R v OL[2004] QCA 439

SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  The appellant was charged with one count of maintaining a sexual relationship with a child with a circumstance of aggravation (count 1), one count of indecent treatment of a child under 12 (count 2), five counts of indecent treatment of a child under 16 (counts 3, 4, 6, 7 and 8), one count of common assault (count 5), one count of rape (count 9) and four counts of incest (counts 10, 11, 12 and 13).  During the course of the trial the prosecution elected not to proceed further on count 7.  After a lengthy trial and two days of deliberation, the jury convicted the appellant on counts 1, 2, 9, 10, 12 and 13, and of the alternate count of attempted indecent treatment of a child under 16 on count 8.  The jury found the appellant not guilty on counts 3, 4, 5, 6, and 11. 

[2] The appellant was the stepfather of the complainant who was aged between 10 and 15 years during the period covered by the charges.  He appeals against his conviction on four grounds.  The first is that the learned primary judge should have discharged the jury when important medical evidence was provided to the defence only after the close of evidence and the completion of the defence address.  The second is that the verdicts of guilty are inconsistent with the verdicts of not guilty and therefore unreasonable.  The third and related ground is that the jury, having had a reasonable doubt as to the credit of the complainant in respect of counts 3, 4, 5, 6 and 11, should also have acquitted on the remaining counts, and especially counts 9, 12 and 13.  The final ground is that the conviction for maintaining a sexual relationship under s 229B Criminal Code (count 1) must be set aside because of the incorrect directions of the trial judge.

The direction as to s 229B Criminal Code

[3] It is convenient to begin with the final ground.  The appellant contends that the learned primary judge erred in her direction to the jury about the use to be made of the complainant's evidence of uncharged sexual acts on the offence of maintaining an unlawful sexual relationship with a child under s 229B Criminal Code.  Count 1 alleged the maintaining of an unlawful sexual relationship between 1 June 1997 and 17 April 2002.  Section 229B, enacted originally in 1989, was significantly amended, effective from 1 July 1997.[1]  Section 229B remained in this form until 30 April 2003 when it was again amended.[2]  To accord with these legislative amendments, count 1 should be taken as alleging that the unlawful sexual relationship was maintained between 1 July 1997 and 17 April 2002.  During that time, s 229B relevantly provided:

"(1)  Any adult who maintains an unlawful relationship of a sexual nature with a child under the prescribed age is guilty of a crime and is liable to imprisonment for 14 years.

(2)  A person shall not be convicted of the offence defined in subsection (1) unless it is shown that the accused person, as an adult, has, during the period in which it is alleged that he or she maintained the relationship in issue with the child, done an act defined to constitute an offence of a sexual nature in relation to the child, other than an offence defined in section 210(1)(e) or (f), on 3 or more occasions and evidence of the doing of any such act shall be admissible and probative of the maintenance of the relationship notwithstanding that the evidence does not disclose the dates or the exact circumstances of those occasions.

…

(6)  A person may be charged in 1 indictment with an offence defined in this section and with any other offence of a sexual nature alleged to have been committed by him or her in the course of the relationship in issue in the first mentioned offence and he or she may be convicted of … any or all of the offences so charged.

…"

[4] The term "offence of a sexual nature" in the Criminal Code was at the relevant time defined as:

"… any offence constituted wholly or partly by an act whereby the offender has exhibited a failure to exercise proper control over the offender's sexual instincts and any offence in the circumstances associated with the committal whereof the offender has exhibited a failure to exercise such proper control over the offender's sexual instincts, and includes an assault of a sexual nature."[3]

[5] In the course of summarising the issues for the jury, her Honour identified the uncharged acts and listed those which were said to have occurred within the time frame of the maintaining charge.  These included not only acts which, if accepted, might constitute offences of a sexual nature but also the appellant's statements to the complainant that he was obsessed with her; he fantasised about them being together; and she looked sexy and irresistible.  It is not contentious that evidence of these matters, although not amounting to evidence of offences of a sexual nature, was admissible as evidence of the improper relationship between stepfather and pre-pubescent/adolescent stepdaughter.  The appellant contends, however, that the jury may have been misled by the judge's directions into thinking they could use evidence of uncharged matters which were not offences of a sexual nature to convict the appellant of the offence under s 229B. 

[6] The summing-up must be considered as a whole.  In instructing the jury as to the elements of the offence under s 229B, her Honour told the jury that the prosecution must prove the appellant "did an act defined as an offence of a sexual nature in relation to a child on three or more occasions" and that the prosecution relied on the acts as particularised in the other charges on the indictment, (which are all offences of a sexual nature), except for counts 2[4] and 5,[5] and specifically referred the jury to the remaining counts.  Her Honour stated:

"… You have got to all be satisfied that on three occasions, at least, the [appellant] committed an offence of a sexual nature against the complainant. … You must all be satisfied that on at least three occasions the [appellant] committed an offence of a sexual nature against the complainant, and you must all be satisfied of the same three occasions.  You might be satisfied on more than three occasions that it happened, but you have to all at least agree on three occasions.  For example, it is not enough that half of you might think counts 8, 9 and 10 were committed and half of you think 11, 12 and 13 were committed.  Obviously you are not agreeing on the same three occasions.  You all have to agree on at least three occasions that are the same."

[7] The appellant rightly concedes this direction sufficiently meets the requirements of the High Court set out in KBT v The Queen[6] applied in this Court in R v A.[7]  Her Honour then returned to the uncharged acts, stating:

"Finally, the unlawful relationship of a sexual nature has to have been maintained; that is, the Crown must prove that the relationship is continuing in nature or shows a habituality of conduct.  That is why the Crown points to these what we call uncharged acts, the other acts, to show that it continued and it was habitual in nature.  In that regard they also rely on things such as the complainant saying that the [appellant] was always after her to have sexual intercourse, and always telling her she was beautiful and saying he wanted to marry her, and those sorts of things as proving that there was a continuing aspect to the relationship."

[8] Later in her summing-up, her Honour returned again to the topic of uncharged acts and their use in the maintaining charge.  The judge pointed out that some of these acts, such as the rubbing on the breasts, could be considered to be an unlawful indecent dealing and that if the jury agreed on one of those acts they could count that as one of the three acts to establish the offence of maintaining.  It was in that context her Honour made the observations to which the appellant objects, that the evidence of matters not relating to a specific charge, earlier said to include the appellant's statements to the effect that he was obsessed with the complainant and found her sexy, could be used to show both the continuing nature of the relationship and to prove one of the three or more acts necessary to constitute the offence under s 229B.  

[9] Significantly, no redirection was sought on this point by either of the appellant's experienced defence counsel at trial.  I am not persuaded that the judicial directions taken as a whole demonstrated any error.  The jury could have been in no doubt on the directions given that they could only convict the appellant if they were all satisfied that on at least three occasions he committed three specific offences of a sexual nature involving the complainant.  When the whole summing-up is considered there is no reason to conclude that the jury may have thought that the appellant's inappropriate statements to the complainant could constitute that part of the element of s 229B requiring the doing of an act of a sexual nature on three or more occasions.

[10]  Even if I am wrong and there was a misdirection, the jury convicted the appellant of more than three substantive offences which were offences of a sexual nature, (counts 9, 10, 12 and 13), and were committed within the time frame specified in count 1 (s 229B).  It follows that even if the learned judge erred in the directions to the jury discussed above, no substantial miscarriage of justice has occurred through this error.  This ground of appeal fails. 

The prosecution failure to provide medical evidence until late in the trial

[11]  The appellant's solicitors wrote to the prosecution on three occasions, twice prior to committal, and again well before trial, requesting copies of any medical reports or associated material concerning the complainant.  None was forthcoming until the thirteenth day of the trial, shortly before the judge was to start her summing-up.  The learned trial judge refused defence counsel's application for a mistrial. 

[12]  The medical notes concerned an examination of the complainant on 29 April 2002 at the Mater Children's Hospital, about 10 days after her initial complaint to police.  The prosecutor at trial stated his extreme regret that the evidence was supplied to the defence so late in the trial, but it came to his notice only after trial counsel discussed with the judge, in the jury's absence, the judicial legal directions to be given to the jury.  The arresting police officer was in the well of the court and heard junior counsel for the appellant emphasise the absence of medical evidence.  During the next adjournment the police officer told the prosecutor for the first time that the complainant had been medically examined and the responsible doctor reported that the examination was consistent with her having had previous sexual intercourse; he did not think the doctor's evidence was particularly significant, (presumably because the examination was well after the alleged offences, by which time the complainant had a boyfriend); he did not include any statement from the doctor in the brief he prepared prior to the committal proceedings in the Magistrates Court.  The prosecutor immediately directed the police officer to obtain the medical records.  The police officer brought them to court on the thirteenth day of the trial. 

[13]  Her Honour considered that the failure to supply the evidence constituted a clear breach of Ch Div 3 of Ch 62 Criminal Code, s 590AB(2)(b) of which requires the prosecution to disclose all things in the possession of the prosecution tending to help the case for the accused person.  Mr R G Martin for the respondent points out that it is by no means clear that the medical evidence was in "the possession of the prosecution" as defined in s 590AE.  In any case, failure to comply with those provisions in a trial does not affect the validity of the trial;[8] the court may waive any requirement for disclosure if it is satisfied there is good reason and that the waiving will not result in a miscarriage of justice.[9]  The judge accepted there were no sinister or suspicious police motives behind the failure and gave consideration to what she saw as the real question: whether and if the defence had been affected by the failure to provide medical records.

[14]  The notes of the medical examination on 29 April 2002 record that the complainant told the doctor that she had been raped by her stepfather in May 2001; there was no evidence of vaginal tears or scarring; the findings were consistent with a sexually active female; she had sexual intercourse with her boyfriend over the previous month and was worried she might be pregnant. 

[15]  The notes did not suggest that the complainant told the doctor that she also had been raped or had sexual intercourse with her stepfather on three occasions subsequent to the initial rape.  The charge of incest contained in count 10 was said to have occurred in May 2001 and is consistent with the complaint to the doctor.  The charges of incest contained in counts 11, 12 and 13 covered the period from June to December 2001.  In her statement to police on 20 April 2002, nine days before the medical examination, she made no complaint of the facts alleged to constitute counts 11, 12 and 13; it was not until August 2002 she told police for the first time of these incidents.  Defence counsel at trial contended that the late disclosure of the medical records deprived the appellant of the opportunity to emphasise this absence of complaint to the doctor and to cross-examine the complainant and her boyfriend about the possibility of a motive to make a false complaint against the appellant, namely to avoid the detection of their unlawful sexual relationship when both she and he were not yet 16 years old. 

[16]  The judge observed that at trial a great deal was made of the lateness of the complainant's allegations constituting counts 11, 12 and 13, even without the medical report.  Her Honour noted that the complainant's relationship with her boyfriend was a significant feature in the trial regardless of the medical report; the complainant conceded that she was in love with him and he was the love of her life; defence counsel had suggested to her that her relationship with him was one of the reasons she ran away from her home when threatened with being moved to another school which he did not attend.  The judge decided that the fact that the complainant was having sexual intercourse with her boyfriend in the month before the medical examination in April 2002 could have added nothing to the picture painted by the defence at trial and, in any case, she would have not allowed cross-examination on this issue:  see s 4 Criminal Law (Sexual Offences) Act 1978 (Qld) ("the Act"); R v Tribe;^[10] and Bull v The Queen.^[11]    Her Honour concluded that for these reasons she should not discharge the jury.

[17]  To succeed on this ground of appeal, the appellant must demonstrate that the refusal to order a mistrial because of the late provision of the medical evidence has resulted in a miscarriage of justice.  The medical evidence did not provide any direct support for the defence case.  Whilst it suggests she made no complaint to the doctor about counts 11, 12 and 13, she did complain about count 10 and her late complaints on counts 11, 12 and 13 were thoroughly investigated before the jury in any case.  The medical examination established only that she said she was having regular sexual intercourse with her boyfriend during April 2002.  It did not provide grounds for cross-examining the complainant or her boyfriend as to their sexual relationship.  It added nothing to her admitted love for her boyfriend, distress at being sent to a school which he did not attend and her disagreement with her mother, all of which defence counsel suggested to the complainant in cross-examination and later to the jury in the defence address, were motives for her to lie.  That purported motive, clearly raised on the evidence at trial, was not sufficient to raise a reasonable doubt in the jury's mind on counts 1, 2, 9, 10, 12 and 13.  I cannot see that the evidence of motive became any stronger because of the medical records.  Her Honour's intimation, that she would have refused any defence application under s 4 of the Act to cross-examine the complainant and her boyfriend, was sound.  As it was, the defence had the benefit of the judge referring in the summing-up to the defence submission that "there was no medical evidence put up which, you might expect, would show that these things had happened.  There was no medical evidence given to assist us, and … that's an important factor that you would have to consider."  I am not persuaded the appellant's lost opportunity to explore this medical evidence has deprived him of the chance of an acquittal or that the refusal to grant a mistrial to allow the defence to investigate the medical evidence has resulted in a miscarriage of justice.  This ground of appeal also fails. 

[18]  It remains, as the trial judge recognised and as the prosecutor at trial and Mr Martin in this Court conceded, extremely regrettable that the medical evidence was not disclosed to the defence prior to the committal.  Mr Martin was unable to assure the Court that police officers are trained as to their obligations under Ch Div 3 of Ch 62 Criminal Code.  He has undertaken to draw to the attention of the Director of Public Prosecutions my observations made in the course of argument: police officers should be trained as to these obligations and a system implemented to ensure that they include information such as records of relevant medical examinations of complainants in the brief prepared for committal proceedings so that the defendant and the defendant's lawyers have access to the information at an early stage, well prior to the committal.

Are the convictions unreasonable because of the inconsistent verdicts or otherwise?

[19]  The appellant contends that the doubt experienced by the jury on counts 3, 4, 5, 6 and 11 is inconsistent with the guilty verdicts on counts 9, 10, 12 and 13 and that having not found the complainant credible on those counts the jury should also have rejected her evidence on the remaining charges.  He also contends that the convictions on counts 9, 12 and 13 are otherwise unsafe because of the inherent improbability that they occurred as described by the complainant in a fully occupied small house: M v The Queen.[12]

[20]  The respondent contends that the guilty verdicts can be properly reconciled because the verdicts of not guilty on counts 3, 4, 5 and 6 were because the prosecution had difficulty in proving the dates when those offences were alleged to have occurred; as to count 11, there was a substantial inconsistency in the complainant's evidence on that count which was not present in her evidence on the counts on which the jury convicted.  The respondent also contends that the verdicts of guilty on counts 9, 12 and 13 were reasonable and supported by the evidence.

[21]  The complainant gave evidence that the appellant, her stepfather, committed each of the offences over a period when she was aged between 10 and 15 years.  Her evidence in chief was primarily in the form of written statements admitted under s 93A Evidence Act 1997 (Qld).  She gave oral evidence in chief of counts 11 to 13.  She was cross-examined but insisted each of the offences occurred. 

[22]  Her account of the illicit sexual relationship with the appellant between mid 1997 and 17 April 2002 was strongly supported by their recorded phone conversation on 16 April 2002 in which the appellant, after the complainant's assurances that no-one else was listening to the phone call, said that he thought she was going to marry him; he wanted to have sex with her that day; he asked if they could have sex; he said "You told me that you did it cause you love me"; he enquired "Is it over you and me is it?"; he asked her "You won't shag anymore, really".  A second later recorded telephone conversation was also played to the jury and although it was of poor quality it was also consistent with the complainant's allegation of an inappropriate sexual relationship with the appellant.

[23]  She said the appellant showed her pornographic images on his computer (count 2).  Images of the type she described were found on his computer and CD ROMs.

[24]  The complainant said that the appellant left a suggestive message for her on his computer.  This evidence was supported by the finding of the following material on his computer:

"[The complainant's name] I want to taste you!  I cannot help it, it is all I think about every day.  I find you the most gorgeous women [sic] I have ever met.  You are so beautiful.  When I look at you I just cannot believe how awesome you are.  All I think about is licking you and bringing you to a gentle orgasm.  I am totally infatuated with you, I mean totally.  Sometimes when you ask me how you look, I have to stop myself from saying you look so gorgeous and are so hot!  I put those reasons up there so you could think about them.  I know your first answer will be no, but it would do so much for me and it would not be such a big thing for you, would it.  If it made you feel more comfortable you could read a book while it was all happening.  You are such a woman [the complainant's name] you are unbelievable, every day I see you, you seem to be getting even more hotter."

[25]  The appellant gave evidence denying the charges.  He said he and the complainant talked in the language used in the "Austin Powers" movies as a bit of fun.  In Ireland, where he lived before coming to Australia, the expression "shag off" meant to go away.  He denied any sexual connotation to his remarks in the recorded telephone call; they were said in jest.  He denied both generating the computer message and showing her pornographic images.  He said the complainant had access to his computer and that he did have some pornography but denied showing it to the complainant.  He also called his wife, the mother of the complainant, as a witness.  She gave evidence that the appellant did not have the opportunity to commit the offences because she always went to bed after him and he went grocery shopping with her.  She said that after the complainant alleged the appellant raped her, she asked her if the complaints were true.  The complainant said no, giggled, said she was going to meet her boyfriend, ran up the street to greet him, returned and introduced him.  Other defence witnesses gave evidence of the appellant and the complainant acting out "Austin Powers" routines from time to time.

[26]  The jury may well have rejected the mother's evidence as partisan; essentially they had to determine whether they were satisfied beyond reasonable doubt of the complainant's account on each charge.  The learned primary judge directed the jury that they must be satisfied before convicting on any count of the dates and places alleged. 

[27]  The offence of maintaining a sexual relationship with a circumstance of aggravation, (count 1), was alleged to have occurred between mid June 1997 and 17 April 2002.[13]  As the jury convicted the appellant of other sexual offences committed during the wide time span of this offence, the time frame within which it was said to have occurred was not a direct issue.  If any three of the guilty verdicts on counts 9, 10, 12 and 13 are upheld then the guilty verdict on this count must also be upheld.

[28]  The complainant's evidence on count 2 was that the appellant showed her pornographic images on a computer.  Police found images similar to those she described on the appellant's computer and CD ROMs.  The jury convicted on this count.  There was no such significant independent supporting prosecution evidence on the counts on which the jury acquitted. 

[29]  The jury acquitted on count 3.  The complainant said as to this count that the appellant rubbed her breasts in December when she was 12 in a particular family home.  Other evidence established she was 12 in December 1998. Electricity company records showed the family did not live in that home until mid-January 1999.  The jury's doubt about the complainant's evidence as to the date of this offence explains their verdict of not guilty on this count whilst convicting on other counts where there was no similar uncertainty.

[30]  The jury also acquitted on counts 4 and 5, indecent treatment and common assault.  The complainant gave evidence that the appellant masturbated himself in front of her, (count 4), and grabbed her head to make her watch him, (count 5).  She said these events occurred in July 1999 when she was 13 in a different family home.  Electricity company records showed the family did not occupy this home until January 2000.  This provides a rational explanation for the jury's verdict of not guilty on these two counts.

[31]  The jury also acquitted on count 6 which alleged the appellant's indecent treatment of the complainant between 1 December 2000 and 28 February 2001.  The complainant said the appellant exposed her breasts in the family home in about mid-January, between 2 and 17 January 2001, about two weeks after they moved to a particular family home.  Other evidence established that the family moved to that home on about 1 December 2000 when the electricity was connected, and that the complainant did not return from a visit to her father in Melbourne until shortly before the birth of her half-brother in January 2001.  On that evidence the jury may have thought that two weeks after the family moved to that home, the time the complainant said the offence occurred, she was in fact visiting her father interstate.  The jury's doubt as to the date of the alleged offence seems a plausible explanation for their acquittal on this count whilst convicting on others.

[32]  Count 7 was not before the jury.  The jury returned a verdict of guilty to the lesser count of attempted indecent dealing on count 8, acquitting of the charged offence, indecent dealing.  The complainant gave evidence that the appellant rubbed his hand under her breasts whilst she was in bed, but stopped when she stood up to dress and get ready for school.  The learned primary judge referred to this evidence in her summing-up and directed the jury as to the availability of the alternative verdict on the evidence.  The jury convicted only of the attempt, apparently because they were satisfied that in rubbing his hand under her breasts he did not actually indecently deal with her but tried to do so.  There was no evidence throwing doubt on the alleged date of this offence.  The jury verdict on this count was appropriate on the evidence.

[33]  As to count 9, (rape by the insertion of a finger into the complainant's vagina), on which the jury convicted, the complainant's evidence as to the date was not inconsistent with other evidence.  The complainant said that the offence occurred when the appellant massaged her hip to relieve pain after exercise; this occurred on the floor of a bedroom with the door open; she could be seen from the kitchen where the mother was working.  There were other children in the house at the time; the mother spoke to the protagonists during the massage and at one point walked into the room.  It was not implausible that digital rape whilst also massaging the hip area would not be detected by others nearby; any cry of discomfort or surprise at digital penetration would be consistent with a cry of discomfort caused by the rubbing of a painful hip.  The jury's verdict of guilty on this count was not unreasonable.

[34]  The jury convicted the appellant of count 10, the first count of incest which was charged as occurring on an unknown date between 1 May and 31 September 2001.  The complainant's evidence was that her mother went grocery shopping and she was babysitting her siblings whilst the appellant was studying.  He came out of the study and asked to talk to her in his bedroom.  She followed him into the main bedroom and he shut the door behind her.  She thought she was in trouble.  She sat on the edge of the bed and waited.  He told her to relax, she was not in trouble; to lie on the bed; to stay there or he would make her life a living hell; to "shut the fuck up" or he would have to hurt her and he didn't want to do that because he loved her too much.  With one hand on her chest he pinned her down on the bed and with the other he removed his clothes and then hers.  She was too scared to talk.  He had sexual intercourse with her against her will.  She was shocked at what had happened, gathered her clothes, ran to her room and changed.  She felt disgusting and cried herself to sleep.  The next morning she was sore and noticed her underpants were stained in a way she had never seen before.  There was no independent evidence inconsistent with her evidence as to the date and place of this offence.  The jury verdict was reasonable, especially in the light of the subsequent recorded telephone conversation.[14]

[35]  The jury found the appellant not guilty on count 11 (incest).  The complainant said she had sexual intercourse with the appellant between 1 June and 30 September 2001 at the Sunnybank Hotel.  As noted earlier, the complainant in her first statement to police in April 2000 complained of but one act of sexual intercourse; she said that on a number of occasions the appellant had tried to convince her to have sexual intercourse with him; he said that he loved her and wanted to marry her;  he took her to various hotels and motels, including the Sunnybank Hotel, where he tried to persuade her to go inside but she would not leave the car; he became annoyed at spending money for nothing and she felt bad.  In a later statement to police in May 2002, she again detailed a visit with the appellant to the Sunnybank Hotel where she said she went into a room with him but she did not claim that he had sexual intercourse with her there.  She did not complain of this offence until August 2002.  The jury's not guilty verdict on this count was consistent with their reluctance to rely on her evidence on this count because in two earlier statements she specifically disavowed any act of sexual intercourse with the appellant at the Sunnybank Hotel. 

[36]  That verdict of not guilty does not mean the jury must also necessarily conclude that she was lying in her evidence on counts 1, 2, 8, 9, 10, 12 and 13.  Her late complaint of counts 12 and 13 was consistent with progressive disclosure of events she would prefer not to recall, namely, an incestuous relationship with her stepfather.  Such victims sometimes wrongly feel personal guilt or shame and are reluctant complainants; she may have felt justified in making the complaint about the first act of intercourse (count 10) but less comfortable about making late complaints about subsequent incidents, wrongly feeling in some way to blame in not preventing them.  Her late complaint of the event constituting count 11, especially where she actually referred to the location where it occurred, (the Sunnybank Hotel), and gave an account arguably inconsistent with her evidence at trial, may have been sufficient for the jury to have a doubt about convicting the appellant on that count.  It did not require them to also doubt her evidence on counts 12 and 13 or the counts she complained of in her original statement to police.  

[37]  As I have observed, the jury convicted the appellant of the incest alleged in count 12.  The complainant gave evidence that this offence occurred whilst she and the appellant were in the main bedroom; he pushed her knickers aside and lowered his pants.  He partially penetrated her vagina with his penis but they were interrupted by her seven year old half-brother who was having difficulty working the television.  The evidence is unclear as to whether they were under a bed cover.  The fact that her little brother did not give evidence and apparently had no recollection of the event does not necessarily discredit her account.  It may be that he cannot remember because he was so young.  Perhaps he did not distinguish what he saw from a playful wrestle and so had no reason to remember the incident.  There may have been other reasons why he did not want to remember something that would implicate his father in serious criminal offending.  There was no independent evidence throwing doubt on the complainant's evidence as to place and time.  The late complaint of this count was consistent with the progressive disclosure discussed earlier and unlike count 11 her earlier statements did not deal specifically with a distinctive locale like the Sunnybank Hotel.  The circumstances of the offence recounted by the complainant were not so inherently improbable as to render the guilty verdict unreasonable.

[38]  The jury also convicted the appellant on count 13, incest.  The complainant said this offence occurred in her bedroom when she was sleeping on a mattress next to her five year old sister whilst her mother was also asleep in the next room and the hallway light was on.  This Court all too regularly hears evidence of offences of this type occurring in such close circumstances.  The evidence was not so implausible as to require the jury to acquit.  I also note that, unlike counts 3, 4, 5 and 6, there was no evidence throwing doubt on the date and place of the incident.  The observations as to the late complaint on count 12 are equally apposite here.

[39]  I accept the respondent's contention that the jury were concerned about the dates when and place where each charge was said to have occurred and that this appears to have been the crucial factor in their decision to acquit on counts 3, 4, 5 and 6.  Redirections sought by the jury confirmed that these matters concerned them.  In respect of count 13 the jury's written request for redirection included the statement, "Specifically, we're concerned with the dates when alleged offence occurred."   The learned and experienced primary judge also drew that conclusion in her comments to counsel during the sentencing submissions, noting: "… it's quite consistent with the verdict that the jury just couldn't be satisfied that the dates were right."  As to count 11, the complainant had not only made a late complaint but had made prior statements arguably inconsistent with her evidence in court; when she referred to the Sunnybank Hotel she did not suggest there had been any sexual contact with the appellant there on that or some other occasion.  This appears to be why they acquitted the appellant on count 11 but not on counts 12 and 13.  Despite the weaknesses in the complainant's evidence which plainly concerned the jury, her evidence was generally given strong support by the recorded telephone call between the appellant and the complainant in which he made damning statements against his interest and, to a lesser extent, (because of the possibility of fabrication), the material found on the appellant's computer.  The jury's conscientious attention to the proof of the dates and places alleged in each charge, combined with the complainant's failure on two earlier occasions to complain of the incident said to constitute count 11 at the Sunnybank Hotel even when referring to incidents at that hotel, provided a rational explanation for the jury's verdict of guilty on counts 1, 2, 8,[15] 9, 10, 12 and 13 and not guilty on counts 3, 4, 5, 6 and 11.  The guilty verdicts are not rendered unreasonable by the not guilty verdicts; on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt on each of those counts.  These grounds of appeal also fail.

[40]  I would dismiss the appeal.

[41]  WILLIAMS JA:  I have had the advantage of reading the reasons for judgment of the President and I agree with all that is said therein and with the order proposed.

[42]  HOLMES J:  I agree with the reasons of McMurdo P and with the order she proposes.