SUPREME COURT OF QUEENSLAND

1. McPHERSON JA: The appellant was brought to trial earlier this year on five counts of indecently dealing with his stepdaughter between May 1983 and January 1984. At the trial the judge ruled that there was, on the evidence adduced by the prosecution, no case for the defence to answer on count 5.  After that ruling, the Crown entered a nolle prosequi in respect of that count, but the appellant was found guilty of each of the other four charges in counts 1 to 4 of the indictment.

2. The complainant was born on 16 July 1970 and the incident the subject of count 1 was alleged to have occurred at about the time of her thirteenth birthday in 1983. At that time, the complainant, her mother, her brothers and half brothers or sisters and the appellant were living in a recently completed house near Brisbane. The complainant’s mother was working long hours, which meant that at times the complainant was at the house alone with the appellant and the other children.  In February 1986 the mother was imprisoned for drug trafficking, and in about July of that year the appellant engaged another woman to act as babysitter or carer for the young children. Not surprisingly under these stresses, the marriage broke down; the appellant formed a relationship with the other woman, and they now live together as man and wife.

3. There was some evidence at the trial of a division in the ranks of the family members as it was originally constituted, with the result that one or more of the children, or so it was suggested, had sided with the appellant, and that the complainant had sided with her mother. The first complaint about the matters in issue at the trial was not made by the complainant until she visited her mother in prison in 1987; and it was not until 1999, some 15 years after the alleged incident, that a formal complaint was made to the police.

4. At the trial, the only witness for the prosecution was the complainant herself. What she said was denied by the appellant in the evidence he gave at the trial, so that the jury were faced with a direct conflict of testimony between the two protagonists. The question now is whether it was reasonably open to the jury on the evidence before them to find beyond reasonable doubt that the appellant had committed the first four offences charged in the indictment. No issue is taken on the appeal with the summing up or the conduct of the trial.

5. At the trial, the complainant gave evidence of many other occasions on which the incidents similar to, or perhaps more serious than, those charged had taken place or, on one occasion, was admitted to her by the appellant. She was able to assign a specific date only to the last of the five incidents charged, and she also said that the appellant’s misconduct ceased altogether after that incident, which was dated to 4 January 1984. That was in itself perhaps a little surprising, because there is nothing, apart from the onset of her periods, to suggest that arrangements in the home changed after that time until the mother was convicted of the drug trafficking offence in February 1986.

6. Although count 5 did not in the end go to the jury, it is relevant to the verdicts on the other counts to consider the reasons why the learned judge ruled that there was no case to answer. The charge on count 5 was particularised as being that on 4 January 1984 the appellant had approached the complainant in the kitchen of the house and kissed her on the mouth and “groped” her breasts. At the trial, however, the complainant’s evidence was simply that the appellant had tried forcibly to kiss her, but she wriggled away from him and said “No”. In her evidence, she said she did not recall if the appellant’s mouth had come into contact with her own, nor did she know if he had groped her breasts on that occasion, although she did recall his body pressing hers hard against the kitchen bench. She nevertheless claimed that, because it was the occasion of her first period, she remembered a lot about that day, which was one on which her mother was at home.

7. That represented the evidence on the last of the five counts charged in the indictment. Count 1 related to an occasion on or about her thirteenth birthday. The incident was opened to the jury as having occurred in the kitchen area. Counsel for the Crown said it would be proved that the appellant kissed her on the lips and forced his tongue into her mouth: it was the first time she had been kissed like that. At the trial, the complainant gave evidence that the appellant had stood her up against the kitchen bench, pushed his body against her, started to kiss her and put his tongue in her mouth. She pulled away and said “I don’t like that. Don’t do that”. He said “Okay. Let me kiss you in another way”. Her statement to the police did not include any of that additional verbal detail.

8. Count 2 was opened as relating to a short time after the first incident. She would say that she recalled the appellant forcing his tongue into her mouth at a time when she was using the telephone in the lounge room of the house. It was an occasion when she recalled seeing her mother driving the car up the long driveway to the house on her return home from work at dusk. In fact, when the complainant gave evidence, she said the incident took place in the kitchen after the appellant had called her there urgently. She said that the appellant had kissed her, groped her breasts, and sucked her bottom lip, which was painful. Neither of these two additional details (sucking her lip and groping her breasts) was mentioned in her statement or in the Crown opening to the jury.

9. The offence in count 3 was alleged to have taken place between July and Christmas 1983. The appellant had taken the complainant for a driving lesson in a Nissan vanette. In the course of it, she said, he reached across, put his hand under her T shirt, and fondled her breasts on the outside of her brassiere. The appellant in his evidence denied he had done anything like that, or indeed that he had ever taken her for a driving lesson. He claimed the Nissan vehicle had not been acquired until July 1984, and a witness from the Department of Transport produced a certificate showing that registration of the transfer of the vehicle was effected only on 16 July 1984. She was at one point in her evidence quite specific that it was the Nissan vehicle in which this incident occurred; but, on his uncontradicted evidence, it was bought and registered well after January 4, 1984, at a time when, according to her own evidence, his misconduct towards her had already ceased altogether.

10. Count 4 referred to an occasion when the complainant, her mother and the appellant were all watching television in the lounge with a blanket across them. The complainant’s mother said she was going to bed, whereupon the complainant said she would go too. As she left, the appellant grabbed her foot and rubbed it against his erect penis. It may reasonably be inferred that by that time her mother had gone out of the room; but the complainant nevertheless made no audible protest or complaint about his behaviour then or until 1987. The complainant came up to proof on this count; but the accused denied in evidence that it had occurred. In relation to this and the other incidents, her explanation for her late complaint was that he had threatened to kill her if she told anyone else of what had been happening.

11. All matters considered, it is not easy to see why the jury did not entertain a reasonable doubt about the complainant's evidence with respect to count 3. The appellant said that, when acquired, the vehicle was new, and his evidence to that effect appears to be confirmed by the registration certificate (ex 3), which records that, as a result of the application, registration number 213 PAW was allotted to the vehicle and two number plates were issued. It is possible that the complainant was mistaken about the identity of the vehicle in which the incident took place; but, if, as she said, his indecent attentions to her had already ceased in early January 1984, she must on the occasion in question have been little more than about 13 years old, which seems rather young to start learning to drive. In that respect, the present case factually resembles R v Aristides [1999] 2 Qd R 629, 630, although in that instance the appeal succeeded primarily because of deficiencies in the directions given to the jury.

12. In the event, the consequence is that the complainant’s evidence on two of the five counts charged against the appellant was seriously compromised. As previously mentioned, on the first count she added verbal detail that was not included in the prosecution opening to the jury or, presumably, in her statement to the police. Similarly, with respect to count 2, her evidence differed from the account given in her statement by the addition in her evidence of references to his groping her breasts and painfully sucking her lower lip. Only as regards count 4 (the incident involving her foot) did her evidence correspond more or less precisely with the prosecution case as contained in her original statement or in the opening to the jury.

13. This cannot help but give rise to some serious reservations about the accuracy or reliability of the complainant’s evidence in this case. I do not mean to suggest that her evidence was dishonest. The jury plainly did not think so because, in returning verdicts of guilty, they must have accepted her as a witness of the truth. The fact is, however, that in some respects her evidence was obviously mistaken. That was so in the case of counts 3 and 5. In the case of counts 1 and 2, the incidental detail was the only means of identifying the incidents or distinguishing them from one another. Without that detail, her evidence loses some of its verisimilitude and is reduced to little more than a sworn version of the bare allegation in the count. By means of that detail, the prosecution was able to formulate a series of distinct counts, and at the trial was consequently able to adduce evidence of numerous uncharged acts of similar behaviour on the part of the appellant. In the end, however, the evidence in support of those five counts largely failed to materialise, or was compromised by discrepancies in her evidence. This had the consequence that the evidence of uncharged acts was for the most part deprived of the very basis which it was originally designed to support and which made it admissible in evidence; this is, to show the true relationship existing between the parties.

14. No doubt this was largely the result of charging offences that were alleged to have happened as long as 15 and more years ago, and which, in the catalogue of sexual crimes that come before this Court, are by no means the most remarkable or memorable of their kind. After such a lapse of time, a complainant cannot be expected to recall details of places, times, conversations and occasions with any real degree of accuracy, especially when, as here, she claimed that such acts took place regularly during what she described as “the eight month period” from May 1983 to January 1984. This is, however, not a strength of the prosecution case but a major weakness. There is no point in charging a series of acts as separate counts in the indictment if the complainant has only a general recollection of things being done to her over a period of some months.

15. One is left with the disquieting impression that the jury might possibly have concluded that the appellant had been guilty of some, perhaps repeated, improper conduct during the period in question, and reasoned from there that, despite the various discrepancies in her evidence, he must be guilty of each of the acts charged in counts 1 to 4 in the indictment. It would have been wrong for them to proceed in that way. The trial judge at one point specifically directed the jury to consider each of the four counts separately; but it is possible they failed to give full effect to that direction. If they did so, it is difficult to understand how they could have arrived at a guilty verdict on count 3. They must have accepted her general veracity, but could hardly have been impressed by the accuracy or reliability of much of her evidence.

16. The question is how far the trial procedure in these cases is to be allowed to go in this direction. One can understand the difficulties confronting both prosecution and defence in prosecutions of this kind. Because of the lapse of time, the complainant here was unable to identify with any degree of specific detail particular occasions on which distinct offences were committed. She simply recalled a pattern of offensive behaviour over a period of time. Unless only one such incident is charged, the prosecution is bound in some way to identify, or at least to segregate, particular incidents that form the subject of specific counts. The accused, who denies any such behaviour (and in this instance did so on oath), is entitled to be told on what identifiable occasion he is alleged to have offended and in what particular. Having formulated a case of that kind, the prosecution is expected to prove something more precise than a general assertion that the accused did things of that general kind frequently or simply “all the time”. Otherwise, the indictment and its separate counts serve only as a means to adducing prosecution evidence that would otherwise not be admissible in the form in which it is presented. At most, it might tend to establish an unlawful relationship of a sexual nature, of the kind prohibited by s 229B of the Criminal Code, which was not the offence charged in this instance.

17. A bench of five judges of the Supreme Court of New South Wales has recently considered some of these and associated problems in R v Markuleski [2001] NSW CCA 290, to which Jones J has helpfully referred me. The reasons for judgment of Spigelman CJ, which on all the issues raised on appeal were concurred in by a majority of the Court, contains a close analysis of the decision of the High Court in Jones v The Queen (1997) 191 CLR 439, and the references to it in later decisions of appellate courts in Australia. The reasons of the learned Chief Justice are, as in Jones, directed specifically to a case where, on the strength of the complainant’s evidence the jury convict on a number of counts in the indictment but for no discernible reason acquit on one or more of the others.  That is not this case, in which verdicts of guilty were returned on all four of the counts that went to the jury; but it is somewhat analogous to it in the sense that one count here (count 5) was withdrawn from the jury because of deficiencies in proof arising from the complainant’s evidence at trial, and the verdict on another count (count 3) is, on the view I take, difficult to sustain having regard to the evidence on that incident at the trial.

18. In the course of his reasoning in R v Markuleski Spigelman CJ said [¶35] that several aspects of the reasoning in Jones pertinent to the issue of credibility of the complainant in that case often arise in other cases, and include:

●Absence of corroboration in a “word against word” case.

●Delay in making the complaint.

●Lack of apparent difference in the quality of the complainant’s evidence amongst the different incidents.

●Availability of contradictory evidence with respect to some, but not all, incidents.

Each of those features is present in the case before us, although, as all the judgments in these matters emphasise, it is impossible to state hard and fast rules because of the pre-eminence of the facts in each instance. His Honour continued at [¶93]:

“The issue in each case may well turn on what, in the circumstances of the case, should be regarded as a ‘matter of substance’. In a word against word case, cross-examination on surrounding contextual details is often essential for the defence case. Some surrounding circumstances are of sufficient significance that the Court will conclude that the jury ought to have had a doubt about the complainant’s evidence with respect to other incidents. Not all surrounding circumstances are of such significance.”

19. In the present case, it seems to me that the surrounding contextual detail in the complainant’s evidence with respect to count 3 was a sufficiently vital or substantial element in her account of that incident to justify using the approach adopted by Spigelman CJ in that ¶35 of his Honour’s reasons. In my opinion, for the reasons given earlier, the complainant must have been mistaken about the place, date and occasion on which that incident took place if it happened at all. The demonstrated deficiencies or inadequacies in her evidence are such as to displace the advantage which the jury enjoyed (and we do not) from having seen and heard the witness giver her evidence at the trial: M v The Queen (1994) 181 CLR 487, 494-495. That being so, I have reached the conclusion that the jury ought to have entertained a reasonable doubt about the fact that the appellant committed that offence.  The verdict on count 3 must be set aside.

20. This leaves for consideration, in the light of that conclusion, the verdicts of guilty on the other three counts. The case was one that answered the specifications mentioned by Spigelman CJ in ¶35 of his reasons. It was in respect of all four counts a word against word case in which there was no corroboration. There was lengthy delay in making the complaint. There was no apparent difference in the quality of the complainant’s evidence as between the various counts. With respect to count 3, there was independent contradictory evidence as to matters of substantial detail. As to some other details in counts 1 and 2, there were inconsistencies or discrepancies between the complainant’s testimony at the trial and the prosecution opening to the jury or her original statements on which that opening was based. Count 5 was withdrawn from the jury because she failed to come up to proof. Overall, there is the fact that, although the jury evidently accepted the complainant as an honest witness, it seems likely that, in arriving at their verdict, they were significantly influenced or over-influenced by her evidence concerning other uncharged acts rather than by the testimony she gave with respect to each of the incidents that gave rise to the individual counts in the indictment.

21. I have consequently reached the conclusion that none of the verdicts of guilty on those four counts should be permitted to stand.

22. Consideration of this case has led me to wonder whether the conventional direction that the jury may properly accept and act upon the whole or upon only some parts of the evidence of a witness still continues to be appropriate in cases of this kind. In R v Markuleski, a majority of the Court decided that, as a general rule, a trial judge should direct the jury that a reasonable doubt with respect to the complainant’s evidence on any count ought to be taken into account in their assessment of the complaint’s credibility generally. The point was not here raised as a ground of appeal and, like Groves J in R v Markuleski, I am reluctant to impose further mandatory requirements on judges’ summing up, where so much depends on the particular facts and circumstances of the individual case. Raising what are essentially propositions of fact and good sense to the level or status of binding rules of law or procedure are tending to threaten the integrity of the process of trial by jury and beginning to raise questions about the utility of an institution which, through experience, most of us believe is well worth preserving in the interests of society. I would, however, respectfully agree that in some, perhaps many cases of this kind, it is desirable that such a direction be given even though the trial judge cannot tell in advance that disparate verdicts are going to be returned.

23. In the result, I would allow the appeal, set aside the verdicts on counts 1 to 4, and in respect of each of those counts enter verdicts and judgments of acquittal.

24. JONES J:  I have had the advantage of reading the reasons of McPherson JA and Mullins J.  I agree with each of those reasons and the orders proposed.

25. MULLINS J:  The appellant appeals against his conviction by a jury of 4 counts of indecently dealing with his stepdaughter over the period between July 1983 and 4 January 1984.  The ground of appeal relied on is that the verdicts of the jury are unreasonable. 

26. The complainant was born on 16 July 1970. She has an older brother. Their parents separated when she was very young. In about 1975 the complainant’s mother married the appellant. The complainant’s mother and the appellant had three children. In the first half of 1983 a house was being built on a property near Brisbane for the family comprising the complainant, her mother, the appellant and the complainant’s four siblings which they moved into in mid 1983. 

27. The allegations which were opened to the jury by the prosecutor were:

Count 1

28. At about the time of the complainant’s 13^th birthday (ie 16 July 1983), the complainant and the appellant were in the kitchen area of the new house and the appellant kissed the complainant on the lips and forced his tongue into her mouth and that was the first occasion on which she had been kissed in that fashion. 

Count 2

29. Within a relatively short time after the conduct the subject of count 1, the appellant kissed the complainant on the lips, forcing his tongue into her mouth at a time when the complainant was using the telephone in the lounge room of the house and it was a specific occasion when the complainant saw her mother drive the car into the yard of the property.

Count 3

30. Towards the end of 1983 during either the September school holidays or the December school holidays, but before Christmas 1983, when the appellant gave the complainant a driving lesson around the property, he lent over and placed his hands underneath the complainant’s clothing and touched her on her breasts and that was the first occasion when there was touching of the complainant’s breasts, when the appellant was giving her a driving lesson.

Count 4

31. On a date around late 1983, but before 4 January 1984 (which was the day on which the complainant commenced to menstruate) the appellant grabbed the complainant by the foot in one of the bedrooms of the house after they had been watching television together and the appellant rubbed her foot against his erect penis and did so for a short time before the complainant pulled away and left the room.

Count 5

32. On 4 January 1984 the appellant approached the complainant in the kitchen of the house and kissed her on the mouth and groped her on her breasts with his hands, she told him to go away or used the word “no” to him and the appellant moved away from her.

Complainant’s evidence

33. When the complainant gave evidence she referred to the appellant as “Bill”. Her evidence-in-chief in relation to count 1 was:

“I remember Bill saying to me that he was going to kiss me and that I was going to like it and he basically stood me up against the bench and pushed his body against me and started to kiss me and put his tongue in my mouth.  I pulled away and said, ‘I don’t like that.  Don’t do that.’  Then he said, ‘Okay.  Let me kiss you another way.’”

34. The complainant stated in evidence-in-chief that this event occurred during the daytime, when her mother was at work and she and the appellant were in the kitchen area of the house at the time. The complainant stated that when the appellant put his tongue into her mouth, it was for 5 seconds or “something like that”.

35. When cross-examined about what occurred after the kiss that lasted for 5 seconds, the complainant stated:

“I wiggled and I said, ‘I don’t like that.’  He said, ‘Well, I’ll kiss you a different way,’ and that’s when he sucked my bottom lip for another 10 seconds or so.”

36. In further cross-examination, it was elicited from the complainant that there had been no mention in her statement to the police of her saying to the appellant that “I don’t like that. Don’t do that.” and of his saying words to the effect of “I will show you another way” and then commencing to suck on the complainant’s bottom lip for about 10 seconds.

37. When cross-examined, as to why that was not in her statement, the complainant stated:

“Well, I left it out, but it happened.  I am getting mixed up with the very first time, because it happened many times, so I may have blurred or not quite remembered the exact details of the first or the second or the third time, because it just happened so many times that the details got blurred.”

38. The complainant was also cross-examined about a paragraph in her statement in which she stated “As time went on there was a change in the way that Bill kissed me. He began sucking my bottom lip until it was numb.” and was asked why she would have described the change by reference to the sucking of the bottom lip. The complainant responded “Well, that’s because that’s how he began to kiss me exclusively, just like that.”

39. The complainant’s evidence-in-chief in relation to count 2 was:

“... and Mum was driving up the driveway and he called to me angrily, ‘Quickly, come here now.’  Like, it was urgent, and I came to him in the kitchen again and Mum was coming home from work.  She comes home around 5.30.  It was dusk, so it was winter time, around my birthday, and he was kissing me and Mum was just like ten, twenty metres away from the house driving up the driveway.  It was a very long driveway, so he just kissed me and groped at my breasts and sucked on my lip, and it was just painful, pushing me against the kitchen bench.  I would basically just have my arms straight and I just wasn’t in a position to really resist physically.”

40. When asked in evidence-in-chief what she was doing before the appellant called out to her, the complainant answered “I was in the bedroom area, so I was most probably doing my homework there with the other kids.”

41. In cross-examination the complainant was asked where she was when the kiss the subject of count 2 occurred. She answered:

“Well, when he called me I was in my bedroom and I could see the lights of Mum’s car coming up, so I was coming up, so I came out of my bedroom into the kitchen and I could see the lights shining through the lounge room into the house from the car, so when I was in the kitchen I could actually see the lights of the car shining on the walls.”

42. The complainant was also cross-examined on what she had set out in her statement about the incident the subject of count 2, where she had said that “I was on the phone at the time in the lounge room and I could see Mum coming up the driveway in the van”. When it was put to her that there was no mention of the appellant’s calling her from the bedroom, the complainant responded “Well, that’s another occasion”. The complainant conceded in cross-examination that there had been no mention in her statement of the appellant’s groping at her breasts or sucking her lip on the occasion that was the subject of count 2.

43. In relation to count 3, the complainant in evidence-in-chief was asked to say what happened on the first occasion on which she got a driving lesson. She had been asked what sort of vehicle that she had the first driving lesson in and she answered:

“He gave me driving lessons in three different vehicles.  The first one, it would have most probably been the actual Nissan vanette.”

Her evidence about what happened on this first occasion was:

“I was seated in the car driving around the property, and so he would fondle me and fondle my breasts, put his hand in my shirt and into my bra and rub my breasts and touch them and say how lovely they are, they don’t sag, and all those things.

...

Well, I was very clumsy trying to change gears.  I was focusing on my gear changing and his hand reached across and he put his hand down my shirt and fondled my breasts.”

The complainant stated that this first occasion was in spring or summer, before Christmas 1993.  

44. The complainant was cross-examined on the basis that the Nissan vanette was not purchased until the middle of 1984. She responded “There was also the Sandman”. The complainant denied that the red Nissan vanette was purchased after 4 January 1984 and stated “We had it in the first year and we also had another car that we did driving lessons in as well.” The reference to “the first year” appears to be a reference to the first year the family was at the property near Brisbane, ie 1983.  The following exchange took place:

“----- the first driving lesson that he took you on at which he touched you indecently, according to you, was in this red Nissan vanette.  That is clearly your evidence, is it not?--  Yes.

And do you say that that must have occurred prior to 4 January 1984, do you?--  Well, can I just say one thing?

Just answer the question first, then you can?--  Ask the question again.

You say that this driving lesson, this first one, must have occurred before 4 January 1984, don’t you?--  Yes, but there was many cars we used, too, because we also had the unregistered white car that we used.

What I am putting to you is there was never any driving lessons in any of the cars?--  You are wrong.”

45. The complainant’s evidence in relation to count 4 was that she was watching television with her mother and the appellant. The television was set up in a bedroom and they were all sitting on a single bed. The complainant’s mother said that she was going to bed and the complainant said that she said “I am going to bed to”. Her evidence continued:

“As I got up, Bill – we had a light sort of blanket over all of us.  He grabbed my foot, indicating not to leave, and it was a vice grip, and indicated with his eyes by raising his eyebrows not to say anything, so Mum left and as she was just not long in her bedroom, then he grabbed my foot and he rubbed it onto his crutch and he exposed his penis and rubbed my foot against his erect penis. ...  When I realised what he was doing, I was trying to pull away, and, yes, and he did it for, you know, 20, 30 seconds; kept on doing it.  Finally I was able to break away and run to my room.”

46. In cross-examination on this count, the complainant stated that her mother was just leaving the room as the appellant grabbed her by the foot, but her mother was still in the room. The complainant admitted that she did not make any word of complaint to her mother, because she “was very fearful of Bill, so I was scared to make a complaint”. The complainant stated that “Once Mum had left the room I was saying ‘No’”.

47. The complainant’s evidence in relation to count 5 was as follows:

“I was in incredible pain with my first period and Bill approached me again when I was alone, and he tried to forcibly kiss me and for the first time I was – I don’t know if it was that he heard me say ‘no’, or I said ‘no’ strong enough, but he finally listened to my pleas of ‘no’ and he said, ‘You’re just saying that because you think you are a big woman now because you have got your periods.  You are a big woman and you know everything.’, and so that was just – it was a blessing the day my period came.  It was just a blessing.”

The complainant stated that this occasion occurred during the day when she was in the kitchen and her mother was at home, but there was no-one else around the kitchen area when these events took place.  The complainant also stated in evidence-in-chief about this occasion:

“As usual he grabbed me – grabbed my wrists and put them down against the bench, and he proceeded to try and kiss me, and I wriggled and finally said – I mean, it feels like I finally said ‘no’.  I had been saying ‘no’.  He finally listened.  I said ‘no.’  He backed away, and I was amazed that he backed away because he had never backed away before.”

48. The complainant was also asked whether the appellant touched any other part of her body at that time and she answered:

“I don’t know if he groped my breast at that particular stage like he had before, but he was pushing against my body.”

The question was asked of the complainant again as to what parts of the appellant’s body at the time he was pressing the complainant against the bench were coming into contact with what part of the complainant’s body.  The complainant responded:

“To be my specific, his knees were sort of above my knees, pressing against them.  His pelvic area was slightly above my pelvic area, and his erect penis, inside his clothing, which I could feel, was against my abdomen.”

49. The complainant was cross-examined by reference to her statement about this occasion where she had made an allegation that the appellant started to kiss her and was groping at her breasts. She responded that “he didn’t fulfil the kiss” and in relation to the allegation in her statement that he groped at her breasts she stated:

“Well, on that occasion I am pretty sure that because he was all at me with his whole body, that his body was just in definite contact with me, so I can’t be sure where his hands were the whole time.  I am saying I can't be sure if he had a chance at groping my breasts.”

The complainant was also cross-examined on the basis that in relation to this incident there was no mention in her statement of the appellant’s penis being erect.  The following exchange occurred:

“You agree with me, do you not, there was never any mention when discussing the incident of 4 January 1984 – there was never any mention in your statement that his penis was erect?--  No, but it was usually erect when he was doing this to me.”

Other evidence

50. At the close of the Crown case a nolle prosequi was entered in relation to count 5 because the complainant had failed to give evidence of the act which had been particularised by the prosecutor.

51. The recitation of the complainant’s evidence set out above covers some of her evidence in respect of uncharged acts. There were many statements made by the complainant in the course of her evidence to the effect that there were other instances of the appellant’s behaving during the period from July 1983 until 4 January 1984 in a similar way to that conduct that was the subject of one of the counts on the indictment. The following are instances of other evidence of the complainant of uncharged acts:

“Were there other times in which he kissed you on the mouth, other than that first occasion?--  Yes.  It became a regular occurrence, yes.

All right.  When you say a regular occurrence, how often do you say that happened after the first time?--  Every opportunity that I was alone with him, that the kids weren’t around, that mum was at work.  Every opportunity.  It could be as – lots of times one day.  You know, this went on for eight months.” 

...

“Approximately how many times would you estimate that you went on driving lessons with him after that first time and on those lessons he touched your breasts?  How many times would there have been, roughly?--  At least half a dozen times.”

52. The complainant’s evidence was to the effect that the appellant’s offending conduct ceased with the occasion that was the subject of count 5.

53. The complainant’s mother was imprisoned in February 1986 and thereafter the appellant had the care and control of the complainant and the three younger children. The appellant engaged the assistance of a housekeeper in about mid 1986 with whom he formed a relationship by the end of 1986 or early 1987. On 4 January 1987 the complainant wrote to her mother saying that there was something important that she wanted to discuss with her mother in prison. At a visit shortly after, the complainant made some allegations to her mother that the appellant had indecently touched her. It was in the presence of the appellant and her three younger siblings and the complainant agreed in evidence that the appellant asked her in front of her mother "Did you say to your mum that I touched you?”.

54. When cross-examined, the complainant denied that her response to that question was “No, Dad, I didn’t say that”.

55. When the complainant finished school in October 1986, she moved out of the home near Brisbane and went to live with her aunt.  She then went to Canberra in February 1988 to live and study.  The complainant’s mother was released from prison in February 1991.

56. The complainant conceded that there was a rift between the complainant’s mother and the complainant, on the one side, and the appellant and his new partner on the other. The complainant and her mother were not invited to the wedding of the complainant’s sister who is the eldest child of the complainant’s mother from her relationship with the appellant.

57. The complainant made her complaint to the police about the appellant’s conduct in about March 1999 which was about a week or two before her sister’s wedding.

58. An employee of Queensland Transport gave evidence for the appellant and produced a certificate, as a result of the searches of the records of Queensland Transport in relation to a 1983 Nissan vanette wagon registration number 213-PAW. That certificate showed that the vehicle was registered in the name of the complainant’s mother and the registration was effective from 16 July 1984.

59. The appellant gave evidence that the red Nissan vanette motor vehicle with registration number 213-PAW was purchased as a new vehicle in July 1984.

60. The appellant in the course of his evidence denied that he had done the things about which the complainant gave evidence which were the subject of each of counts 1 to 5 and the uncharged acts. The appellant denied ever giving the complainant driving lessons around the property. The appellant recalled an occasion in early 1987 when he was visiting his wife in prison and was accompanied by the complainant and his children, when the complainant’s mother said “If somebody touched my kids I kill them”. The appellant gave evidence that he saw his wife look at the complainant and then look at him and the appellant said to the complainant “What – what did you say? What’s going on? Are you telling your mother – you told your mother I touch you?”. The appellant then stated that the complainant said “No Dad”. The appellant said that there was no further discussion.

Summing-up

61. The appellant raises no issue in relation to the summing-up. The jury was given a Longman direction, referred to the fact that the complainant’s evidence was not supported by any other evidence and the lack of evidence of fresh complainant and explained the limited use which could be made of the evidence of uncharged acts.     

The law

62. The test to be applied is whether it was open to the jury, upon the whole of the evidence, to be satisfied beyond reasonable doubt that the appellant was guilty. The formulation of that test is found in the majority judgment in M v The Queen (1994) 181 CLR 487, 493:

“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.” 

(footnotes omitted)    

and where the majority also stated at 494-495:

“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.  It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.  That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experience by the court is a doubt which a reasonable jury ought to have experienced.  If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.  In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

(footnotes omitted)

Conclusion

63. The evaluation of the evidence by the jury had to be done in respect of events and circumstances which occurred between July 1983 and 4 January 1984. The complainant herself did not make a statement and the appellant was not given the opportunity to recall either those events or circumstances surrounding them, until after the complaint to the police was made in March 1999.

64. In evaluating the complainant’s reliability and credibility, the jury had to consider the discrepancies in the complainant’s evidence in relation to count 5 which resulted in that count being withdrawn.

65. I agree with the conclusion of McPherson JA that it is not easy to see why the jury did not entertain a reasonable doubt about count 3. The independent evidence of the first registration of the Nissan vanette was that it occurred on 16 July 1984. There was no suggestion in the evidence that the vehicle was some how acquired in an unregistered state. In fact it was implicit in the complainant’s evidence that the Nissan vanette was registered, because the complainant referred to another car as being “the unregistered white car”. It is not extraordinary that a 1983 model was acquired as a new vehicle in 1984 by the complainant’s mother. The appellant’s evidence about the acquisition of the Nissan vanette in July 1984 accorded with the registration details. The complainant’s denial in cross-examination that the Nissan vanette had been purchased after 4 January 1984 is irreconcilable with the independent evidence about its registration. Counsel for the appellant submitted on the hearing of the appeal that although the evidence of the complainant was that she thought the incident in count 3 occurred in the Nissan vanette, she was not sure. Although some passages of the appellant’s evidence, in isolation, may be susceptible to that characterisation, the complainant remained firm that the Nissan vanette was the relevant vehicle.

66. This discrepancy in the complainant’s evidence relating to count 3 is fundamental to the proof of the offence charged which was particularised as having occurred between September and Christmas 1983. It was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of count 3 and the appeal must be allowed in relation to that count.

67. There were discrepancies between the complainant’s statement to the police which was the basis of the particulars of count 1 and the evidence given by the complainant in relation to count 1. Those discrepancies were highlighted in the cross-examination of the complainant which is set out above. There were also discrepancies in the complainant’s evidence about the circumstances in which the conduct the subject of count 2 occurred and what was the nature of the offending conduct which, again, were highlighted by the cross-examination of the complainant, described above. When these discrepancies are considered in the light of the conclusion which should have been drawn in relation to count 3 and the discrepancies in the complainant’s evidence in relation to count 5, it is difficult to justify how the jury could have concluded that the appellant was guilty beyond reasonable doubt in respect of counts 1 and 2. The jury’s verdicts are not capable of being explained by the advantage which the jurors had in seeing and hearing the evidence. The explanation may be, as suggested in the reasons of McPherson JA, that despite the jurors being warned about the use to which they could put the evidence of uncharged acts, they may have been over influenced by the complainant’s evidence concerning the other uncharged acts and proceeded on the basis that the appellant had been guilty of some improper conduct during the period in question and that he should therefore be found guilty of the acts charged in counts 1 to 4. It was not open to the jury to be satisfied beyond reasonable doubt in respect of counts 1 and 2.

68. Although there are not the discrepancies in the complainant’s evidence relating to count 4 of the nature which can be identified in respect of her evidence relating to counts 1 and 2, the verdict of the jury on count 4 cannot be sustained in the light of the conclusions which should have been reached in relation to the verdicts on counts 1 to 3.

69. I therefore agree with the conclusion of McPherson JA and the orders proposed that the appeal be allowed, the verdicts on counts 1 to 4 be set aside and verdicts and judgments of acquittal be entered on each of those counts.