SUPREME COURT OF QUEENSLAND

1. WILLIAMS JA:  I agree with all that has been said by Keane JA in his reasons and with the order he proposes.

2. KEANE JA:  The appellant was convicted on four counts of indecently dealing with a child under 16 years of age, and on three counts of permitting himself to be indecently dealt with by a child under 16 years of age.  The jury was unable to agree on one other count of permitting himself to be indecently dealt with and two counts of rape.

3. The complainant was born on 11 March 1990.  The charges in the indictment against the appellant related to sexual abuse of the complainant between January 1999 and June 2000.  The complainant's mother began a relationship with the appellant in early 1999.  The complainant was aged between 9 and 10 years old when the offences occurred.  She did not complain about the appellant's conduct until April 2002 when she told her mother about it.

4. The complainant's evidence-in-chief consisted of two tape-recorded interviews with New South Wales police officers. The first interview was on 4 April 2002 and the second occurred on 8 May 2002. At the time of these interviews, the complainant was 12 years old. She was 14 years of age at the time of trial.

5. The appeal is based on the broad ground in s 668E of the Criminal Code 1899 (Qld) that there was a miscarriage of justice.  In particular, it is contended on the appellant's behalf that:

1. the preparation and conduct of the trial by the appellant's then legal advisers was inadequate;

2. the learned trial judge failed adequately to direct the jury in relation to the evidence;

3. the verdicts rendered by the jury were inconsistent.

It was also contended that the accumulation of these deficiencies also led to a miscarriage of justice.

6. It is necessary briefly to summarize the important aspects of the evidence in the case before returning to an examination of the appellant's contentions.

Evidence

7. The first count of indecent dealing with which the appellant was charged was alleged to have occurred at the family's home at Bundaberg. According to the complainant's evidence-in-chief, the complainant, her mother and the appellant had come home from playing ten pin bowling. The complainant and the appellant were in a downstairs room while the complainant's mother was upstairs. The appellant told her not to tell anybody about what he was going to do and then told her that he wanted her to touch his penis and testicles. She said no, but he grabbed her left hand and put it on his genitals and held it there for about five minutes. The complainant said this incident occurred on Thursday 19 August 1999 at about 8.30 pm.

8. In cross-examination, the complainant said that the appellant had sex with her for the first time on a Tuesday night while they were living in Bundaberg. This incident was said to have occurred in her room while her mother was sewing. Before the appellant had sex with her, he put her hand on his genitals. The complainant did not tell the New South Wales police about the fact that the appellant went on to have sex with her because she was too embarrassed to tell them about it. She agreed that she had told the police that after the appellant let her hand go from his genitals, he went upstairs.

9. As to the second count, a count of rape, the complainant's evidence-in-chief was that she and her mother and brother stayed the night at the appellant's house at Calliope on 22 August 1999. Her mother slept on a mattress in the lounge. The appellant woke the complainant and persuaded her to go to his bedroom where he took off her brown dress, grabbed her and pushed her onto his bed, saying "Have sex with me". She said "No, leave me alone". She threatened to tell her mother, but the appellant would not let her go. He put his penis in her vagina and pushed up and down for about five minutes. The complainant told him to leave her alone. He invited her out to the shed, but she left and went back to bed. She said that she did not call out because the appellant told her he would kill her. She said he had a cupboard which housed guns and knives. The day before she had had to carry ammunition to the cupboard.

10. Under cross-examination, the complainant said that no threat to kill her was made that night. She maintained that the day before she had to carry the ammunition, and it was put to her that that claim conflicted with her statement that the night that this offence occurred was the night they arrived very late in Calliope. She then claimed she had to carry the ammunition at the house in Bundaberg, and she claimed that the appellant brought a gun with him to Bundaberg.

11. In relation to the third count, which was the first count of indecent dealing on which the appellant was convicted, the complainant's evidence-in-chief was that she, her brother, her mother, the appellant and the four members of the B family who were friends of the appellant were camping at either Cania Gorge or Carnarvon Gorge ("the Gorge"). Her evidence was that the appellant "flashed himself" at everyone, and after this, the complainant went to the toilet. The appellant came into the toilet and said "Come on, let's do this again". The appellant put his finger in her vagina and then suggested that he try it with his "fruit". The complainant said "No". She then walked back to the campsite. The complainant said she did not tell her mother because she was scared of the appellant's guns.

12. The complainant's mother gave evidence in which she recalled a camping trip to the Gorge with the appellant, her son and daughter and the four members of the B family.

13. The fourth count, and the second count of indecent dealing on which the appellant was convicted, concerned an incident which was said to have occurred during the drive back from the camping trip. The complainant said that she was alone with the appellant in his car because she had felt sick while travelling in the family car. She was lying down when the appellant pulled her underwear down and touched and squeezed her vagina. He did this with one hand and used his other hand to drive the vehicle. At this time her mother was travelling in the B's family car.

14. Under cross-examination, the complainant also alleged that the appellant put his finger in her vagina.

15. The complainant's mother gave evidence that the appellant's vehicle had only two seats in it. She also said that on the trip home from the Gorge the complainant said she felt sick so that, when they stopped on one occasion the complainant's mother suggested that she ride with the appellant. The complainant did not want to ride with the appellant, but she did travel in his vehicle for about half an hour to an hour.

16. The fifth count concerned an incident alleged to have occurred in the appellant's garage or shed at Calliope in May 2000. The complainant's evidence was that one day, after school, the appellant asked the complainant to come and help him with something. They went to the garage where he shut the door. He pulled his shorts down and told her to look at his testicles and his penis. On this occasion she noticed that the appellant had a mole on the left side of his penis. She told the appellant that she was sick of him flashing at her. He then pulled her shorts down to her knees. She threatened to tell her mother. The appellant threatened to kill her and tried to put his penis in her vagina but she backed away.

17. Under cross-examination, she described the scene as either a shed or a garage. She also said that on this occasion his penis went into her vagina "a little bit".

18. The complainant's mother gave evidence in which she confirmed that the appellant's house at Calliope had a garage.

19. The sixth and seventh counts, on each of which the appellant was convicted, concerned incidents which were alleged to have occurred at a motel in Gladstone. The complainant's evidence was that she, her mother, her brother and the appellant moved to Gladstone and stayed at that motel. The complainant's mother went to the toilet, and then asked the complainant to fetch the medical bag from the car. The appellant said he would go with the complainant. They went to the motel car park where the appellant told the complainant to "feel" him. She declined and he grabbed her hands and put them on his genitals. The appellant then put his hand on the complainant's vagina and inserted a finger. The complainant got the medical kit from the car and went upstairs.

20. The complainant's mother gave evidence in which she confirmed that the family stayed a night at the motel. Her evidence was that the complainant was with her mother all the time except when her mother told her to get the medical bag out of the car, and she said that the appellant went with the complainant because it was dark. She said that she became concerned that the complainant had not returned after a time, and called out, to tell her to hurry up. The complainant returned with the appellant behind her.

21. The eighth count concerned an incident which was alleged to have occurred at Gladstone. The complainant's evidence-in-chief was that she left the house one night to check on her dog which was barking. When she went outside the appellant was there. He exposed his genitals and grabbed her hand and put it on them. He then took her back down to the garage where he tried to get up against the complainant. She told him to go away and went upstairs.

22. As to the ninth and tenth counts, these concerned an incident alleged to have occurred in the laundry of the house at Gladstone. The complainant's evidence was that after her cat soiled a teddy bear, she took the teddy bear to the laundry to wash it. The appellant came running down and told her to remember the gun. He then told her to touch his testicles. She said no, but he grabbed her hand and put it on them. The complainant then said that the appellant tried to have sex with her again. She said that the appellant had two eyes tattooed onto his buttocks, but, it was unclear on her evidence that she saw them on this occasion. She went on to allege that the appellant actually penetrated her vagina.

23. The complainant's mother gave evidence that the house at Gladstone had a downstairs laundry.

24. The jury could not reach a verdict in relation to the first, second and tenth counts. They convicted the appellant on the balance of the counts to which reference has been made.

25. After the complainant's mother and the appellant separated, the complainant alleged that the appellant telephoned her mother asking if he could speak to the complainant. She said that on the approximately six occasions on which the appellant spoke to her over the telephone, he said "Remember, I've got the gun".

26. The complainant's mother gave evidence that the appellant owned two hand guns, two revolvers and two rifles. She said that he slept with a hand gun under his pillow.

27. The complainant's mother said that she thought that she ended the relationship with the appellant by May 2000. After the relationship ended, she received weekly or fortnightly calls from the appellant on which occasions the appellant would always ask if he could speak to the complainant. She said that the complainant did speak to the appellant a few times but eventually refused to do so. The phone calls from the appellant stopped about four or five months after the end of the relationship.

28. The complainant and her mother moved to New South Wales in early February 2002. After about two or three weeks, the complainant told her mother that she was glad that they no longer lived in Gladstone because the appellant had touched her at Calliope, Bundaberg, Gladstone "and everywhere". Over a period of time, the complainant told her mother that the appellant had exposed his penis to her, touched her breasts, procured her to touch his penis, and that he had tried to put his penis in her vagina. Later she told her mother that the appellant did put his penis in her vagina. These details emerged over three to four conversations.

29. The complainant told the police in her first interview that she did not tell her mother about any penetration or attempted penetration because she did not want to be examined by a male doctor. The first person she complained to about penetration was Krishna, a child sexual assault counsellor.

30. The complainant gave evidence that the appellant had a mole near the left side of his penis and two tattoos of eyes on his buttocks. Police photographed a mole in the appellant's pubic region and two tattoos of eyes on his buttocks.

31. The Crown called Dr Stevenson, a medical practitioner, who examined the complainant on 9 May 2002. Dr Stevenson gave evidence that she found the complainant's hymen intact. According to Dr Stevenson, that finding neither supported nor denied the allegation of digital penetration of the complainant's vagina.

32. Dr Stevenson wrote a report as a result of her examination of the complainant. In the report she said that her findings did not support a history of full penile penetration of the complainant's vagina. Dr Stevenson's evidence-in-chief at trial was different. Her evidence was that as a result of research published subsequent to her report in 2002, she was now of the opinion that the hymeneal findings in relation to the complainant neither support nor deny the complainant's history of full penile penetration of the vagina past the level of the hymen. Dr Stevenson was effectively cross-examined by counsel for the appellant. The cross-examination of Dr Stevenson established that Dr Stevenson's new opinion was based on an American case study of children who had been abused once only. The doctor's prior inconsistent opinion was before the jury. This may explain why the jury did not return verdicts of guilty in relation to the counts of rape.

33. There was evidence from the complainant of a number of uncharged acts. The complainant said that the appellant had sexual intercourse on about 30 occasions. She also said that the appellant regularly exposed his genitals to her when no-one else was around. This conduct began within a month of her mother starting to go out with the appellant. She said that he frequently stuck his fingers in her vagina. She said that he had done this on about a dozen occasions. She gave evidence of a recollection of a trip to Agnes Waters where the family camped. She said that the appellant had sex with her on the beach at Agnes Waters.

34. The appellant did not give evidence or call evidence. For the purposes of this appeal, he has filed an affidavit in which he deposes that he was advised by his then solicitor and counsel not to do so. The appellant's present solicitor has also obtained affidavits from the four members of the B family in relation to the camping trip to the Gorge, and from members of the P family who accompanied the complainant, her mother, brother and the appellant on the trip to Agnes Waters.

35. I now turn to consider the appellant's contentions in support of his appeal.

The incompetence of the appellant's legal advisers

36. The appellant makes three broad claims of incompetence on the part of those who provided him with legal representation at the trial. The first of those claims relates to the failure to pursue all available avenues of pre-trial disclosure from the prosecuting authorities and from third parties. The second of these claims relates to the failure to take a proof of evidence from the appellant and to interview and proof available witnesses who have now provided affidavits. Associated with this claim is what is said to be the flawed decision not to call the appellant to give evidence. The third claim relates to the failure to seek an adjournment or mistrial as a result of the change in Dr Stevenson's evidence.

37. Before I address these claims in more detail it is necessary to make some observations of a general nature in relation to the proper role of this Court where the incompetence of counsel or solicitors is advanced to support an appeal on the ground that a miscarriage of justice has occurred.

38. It is now taken to be clearly established that a claim of incompetence on the part of those who conducted the trial on behalf of an appellant cannot set in train an inquiry into "the subjective thought processes of those who appeared for, or advised, the accused at trial".^[1]  It is not part of the proper function of an appellate court to inquire whether the trial and the preparation for it could have been conducted better, or "to examine whether, on all the material available, a jury would have been likely to entertain a doubt"^[2] if all the available evidence had been adduced.

39. This strict approach is a necessary acknowledgment that a criminal trial is not merely a preliminary or provisional step in an elaborate litigious progression towards an appeal and retrial; and that the verdict of the jury is not a preliminary or provisional ruling on guilt or innocence. It is also important in this regard that a criminal trial is an adversarial procedure. It is for these very reasons that the role played by counsel for an accused person is so important and the duties associated with it so onerous. If an appellate court were to assume a role of general supervision of the conduct of criminal trials, counsel and solicitors might be dispensed with; but the system of criminal justice which would then be in operation would be radically different from that which is presently in operation. As Hayne J said in TKWJ v The Queen:^[3]

"[109]To hold that the inquiry is not an objective inquiry of the kind I have described would require an appellate court to apply inquisitorial methods and standards in determining an appeal from what, at trial, has been an accusatorial and adversarial process.  It would require the appellate court to examine whether, on all the material available, a jury would have been likely to entertain a doubt.  That is a very different process from the process undertaken at trial which is predicated upon the parties choosing the field for debate and (subject to the obligations of the prosecution) the evidence that is to be led.  The principles which inform the two processes are so radically different that they cannot be applied at successive stages of the judicial process.  If they are to be merged in some way, that must occur throughout the system, not by applying one set of principles at trial and another, contrary, set of principles on appeal."

40. To test whether a miscarriage of justice has occurred by reason of the incompetence of those who represent an accused person at trial, an appellate Court must ask, whether, viewed objectively, there could be a reasonable explanation for the conduct complained of. Thus, in Ali v The Queen^[4] Hayne J, with whom McHugh J agreed, said:^[5]

"An appellate court does not and may not know what information trial counsel had when deciding whether or not to object to evidence.  That is why, in TKWJ, I concluded that the question of miscarriage does not turn on a factual inquiry into why trial counsel acted or did not act in a particular way ((2002) 212 CLR 124 at 159 [110]).  That kind of inquiry cannot be made.  Rather, the question is whether there could be a reasonable explanation for the course that was adopted at trial.  If there could be such an explanation, it follows from the fundamental nature of a criminal trial as an adversarial and accusatorial process (Ratten v The Queen (1974) 131 CLR 510 at 517 per Barwick CJ;  RPS v The Queen (2000) 199 CLR 620 at 630 [22] per Gaudron ACJ, Gummow, Kirby and Hayne JJ;  Azzopardi v The Queen (2001) 205 CLR 50 at 64 [34], 65 [38] per Gaudron, Gummow, Kirby and Hayne JJ) that no miscarriage of justice is shown to have occurred."

In the same case, Callinan and Heydon JJ, with whom Gleeson CJ agreed, said:^[6]

"[99]… As Gaudron J in TKWJ v The Queen said:

'[W]hether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question 'deprived the accused of a chance of acquittal that was fairly open'.  The word 'fairly' should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on the basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open.

One matter should be noted with respect to the question whether counsel's conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage.  That is an objective test.'"

41. The authoritative exposition of principle in TKWJ v The Queen and Ali v The Queen confirms the correctness of the observations of Davies JA in R v NE^[7] that the decision of this Court in R v ND^[8] must be seen as a case in which the decision not to call the evidence in question was regarded by the Court as incapable of reasonable explanation, and that the decision in R v ND should not be treated as authority for any wider proposition.

42. One turns then to ask whether there could be a reasonable explanation for those aspects of the conduct of the case at trial of which the appellant complains.

43. As to the failure to pursue possible avenues of pre-trial disclosure in relation to, for example, the videotape of the examination of the complainant by Dr Stevenson or notes of the earlier examination of the complainant by Dr Lennon, or notes of the discussion with Krishna, a reasonable explanation is readily available in that the likely benefit to the accused of the pursuit of these lines of inquiry might reasonably have been thought not to be worth the expense involved.

44. As to the failure to call evidence from the relevant members of the P family and B family, and the associated failure of the appellant to give evidence, this is explicable given that the appellant thereby gained the forensic advantage of the last word to the jury.  This advantage cannot be said to be slight.  Speaking generally, it is an advantage sought by counsel representing accused persons every day in criminal trials throughout the Commonwealth.  Turning to the specific facts of this case, if one has regard to the evidence of the relevant members of the P family and the B family with a view to deciding if the advantage of the last word was slight in comparison with the value of that evidence, then one cannot say that this evidence was so cogent that the appellant's counsel could not reasonably have chosen to pursue the advantage of the last word.

45. In relation to count 3, the evidence of the four members of the B family was too general in its terms to create a reasonable doubt as to whether the appellant had an opportunity to deal with the complainant in the manner of which she gave evidence while they were camping at the Gorge.

46. In relation to count 4, the incident in the appellant's motor vehicle on the return from the Gorge, the evidence of NB, DB and JB was that the appellant and NB spoke to each other on their UHF radio sets, which required the use of hand held microphones, "almost constantly" on the journey home, and that the appellant's car did not make any odd or abnormal manoeuvres during the trip. This evidence is not apt to cast real doubt on the feasibility of the behaviour of which the complainant gave evidence or to exclude the possibility that the appellant interfered with the complainant as she said he did. This evidence does not mean that the jury might not be satisfied beyond reasonable doubt that the appellant had ample opportunity to do what the complainant said he did to her. It is simply too general to have given rise to a "significant possibility of [an] acquittal".^[9]

47. Of more importance, perhaps, is the evidence of DVB who says that on occasions after this trip, the complainant told him that she hated the appellant because he "spends time with Mum and she doesn't spend time with me like she used to". This evidence may be said to point to a motive for the complainant to fabricate complaints against the appellant; but this is not to say that it is apt to be decisive in the appellant's favour even if it is believed. That is because the complainant did not complain to her mother of sexual mistreatment by the appellant until almost two years after the relationship between her mother and the appellant had ended. The complainant did not seek to bring the relationship to an end, by complaining to her mother about the appellant's misconduct. More importantly, to the extent that DVB's evidence may have identified a motive for the complainant to fabricate complaints against the appellant, this motive was plainly less powerful, if relevant at all, at the time when the complaint was finally made.

48. The evidence of the relevant members of the P family concerns the trip to Agnes Waters. This evidence concerned uncharged acts. It is too general in its terms to cast doubt on the existence of an opportunity on the part of the appellant to have had sex with the complainant on the beach. There is force in the Crown's submissions that the failure to call this evidence is readily explicable on the basis that one would not surrender the advantage of the last word for the sake of calling this evidence, which, as I have said, related to uncharged acts.

49. As to the evidence of Dr Stevenson, the appellant's counsel at trial sought and obtained an adjournment to consider the change in Dr Stevenson's evidence. A mistrial or a longer adjournment could have been sought; but it cannot be said that it could not reasonably have been thought to be worthwhile to press on with the trial knowing that Dr Stevenson was in a difficult position, and that an adjournment might afford the Crown the opportunity to call further medical evidence to support the position lately adopted by Dr Stevenson.

50. Importantly in this regard, the Court directed that the appellant might file further affidavit material in order to show what further medical evidence could have been obtained to counter Dr Stevenson's evidence; but no further evidence was forthcoming from the appellant. The appellant has not shown that further medical evidence to counter that of Dr Stevenson could have been obtained. An appellant does not demonstrate that he has suffered a miscarriage of justice merely by pointing to the loss of the opportunity to run up dry gullies. In truth, the appellant was not shown to have been prejudiced by the manner in which those representing him dealt with the change in Dr Stevenson's evidence.

The trial judge's directions

51. A consideration of the appellant's complaints about the learned trial judge's directions to the jury must commence with recognition that it is fundamental to the institution of trial by jury that a trial judge's intrusion into the province of the jury as the arbiters of issues of fact should not exceed that which is necessary to ensure that the accused is given, and is seen to be given, a fair trial according to law.^[10]

52. In RPS v The Queen^[11] Gaudron ACJ, Gummow, Kirby and Hayne JJ emphasized the exclusive role of the jury as the arbiters of issues of fact, and that a judge is obliged to comment upon issues of fact only to the extent that the judge's other functions require that he or she should do so.  Their Honours said:^[12]

"[41]Before parting with the case, it is as well to say something more general about the difficult task trial judges have in giving juries proper instructions.  The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused.  That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case.  No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury.  Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues.  It will require the judge to put fairly before the jury the case which the accused makes.  In some cases it will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence.

[42]But none of this must be permitted to obscure the division of functions between judge and jury.  It is for the jury, and the jury alone, to decide the facts.  As we have said, in some cases a judge must give the jury warnings about how they go about that task.  And, of course, it has long been held that a trial judge may comment (and comment strongly) on factual issues. But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge's other functions require it.  Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel."

53. The appellant's principal complaint in relation to the learned trial judge's directions to the jury concerns her Honour's failure to direct the jury that they needed to scrutinize the complainant's evidence with great care before they could convict the appellant. The learned trial judge directed the jury, inter alia:

"… the Crown has to prove to you beyond reasonable doubt essentially through the complainant because she is really the witness that the evidence rises and falls on, that what she says in relation to each of the counts is not only truthful, but is reliable so that you are prepared to accept her evidence beyond reasonable doubt.

…

The defence remind you that they do not have to try and show you why she would be untruthful about these things and of course it is not for the defence to prove anything, but she is so inconsistent that you simply could not accept what she says beyond a reasonable doubt or beyond any doubt for that matter for all the sorts of reasons that have been highlighted by the defence in their address."

54. The learned trial judge also referred to the criticisms made by the defence of the complainant's evidence.

55. In support of the appellant's submissions on this aspect of the appeal reliance was placed on the decision of the High Court in Robinson v The Queen^[13] and in particular the following passage:

"[25]As the dissenting judgment in the Court of Appeal pointed out, there were particular features of the case which demanded a suitable warning.  Without seeking to describe these features exhaustively, they included the age of the complainant at the time of the alleged offences, the long period that elapsed before complaint, which in turn meant that it was impossible for a medical examination to verify or falsify the complaint, and the inconsistency in some aspects of the complainant's evidence as to whether penetration occurred.  A curious feature of the case was the absence of any conversation of any kind, on the evening in question or later, between the complainant and the appellant, about the appellant's conduct. There was no threat, and no warning to the complainant not to tell anyone.  The complainant and the appellant maintained a harmonious relationship. There was no suggestion of any earlier or later misconduct by the appellant towards the complainant.  An important aspect of the inconsistency and uncertainty about the matter of penetration was that the complainant said he was asleep when the first act of penetration occurred, and that he woke up while it was going on.  Finally, some features of the history of complaint may have indicated a degree of suggestibility on the part of the complainant.

[26]Taken together with the absence of corroboration, these matters created a perceptible risk of a miscarriage of justice which required a warning of a kind which brought home to the jury the need to scrutinise with great care the evidence of the complainant before arriving at a conclusion of guilt.  That warning should have referred to the circumstances set out above, and should have been expressed in terms which made clear the caution to be exercised in the light of those circumstances."^[14]

56. The appellant's reliance on Robinson invites two broad responses.  The first is that, as the passage cited from the High Court's reasons makes clear, Robinson does not require a warning to the jury in every case where a child's complaint of sexual abuse is uncorroborated.  Nor does it suggest that such a warning is usually necessary in such a case.  That is clear from [26] of the Court's reasons.  A warning was required in Robinson because of the matters referred to in [25] of the Court's reasons taken together with the absence of corroboration.  Important aspects of the case in Robinson which were identified in [25] of the Court's reasons are not present here.  Further, although there is present here no corroboration in the technical sense of evidence tending to confirm one or more of the elements of the offences charged, there was evidence which is capable of providing independent support for the complainant's version of events.  That evidence confirms a degree of intimate contact between the complainant and the appellant.  Further, in the present case there is evidence which explains the complainant's delay in complaining about the appellant's conduct.

57. Robinson was a case in which the appellant gave evidence denying the allegations made by the complainant.  The complainant's evidence was not only uncorroborated; it was directly contradicted by the evidence of the accused.  It was common ground that no conversation occurred between the complainant and the appellant adverting to the conduct alleged by the complainant, and that they maintained "a harmonious relationship".^[15]  The absence of an early complaint on the part of the complainant was not explicable by evidence of threats or the like.  There was no independent support for the complainant's evidence.  The complainant's evidence, in an important respect, was described by the Court as "curious" in the light of the other evidence which was common ground.  There was also evidence that the complainant was suggestible.  These features are not present in this case.  While the evidence of the mole on the appellant's pubic region and the tattoos of eyes on his buttocks may not have been corroborative of the complainant's evidence of any fact constituting an element of the offences charged, it did provide a real measure of independent support for the complainant's reliability.  Especially was this so in the absence of any plausible innocent explanation in the evidence as to how the complainant would know of such matters in the absence of an unusual degree of intimacy between the complainant and the appellant.

58. The second point to be made about the appellant's reliance on Robinson is that Robinson was truly an exceptional case so far as the justification for the warning was concerned.  The warning which the High Court considered was required in that case was not said to be justified because aspects of the case involved matters in which judicial experience may have given the trial judge an advantage in assessing the credibility of the competing versions of events over and above worldly wisdom and experience of the jury.  It is this advantage which, as I shall mention below, is usually cited as the justification for intrusion by the trial judge in the fact finding function of the jury.  It appears that in Robinson, the warning was required because, although it was possible that the complainant's allegations of misconduct on the part of the accused might have been believed beyond reasonable doubt, the complainant's own evidence of his relationship and dealings with the accused (which was in important respects corroborative of the evidence given by the accused) made the complainant's claims of sexual abuse by the accused implausible to a serious extent.  That cannot be said of the evidence of the complainant in this case.  That is not to say that there were not inconsistencies or discrepancies in the complainant's evidence:  there were; but it was for the jury to decide what to make of those inconsistencies and discrepancies.^[16]  The point is that in this case the uncontradicted evidence of the complainant's relationship and the dealings with the appellant was not such as to render improbable her evidence of sexual misconduct on his part.  There was not in this case the combination of factors present in Robinson which called for a strong warning to ensure that a jury did not accept the complainant's evidence without close scrutiny.  As Brennan J said in Bromley v The Queen:^[17]

"The possibility of a miscarriage of justice is both the occasion for the giving of a warning and the determinant of its content."

59. In this case the jury were told, that "[the complainant] is really the witness that the evidence rises and falls on". This was perfectly accurate. The jury were told that it was necessary for them to be prepared to accept her as sufficiently honest and reliable as to accept her evidence beyond reasonable doubt. In my view, in the circumstances of this case, there was no occasion for a stronger warning to prevent a perceptible risk of a miscarriage of justice.^[18]

60. The appellant also sought to link his principal complaint in relation to the learned trial judge's directions with a complaint that the jury had not been given a direction in relation to the complainant's delay in complaining about the appellant's conduct. In effect, the appellant seeks to argue that the learned trial judge should have perceived that the delay may have affected the fairness of the trial and should have given a warning to ensure that the trial was fair.^[19]

61. The appellant submitted that in the present case the following features gave rise to a perceptible risk of a miscarriage of justice if the jury were to convict without a warning that it was necessary closely to scrutinise the evidence of the complainant before bringing in a verdict of guilty:

1. delay on the part of the complainant in complaining to her mother of the appellant's misconduct towards her;

2. delay in bringing the complaint to the attention of the appellant;

3. the age of the complainant;

4. the failure of the complainant to complain of acts of penile and digital penetration when she made her first complaint to the authorities.

62. Section 4A(4) of the Criminal Law (Sexual Offences) Act 1978 (Qld) provides:

"If a defendant is tried by a jury, the judge must not warn or suggest in any way to the jury that the law regards the complainant's evidence to be more reliable or less reliable only because of the length of time before the complainant made a preliminary or other complaint."

63. Mr Kimmins for the appellant submitted that s 4A(4) did not proscribe a warning, which would necessarily reflect adversely on the complainant's reliability by reason of delay in making a complaint, when there were other matters which detracted from the complainant's reliability. His submission was that if there were other matters which made her evidence unreliable, then the prohibition in s 4A(4) did not apply, so that a trial judge would be permitted to warn the jury that the evidence was unreliable because of delay in making a complaint as well as because of the other matters.

64. Properly construed, s 4A(4) proscribes any suggestion by a trial judge that delay in making a complaint is a reason for regarding a complainant's evidence as unreliable. Any warning given by a trial judge must avoid any such suggestion. As Robinson shows, delay in making a complaint may, in combination with other circumstances of the case, give rise to an appreciation on the part of the trial judge that the complainant's evidence of sexual abuse is sufficiently implausible to require a strong warning to the jury; but delay of itself must not be suggested as a reason for the scepticism which calls for close scrutiny.  Thus the delays referred to in (a) and (d) of [61] above could not have been adverted to as, of themselves, a reason for scepticism on the part of the jury.  And for the reasons I have given, the other circumstances of this case were not such as to require a warning that special scrutiny of the complainant's evidence was necessary.

65. In relation to the point referred to in (c) of [61] above, the making of a comment adverse to the complainant's reliability by reason of the fact that she was a child is itself proscribed by s 632 of the Criminal Code.  Section 632 of the Criminal Code provides as follows:

"(1)A person may be convicted of an offence on the uncorroborated testimony of 1 witness, unless this Code expressly provides to the contrary.

(2)On the trial of a person for an offence, a judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated testimony of 1 witness.

(3)Subsection (1) or (2) does not prevent a judge from making a comment on the evidence given in the trial that it is appropriate to make in the interests of justice, but the judge must not warn or suggest in any way to the jury that the law regards any class of persons as unreliable witnesses."

66. In Robinson,^[20] the High Court said that the circumstances of a case, quite apart from the reliability of a complainant because of her youth or the fact that she is a complainant in a charge of a sexual offence, may include "matters personal to the uncorroborated witness … or matters relating to the circumstances, which bring into operation the general requirement considered in Longman".^[21]  In such circumstances a warning that the evidence must be scrutinised with great care before a verdict of guilty is brought in may be given without implying that the evidence of the uncorroborated child witness is unreliable.  As I have said, the facts of Robinson were such as to give rise to a perceptible risk of a miscarriage of justice from an uncritical acceptance of uncorroborated evidence which, having regard to the evidence which was common ground, strained credulity.  While a jury might properly convict in such a case the occasion for a strong cautionary warning from the trial judge had plainly risen because of other aspects of the case "taken together with the absence of corroboration."^[22]  The present case did not present such an occasion.  Any warning could not lawfully have included the suggestion that the complainant's evidence was unreliable because she was a child or because of delays in making her complaints.  No stronger warning was required for the reasons I have already given, including, in particular, the circumstances that the complainant's uncontradicted evidence was not relevantly uncorroborated in the sense explained above.

67. I turn then to deal with the point referred to in (b) of [61] above.  Historically, in trials by jury, the courts developed rules requiring judicial intrusion upon the fact-finding functions of the jury in the form of warnings of the dangers of acting upon the uncorroborated evidence of certain classes of witnesses such as children and complainants in cases of sexual offences.  The rationale for this judicial intrusion into the exclusive province of the jury was a judicial assumption that the experience of the courts afforded reasons, apparent to the judicial mind, but not to the lay mind, of the danger of acting on the uncorroborated evidence of such persons.^[23]  As Spigelman CJ noted in R v Johnston^[24] this assumption was not soundly based; but in any event, the legislature has rejected the thesis that judges have a role to play in warning juries that the unreliability of uncorroborated evidence of children or victims of sexual offences is such as to call for "close scrutiny" before that evidence is accepted, or that a complainant's evidence is to be regarded as requiring close scrutiny because of a delay in making a complaint.

68. In Carr v The Queen^[25] Brennan J explained further the nature of the occasion which gives rise to the necessity for a warning to the jury in relation to the assessment of the evidence which has been admitted for its consideration.  His Honour said:^[26]

"Trial judges give warnings to juries in many situations to guard against perceptible risks of justice miscarrying.  The warnings may relate to the jury's contact with the public, the need to disregard information obtained outside the courtroom, the dismissal of prejudice or a variety of other matters occurring in the course of a trial.  A warning may be needed to ensure that the jury attributes the appropriate significance and weight to the evidence.  That is a central aspect of the jury's function.  In the majority of cases the assessment of the evidence can be left to the jury's experience unaided by judicial warnings but there are some occasions when a warning is needed.  A warning is needed when there is a factor legitimately capable of affecting the assessment of evidence of which the judge has special knowledge, experience or awareness and there is a perceptible risk that, unless a warning about that factor is given, the jury will attribute to an important piece of evidence a significance or weight which they might not attribute to it if the warning were given.  It is not possible to define a priori the circumstances in which a warning is necessary: the circumstances which show whether a perceptible risk of miscarriage of justice exists in relation to the assessment of evidence include the charge, the evidence and the conduct and atmosphere of the trial.  Although no rule of law postulates a priori the cases in which a warning is needed, a failure to give a warning when one is needed leaves the proper significance and weight of the evidence in doubt.  A guilty verdict founded on that evidence alone may have to be set aside by an appellate court as a miscarriage of justice because the jury, in the absence of a warning, may have reached their verdict by attributing to the evidence an erroneous significance or weight."

69. Three points of present relevance are made in this passage. The first is that in most cases a warning is not a necessary aid to the jury's performance of its function of assessing the evidence. The second point is that the basis for the giving of a warning is the "special knowledge, experience or awareness" of the judge (actual or inherited). The third point, a point also made in the reasons of Brennan J in Bromley v The Queen^[27] is that the giving of the warning is a matter of necessity to avoid a miscarriage of justice.  If the warning is not necessary to avoid a miscarriage of justice it need not be given.

70. It is to be emphasized that it is not sufficient to establish that a miscarriage of justice has occurred or that a verdict is unsafe or unsatisfactory, that a comment or a warning might have been given as a matter of prudence so that the trial would be "more fair". It is only where the necessity for a warning has arisen that a failure to give the warning will ground a claim that a miscarriage of justice has occurred. In my view, in the present case, no occasion arose for the giving of a warning as a direction necessary to avoid a miscarriage of justice. The "dangers", if any, of acting upon the evidence of the complainant were equally obvious to the jury: there is no special judicial knowledge to be brought to bear in the assessment of the reliability of the complainant's evidence; and there was no other aspect of the case which bore upon the assessment of the evidence of which a judge, but not a jury, would be aware.

71. The legislature has made it clear that, in a trial by jury, it is for the jury to determine, unaffected by "expert" direction from the judge, what should be made of delay in making a complaint of a sexual offence in terms of the reliability of a complainant.

72. Apart from the issue of the complainant's reliability by reason of delay in making a complaint, the justification for judicial intervention in the fact-finding process of present relevance was identified in Longman v The Queen^[28] and Doggett v The Queen^[29] as a judicial concern that the lay mind may not be alert to the forensic disadvantages which may be suffered by an accused by reason of the lapse of time.  These disadvantages may involve problems, both in marshalling evidence in his or her defence, and in attacking a prosecution case made more plausible because the lapse of time gives rise to the risk of honest but erroneous memory on the part of a complainant.  This latter problem may be especially acute in the case of a complainant who was a young child at the time of offences alleged to have occurred many years before trial.

73. In this case, the new evidence upon which the appellant seeks to rely does not suggest that the appellant was disadvantaged by the delays of which the appellant complains. Rather, this evidence tends to confirm that a warning of the forensic disadvantage suffered by the appellant by reason of the lapse of time would have been given on a false assumption. That is so because, having regard to the further affidavit material presented on appeal, it would have been quite wrong to suggest that the appellant's ability to marshal evidence in support of his case was adversely affected by the delay on the complainant's part. The learned trial judge cannot fairly be criticized for failing to perceive that delay may have adversely affected the appellant's ability to present his case. No such prejudice was identified to her Honour however; and indeed no such prejudice was identified in the hearing in this Court.

74. This was not a case where the complainant's age at the time of the occurrence of the offences of which she gave evidence, coupled with the lapse of time before her complaints were brought to the appellant's attention were such as to give rise to a realistic concern that the effects of the long passage of time on child fantasy or semi-fantasy may have created a problem that honest but erroneous memory has given the complainant's evidence a false plausibility.^[30]

75. Finally in relation to this point, there was no application at trial for a Longman direction.  It is now said that this is another example of the incompetence of those who represented the appellant at trial.  The failure of those who represented the appellant at trial to seek a Longman direction is, however, reasonably explicable on the footing that the view was reasonably open that this was not a case of "long delay" of the kind apt to disadvantage the accused in any of the ways discussed above.

76. Next the appellant complains about the direction to the jury in relation to the significance of the appellant's failure to give evidence. In this regard, the learned trial judge's direction to the jury was in the following terms:

"In this case the accused has chosen not to give or to call evidence.  The fact that he has made that decision cannot be used by you as an admission of guilt by him.  His silence does not, and cannot, displace or change the burden of proof which the prosecution has, namely to prove his guilt beyond a reasonable doubt.  There is no obligation on any person charged to give evidence and the fact that he does not [scil] give evidence cannot be used by you to fill any gaps in the evidence of the prosecution."

77. The appellant relies upon the following passage from the decision of the High Court in Azzopardi v The Queen^[31] where Gaudron, Gummow, Kirby and Hayne JJ said:

"[51]In the course of argument of the present matters it was suggested that if a judge said nothing to the jury about the fact that an accused had not given evidence, the jury may use the accused's silence in court to his or her detriment.  Plainly that is so.  It follows that if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused's silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt.  It by no means follows, however, that the judge should go on to comment on the way in which the jury might use the fact that the accused did not give evidence."

78. The learned trial judge's direction to the jury conforms to the substance of these observations. With the exception of the word "make-weight" it conforms to the very words suggested by the High Court. It has been held that this divergence, ie, the failure to use the word "make-weight" in the direction to the jury, is immaterial.^[32]

79. Next the appellant makes specific complaint that the learned trial judge failed to give full and accurate directions in relation to preliminary complaint. As has been seen, s 4A(4) of the Criminal Law (Sexual Offences) Act 1978 (Qld) prohibits a judge from commenting adversely on the reliability of the complainant's evidence merely because of the length of time it took for the complainant to complain.  Subject to this restriction, the trial judge may make any comment that is appropriate pursuant to s 4A(5).

80. In this regard, the learned trial judge told the jury:

"… if you find that conversation shows a significant inconsistency in what the complainant now says to what she told her mother, then that would also affect her credit, because it is a different story than that which she told her mother, if you find it is a different story."

81. In my respectful opinion, this direction was adequate to draw to the jury's attention the relevance of inconsistencies between the terms of her complaint and her evidence at trial to the complainant's credibility. It is not surprising that no further direction was sought at trial.

82. Next the appellant complains of the failure of the learned trial judge to direct the jury in terms of s 21AW of the Evidence Act 1977 (Qld).  This complaint arises by reason of the circumstance that the complainant's evidence at the trial was given from a remote witness room and transmitted to the court room via a television screen in conformity with s 21AP of the Evidence Act.

83. In this regard, the learned trial judge said:

"And then we have what we call a remote witness room where she will be and you will see her through the television when she's giving her evidence and cross-examination.  That's actually a new provision of our Evidence Act, ladies and gentlemen, that all children under 16 and other special witnesses give their evidence outside the courtroom.  That's just a device to try and make it a bit easier for children in particular to give evidence because a courtroom is quite an intimidating place, which I'm sure you'll imagine, and giving evidence in front of usually about 20 or so strangers is never easy, particularly when you're a child.  So please bear in mind that all children have that manner of giving evidence and it's nothing against the accused.  It's just the usual procedure in these sorts of cases."

84. Section 21AW(2) of the Evidence Act is expressed in mandatory terms as follows:

"(2)The judicial officer presiding at the proceeding must instruct the jury that—

(a)the measure is a routine practice of the court and that they should not draw any inference as to the defendant's guilt from it; and

(b)the probative value of the evidence is not increased or decreased because of the measure;  and

(c)the evidence is not to be given any greater or lesser weight because of the measure."

85. It can be seen that s 21AW(2) required the jury to be informed, inter alia, that the probative value of the complainant's evidence was not increased or decreased because of this circumstance and that her evidence was not to be given any greater or lesser weight because of that circumstance. No other express directions were given about those matters. No complaint was made in this regard at trial.

86. The Crown submits that the failure to give those directions would not have led to a miscarriage of justice because nothing said in the summing up suggested that the complainant's evidence had greater probative value or greater weight because of the way it was put before the jury.

87. The failure on the part of the learned trial judge to comply with the terms of s 21AW(2) was an error of law.  In this regard, the Crown invoked s 668E(1A) of the Criminal Code, "the proviso".  The question which arises for the purposes of the proviso is whether, notwithstanding that error of law, no substantial miscarriage of justice has occurred.  That question must, in my view be answered in the affirmative.  As McHugh J said in TKWJ v The Queen:^[33]

"No miscarriage of justice has occurred if the error did not deprive the accused of a real chance of acquittal."

The failure to read out the full terms of s 21AW(2) could not conceivably have adversely affected the appellant's chances of an acquittal.

88. Next, the appellant complains of the learned trial judge's failure to direct the jury that the appropriate standard of proof in relation to uncharged acts is proof beyond reasonable doubt. In this regard, the evidence of uncharged acts was led to establish the nature of the relationship between the appellant and the complainant. It was not apt to establish "an indispensable link" in a chain of proof towards an inference of guilt. Decisions of this Court clearly establish that, in these circumstances, a direction that the jury could only use the evidence of uncharged acts if it was satisfied of the truth of that evidence beyond reasonable doubt, was unnecessary.^[34]

89. Mr Kimmins also submitted that some uncharged acts, which were not specifically identified as such, were intertwined with charged acts, and so should have been the subject of a direction that proof beyond reasonable doubt was required. To the extent that some of the incidents charged in counts 1 to 10 might be analysed as to reveal uncharged acts as part of the "res gestae", the effect of the learned trial judge's direction was to require proof of the occurrences of the incident beyond reasonable doubt. In other words, the appellant could not have been prejudiced by the failure to dissect out the facts of the charged offences the elements of other offences which were uncharged.

90. As to the appellant's complaint that the learned trial judge failed to give full and adequate directions in relation to the use of which the jury might properly make of the evidence of uncharged acts, the learned trial judge said:

"If you find that you have a reasonable doubt about an essential element of the charge, you must find the accused not guilty of the charge, but as I have said, in addition to the 10 offences, you have also heard evidence from the complainant of other incidents in which she says sexual activity involving the accused occurred.  She wasn't particularly specific about that activity in her audio tapes, although there were some more specifics given in cross-examination.

Those incidents are not the subject of any charges before you and you can use the evidence of them for one purpose only, that is, if you accept the evidence, it shows the prosecution says, the real nature of the relationship between the accused and the complainant and it does put the 10 charges in their proper context, but you should really only have regard to the evidence of the incidents, not the subject of the charges, if you find them reliable.

If you accept them, you must not use them to conclude that the accused is someone who has a tendency to commit the type of offence with which he is charged.  It would be quite wrong for you to reason that if you are satisfied, for example, that he had sex with the complainant at Agnes Waters, he is therefore likely to have committed count 1, 2, 3 or 4, or whatever.

Remember that the evidence of the incidents, not the subject of the charges, comes before you only for the limited purpose mentioned and before you can convict the accused, you must be satisfied beyond reasonable doubt that the charge has been proved by evidence relating to that charge.  However, if you don't accept the complainant's evidence relating to the incidents not the subject of the charges, you can take that into account when considering her  evidence relating to the offences that have been charged.  For example, if you think, I will use the Agnes Waters example again, if you think that she is just making up these episodes of sexual intercourse at Agnes Waters, obviously, that is going to significantly affect her credibility and that is going to reflect on whether you accept what she says in relation to counts 1 or 2 or 3 or 4 etc.

So, that is just in relation to the offences which are not charged, which generally - I probably will not list them all, but there is the Agnes Waters camping trip, there is the testicles against the breasts, there is the fact that she says she was raped up to 30 times by the accused and she says he also inserted his finger in her vagina on up to a dozen occasions.  So those things all have not been charged and that I refer to when I say acts that have not been charged."

91. Having been so instructed, the jury would have understood that they could not use the evidence of the uncharged acts to reason from acceptance of that evidence to a conclusion of guilt on any of these specific charges. In my view, the directions given by the learned trial judge, in this regard, were adequate.^[35]  It is significant in this regard, that the jury did not accept the complainant's evidence in relation to the rape counts 2 and 10.

92. Next the appellant contends that the learned trial judge erred in failing to direct the jury that:

1. proof of guilt upon any one count was irrelevant to the question of guilt upon another count;

2. the evidence led in support of one count did not go to prove any other count;

3. evidence led in support of one count must not be treated as tending to prove an inclination in the accused towards the relevant conduct.^[36]

93. In this regard, the learned trial judge directed the jury as follows:

"Remember in this case that there are separate charges.  You must consider each charge separately, evaluating the evidence relating to that particular charge, to decide whether you are satisfied beyond reasonable doubt that the prosecution has proved the elements.  You will return separate verdicts for each charge.  The evidence in relation to the separate offences is different and so your verdicts need not necessarily be the same.  Your verdicts, however, must be unanimous, that is, you must all agree on the verdict whether it be guilty or not guilty.  There is no majority verdict allowed in this State.

…

In this case, ladies and gentlemen, you have also heard evidence from the complainant about a number of offences which haven't been charged.  You must remember that the accused is charged only with the 10 offences set out in the indictment and as I have already said to you, you have got to consider those charges separately.

If you find that you have a reasonable doubt about an essential element of the charge, you must find the accused not guilty of the charge, but as I have said, in addition to the 10 offences, you have also heard evidence from the complainant of other incidents in which she says sexual activity involving the accused occurred.  She wasn't particularly specific about that activity in her audio-tapes, although there were some more specifics given in cross-examination.

Those incidents are not the subject of any charges before you and you can use the evidence of them for one purpose only, that is, if you accept the evidence, it shows the prosecution says, the real nature of the relationship between the accused and the complainant and it does put the 10 charges in their proper context, but you should really only have regard to the evidence of the incidents, not the subject of the charges, if you find them reliable.

If you accept them, you must not use them to conclude that the accused is someone who has a tendency to commit the type of offence with which he is charged.  It would be quite wrong for you to reason that if you are satisfied, for example, that he had sex with the complainant at Agnes Waters, he is therefore likely to have committed count 1, 2, 3 or 4, or whatever."

94. Having regard to authority, this direction was adequate. In KRM v The Queen,^[37] McHugh J said:

"[33]Hitherto, common law courts have accepted that a propensity warning is not required merely because a presentment contains a multiplicity of counts involving similar offences (R v J [No 2] [1998] 3 VR 602 at 638-643, per Callaway JA).  No propensity warning is required, for example, because the accused is charged with several counts of housebreaking or stealing or murder or sexual offences.  Counsel for the appellant accepted that, if the presentment in this trial had not contained count 18, the appellant had no right to a propensity warning.

[34]Directions concerning the dangers or the use that can be made of particular categories of evidence are the product of the collective experience or assumptions of the Anglo-Australian judiciary that, without these directions, miscarriages of justice are likely to occur.  Directions concerning identification evidence, confessions made in police custody, prisoner-informer evidence and accomplice evidence, for example, are the product of judicial experience that, unless carefully scrutinised, evidence falling within these categories may lead to miscarriages of justice.  Consequently, where over a long period courts have refrained from insisting that a class of evidence should always attract a direction, it is a reasonable inference that the experience of the judiciary is that universal directions or warnings concerning that evidence are not required.

[35]It seems a reasonable conclusion, therefore, that the experience of the judiciary negates the need for a propensity warning merely because an accused person is charged on a presentment with a number of counts containing the same or similar offences against the same victim and that is so whatever the nature of the charges.

[36]It has become the standard practice in cases where there are multiple counts, however, for the judge to direct the jury that they must consider each count separately and to consider it only by reference to the evidence that applies to it (a "separate consideration warning").  The universal giving of a separate consideration warning and the omission of a universal propensity warning indicates that the giving of a separate consideration warning is ordinarily sufficient to avoid miscarriages of justice in cases such as the present.  This indication is confirmed by the many cases where juries acquit accused persons of some charges and convict them of others where the presentment contains multiple counts involving the same or similar offences. Indeed, so freely do juries acquit of some charges and convict of others on presentments with multiple counts that appellate courts often hear arguments that there is such an inconsistency in the verdicts that the convictions are unsafe and must be set aside (cf Jones v The Queen (1997) 191 CLR 439)."

The observations by McHugh J in the last paragraph of the passage cited here should be borne in mind as well in relation to the appellant's arguments regarding inconsistent verdicts.

95. In the same case, Hayne J said:^[38]

"[131]… I agree with McHugh J that this appeal should be dismissed.  I agree that there is no absolute rule that the judge must always give a warning against 'propensity' reasoning when the presentment contains a count of maintaining a sexual relationship with a young person contrary to s 47A of the Crimes Act 1958 (Vict) or its equivalents in other jurisdictions.  I further agree that there is no absolute rule that the judge is always required to give such a direction in respect of the individual acts that form the basis of the charge under s 47A or its equivalents.  Ordinarily, no such direction is required.

[132]The trial judge, in this matter, gave a direction that each count on the presentment must be considered separately in the light of the evidence which applied to it and that it would be quite wrong to say that simply because the jury find the accused guilty or not guilty of one count that the accused must be guilty or not guilty (as the case may be) of another count.  These directions, which ordinarily must be given in any trial where there are multiple counts before the jury, will usually suffice to warn the jury against reasoning of the kind described as 'propensity' reasoning. No further elaboration or emphasis of that warning was called for in this case."

Inconsistent verdicts

96. The appellant contends that the jury's failure to reach a verdict in relation to the first, second and tenth counts is demonstrative of a miscarriage of justice.

97. It may be said immediately that the appellant's submissions in this regard involve a degree of over-statement in that it is incorrect to speak of inconsistent verdicts in relation to counts 1, 2 and 10. In truth, the jury failed to reach a verdict in relation to those counts. That is indicative of the inability of the jury unanimously to reach a verdict on those counts one way or the other.

98. Having regard to the evidence of Dr Stevenson, it is readily understandable that the jury may have been disinclined to convict the appellant on the rape counts, and that the complainant's evidence of rape in relation to the second count on the indictment led some members of the jury to reject her evidence in relation to the first count on the indictment.

99. The evidence of the photographs of the appellant's private parts, and the evidence of the plaintiff's mother supporting her presence in the appellant's motor vehicle on the trip back from the Gorge and of the complainant's evidence that the appellant accompanied her to the car park of the motel afford a reasonable basis for concluding that the jury did perform their functions as required, accepting some of the complainant's evidence while rejecting other parts of it.^[39]

Conclusion

100. In my view, the appellant's contention that a miscarriage of justice occurred has not been made out. I would dismiss the appeal.

101. HELMAN J:  I agree with the order proposed by Keane JA and with his reasons.