R v BAZ[2005] QCA 420

SUPREME COURT OF QUEENSLAND

1. McMURDO P:  The appellant was charged with one count of indecent treatment of a child under 12 who was his lineal descendant (count 1), one count of indecent treatment of a child under 16 who was his lineal descendant (count 2) and one count of sexual assault (count 3).  He pleaded not guilty and was convicted on 4 May 2005 after a four day trial in the District Court at Ipswich of counts 2 and 3 but found not guilty on count 1.  He was sentenced to 18 months imprisonment on count 2 and to 12 months concurrent imprisonment on count 3.  The appellant, who is self‑represented, appeals against his conviction and applies for leave to appeal against his sentence.

The appeal against conviction

(a)The appellant's contentions

2. The grounds of his appeal are as follows:

"I believe that I was misrepresented by my barrister …

1. My Evidence was not produced.

2. Witnesses for my behalf was not called on.

3. I was advised not to take the stand.

4. Last Day of trial my Barristor [sic] was not present.

The Reason for the Witnesses, evidence and myself not to take the stand was [my barrister] said that I didn't have to prove Anything and he wished Address the Jury Last."

3. The appellant relied on these grounds in his oral submissions. In his written outline of argument and orally he also raised other contentions, the most significant of which are as follows. He contended that the guilty verdicts were unreasonable. There were irregularities with respect to the jury's deliberation. There is evidence, which was not led at the trial, to refute the allegations of the complainant that she did not leave home until 16 October 2003.  Contrary to the complainant's sworn evidence, she contacted her brother whilst she lived in New South Wales.  She took items from the house including alcohol, jewellery and her own belongings before she made the complaint to police.  Contrary to her sworn evidence on count 2, she could not have seen the time on the clocks because of their location in the bedroom.  Contrary to her evidence, her two younger siblings did not stay at their aunt's house when their mother travelled to New South Wales so that there was no opportunity for count 2 to have occurred.  Because of the household rules coffee would not have been brought into the bedroom as she contended in her evidence on count 3.  The complainant was trained in kickboxing and could defend herself.  The complainant was vague on details of the offence and she altered her statement to police after prompting by them.

4. The determination of these issues requires a brief review of both the evidence at trial and the course of the trial.

(b)The evidence

5. The prosecution case turned principally on the evidence of the complainant. The complainant was the appellant's natural daughter who was born in August 1987. She was 17 when she gave evidence at trial by way of closed circuit television.

6. The complainant's evidence on count 1 was in these terms. About four or five months before she went to live with her grandmother in April 1998 (that is, in late 1997 or early 1998 when she was about 10 years old) she was living with the appellant. Her stepmother and brothers were Christmas shopping. She was in the lounge room watching TV. The appellant called her into his bedroom, gave her a hug, sat her on the bed, grabbed her hand and put it on his penis on the outside of his clothing. He rubbed her hands against his penis, unzipped his pants, pulled his pants down and put her hand on his penis, skin to skin. He had her rub his penis. He grabbed her head and put her mouth around his penis which she sucked until he ejaculated into a towel. He told her not to tell anyone. The incident was isolated and afterwards their relationship returned to a normal father-daughter relationship although she described herself as a "ratbag … always in trouble". With encouragement from her stepmother she went to live with her grandmother in New South Wales. She told an acting principal at her New South Wales primary school that she had been sexually assaulted by her father. She was unsure whether she said anything else; she was upset and distressed at the time. When she went to high school the following year she repeated this complaint to a counsellor.

7. During a lengthy and thorough cross-examination which took place over two days she agreed that at the committal proceedings in June 2004 she could not remember these allegations at all. She forgot about this incident for a time. Her mother had died in 1991 and by 1994 her father had married her stepmother. She then exhibited destructive behaviour, damaging her waterbed and flyscreens in her room. In 1994 when she was about six years old she was in trouble at school for stealing stickers from the teacher's desk. She protested to her father about first coming to Queensland from New South Wales in 1996. She was constantly in trouble at home. She did not get on well with her stepmother but she agreed that the stepmother did not bash her. She did not remember telling the acting principal that her stepmother bashed her. She agreed that she took some $20 notes from her father's wallet and handed them out to friends. Her father took her through a police station to encourage her to not end up in trouble with police when she was older. Before she left Queensland to live with her grandmother she blamed her father for her mother's death and had "big fights" with her father. She told him that he was not her father. She did not, however, accuse him of sexual abuse.

8. Her evidence as to count 2 was as follows. She lived with her grandmother for about four years but returned to live with the appellant, her stepmother and family in Easter 2002. The next year when she was about 14 or 15 her stepmother went to New South Wales because her mother had died. The complainant's brother, RO, was at a friend's place. Another brother, J, and a sister, RE, were at their aunt's home. The complainant was putting on her pyjamas in her room. The appellant asked her to sleep in his bed and she agreed. He gave her a cuddle goodnight and she went to sleep. At about 2.30 in the morning she woke up to find him kissing her. She knew the time because she looked at the clock. His hand was near her vagina on the outside of her pyjama pants. His hand then went down her pants and onto her vagina, skin on skin. She could not remember if he penetrated her vagina. He then pulled her pants down and licked her vagina. This hurt. She was unsure whether he penetrated her with his tongue. She tried to pull away. He kissed her on the mouth. He grabbed her hand and placed it on his penis. She pulled her hand away, turned over and went back to sleep. He then cuddled her and told her not to tell anyone.

9. She said that nothing improper happened again until about two months after she turned 16. Count 3 then occurred in this way.  One day between August and October 2003, shortly after her 16th birthday, her stepmother was out attending to her community work.  Her siblings were downstairs.  The appellant told her to make him a cup of coffee.  She took it to him in his bedroom.  He sat her down on the bed, gave her a hug, kissed her, touched her breasts skin to skin and then kissed her breasts.  He lifted her shirt and her bra up.  The phone rang and she left the room.

10. In October 2003 she told a school counsellor that she was sexually assaulted by her father. That evening she made a complaint to police. She did not return to his home and shortly afterwards moved once more to her grandmother's residence in New South Wales.

11. In cross-examination she said that in 2002 she contacted her father so that she could open a bank account. In June that year she arranged to holiday with him in Queensland. They agreed that she could live with him as part of his family. After a time she resented being told what to do by him. She again blamed him for her mother's death and said that he was not her dad. She did not, however, accuse him of sexual abuse. As to count 2, she denied that clocks in her father's bedroom were positioned so she could not have seen the time and maintained that J and RE were at their aunt's place. A girlfriend from school had moved out of home shortly before she complained about counts 2 and 3. The complainant also wanted to move out of home and receive a youth allowance. She had a fight with him because he had falsely accused her of having a male friend in her bedroom. She was also cross‑examined extensively about her "flashbacks" of memory, relatively minor inconsistencies between her statement to police in October 2003, her evidence at committal in June 2004 and her evidence at trial on 28 and 29 April 2005.

12. In re-examination she said that when she first spoke to police she was too upset and scared to say much. Although she was given her police statement to read on the morning of the committal she was too upset to read it. She was scared and confused when she gave evidence at committal.

13. The complainant's acting primary school principal in New South Wales gave evidence, refreshing her memory from contemporaneous notes, that on 11 February 1999 the complainant told her the following.  Her dad came in when she was asleep.  He told her seven year old brother, RO, to go outside.  He threw her on the bed and "did everything".  The witness asked her what she meant.  The complainant looked upset and embarrassed.  The witness asked her if she meant "sexual things".  She agreed.  On another day all her family was asleep and her father told her to lie on the lounge and "did the same to her then".  The witness did not personally follow up the complaint but referred it to the Department of Community Services.  At 3.00 pm she told the complainant's maternal grandmother of the complaint.  In cross‑examination she agreed that her notes also recorded "bashed by father's de facto" and "history of social and emotional difficulty at this school".  When the complainant spoke to her a female school friend, K, was present at the complainant's request.

14. A Queensland high school guidance officer gave evidence that on 15 October 2003 the complainant told her that "she had been sexually abused. Her father had been touching her since after her mother died in 1991 or a short time after that … and it was continuing and she wanted it to stop". She was distraught and emotional. The complaint was passed onto police, although the complainant did not want her complaint to go further.

15. Police Officer Mills spoke to the complainant on 16 October 2003 at her school. She was distraught, pale and shaking and not at all happy to see him. She was completely unable to articulate or speak. Alternative residential arrangements were made for her and she attended at the Juvenile Aid Bureau later that afternoon. He obtained a statement from her. She was significantly more composed when giving the statement than when at school but she was still teary and periodically crying. In cross-examination he said that he initially received a complaint or information from the high school on 14 October 2003 but did not attend the school until two days later.

16. The complainant's grandmother gave evidence that the complainant came to live with her in New South Wales on 4 April 1998. At one time she was called up to the school because the complainant was upset and was told that the headmistress intended to contact the Department of Community Services. The complainant returned to Queensland on 19 March 2002. She had no idea that the complainant intended to leave for Queensland at that time or why she left. The complainant returned to live with her again on 26 October 2003. In cross-examination she denied that the complainant was hard to control and described her as "quite a good child".

17. The appellant did not give or call evidence.

(c)The judge's directions to the jury

18. In the summing up to the jury the learned primary judge emphasized that the main evidence came from the complainant and in assessing her testimony they should consider whether it differed from what she had said on another occasion because:

"… the reliability of a witness who says one thing one moment and something different the next about the same matter is called into question.  In weighing the effect of such inconsistency or discrepancy, consider whether there is a satisfactory explanation for it.  For example, might it result from an innocent error such as faulty recollection or else could there have been an intentional falsehood?  Be aware of such discrepancies or inconsistencies and where you find them carefully evaluate the testimony in light of other evidence.  That is a matter that has been relied on heavily by the defence so you obviously have to consider that carefully".

19. Her Honour reminded the jury that the appellant was not bound to give or call evidence and his silence in court did not constitute an admission and may not be used to fill gaps in the evidence or as a makeweight in assessing whether the prosecution has proved its case beyond reasonable doubt.

20. Her Honour explained to the jury the elements of each count and referred to the evidence relied on by the prosecution to establish each count.

21. Her Honour next referred to the evidence from the New South Wales acting principal and the Queensland high school guidance officer of the preliminary complaints to them in 1999 and 2003 respectively. Her Honour said:

"That evidence can only be used as it relates to the complainant's credibility.  Consistency between [their] account[s] and the complainant's evidence before you, is something that you may take into account as possibly enhancing the likelihood her testimony is true.  However, you can not regard the things said in these out of Court statements as proof of what actually happened.  In other words, evidence of what was said on that occasion may, depending on the view you take of it, bolster the complainant's credit because of consistency but it doesn't independently prove anything.… if she said something different to one of the counsellors about things that happened, that is actually not evidence those things happened.  You can only use it to look at whether there is consistency between what she now says to you in Court and what she said on previous occasions.  The logic of that is, of course, that it is coming from her mouth so it is not independent evidence of what actually happened".

22. The judge, consistent with Longman v The Queen,^[1] emphasized that, particularly in respect of count 1, there was a long period between when the complainant said the events happened and she made the complaint to police.  Her Honour told the jury that this made it particularly difficult for the appellant to test her account or to call evidence throwing doubt on the complainant's story at trial.  Her Honour told the jury to be very careful when looking at the complainant's evidence, particularly in respect of count 1, and to scrutinize it with great care and not act on it unless satisfied beyond reasonable doubt of its truth and accuracy.

23. Her Honour also reminded the jury that on a previous occasion under oath at the committal proceedings the complainant had said she had no memory at all of the events constituting count 1. Her Honour added:

"I've spoken to you about the significance of different statements made at the committal and the fact that that was on oath and obviously that will affect a persons [sic] credibility if she said something significantly different at an earlier time, and you would take into account her explanation for saying something different at an earlier time and see whether you think that that is a good explanation or not".

24. Her Honour next summarized the prosecution and defence cases. The judge told the jury that defence counsel emphasized that the complainant had behavioural problems and an unsettled background. She was no longer a young girl and she should have been able to give evidence in court. At the committal proceedings she said she could not remember a lot of the things about which she gave evidence at trial. In cross-examination at trial she said she had memorised her statement so that her evidence was merely a recitation of her statement, not an independent memory of events. When she made a complaint in 1999 to her school principal she inaccurately claimed that her father's partner had bashed her. Her false allegation against her stepmother in this respect suggested that her evidence generally could not be relied upon in a criminal trial. The evidence at trial revealed that she had a forceful personality and fought with her father about many things so that it was highly improbable that she would have silently put up with the sort of behaviour she alleges against him. The defence case was that the complainant's evidence was improbable; it could not be accepted and the jury would acquit on each count.

25. The jury retired to consider their verdicts.

(d)Redirections

26. After hearing counsels' submissions her Honour recalled the jury and told them that both counsel had mentioned a possible motive for the complainant to make false allegations against the appellant. Her Honour directed the jury that an accused person does not have to prove anything; he certainly need not prove that the complainant has a motive to bring false allegations. The judge also explained to the jury that in relation to count 3 the prosecution must prove beyond reasonable doubt that the complainant did not consent to the appellant's conduct.

27. A juror then asked the judge to explain motive "a little bit more".

28. Her Honour then referred to counsels' addresses:

"[the prosecutor] said, 'What motive would she have to make these things up?'  The defence have sort of suggested that it was because she had a boyfriend in her room and the accused had a fight with her about that and that was basically a stupid motive.  And, then, [the appellant's trial barrister], when he addressed, said something about not really knowing what the motive was and, in any case, it's not a proper way to approach the matter to say, 'Why would she make these things up?' or 'Was that a sufficient motive?'  And all I'm really saying to you, ladies and gentlemen, is that the defence, because they don't have to prove anything in a criminal case, don't have to prove a motive.  So, they don't have to find a motive to say, 'this is why she's made this up.' Because, otherwise, that's putting proof on the accused.

…

So if you find that the motive that might have been suggested or the way it came out doesn't provide a sufficient motive for her to have made these things up, then you don't say, 'Well, therefore, the Crown's proved its case,' is all I'm tyring [sic] to say because sometimes have [sic] motives to do things that aren't apparent and you might not be able to find a motive but that doesn't necessarily mean that the Crown's proved its case".

29. The jury retired to consider their verdict at 12.46 pm. The court reconvened at 5.15 pm because the jury had indicated that they were having difficulty reaching agreement and were seeking further directions.  The learned primary judge then gave a direction of the type suggested by the High Court in Black v The Queen.^[2]  The jury retired again to further consider their verdict at 5.21 pm.  At 5.50 pm the court reconvened to consider a jury question as to whether in cross‑examination the complainant said that at one period she had no recollection of count 3.  The jury returned at 5.55 pm and the relevant parts of the transcript of the complainant's evidence were read.  They retired again to consider their verdict at 6.02 pm.

30. The court did not reconvene again until the following morning at 10.30 am, in the absence of the jury, to consider another request from the jury for a redirection about consent, relevant only to count 3. On this occasion the appellant was represented not by his barrister who had conducted the trial but by his solicitor. The jury returned to court at 10.35 am. Through their speaker, the jury inquired whether on count 3 consent was an issue when the complainant was 16 years old. Her Honour reminded the jury that the defence case was that the incident did not occur so that on the defence case, consent was not an issue but, nevertheless, the jury could not convict unless they were satisfied that the complainant was not consenting in respect of count 3. Her Honour gave a direction as to the legal meaning of consent about which there is no complaint and referred to the complainant's relevant evidence. The jury retired again at 10.40 am. They returned with their verdicts at 12.05 pm.

(c)Conclusion

31. After reviewing the evidence and the judge's summing up I am satisfied that a reasonable jury was entitled to convict the appellant on counts 2 and 3. The appellant's trial barrister made some powerful points in cross-examination, particularly in respect to count 1. These included that the complainant, at least on some levels disliked her father, blamed him for her mother's death, wanted to leave home and may for these and associated reasons have made false allegations against him. She had apparently told the New South Wales acting school principal that her stepmother had bashed her when she agreed that this was untrue. She has not always recalled the incidents constituting count 1. Her preliminary complaint to the acting principal about count 1 was not entirely consistent with her evidence on that count at trial. There were some inconsistencies between her police statement, her committal evidence and her evidence at trial. These matters primarily related to count 1. They were, neither alone nor in combination, such as to compel the jury to reject her evidence on counts 2 and 3.

32. This was not a case where the jury's unpreparedness to accept the complainant's evidence on count 1 necessitated the rejection of her evidence on counts 2 and 3: cf R v Markuleski.^[3]  The verdict of acquittal on count 1 is clearly explained by, first, the delay between when the complaint was made and the time when the charge was brought and, second, that the complainant had no recollection of the events constituting count 1 when she gave evidence at the committal proceedings in June 2004.  In addition there were perhaps some inconsistencies between her evidence on count 1 and her preliminary complaint on that count.  The jury's verdict of acquittal on count 1 does not suggest that there has been a miscarriage of justice in respect of the verdicts of guilty on counts 2 and 3:  MacKenzie v The Queen.^[4]

33. The essence of the appellant's complaints in this appeal is that he is innocent and having now been convicted of two of the three offences with which he was charged, he regrets the way his trial was conducted and feels that, if it had been conducted differently with additional cross-examination and had he given and perhaps called evidence he may have been acquitted. He would like a retrial. His written outline and his oral submissions reveal that he discussed the conduct of his case with his experienced trial barrister and after listening to his barrister's advice he decided not to give or call evidence so that his barrister would have the last address to the jury. Nothing that the appellant has placed before this court has demonstrated that the advice of the appellant's trial counsel not to adduce evidence was anything other than the advice of a competent counsel which, when viewed objectively was both rationally and tactically explicable. The appellant made an informed and free choice to accept that advice. He has not demonstrated that he has been deprived of the chance of an acquittal that was fairly open to him so that a miscarriage of justice has resulted from his election not to give or call evidence: see TKWJ v The Queen^[5] and R v NE.^[6]  In any case the evidence that he now wishes he had called, which was available at trial, and the issues he regrets not having canvassed in cross‑examination all relate to peripheral issues, often of credit.  They are unlikely to have significantly assisted his case.

34. In his written outline the appellant complains that the jury were not locked up throughout the trial and they were able to observe him during adjournments so that he believes he was judged not on evidence but on personality and looks and that they may have seen some legal papers and been wrongly influenced by these. The appellant has not produced any evidence to this Court to show an irregularity in the jury's involvement in the trial process suggesting, let alone demonstrating, any miscarriage of justice.

35. The appellant complains that his barrister who had conducted the trial was not present on the final day of the jury's deliberations because he was conducting another trial in Brisbane. Such an occurrence is not uncommon. The appellant was represented by his solicitor. The questions asked by the jury and the judicial directions then given were straightforward and uncontroversial. His sentence was adjourned until his counsel was available. The appellant was not disadvantaged in this respect.

36. At the appeal hearing some concern was expressed as to whether the judge should have warned the jury of the special need to scrutinize the complainant's evidence carefully before acting on it because of the complainant's turbulent upbringing, her inconsistent statements and because she may have had a motive to make false allegations against the appellant (she blamed him for the death of her mother, did not like being told what to do, had disagreements with him and wanted to leave home).

37. Her Honour referred generally to the need to carefully evaluate a witness's testimony where the witness had made inconsistent statements. The major inconsistent statement was that at the committal proceedings the complainant said she had no memory at all of the events constituting count 1. Her Honour expressly referred the jury to this and warned them that this affected her credibility; they should consider her explanation for having said something different at the committal proceedings and consider whether they think it a satisfactory explanation. It is by no means entirely clear that the complainant made an inconsistent statement in her preliminary complaint to the acting principal in respect of count 1. The circumstances surrounding that statement were not sufficiently explored at trial with the complainant or the acting principal to satisfy s 18 Evidence Act 1977 (Qld).  As the judge explained to the jury the preliminary complaint was not evidence of the complaint made.  The complainant said she could not remember telling the acting principal that her stepmother had bashed her although she agreed that the stepmother did not bash her.   In those circumstances the judge was not bound to specifically direct the jury's attention to this matter.  Her Honour did, in any case, refer to it when summarizing the defence case.

38. The learned primary judge did warn the jury to scrutinize the complainant's evidence with great care, particularly in respect of count 1, and not to act on it unless satisfied beyond reasonable doubt of its truth and accuracy because of the delay between when the complainant said the events occurred and her complaint to police. Her Honour also gave the usual directions as to the burden and onus of proof. The jury could have been in no doubt that only if they accepted the complainant's evidence beyond reasonable doubt could they convict the appellant on any count. Apart from the redirections set out earlier, the judge did not refer to evidence about any possible motive the complainant may have had to make a false allegation against the appellant. Had she done so there would have been a danger that the jury may have thought that there was reversal of the onus of proof and that it was for the appellant to demonstrate some motive for a false allegation. The learned primary judge's redirections on motive ensured the jury could not have wrongly reasoned in this way. In my view the judicial directions were adequate in the circumstances.

39. The appellant's appeal against conviction should be dismissed.

Sentence

40. The applicant was sentenced to 18 months imprisonment on count 2 and to 12 months concurrent imprisonment on count 3.  He contends that this sentence is manifestly excessive.

41. The offences involved a gross breach of parental trust in circumstances where the complainant, the appellant's daughter, had lost her mother and was in particular need of loving support from her father. The victim impact statement suggests the offences have had a considerable detrimental impact on the complainant.

42. The applicant does not have the mitigating benefit of co‑operation with the administration of justice or an early plea of guilty.  He is a mature man and has shown and continues to show no remorse or insight into his offending.  The offences involved two distinct episodes separated by some months.  He has no relevant criminal history and to his credit has involved himself in some community work.  He made efforts to keep his family unit together after his partner, the mother of the complainant, died.  He had a good work history although he had not worked since October 2004 because of injuries received in a motor cycle accident.  He and his present partner have two children aged seven and 10.  His barrister at sentence submitted that the appropriate range was a term of imprisonment of up to 18 months.

43. The sentence imposed does not seem excessive in these circumstances. It is, for example, supported by R v M^[7] where a like sentence was imposed on an offender who pleaded guilty to three counts of indecent treatment of a child under the age of 12 years.  Although in that case there were three charges involving two children younger than this complainant, the relationship was not as close as father and daughter and M, unlike this applicant, pleaded guilty.

44. The application for leave to appeal against sentence should be refused.

Order:

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence refused.

45. WILLIAMS JA:  The appellant was convicted of one count of indecent treatment of a child under 16 who was his lineal descendant (count 2) and one count of sexual assault (count 3).  The complainant in each case was his daughter.  He was acquitted of a further charge of indecent treatment of a child under 12 who was his lineal descendant (count 1).

46. The complainant’s evidence which formed the basis of each of those three charges is set out in the reasons for judgment of the President which I have had the advantage of reading. Those reasons also detail other background evidence to those charges. Subject to it being read with the matters hereinafter set out I adopt the statement of facts contained in those reasons.

47. The appellant prepared his own Notice of Appeal and written Outline of Argument, and appeared on his own behalf on the hearing of the appeal. The President has summarized in her reasons the grounds of appeal and the issues which the appellant raised at the hearing. He certainly contended that the verdicts were unreasonable and his submissions hinted at, but did not specifically address, the issues which concern me.

48. The first incident (on which the appellant was acquitted) was said to have occurred in late 1997 or early 1998. When the complainant gave evidence at the committal hearing she could not recall that incident, but she did give evidence of it at the trial.

49. The complainant’s evidence was that shortly after that incident she went to New South Wales to live with her grandmother. The grandmother gave evidence which could be said to clearly establish that the complainant arrived in New South Wales on 4 April 1998. The complainant in evidence in chief was asked whether she told anyone about what had happened to her in Queensland. She responded by saying, “I spoke to a teacher at school that was standing in as a deputy principal and I told her something happened but I didn’t go into specifics.” She was then asked to give as best she could remember what she actually said; she responded, “All I think I said to her was, ‘I have been sexually assaulted by my father’ and I’m not sure I said anything else after that.”

50. The assistant principal (Spencer) was called to give evidence. She had a note of what the complainant told her on 11 February 1999. In that she recorded that the complainant “looked upset and embarrassed”, and that she told her that “her father had been doing things to her”. The witness put the words “doing things” in inverted commas in her note. According to Spencer the complainant went on to say that her father “threw her on the bed and did everything”. Again the witness put the words “did everything” in inverted commas. The witness then asked the complainant if she meant sexual things to which the response was “yes”. The principal also recorded in her notes a complaint that the complainant had been “bashed by father’s de facto”. She also wrote at the bottom of the note “history of social and emotional difficulty at this school”. On the complainant’s evidence the only incident which had occurred prior to 11 February 1999 was that which became Count 1 at the trial. It will be immediately obvious that there is little or no correlation between the complaint made to Spencer and the particulars given of Count 1 at the trial.

51. Further, in her evidence at trial the complainant could not recall making a complaint that she had been “bashed by father’s de facto”, but she admitted that there had been no such bashing.

52. The events giving rise to Count 3 occurred about the day before 15 October 2003. On that date the complainant, according to her evidence, spoke to a school counsellor and said that she was “sexually assaulted by my father and I didn’t go into any more detail.” The school counsellor (Swords) gave evidence of the conversation she had with the complainant on that date. She described the complainant as being “distraught” and “quite emotional”. According to her the complainant said:

“Well, she just said that she had been sexually abused.  Her father had been touching her since after her mother died in 1991 or a short time after that … and it was continuing and she wanted it to stop.  … she didn’t want it reported further.”

53. A complaint in those terms is completely contrary to the evidence at trial of the complainant. The complainant was very specific that there were only three instances of sexual interference, and they constituted the three charges the appellant was facing. After giving evidence of the first incident the complainant was asked in chief, “Now, after that what happened?”. She replied, “Everything just went back to normal. I walked out of the room, went back and watched TV, because my stepmother showed up again after doing the shopping and just everything went back to normal.” It is clear from subsequent questioning that she meant that the relationship between herself and her father was “normal” after that.

54. After giving evidence with respect to the second incident, the complainant was asked: “After that how does your relationship go with him after that?”. Her response was: “It was an okay one. It was just like a normal father/daughter relationship. Kiss goodnight, hug for bed, that type of thing.” She was then specifically asked, “Does any other sexual acts occur?”. To which she replied, “One after I turned 16”. She was clearly there referring to what became Count 3.

55. After recounting that particular incident she was then asked: “How does your relationship go with your father?” to which she replied: “We used to argue a bit and then after arguments everything was alright. Just like a normal father/daughter relationship should be.” Subsequent questioning designed to elicit anything further of a sexual nature happening between the complainant and the appellant resulted in a negative response.

56. Thus again it must be said that the complaint made on 15 October 2003 bears no correlation to the evidence given by the complainant at trial. There was certainly no evidence of any regular “touching” inappropriately over the years since 1991.

57. All of that evidence has to be considered in the context of the fact that the complainant was a very troubled and disturbed girl throughout the whole of the relevant period. She was in regular trouble at school (stealing), she was in regular trouble at home (destroying furniture), she did not get on with her step mother, there were big fights with her father. She blamed her father for her mother’s death. She asserted that the appellant was not her “dad” and in the weeks leading up to the incident particularized in Count 3 she was wanting to move out of the home, partly because there had been arguments about her relationship with a boy.

58. It is against that background that one has to consider some parts of the summing up. It is necessary in the circumstances to quote the following, rather lengthy passages there from:

“In this case the main evidence comes from [the complainant].  A matter that needs to be considered in relation to assessing her testimony is whether it differs from what has been said by her on another occasion.  Obviously the reliability of a witness who says one thing one moment and something different the next about the same matter is called into question.  In weighing the effect of such inconsistency or discrepancy, consider whether there is a satisfactory explanation for it.  For example, might it result from an innocent error such as faulty recollection or else could have there be [sic] an intentional falsehood?  Be aware of such discrepancies or inconsistencies and where you find them carefully evaluate the testimony in light of other evidence.  That is a matter that has been relied on heavily by the defence so you obviously have to consider that carefully.

… 

Now, just in relation to those charges as well, there is some evidence from other people that [the complainant] had a chat to them and told them what had happened.  That evidence comes from Ms Spencer who is the teacher from [the complainant's primary school].  She said on the 11th of February 1999 she was relieving principal at [the complainant's primary school] and [the complainant] approached her and asked if she could speak to her about a matter that was worrying her.  She said [the complainant] told her that her father had been doing things to her before when she was living with him, before April of 1998:

"She said her father came in when she was asleep one day.  He told [RO], her seven year old brother, to go outside and threw her on the bed and did everything, in inverted commas.  I asked her what she meant.  She looked upset and embarrassed.  I asked her if she meant sexual things.  She said ‘yes’.  She said another day all her family were asleep and [the complainant] (sic) told her to lie on the lounge and her father did the same to her then.”

That is one complaint that was made back in 1999 by the complainant.  Then the other complaint is made on 15 October 2003 to Ms Swords, who was a counsellor at [the complainant's high school].  She said [the complainant] approached her:

“She was quite emotional.  She just said that she had been sexually abused.  Her father had been touching her since after her mother died in 1991 or a short time after that, and it was continuing, and she wanted it to stop.  That was basically the extent of what she said.” 

Now, that evidence is what we call evidence of preliminary complaint.  That evidence can only be used as it relates to the complainant’s credibility.  Consistency between the account of Ms Spencer and Ms Swords and the complainant’s evidence before you, is something that you may take into account as possibly enhancing the likelihood her testimony is true.  However, you can not regard the things said in these out of Court statements as proof of what actually happened.  In other words, evidence of what was said on that occasion may, depending on the view you take of it, bolster the complainant’s credit because of consistency but it doesn't independently prove anything.

That probably answers the question that I had from you, ladies and gentlemen, about evidence beyond that contained in the charges, because if she said something different to one of the counsellors about things that happened, that is actually not evidence those things happened.  You can only use it to look at whether there is consistency between what she now says to you in Court and what she said on previous occasions.  The logic of that is, of course, that it is coming from her mouth so it is not independent evidence of what actually happened.

…

It has to be said in this case that in relation to the first count, that may or may not have been something beyond the control of the child because she did complain to the deputy principal in 1999 and it seems as though, for some reason which it is not apparent, it didn’t go a lot further even though the deputy principal said she referred it to DOCS, but it doesn’t seem to have gone any further with Family Services.  So, to a very large extent that was out of the hands of the complainant.  She did complain.  Nonetheless, it is difficult now, after all these years, for the accused to pin down times when things may have happened.  So, in that case you need to be very careful when you look at the complainant’s evidence.  As I say, particularly with that count.  You must look at it very carefully and scrutinise it with great care, and not act on the evidence unless you are satisfied beyond reasonable doubt of its truth and its accuracy. 

…

I've spoken to you about the significance of different statements made at the committal and the fact that that was on oath and obviously that will affect a person’s credibility if she said something significantly different at an earlier time, and you would take into account her explanation for saying something different at an earlier time and see whether you think that that is a good explanation or not. 

You have the evidence of the fresh complaint from the two teachers, or the teacher and the counsellor, and then there is really just the grandmother’s evidence, which gives you the dates of when she was in New South Wales, and the police officer’s evidence as to his taking of the statement and her being upset while the statement was taken.

…

[Referring to the final address of defence counsel].  He said remember the fresh complaint, this is the 1999 one I think.  Yes, in the 1999 complaint she also told Ms Spencer that she had been bashed by her father’s de facto but she says that is not actually right.  And so, there was a false allegation made about the stepmother back in 1999, as well.  So that would give you significant problems with her evidence.

…

[In the first re-direction]. And the final thing is that I think when I was talking about the complaints of Miss Spencer and Miss Swords I might have said they were fresh complaints at some stage.  They’re actually what we call “preliminary complaints” which are complaints made before the complainant goes to the police.  So, I’ll just correct that term for you.”

59. It appears that after counsel’s addresses, but before the summing up commenced, the learned trial judge was handed a note from the jury which is recorded in the transcript as indicating the “jury is concerned the evidence given is beyond that contained in the charges”. That is undoubtedly the note to which the learned trial judge made reference in the passage from the summing up quoted above.

60. The jury initially retired to consider their verdict at 12.36 pm on 3 May 2005. They were given a redirection at 12.42 pm. At 5.16 pm on that date the jury intimated to the learned trial judge that they were having difficulty in reaching agreement. They were then given what is commonly referred to as the “Black direction” and again retired at 5.21 pm. A note was then received from the jury relating to cross examination of the complainant about count 3. That resulted in a further redirection being given at 5.55 pm after which the jury again retired at 6.02 pm. The transcript does not reveal the time at which it was decided to lock the jury up for the night, but that in fact occurred. The following morning the jury asked for some further directions on the issue of consent with respect to count 3. Those redirections were given at 10.35 am and the jury retired at 10.40 am. The verdicts referred to above were then delivered at 12.05 pm on 4 May 2005.

61. Against the background of what I have set out above the following features of the evidence are important:

1. the terms of each of the complaints were not necessarily consistent with the complainant's evidence as to the three incidents charged;

2. the complainant had no recollection of what had actually been recorded as to the terms of the complainants by the persons to whom each complaint was made;

3. included in the first complaint was a false complaint that she had been bashed by her father's de facto;

4. the second complaint impliedly alleged that there was ongoing or continuing inappropriate touching of her when her clear evidence before the jury was that there were only three specific instances involved;

5. the jury obviously appreciated the breadth of the second complaint because that was only the possible basis for the note handed to the learned trial judge asking about evidence going beyond that contained in the charges;

6. the relationship between the complainant and the appellant was a troubled one and specifically there were the unusual aspects that she blamed the appellant for the death of her mother and hurtfully asserted that he was not her father;

7. she had no recall of count 1 at the committal hearing;

8. there was no evidence tending to support or corroborate any of her allegations.

62. In considering the sufficiency of the summing up one must bear in mind the provisions of s 632 of the Criminal Code 1899 (Qld) and s 4A of the Criminal Law (Sexual Offences) Act 1978 (Qld).  Giving due regard to those provisions I am nevertheless of the view that, in the circumstances of this case, particularly in light of the matters identified in the preceding paragraph hereof, it was necessary for the learned trial judge to direct the jury that they should scrutinise the complainant's evidence carefully and that they needed to be satisfied of its accuracy and reliability beyond reasonable doubt before they could convict.  No such direction was given.  Further, and significantly, the jury were directed that they should look at the complainant's evidence "very carefully and scrutinise it with great care" when they were considering count 1. By limiting that direction to the jury's consideration of count 1 members of the jury could have reasonably concluded that it was not necessary for them to adopt the same approach when considering the complainant's evidence on counts 2 and 3.  A direction with the authority of the judge's office behind it should have been given.

63. Further, I am of the view that the summing up was inadequate in dealing with the evidence of complaints made by the complainant. They were told they could only use such evidence in determining whether there was consistency between what the complainant said in court and what she said on the previous occasions. They were, of course, entitled to have regard to that evidence for that purpose. But, in my view, the jury should have been directed that in the circumstances of this case it was necessary for them to consider, particularly in the light of the false complaint about being bashed by the appellant's de facto, whether there was a reliable complaint made as to sexual misconduct on the part of the appellant. That is further highlighted by the implication in the second complaint that the conduct in question was ongoing and continuing. The jury, as already noted, must have been aware of that implication, because it was the only basis for the note they sent to the judge before the summing up commenced. The jury was merely instructed that those wider allegations did "not independently prove anything". That is so, but in this case the issue went beyond that. A false complaint that the conduct was ongoing and continuing could well undermine the whole of the complainant's evidence with respect to the three incidents made the subject of the charges. In the circumstances of this case not only might the jury have regarded the evidence as not bolstering the complainant's credit, but it could well have regarded false complaints as positively destroying her credibility. The jury were not instructed that they could use the evidence in that way.

64. The learned trial judge in summarising the defence case mentioned some of the matters particularised in paragraph ‎[61] above (see, for example, the second last paragraph in the quotes from the summing up).  But, in my view, it was not sufficient merely to say the defence case was that there was a "false allegation" contained in the complaint.  In the circumstances of this case (particularly all the matters set out in ‎[61] hereof) the jury should have been given a direction which had the authority of the judge's office behind it to the effect that the accuracy and reliability of the complainant's evidence would be significantly undermined if the jury were satisfied that the complainant made false complaints about the conduct of the appellant and/or his de facto towards her.

65. The jury obviously had concerns about the accuracy and reliability of the complainant's evidence because they acquitted on count 1 and had difficulty in arriving at a unanimous verdict of guilty on the other two counts. If the jury had been adequately instructed as to the proper way in which they should approach the complainant's evidence in the circumstances of this case then it may well be they would have arrived at a different result.

66. Because in my view the jury were not properly instructed as to the approach they should adopt to the complainant's evidence in the particular circumstances of this case I am of the view that there was a miscarriage of justice and there should be a new trial.

67. I should add that with respect to the other grounds of appeal I would dispose of them in the way indicated by the President in her reasons.

68. The appeal should be allowed, the convictions on counts 2 and 3 quashed, and there should be a re-trial on those counts.

69. MUIR J:  I agree with the reasons of Williams JA and with his proposed orders.