Oz”;
  4. the complainant alleged initially that she, her brother and her sister watched it, but on 10 July 2008 she said that it was her sister and her father who watched it;
  5. she initially alleged that her mother was asleep, but later said that she was at work;
  6. she told her mother that the white stuff came out having said that she told the appellant not to let the white stuff out; and
  7. in her description, she alleged that the appellant “kept trying” to put it in her mouth, but said she told him to go away, she was not going to and she would bite it off.

Consideration of the unsafe and unsatisfactory ground

  1. I now turn to consideration of the appellant’s argument on the unsafe and unsatisfactory ground.
  1. The first substantial submission relies on the disparity between the initial complaint by the complainant to her mother and Mr RJA and what the complainant said in her police interviews. Counsel pointed out that more sexual misconduct was alleged in the former than in the latter and that the latter did not include reference to the Tasmanian incident, the tucking into bed incident or the incident which occurred when the complainant’s mother was on the telephone. Some discrepancy in the two accounts is explicable by the circumstances in which the accounts were given. The police interviews were conducted carefully and in a structured way and their recording ensured no loss of accuracy through distorted or failed memories. It does not appear that either the complainant’s mother or Mr RJA recorded what the complainant said to them until providing statements to police some months after the original complaint.
  1. The recollection of Mr RJA that the count 1 incident involved a green truck rather than a red truck is not, to my mind, “significant”, as counsel for the appellant submitted. It would not be particularly surprising if Mr RJA’s memory as to the colour of the truck mentioned by the complainant was defective. The complainant’s mother’s recollection was that the complainant spoke of an incident in the red truck. The difference in the recollection of Mrs RMK and Mr RJA is more obviously explained by inaccuracies in the memories of one or both of them than by the complainant giving different versions to each of them separately.  Their evidence is that they were together when the initial complaint was made.  Apart from that, it would not have been remarkable if the complainant had recalled the incident as happening in the appellant’s green truck rather than the red truck.  The incident was alleged to have happened between 23 August 2002 and 1 June 2005.  The complainant’s sister was born in July 1998.  Consequently, if the incident occurred in the earlier part of that period, the significance of what occurred may have escaped the complainant’s sister.
  1. The fact that the red truck incident was not mentioned in the first police interview is significant, but it is not necessarily remarkable or sinister that, having given one account of sexual misconduct which had occurred over a lengthy period of time, and which had ceased for a considerable period of time, a further incident or incidents should later come to mind.
  1. The fact that the complainant could recall nothing beyond the account she actually gave would not seem to have any material bearing on the credibility of her account. Some matters make a more vivid and permanent impression on a person’s mind than others. The suggestion that the complainant’s evidence was that the incident took place at around one o’clock in the morning should be discounted. The more obvious inference is that she was making the point that it occurred fairly early in the day.
  1. One of the appellant’s strongest arguments applies only to count 5. The complainant identified this offence as having occurred on an occasion on which her sister was taken to hospital. It was admitted that the date was 17 January 2004.
  1. However, the appellant’s cousin, Mr RJC, gave evidence that the appellant drove to Bundaberg on 14 or 15 January 2004 to help Mr RJC’s mother and father move house and this would have taken five or six days. Mr RJC was sure that the appellant was in Bundaberg on 17 and 19 January.
  1. Mrs RAP, Mr RJC’s mother, also gave evidence that the appellant had helped her and her husband to move house between 17 and 19 January 2004. She fixed the 19th as the date on which she and her husband had moved into the house by reference to her diary.
  1. The respondent submitted that the jury may have found Mr RJC’s evidence unreliable as it was admitted by the appellant that his credit card had been used in Gympie on 16 January 2004. That may well be so, but Mr RJC’s evidence concerning the date of the appellant’s arrival in Bundaberg was of a general nature as distinct from his specific assertions that the appellant was in Bundaberg on 17 and 19 January.  His evidence was corroborated by Mrs RAP.
  1. The jury were not obliged to accept the RJs’ evidence, but it was cogent evidence favouring the appellant given by prosecution witnesses.
  1. Having considered all the evidence, however, I am not persuaded that it was not open to the jury on all of the evidence to be satisfied beyond reasonable doubt of the appellant’s guilt.

Misdirection in relation to consent

  1. The trial judge instructed the jury that consent was not an issue in relation to count 5 so a child under 12 was legally incapable of giving consent. Section 349(3) of the Criminal Code provides that a child under the age of 12 years is incapable of consenting to acts which constitute rape as defined in s 349(2).  However, sub-section (3) was inserted into s 349 by Act 55 of 2003 and came into force on 5 January 2004.  That was within the period within which the count 5 offence was alleged to have been committed and it was conceivable on the evidence that, if the offence had been committed, it had been committed prior to 5 January 2004.  The respondent conceded that there had been misdirection but submitted that a properly directed jury would inevitably have reached the same verdict.  The submission has substance, but in view of my conclusion that the conviction should be set aside it is unnecessary to pursue this issue further.

Conclusion

  1. If the conclusions I have reached in respect of the inconsistent verdict ground and the ground in relation to the failure to direct in respect of uncharged acts of sexual misconduct were not sufficient in themselves to warrant the conclusion that there has been a miscarriage of justice, those matters in combination, in my considered view, do establish a miscarriage of justice.
  1. In so concluding, I have had regard to the alibi evidence and the bearing of the not guilty verdict in respect of count 3 on the appellant’s overall credibility.
  1. Accordingly, I would allow the appeal, set aside the convictions and order a retrial on counts 2, 4 and 5.
  1. As the application for leave to appeal against sentence now lacks utility, I would order that it be dismissed.
  1. GOTTERSON JA: For the reasons given by Fryberg J in respect of each of them, I am of the view that none of the grounds of appeal advanced by the appellant warrant setting aside the convictions on Counts 2, 4 or 5.
  1. With respect to sentence, I agree with his Honour’s reasons.  However I refrain from expressing any view on the comparative gravity of different types of penile rape.[22]
  1. I also agree with the orders proposed by Fryberg J.
  1. FRYBERG J: On 24 October last year, the appellant was arraigned (or more probably, rearraigned) before Samios DCJ at Rockhampton on the four charges the subject of this appeal.  Those four charges (counts 2-5) remained undetermined on the indictment, the jury at an earlier trial having been unable to reach a verdict on them.[23]  All four charges alleged sexual offending against the appellant’s daughter at their home at Gilldora near Gympie.  Less than three days later the jury returned verdicts of guilty on three of the four charges and not guilty on the remaining charge.
  1. The four offences, the verdicts and the particulars of the offences furnished by the Crown at the outset of the trial were:

Count 2

Indecent treatment of a child under 12 who is a lineal descendant

Guilty

Particulars

On another occasion the complainant was in a little red truck with the accused.  The truck had three seats in the front.  She was sitting in the middle.  The accused was driving and her sister, N was sitting on the window side.  They were driving back from some shops.  The shop was called something like “Animal” and it had lots of lollies in it.  While in the truck the accused pulled out his penis from his pants.  He then took her hand and put her hand on to his penis and used her hand to masturbate himself – making her pull it, making her hand go up and down on his doodle.  She cannot recall much after this.

Complainant states that she was in Gympie at the time (93A 10/7/08 p 7.  She thinks J was born by this state (sic) (93A 10/7/08).

Count 3

Attempt to procure a child under 12 who is a lineal descendant to commit an indecent act

Not guilty

Particulars

This incident occurred while the complainant lived at A Road Gilldora.  The complainant remembers and (sic) occasion when her mother took N to the doctors because she swallowed bubblegum.  The complainant wanted to go with her mother but her mother wanted her to stay.  The complainant waved goodbye.  She went to have a bath.  This bathroom had a curtain and there were frogs in this bathroom.  Also there was beer under the sink.  She thinks the accused was trying to make his own beer.  She was in a bath tub trying to have a bath.  The accused entered.  Presumably in reference to her genital area the accused said, I’ll have to shave you.  She said, “no, I’m trying to have a bath.  He then “got his thing out [he was kneeling down] and he started tapping it on the side of the bath tub”.  He put his hand in the water.  He may have grabbed her leg.  He also made a comment about the size of her breasts.  The he asked her to touch his penis because it is all hard.  She said no, just go out and then he left.

Count 4

Wilfully exposing a child under 12 who is a lineal descendant to an indecent videotape without legitimate reason

Guilty

Particulars

He then said he was going to put a movie on for her.  It was a movie in which there were naked people.  The part that she saw after the accused pressed play had a “naked lady there and she had blonde hair and…there was a lady and I think there was this lady going to the party, she went up the road and um they, she went to this place with the man and then they…started doing it [S.E.X.] and then she went to this other man’s house…and then they met her outside and then she started fucking”.

During the movie the accused was pulling himself.  She could hear sloppy noises but she wasn’t really watching.

After that movie he put on a different movie called Dreamcatcher.  Then mum and N came home.

Complainant states that this incident occurred when she was in grade one or two (93A 10/7/08 p 4) because she was in Tasmania in grade 3 (93A 10/7/08 p 5).

Count 5

Rape, on a date unknown between 31 December 2002 and 1 June 2005

Guilty

Particulars

The complainant describes a time while living on “kind of like a farm” in Gympie.  The farm was next to a river.  There was an older house with a fireplace and there was a garden out the front.  There was also a tree house.  On one occasion while in Gympie the complainant was watching a movie.  She was watching it with N, JN and the accused.  She cannot remember what movie but it was free.  It might have been a video.  It might have been the Wizard of Oz.  During a break she went to the toilet.  The accused entered the toilet area also and he wanted said (sic) he wanted her to suck his doodle.  She describes him by saying, he kept trying to put it in my mouth.  She told him that she was not going to do it and he responded by saying, “what, are you going to do, bite it off”.  She said that “he went ahead and put her head towards it”.  He did that by grabbing her head and putting her head towards his doodle.  She kept telling him not to put [it] in her mouth but it went in her mouth and she “nearly spewed” and nearly choked because he was trying to put it down her throat.  She then just said stop it and he then left and she got off the toilet and watched the movie again.

Complainant states that she was in grade 2 or 3 at the time (93A 10/7/08 p 12, confirmed p 17).

As was implied in the particulars, count 4 was alleged to have occurred on the same day as, and immediately after, count 3.

  1. In the same document the Crown also gave particulars of discreditable conduct which it relied upon:

“While living in Tasmania only one incident occurred.  The complainant was watching the movie ‘Du[d]e Where’s my Car’(sic).  Her mother and J, N and N (sic) had gone to bed.  She was in the lounge room sitting on a comfortable chair.  The accused was also in the lounge room sitting in a more comfortable chair.  The lounge room had a fire place in it.  While there the accused started to pull himself.  This involved moving his hand up and down his doodle (confirmed to be his penis).  The complainant describes the accused’s penis as circumcised, big, and long and fat and it had an upside down love heart at the end.  While ‘pulling himself’, he made a noise that the complainant described as being a ‘fluffy noise and it sounded like people kissing and I hate that noise.’  He continued this act until he ejaculated.  The complainant describes seeing ‘white stuff … coming out’ which he wiped on to a towel.  The white stuff was like cream.  Some of hit got on his fingers and he licked it.  She then went to bed and few minutes later the accused entered the room and said, ‘I forgot to tell you that if you tell mummy then the relationship is over’.  She told him to go away and then he left.”

  1. At the hearing the appellant was given leave to file an amended notice of appeal containing the following grounds:
  1. A miscarriage of justice was occasioned by the learned Trial Judge failing to give an appropriate propensity direction;
  1. The verdicts of guilty are not reasonable, particularly when one takes into account the verdict of Not Guilty on Count 3;
  1. The learned Trial Judge misdirected the jury as to the element of absence of consent as regards Count 5.

Propensity direction – ground 1

  1. The appellant submitted:

“The trial Judge at AR186-188 of the Record referred to the uncharged acts.  There were numerous uncharged acts in the evidence.  These included the Tasmanian incidents, and the other evidence of complaint and the fact it happened on ‘heaps’ of occasions.  But further there was other specific conduct complained of such as rubbing and touching not the subject of any charge.”

  1. In the submission no distinction was drawn between evidence of uncharged acts and evidence of complaints of uncharged acts. It is necessary to make such a distinction, because the purpose for which each class of evidence is different.  Evidence of complaints of uncharged acts by the complainant could be used only for the purpose of assessing her credibility.  It could not be taken into account to prove the truth of what was said in the complaint.  The jury were told this in a fairly standard direction on discreditable conduct[24] given by the judge immediately before he directed the jury about the use which they could make of the evidence of the so-called Tasmanian incident.[25]  No complaint is made about the former direction.
  1. In my judgment it was unnecessary for his Honour to have given a direction in the terms sought on appeal in relation to conduct referred to only in hearsay evidence, ie evidence of complaints.  Indeed, to do so would tend to confuse the jury.  It would suggest that the earlier direction that the evidence could be used only in assessing credibility was somehow wrong or incomplete.  Consistently with that direction the jury could not reason that because an accused had a propensity to criminal misconduct of this time, he was likely to be guilty of the particular misconduct charged.  Such reasoning could occur only after a determination that what was said in the complaints was true.
  1. I have been able to identify only three possible events of which evidence was given which could amount to uncharged acts. One was the Tasmanian incident, which was the subject of extensive evidence by the complainant both in her statement to the police (which in effect constituted her evidence-in-chief) and in cross-examination. Muir JA has summarised that evidence above.[26]  In oral submissions counsel for the appellant conceded that the direction given in relation to this evidence was in accordance with the law.  He submitted however that the breadth of the direction was insufficient in that it failed to deal with other unparticularised uncharged acts; it was necessary to direct the jury not to reason by way of propensity reasoning in respect of those acts.
  1. The second was a passage very near the start of the first police interview. That interview was played once for the jury. They were given copies of a transcript purporting to record what was said to be used while they listened to the playing. The copies were retrieved immediately after playing of the DVD ceased. The relevant passage in the transcript is set out below. Unfortunately, the transcript does not accurately record what the complainant said. I have listened to the recording several times, and this is what I hear (omitting numerous “mhm”s uttered by the police officer):

“SCON SCANLAN: Tell me, tell me everything, everything about that.  Starting from the beginning.

COMPLAINANT: Okay well when we lived up here[27] when I was little, um, I was watching TV and then he just started pulling himself.

And when we moved to Beaudesert nothing happened I don’t think.  And then we moved to, where is it, Gympie[28], and then it happened lots of times and he tried to make me suck it and all that.

And I nearly spewed and, um, I was in the bathtub and he tried to touch me.

And when I got out, um he put on a dirty movie.

And, um.  Actually he done that twice. When N swallowed bubblegum and she had to go to hospital with mum and I wanted to go with mum, and mum said I had to stay and then that’s when he put on a dirty movie again and …

Mmm hmmm.”[29]

  1. It is evident that this part of the interview constituted an attempt by the complainant to summarise the appellant’s conduct toward her. The first incident described was apparently referring to the events the subject of count 1, the charge on which the appellant was acquitted at the earlier trial.[30]  It should have been edited out of the recording, but it appears to have been overlooked (there are no other references to count 1).  There was no objection to its inclusion.  As far as I can determine the incident was not referred to again in the evidence, nor by counsel or the trial judge.
  1. The bath tub incident was dealt with in considerable detail later in the interview. The complainant alleged in the police interview that while she was in the bath the appellant tried to touch her “down there” and “on the boob”. In cross-examination she also said that he touched her on the leg. At the trial this incident was treated as part of the conduct involved in count 3, the attempt charge.[31]  The trial judge directed the jury on the elements of attempt.  He told them that what was done must go beyond mere preparation to commit the offence.  He directed them that if they accepted the complainant’s evidence about the appellant trying to touch her they might draw the inference that he was preparing for sexual activity.  There was no complaint about that direction either at trial or on appeal.
  1. The allegation that the appellant put on a dirty movie twice is unclear. The complainant seems to be saying that the occasion following the bath tub incident was the second time, but it is not possible to determine whether she was alleging that the first time was part of the count 1 incident or an entirely separate occasion. No further detail was given and the question of another occasion involving a dirty movie was not raised in cross-examination.
  1. None of these three incidents (if three there were) was relied on by the prosecution for any purpose. I have found no reference to them by counsel or by the judge. There was no cross-examination regarding the first and third matters and in relation to the alleged touching during the bath tub incident, the focus of the cross-examination was to demonstrate inconsistencies within the police interview; in particular, to demonstrate that on some occasions she said the appellant tried to touch her and on the occasion quoted, that he did touch her. All three statements were fleeting references. I cannot imagine that individually or collectively they could have affected the outcome of the jury’s deliberations or founded an argument for illegitimate propensity reasoning. Giving a propensity direction about them or any of them would simply have called attention to them and given them an importance that they did not bear in the context of the trial. It is unsurprising that counsel sought no such direction. Indeed it would have been poor advocacy to have done so; such a direction might have achieved a similar effect to Br’er Rabbit’s plea about the briar patch.
  1. As Hayne J observed in the passage referred to above by Muir JA[32], directions to the jury must be moulded to take proper account of what happened at the trial.  None of the other members of the High Court disagreed with that statement.  Its proper application in the present case required no propensity direction.
  1. In my judgment ground 1 fails.

Unreasonable verdicts – ground 2

  1. On all four charges the prosecution case stood or fell on the credibility of the complainant. The Crown prosecutor said to the jury:

“Now, I’m not going to go through each of these four different offences and their different elements and list them for you, but it might suffice for me to say that – and I believe my learned friend may agree – that’s if you believe R to the requisite standard, beyond a reasonable doubt, then all the elements of these offences are met.  It’s not a case that these offences were committed but in some other way.  There’s no evidence of that.  It’s simply that it’s R’s version or it didn’t happen.

So the question becomes for you, the sole question is: Why would you believe R’s evidence?”

Defence counsel said:

“Now, my client is charged with four offences.  …  I agree that if you think beyond reasonable doubt, if you find that these things have occurred, they are in decent. …  We’re not saying that this happened partway.  If you find that these things have happened, you’re entitled to find a verdict of guilty.  Okay?  We’re not arguing at all that they’re not indecent or any thing like that.  It’s quite simply the defence case that she is not telling the truth.  And I am going to ask you to consider the evidence before the Court in ascertaining whether or not you believe her.”

Neither counsel suggested that there was any scope for differential verdicts.

  1. However that was not how the trial judge instructed the jury. His Honour directed:

“If you have a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one or more counts, whether by reference to her demeanour or for any other reasons, that must be taken into account in assessing the truthfulness or reliability of her evidence.  When I refer to the complainant, I mean [the complainant].

Your general assessment of the complainant as a witness will be relevant to all counts but you will have to consider her evidence in respect of each count when considering that count.  Now, it may occur in respect of one of the counts that for some reason you are not sufficiently confident of her evidence to convict in respect of that count.  A situation may arise where, in relation to a particular count, you get to the point where although you’re inclined to think she is probably right you have some reasonable doubt about an element, or elements, of that particular offence.  Now, if that occurs, of course, you find the defendant not guilty in relation to that count.  It does not necessarily mean you cannot convict of any other count.

You have to consider why you have some reasonable doubt about that part of her evidence and consider whether it affects the way you assess the rest of her evidence, that is, whether your doubt about that aspect of her evidence causes you also to have a reasonable doubt about that part of her evidence relevant to any other count.”

  1. There was a substantial amount of material in the evidence which could be used to attack the complainant’s credibility. Muir JA has recorded the appellant’s submissions regarding that material, and I need not repeat them.[33]  Particular reference was made to the delay in making the complaint and the context in which ultimately it was made.  Most importantly, the appellant submitted that the evidence on count 3 was inextricably linked with count 4; that there was a clear inconsistency in accepting count 4 beyond reasonable doubt while not doing so with count 3; and that the doubt which attached to count 4 should have been carried through to all other counts.  Neither party submitted that any distinction should be drawn between count 4 on the one hand and counts 2 and 5 on the other.
  1. I agree with Muir JA’s analysis of the submissions when they are considered independently of the asserted inconsistency between a verdict on counts 3 and 4.[34]  I also agree with his Honour that the different verdicts cannot be rationalised by reference either to the different elements of the offending or to the different versions given by the complainant to the police and to Ms Weber.  In addition, it is impossible to characterise the acquittal as a merciful verdict in the light of the other convictions.  An acquittal on count 3 seems an improbable way for a jury to apply “its innate sense of fairness and justice in place of the strict principles of law”.[35]  Finally, while it is true that the trial judge directed the jury in respect of count 3 that the prosecution had to satisfy them that the appellant “unlawfully procured a child”, he corrected that slip three sentences later by telling them that the prosecution must satisfy them that there was an attempt to procure the commission of an indecent act.  The slip does not explain the acquittal.
  1. To my mind the only rational explanation for the acquittal is that the jury were not satisfied beyond reasonable doubt of the truth of the complainant’s evidence in relation to count 3, but were so satisfied in relation to count 4. How could that be? The only possible answer is, they doubted her on count 3 and believed her on count 4. Is there anything in the way in which she gave her evidence on those counts – her demeanour, her body language and so on – which would warrant that answer?
  1. I have viewed the DVD evidence of her police interview relevant to counts 3 and 4 and the whole of her cross-examination. The interview occurred when she was a little over 12; the cross-examination when she was 14½.  It will be remembered that the likely date alleged by the Crown for these offences was 17 January 2004 (the date the complainant’s sister went to hospital having swallowed bubblegum).  At that time she was just under eight.
  1. The complainant displayed considerable nervousness throughout the interview. She fiddled incessantly with a soft drink bottle and not infrequently obscured her lips from the camera with it or with her hand. She did not maintain continuous eye contact with the interviewing police officer and not infrequently shuffled her feet. However I thought her demeanour was consistent throughout the interview. It was noticeable even when she was discussing the innocent topic of a barbecue which she had recently attended. I did not assess her nervousness as indicative of untruthfulness. On the contrary, I believed her. On the other hand, I saw no change in her demeanour when she spoke of the events relating to count 4 from when she spoke of count 3. I detected nothing which could account for the difference in the jury’s verdicts.
  1. As for the cross-examination, she demonstrated considerable distress throughout. Twice it was necessary for the proceedings to pause while she composed herself. She was frequently sniffing and appeared close to tears. Again I thought her demeanour consistent throughout. Again I believed her. Again I saw no change in her demeanour when she spoke of the events relating to count 4 from when she spoke out 3.
  1. In these circumstances, what approach must I take, sitting as I am in the Court of Appeal division of this court? It cannot be doubted that I must make my own independent assessment of the evidence:

“6. Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory.  Other terms may be used such as ‘unjust or unsafe’ … or ‘dangerous or unsafe’ … .  In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict … .  Questions of law are separately dealt with by s.6(1).  The question is one of fact which the court must decide by making its own independent assessment of the evidence … and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’.”[36]

In doing so I must take into account not only the consideration that the jury has had the benefit of having seen and heard the witnesses, but also “the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence”:

“7.Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.  On the contrary, the court must pay full regard to those considerations.”[37]

  1. The appellant’s submission[38] proposed that this case was in the category described in a passage in Jones v The Queen:

“The jury’s finding of not guilty on the second count damaged the credibility of the complainant with respect to all counts in the indictment.  Implicit in the appellant’s acquittal on the second count was a rejection of the complainant’s account of the events which were said to give rise to that count. …  Whatever the explanation may be, however, the jury’s rejection of the complainant’s account on the second count diminished her overall credibility.  The only reasonable conclusion is that the jury were not satisfied beyond reasonable doubt of the truth of her evidence concerning the incident the subject of the second count. …

It is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts.  There is nothing in the complainant’s evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count.”[39]

  1. That case establishes that the approach mandated in M v The Queen applies to cases where credibility is a central issue as well as to cases where it is not.  However it does not establish a category.  It is very much a case decided on its own facts:

“It appears from the review of decisions of trial judges and intermediate appellate courts undertaken in Markuleski that some judges have taken Jones as authority for the proposition that where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility.  That view is erroneous.  It overlooks the attention to factual detail in the reasoning of Jones.”[40]

“It always remains for a court of criminal appeal whose jurisdiction is invoked to examine any differentiation in the verdicts to see if it can be justified.  All that Jones decides is that, on the facts of that case, the necessary justification in logic and reasonableness was missing.  Jones was a very fact-specific case.  Indeed, all such cases are highly fact-specific.”[41]

  1. It is true that there are some factual similarities between the present case and Jones.  In particular, the complainant’s evidence was uncorroborated and there had been a lengthy delay in making the complaint.  But there were also important differences.  Jones gave evidence himself and called at least three witnesses.  That meant that there was in existence other reliable evidence against which the complainant’s evidence could be tested, a factor specifically referred to by the majority.  Moreover in Jones the delay was unexplained.  In the present case the delay was not unexplained.  In the course of cross-examination about the absence of prompt complaint about the events the subject of counts 3 and 4 the complainant was asked, “You weren’t upset by what had happened while [your mother] was out?”  She replied, “I thought it was normal” and nearly broke down as she said it.  As she stammered out in re-examination on the point, “[W]hen you’re little, you’re meant to look up to your parents and they teach you.”  It was a convincing explanation.
  1. The applicant also submitted that the case fell within the category identified in the following passage from MacKenzie v The Queen:

“Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty.  More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside.  It is impossible to state hard and fast rules.  ‘It all depends upon the facts of the case’.”[42]

  1. As already stated, the only logical reason for the different verdicts on counts 3 and 4 which I can discern is that the jury were satisfied as to her credibility beyond reasonable doubt in relation to count 4, but not so satisfied in relation to count 3.[43]  I am unable to see anything in her demeanour or manner of giving evidence which would lead them to form such a conclusion.  I am in just as good a position as they were to assess her demeanour.  Does that mean that intervention is necessarily required to prevent a possible injustice?
  1. I cannot see that it does. If it were so it would mean that notwithstanding that I am satisfied beyond reasonable doubt of the appellant’s guilt on the three charges of which he was convicted, and notwithstanding that the jury also were unanimously so satisfied, their verdicts must be set aside because I cannot understand why they did not believe the complainant’s evidence beyond reasonable doubt on another count. Such an outcome would be tantamount to a rule that in such cases, no conviction may be sustained unless the appellate judges can see why the jury did not accept all of a complainant’s evidence. To my mind such an outcome would fly in the teeth of the (fundamental) “consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence”. Experienced trial judges know that the most difficult part of the job is assessing whether the evidence of a witness is credible. Minds will differ, particularly when demeanour is a factor in the assessment, for the process is to some extent intuitive. The jury’s assessment should be respected.
  1. In my judgment, ground 2 fails.

Ground 3 – misdirection on consent

  1. In relation to count 5, the trial judge directed the jury, “Now the law is a child under 12 years of age is incapable of giving consent. So consent’s not an issue.” That became the law in Queensland on 5 January 2004 as a result of the coming into force of the Evidence (Protection of Children) Amendment Act 2003.  The Crown charged that the offence took place between 31 December 2002 and 1 June 2005.  The complainant gave evidence that she was in grade 2 or grade 3 at the time of the offence.  It follows that the offence may have occurred before 5 January 2004.  The respondent accepted that this meant there had been a misdirection on this issue.  It submitted that a properly directed jury would inevitably have reached the same conclusion of guilt.
  1. In the police interview the complainant distinctly said that the appellant was grabbing the back of her head and trying to bring it near his penis; that she said, “I don’t want to, I’m not going to”; and that he put his penis into her mouth.  In cross-examination it was put to her that the incident simply did not happen and in particular that she had made up her statement about his penis touching her mouth.  She denied the suggestions.  Unsurprisingly, there was no attempt to suggest that she had consented to whatever occurred.  No redirection was sought.  The error occasioned the appellant no disadvantage.  It “would have had no significance in determining the verdict”.[44]  That verdict would have been the same had the jury been correctly directed.  There has been no substantial miscarriage of justice.

Result of appeal on conviction

  1. To the extent necessary, the appellant should have leave to appeal, but the appeal should be dismissed.

Leave to appeal against sentence

  1. The applicant sought an extension of time within which to apply for leave to appeal against sentence. The only proposed ground of appeal was that the sentence of imprisonment for four years imposed at the conclusion of the trial on 27 October 2011 in respect of the rape count (count 5) was manifestly excessive. There was no challenge to the concurrent sentences of 12 months imprisonment and six months imprisonment imposed on counts 3 and 4 respectively. There are evidentiary difficulties with the application, but they may be put to one side. If an assessment of the proposed appeal shows that it would not be viable, that conclusion may be taken into account in deciding whether to grant an extension.[45]
  1. The circumstances of the offence appear from the particulars set out above.[46]
  1. The applicant (who was born in 1974) was between 28 and 31 years of age during the years as particularised for the three offences of which he was convicted. He was 37 at the time of sentence. He married the complainant’s mother when he was about 20 and the complainant was born on 9 February 1996. The marriage was not a happy one. There were many loud arguments and fights between him and his wife[47], and in 1997 he was sentenced to imprisonment for two months, wholly suspended for an operational period of two years for breach of a domestic violence order.[48]  His personal history, as told to the sentencing judge, was summarised in his counsel’s outline of argument on sentence in this court:

“The Applicant was born in Canberra and grew up in central Queensland.  His parents separated when he was about 3 or 4 years of age.  He was severely sexually abused by his three older brothers when he was aged 5 or 6 for about a twelve month period.

He completed Year 10 at the North Bundaberg State High School and has a work history which has been more on than off over the years.  He has worked as a fruit picker and otherwise in farm related activities.  He owned his own mowing and gardening business for six years.  He also worked at a sawmill and in a meatworks.

He was a disability support pension as a result of his diagnosis of schizophrenia and bipolar disorder.  He had been an alcoholic for some time.  He also had a cannabis habit and had used speed and ecstasy.

Things had changed since the offences.  After the parties separated in Tasmania in 2005 he returned to Bundaberg where he lived with his parents.  He had not used illicit substances or alcohol for about eight months.  There had been attendance with Alcoholics Anonymous and Narcotics Anonymous.  He had been attending upon Mental Health three times a week.”

  1. The judge accepted that version without criticism. In my judgment that did not accord with best sentencing practice, although unfortunately experience suggests that it did accord with widespread practice. Two features merit comment.
  1. The allegation relating to sexual abuse was potentially an allegation of criminal conduct. At best it was an allegation of serious misconduct. In my view, when such allegations are to be made in a sentencing hearing they should at least be made on oath (preferably by prepared affidavit on which the prisoner may be cross-examined) and with sufficient notice to enable the Crown to investigate the allegations and give notice to persons affected. The widespread practice in Queensland at the present time too easily permits the process of the courts to be abused and the reputations of persons not before the court to be smeared without affording them any opportunity to defend themselves.  That is invidious, particularly in a provincial centre where the persons may well be known and easily identified.  At the very least prosecutors should be given the opportunity, by adjournment if necessary, to notify persons against whom allegations are to be made and provide them with the opportunity to give evidence if they wish.
  1. Second, his Honour ought to have viewed the assertion that things had changed since the offences with scepticism. The alleged change had occurred only eight months before, after a long history of substance abuse and alleged mental illness. One would have expected evidence (references or reports) from the three organisations which he was said to have been attending. His Honour ought to have enquired the reason for their absence. One would also have expected references from his mother (who was present in court) and stepfather, with whom he had been living. His relationship with his mother was said to be good and with his stepfather okay. Their unexplained absence cast doubt on the assertion that things had changed.
  1. The prosecution tendered victim impact statements from the complainant and her mother. They had been made in August 2010, 14 months earlier, and had not been updated. They dealt with the applicant’s conduct over a number of years, and it is plain that the conduct to which they referred included conduct of which the applicant had been acquitted or with which he had not been charged. They referred extensively to psychological sequelae which the complainant and her mother attributed to the applicant’s conduct. Both the complainant and her mother had been seeing psychologists and counsellors, but no reports from any of those persons were obtained.
  1. The proper use of victim impact statements was discussed in this court in R v Evans; R v Pearce.[49]  Fortunately, difficulties of the sort discussed in that case and in R v Singh[50] are not suggested to arise in the present case.  The date on the statements and the fact that there had been an earlier trial imply that the defence received them with adequate time to investigate and challenge them if necessary.  That is fortunate because they were referred to twice by the judge in his reasons for sentence and substantial portions of them were accepted by him as factual material for sentencing.  His Honour found:

“The offences have had a significant impact emotionally upon your wife and upon your daughter, there are trust issues involved, your daughter is bedwetting and this has affected her ability to go on an overseas trip with her school and to go on camping excursions with her school.  She also is restricted in going to other children’s houses. Your wife and daughter are now also restricted in having contact with your parents.”

The applicant did not challenge those findings in this Court.

  1. His Honour held that the applicant had shown no remorse. He described it as “outrageous” that a father would force his penis into his daughter’s mouth. He accepted that the applicant had been a victim of sexual abuse himself. He took into account that the applicant had “been a good worker”, which was generous, considering that the applicant’s counsel had said that his work history since finishing school had “been off and on, more on than off”. He described the applicant’s criminal history as minor and unrelated to the offences before him, which again was generous, considering the domestic violence offence referred to above.
  1. His Honour noted the applicant’s “mental health issues”. He presumed those issues were controlled by medication. The only possible basis for that presumption seems to have been that the applicant’s counsel told the judge that he had “been attending upon mental health three times per week for about 12 months”.  The presumption should not have been made.  The applicant’s current condition and the measures in hand to control it were important matters in assessing his risk of reoffending and the consequent weight which ought to be given to the need for protection of the community.  Doubtless because the presumption was in his favour, the applicant did not challenge it in this Court.
  1. The prosecutor submitted that the range for an oral rape of a child would be between three and four years imprisonment and that to reflect the criminality of the offending as a whole, the sentence should be at the higher end of the range. Counsel for the applicant submitted that the sentence should be “about the three year mark”. The judge took into account the fact that the rape was not an isolated offence that was coupled with the other offences. He fixed a parole eligibility date at the halfway point in the four year sentence imposed for the rape.
  1. In this court the applicant sought to demonstrate manifest excess only by reference to comparable cases.
  1. The first was R v M.[51]  The circumstances of that case were summarised by Chesterman JA in R v Bull.[52]  I respectfully begin with his Honour’s summary:

[51]R v M [2003] QCA 443 was a case in which the offender was probably in his thirties.  He was convicted of one count of raping his six year old son and two counts of indecently treating him.  He and the child’s mother had married in 1990 and separated 10 years later.  About a year after the separation the boy was left with the father overnight while the mother attended a wedding.  The rape was committed, as here, by penile penetration of the child’s mouth into which he ejaculated.  The indecent treatment consisted of the father sucking the boy’s penis and rubbing his penis on the boy’s back and rubbing semen on his back.  He was sentenced to three years imprisonment for the rape and two years for each of the counts of indecent treatment.  The episodes appeared to have been quite protracted and involved a degree of violence from which the child tried to escape unsuccessfully.

[52]An application for leave to appeal against sentence was refused.  The sentence of three years was described as lenient.”

  1. The victim was aged six at the time of the offending and notwithstanding the violence, suffered no visible injury. All of the offending took place on the same occasion. The applicant was described as a mature man with no prior convictions. He had appealed against his conviction as well as against his sentence, and had shown no remorse. His application for leave to appeal against sentence was dismissed. The sentence of three years imprisonment was imposed for conduct which, barely 12 months before it took place, would have amounted only to indecent treatment of a child under 12 years, punishable by a maximum of 10 years imprisonment, and that factor may have influenced the sentence. This court described it as lenient for an offence of rape punishable by life imprisonment.
  1. The second comparable case relied upon by the applicant was R v AAD.[53]  The victim in that case was the six-year-old adopted daughter of the appellant’s de facto wife.  The offence comprised one count of digital rape to the vagina following some preliminary indecent dealing.  The 32-year-old appellant, who had experienced sexual molestation in his youth, pleaded guilty.  He had previous convictions for indecent assault and rape, and for stabbing his wife, for which he had been sentenced to substantial terms of imprisonment.  The court expressed the view that the fact that the penetration was digital, not penile, was significant in terms of the gravity of the offence.
  1. The third case referred to was R v SAH.[54]  There the victim was the three year old son of the appellant’s partner, who was caring for the boy while his mother was in hospital.  At an early stage the applicant pleaded guilty to one count of digital rape; he put his fingers in the boys anus until he started screaming.  He was aged 19 at the time and claimed he was sexually abused as a child.  His criminal history was described as “not insignificant”, though it included no offences of a sexual nature; he had served a period of actual imprisonment and was on probation at the time of the offence.  References indicated a reasonable prospect of rehabilitation.  The court described the conduct in R v M as “much worse than the conduct here”.  Having particular regard to the early plea, the youth of the offender and his prospects of rehabilitation, the court set aside a sentence of five years imprisonment with release after 18 months and in lieu, sentenced the appellant to imprisonment for three years, to be suspended after 12 months.
  1. R v NH[55] was the next case cited by the applicant.  In that case it fell to the Court of Appeal to resentence following a partially successful appeal against conviction.  The victim was an eight year old girl whose parents were friends of the applicant.  At the relevant time the child’s father was in prison.  The applicant fell to be sentenced for three counts of indecent dealing with a child under 16 and one of rape, committed on three separate occasions.  Each count of indecent dealing involved touching the child on the vulva; the rape involved digital penetration of her vagina to the point of hurting her.  The applicant threatened to disclose the father’s imprisonment if the complainant told anyone what he had done.  He was 49 at the time of the offending, he had professional qualifications, he worked as a teacher and he had no previous convictions.  He had a history of community service and a good work history, and a number of favourable references were tendered.  Notwithstanding the child’s age, the jury returned verdicts of indecent dealing without the circumstances of aggravation that she was under 12 or in the care of the applicant and that was the basis on which the applicant was sentenced.  A global penalty of imprisonment for 2½ years was imposed.
  1. Finally, the applicant referred to R v BBE[56], another case referred to by Chesterman JA in R v Bull.  BBE was convicted of two counts of digital rape, one count of rape involving penetration with the tongue and one count of indecent dealing aggravated by the fact that the victim was his five year old niece.  The offences were committed on four separate occasions and involved penetration of or interference with the child’s vagina.  The circumstances were described by the court as “most unusual”.  The applicant was aged 21 and 22 at the time of his offending and met the criteria for a diagnosis of intellectual disability.  He had a low IQ and a poor understanding of the nature and consequences of his acts and the impact, although he recognised that his actions were wrong and felt guilt and heightened anxiety about them.  He had a history of Special School education and childhood and developmental delay and appeared to be functioning in the mentally deficient borderline range of intelligence at the bottom fourth percentile in the community.  A psychologist strongly recommended a comprehensive psychiatric review by a forensic psychiatrist.  He noted that the applicant appeared motivated to address his deviant behaviours and to develop strategies to reduce the risk of recidivism.
  1. The circumstances were consistent with the psychologist’s report. The offending came to light when the applicant made admissions to his 17 year old sister after desisting from his pattern of offending; his sister contacted the child’s family. The victim had made no complaint and was unable to precisely particularise what had happened. Police interviewed the applicant and the charges turned on his confession. There was an early plea of guilty and the prosecutors stated that the applicant had “offered maximum cooperation”. He had no prior convictions and demonstrated “extreme remorse”. The offending was, however, premeditated and some force was used to overcome the victim’s resistance. Victim impact statements showed that his actions “had ripped the family apart and caused significant distress to the complainant child’s immediate and extended family unit”. The court held that the sentence imposed at first instance, effectively imprisonment for four years with parole eligibility after 12 months, was in the circumstances of the particular case manifestly excessive. The applicant was resentenced on the rape charges to three years imprisonment suspended after six months with an operational period of five years and on the indecent dealing account to imprisonment for six months with three years probation and a special condition regarding treatment for sex offending.
  1. R v Bull[57] had not been decided when the present applicant was sentenced.  The victim was the 12 year-old daughter of a women with whom the applicant was having a brief affair.  The applicant was caring for her while she was ill, her mother having to work.  The applicant made the girl suck his penis to the point of ejaculation in her mouth, using a degree of force but no violence.  It appears that no complaint was made for nearly two years.  The jury acquitted the applicant on two other charges of rape of the same child.  The applicant was a 45 year-old disability pensioner without a criminal history.  The prosecutor submitted that the range of imprisonment was three to four years.  An appeal against the one conviction was dismissed.  The sentencing judge noted the serious emotional impact the offence had on the complainant and her mother and the applicant’s lack of remorse.  This Court held the sentence imposed, imprisonment for five years, was manifestly excessive.  It held that the appropriate sentence was between three and four years imprisonment and resentenced the applicant to imprisonment for 3½ years.
  1. In the course of his sentencing remarks Chesterman JA (with whom White JA and Daubney J agreed) said:

“[56]Discerning gradations in depravity is a difficult if not impossible task, as is determining a precise level of punishment for each grade.  The cases can be no more than indications of available ranges for roughly comparable offending.”

I respectfully agree.  In assessing the cases I have borne in mind what was written by this court in R v Colless[58] where “[vaginal] rape accomplished digitally may generally be seen as somewhat less grave than a rape accomplished by penile penetration.”  While I would not wish to lay down any rule, I think it may also be said that penile rape effected in the mouth of the victim may generally be seen as somewhat more grave than vaginal rape, particularly where there is ejaculation in the mouth or throat.

  1. In R v MBF[59] Fraser JA said:

“It is necessary to bear steadily in mind that in the absence of error in the sentencing process this Court will only adjust a sentence on the ground that it is ‘manifestly excessive’ where the sentence is so ‘unreasonable or plainly unjust’ so as to give rise to an inference that the sentencing discretion miscarried.  House v The King (1936) 55 CLR 499 at 504-505.”

  1. In my judgment, particularly having regard to R v M and R v Bull, no such inference could be drawn in the present case.  It follows that the proposed appeal would not be viable.  Quite apart from the evidentiary considerations referred to above, it is sufficient in the circumstances of this case to refuse the application for an extension of time.

Orders

  1. I would make the following orders:
  1. Grant leave to appeal on ground 2. 
  1. Appeal against conviction dismissed. 
  1. Application for extension of time to apply for leave to appeal against sentence dismissed.

Footnotes

[1] R v WO [2006] QCA 21.

[2] This suggested direction was referred to by the Court of Appeal with approval in R v WO [2006] QCA 21.

[3] [2006] QCA 21 at 6.

[4] (1997) 191 CLR 275 at 305.

[5] At 329.

[6] (2001) 206 CLR 221 at 264 [133] – [134].

[7] (2008) 235 CLR 334.

[8] (2008) 235 CLR 334 at [119] – [133].

[9] At [119] – [120].

[10] HML v The Queen (2008) 235 CLR 334 at [132] per Hayne J.

[11] At [133].

[12] (1995) 182 CLR 461.

[13] At [29].

[14] At [29].

[15] At [29].

[16] See e.g. [289], [330], [331] and [335].

[17] At [425] – [433] and [455], per Crennan J and [512], per Kiefel J.

[18] SKA v The Queen (2011) 243 CLR 400 at 406.

[19] (1997) 191 CLR 439 at 453.

[20] MacKenzie v The Queen (1996) 190 CLR 348 at 366.

[21] MacKenzie v The Queen (1996) 190 CLR 348 at 368.

[22] Discussed by his Honour at [138].

[23] The appellant had been acquitted at that earlier trial on the first charge on the indictment.

[24] HML v The Queen [2008] HCA 16; (2008) 235 CLR 334; Benchbook.

[25] The terms of the latter direction are set out in para [29].

[26] Para [12]-[13].

[27] The interview took place at Rockhampton.  The family had lived at Gracemere, just outside Rockhampton, when the complainant was little: AR 21.

[28] The family lived at Gilldora, just outside Gympie, where the offences charged in counts 2-5 were alleged to have occurred.

[29] I have italicised the words suggestive of other possible misconduct.

[30] That offence was alleged to have occurred at Gracemere.

[31] Compare R v Conway [2012] QCA 142.

[32] Para [39].

[33] Para [58]–[63].

[34] Para [65]-[73].

[35] R v Kirkman (1987) 44 SASR 591 at p 593, approved in MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348 at pp 367-8.

[36] M v The Queen[1994] HCA 63; (1994) 181 CLR 487 at 492; see also SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400.

[37] Ibid at 493.

[38] Paragraph [101].

[39] [1997] HCA 56; (1997) 191 CLR 439 at 453.

[40] MFA v The Queen [2002] HCA 53 at [35]; (2002) 213 CLR 606 at 617-618.

[41] Ibid at 632.

[42] [1996] HCA 35; (1996) 190 CLR 348 at 368.

[43] Paragraph [103].

[44] Jones v The Queen [2009] HCA 17 at [30]; (2009) 83 ALJR 671, citing Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300.

[45] R v Tait [1999] 2 Qd R 667 at p 668.

[46] Para [85].

[47] AR 20.

[48] Exhibit 1.

[49] [2011] QCA 135.

[50] [2006] QCA 71.

[51] [2003] QCA 443.

[52] [2012] QCA 74.

[53] [2008] QCA 4.

[54] [2004] QCA 329.

[55] [2006] QCA 476.

[56] [2006] QCA 532.

[57] [2012] QCA 74.

[58] [2010] QCA 26 at [17].

[59] [2008] QCA 61.

Close

Editorial Notes

  • Published Case Name:

    R v GAP

  • Shortened Case Name:

    R v GAP

  • Reported Citation:

    [2013] 1 Qd R 427

  • MNC:

    [2012] QCA 193

  • Court:

    QCA

  • Judge(s):

    Muir JA, Gotterson JA, Fryberg J

  • Date:

    20 Jul 2012

Litigation History

Event Citation or File Date Notes
Primary Judgment DC165/10 (No Citation) 27 Oct 2011 Date of Conviction and Sentence.
Appeal Determined (QCA) [2012] QCA 193 [2013] 1 Qd R 427 20 Jul 2012 Appeal against conviction dismissed, application for leave to appeal against sentence refused: Gotterson JA and Fryberg J (Muir JA dissenting).
Special Leave Refused [2013] HCATrans 24 15 Feb 2013 Hayne and Crennan JJ.

Appeal Status

{solid} Appeal Determined - {hollow-slash} Special Leave Refused (HCA)