SUPREME COURT OF QUEENSLAND

[1]  WILLIAMS JA: The appellant was convicted after a trial in the District Court at Cairns on 24 November 2006 of one count of maintaining a sexual relationship with a child under 16 years who was under his care, and four counts of indecent treatment of a child under 16 years who was in his care.  He lodged a Notice of Appeal against conviction and application for leave to appeal against sentence on 29 November 2006.  Therein the grounds of appeal against conviction were stated to be the failure of the trial judge to direct the jury of the danger of finding the appellant guilty on the uncorroborated testimony of the complainant and the inconsistency between the jury verdicts of not guilty on counts 2 and 3 and the finding of guilty on the remaining counts.  On the hearing of the appeal the appellant was given leave to amend the grounds of appeal to the following:

“1.The jury returned inconsistent verdicts with respect to count 2 and count 3 which cannot be explained on any rational reading of the complainant's evidence.

2. The verdict was unsafe and unsatisfactory.
3. The learned trial judge erred in his direction in relation to uncharged acts.
4. The Appellant did not receive a fair trial when his legal representatives edited out allegations of rape from the transcript.
5. The legal representatives did not follow the Appellant's instructions inadvertently.”

[2] After the committal proceedings an indictment was presented charging the appellant with one count of maintaining, one count of rape, and six counts of indecent dealing.  He pleaded not guilty to each of those charges on 16 May 2006 before the evidence of the complainant was pre-recorded.

[3] In broad terms the initial statement of the complainant to the police contained allegations that on numerous occasions the appellant rubbed his penis against her vagina, sometimes to the stage of ejaculation.  But in that statement she also said that she thought on one occasion his penis went about half way into her vagina.  In consequence the rape count was included in the first indictment.  When subsequently questioned about penetration the complainant's evidence was rather vague. 

[4] Against that background the then legal representatives of the appellant raised with the prosecution the sufficiency of the evidence of rape, and as a result a fresh indictment was presented to the court on 31 July 2006 charging only one count of maintaining a sexual relationship and six counts of indecent treatment of a child under 16.  The first trial of the appellant began on that day, and by agreement between prosecution and defence all references in the complainant's statements and evidence to penetration were edited out.  At that first trial there was no mention at all before the jury of penetration.  That jury was unable to agree upon a verdict and a re-trial was directed.  The re-trial commenced on 21 November 2006 with the appellant represented by the same counsel who had appeared on his first trial.  Again at that trial all references to penetration were edited out of the complainant's statements, and no reference was made to penetration throughout the trial.  No medical evidence was called at the second trial in relation to the condition of the complainant's genitalia.

[5] The complainant was born on 21 September 1991.  The indictment alleged that the maintaining occurred between 1 July 1997 and 31 March 2005; in broad terms when the complainant was aged from six to 14 years.  Counts 2 and 3 on the indictment (indecent dealing) related to incidents in the latter half of 1997 when the complainant was aged about six years.  Counts 4 and 5 (indecent dealing) were alleged to have occurred in the early part of 2002 when the complainant was aged about 10.  Counts 6 and 7 (indecent dealing) were alleged to have occurred in the latter part of 2004 and early part of 2005 when the complainant was aged about 13 years.

[6] At the second trial the jury returned a verdict of not guilty with respect to counts 2 and 3 on the indictment, but guilty on all other counts.  The learned trial judge in his summing up gave a Longman direction, and undoubtedly the combination of the complainant's age when counts 2 and 3 were alleged to have been committed and the Longman direction resulted in the jury returning not guilty verdicts on those counts.  Ultimately counsel who appeared for the appellant on the hearing of the appeal did not press the ground of appeal that there was some inconsistency in the verdicts of the jury.  Clearly there was a rational explanation for the different verdicts and that ground of appeal must be rejected.

[7] The principal argument by counsel for the appellant was that trial counsel failed to implement the appellant's instructions not to exclude the allegation of penetration (rape) from the evidence.  The argument was that if that allegation was aired before the jury the appellant would be better able to demonstrate that the complainant was exaggerating, and possibly making up, all the allegations against him.  It was asserted that medical evidence would support the appellant's contention that penetration had not occurred.  That is no more than speculation.  There is no evidence at all before this Court of the state of the complainant's genitalia.  But the medical evidence in many cases involving sexual interference with young girls is to the effect that some degree of penetration will not always cause an injury to the hymen.  Even if the appellant was able to lead evidence that the complainant's hymen was intact that would not necessarily mean that her evidence that there was some degree of penetration on one occasion must be rejected. 

[8] It is difficult to see what substantial forensic advantage the appellant could have gained by having the allegation of penetration admitted into evidence.  Once it is accepted that any medical evidence would not be decisive in favour of the appellant the admission of such evidence was more likely to be damaging to the appellant than otherwise. 

[9] There were clearly sound forensic reasons for the appellant's legal representatives seeking to have the evidence of penetration excluded.  It is clear that the conduct of counsel at trial may bring about a miscarriage of justice, but, as has often been said, an appellant raising that contention carries a "heavy burden" (see, for example, TKWJ v The Queen (2002) 212 CLR 124 at 147).  As McHugh J pointed out on that page, ordinarily an accused person is held to the way in which counsel has presented the defence case.  In considering whether the conduct of defence counsel has brought about a miscarriage of justice the court would always have regard to the wide discretion vested in counsel as to the best way of conducting the defence case.  The question was further considered by the High Court in Nudd v The Queen (2006) 225 ALR 161.  It is sufficient to refer to a passage in the judgment of Gleeson CJ at 166 where he said:

"…The client may well be dissatisfied with the performance of trial counsel.  Appeal counsel will have his or her own ideas about the way the defence case should have been conducted.  Inevitably, in some cases, trial counsel will be blamed for failure.  Such blame is pointless unless it can be related to a legal rubric of relevance to the jurisdiction being exercised by the Court of Criminal Appeal.  The relevant rubric is miscarriage of justice."

[10]  As already noted, the trial in question was conducted on exactly the same basis as the aborted trial which was held in July 2006.  It follows that if the appellant had some real concern that the first trial was not conducted in accordance with his wishes he would have taken specific steps prior to the commencement of the second trial to make those wishes clear.  The only relevant passage in his affidavit in support of this ground of appeal is to the following effect:

"Just prior to trial I was informed that the charge of rape had been withdrawn and I do not recall any conversation about the tape being edited, but assume that my legal representatives considered it in my interests to have those allegations of sexual activity deleted and I state that whilst I don't recall discussing the matter, it was always my wish and instruction that all the evidence including the penetration go before the jury."

It is not clear whether he is there referring to the first or second trial.

[11]  The respondent on appeal obtained an affidavit from the appellant's counsel at the trial.  Relevantly counsel says in that affidavit:

"9. What I can say is that Mr Graf never asked me to have the complainant's evidence played before the jury on the penetration issue.  I was instructed by another solicitor Mr Eckersley for the second trial.  It would have been an easy matter for the complainant's evidence to be re-edited, if he wished, for the second trial if he wanted that evidence played to the jury.  I was never asked to do this.

10. I do remember taking some written instructions for the second trial on some admissibility points but they were matters that I had particular concern about that I didn't have written instructions from the first trial.  My memory is that my involvement in this matter came at a very late stage as another counsel was unable to appear due to other commitments.  I didn't take any written instructions about the complainant's rape allegations, (I took those written instructions during his second trial) as to the best of my knowledge the appellant hadn't raised with me that he wanted that evidence re-inserted to be played to the jury during that second trial.  I thought he was fully aware of the evidence to be led as a result of the first, aborted trial."

[12]  In my view it would have been highly damaging to the appellant's case to put the, albeit vague and inconclusive, allegations of rape into evidence.  It was clearly in the interests of the appellant that such evidence be excluded.  Defence counsel at trial appears to have acted reasonably and properly.

[13]  In all of the circumstances I am not persuaded that the appellant was deprived of a fair trial because the complainant's allegations of penetration on one occasion were kept from the jury. 

[14]  That effectively disposes of paragraphs [4] and [5] of the amended grounds of appeal.

[15]  In the complainant's initial statement to police, and in her evidence, she indicated that conduct of the type giving rise to the charges on the indictment occurred on other occasions.  For example, in her first statement she said that conduct of that type occurred in the bigger caravan on "may be six or seven times".  In his summing up the learned trial judge referred to the fact that the evidence suggested the conduct in question occurred not only on the six occasions specifically charged, but as the complainant said, he "did so on other occasions".  Thereafter the learned trial judge explained to the jury why that evidence was before them - it gave the jury "an overall picture of the ongoing relationship over several years".  It gave the jury "a more complete perspective of what their life together was like".  He then pointed out, correctly, that such evidence could be used in relation to the offence of maintaining an unlawful sexual relationship.  But he directed the jury that they could not reason that because they were satisfied that such conduct occurred from time to time over some seven years therefore they could find the appellant guilty of all of the offences charged.  The judge then specifically directed the jury again as to their obligation of being satisfied beyond reasonable doubt with respect to the specific occasions before they could find the appellant guilty.

[16]  Subsequently in the summing up the learned trial judge dealt with the charge of maintaining in the context of the law as it then stood; the jury had to be satisfied that sexual offences were committed on at least on three occasions.  He also pointed out that the concept of maintaining a sexual relationship involved a degree of continuity.  In dealing with the issue of the conduct having some continuity or habituality he told the jury that they could have regard to her general evidence of the conduct occurring on other occasions.  That could be used for the limited purpose of determining whether or not there was a relationship that was maintained over a period.  But then he correctly directed them that they had to be satisfied beyond reasonable doubt that he had a continuing sexual relationship in order to find the appellant guilty on that count. 

[17]  The sufficiency of those directions were challenged by counsel for the appellant.  This is an area of the law where minds have differed as to the directions which are necessary.  So much was recognised by the High Court in Tully v The Queen (2006) 81 ALJR 391.  Ultimately I have come to the conclusion that in the context of this trial the directions given by the learned trial judge as to uncharged acts were adequate and not wrong.  There is, in my view, nothing in the ground of appeal challenging those directions. 

[18]  That only leaves the ground that the verdict was unsafe and unsatisfactory.  Counsel did not refer to any specific issues other than those already dealt with as grounds of appeal.  Having perused the evidence of the complainant girl in particular (the appellant did not give evidence) I am satisfied that the convictions are not unsafe and unsatisfactory.

[19]  The appellant was sentenced to four years imprisonment on the maintaining charge, two years imprisonment on counts 4 and 5, and 18 months imprisonment on counts 6 and 7.  Those sentences were to be served concurrently.

[20]  The submission of counsel for the appellant was that the sentence imposed was manifestly excessive and a sentence of three years imprisonment should be substituted for that imposed on the maintaining charge.

[21]  In the course of argument reference was made to R v C [2000] QCA 145, R v S [2001] QCA 54 and R v R [2001] QCA 488.  The offender in R v C maintained a sexual relationship over a four year period when the complainant was aged six to 11 years.  The offending involved touching and digital penetration of the girl's genitalia and fellatio.  A sentence of five years was not disturbed on appeal.  S pleaded guilty to maintaining a sexual relationship with his stepdaughter who was aged between seven and 15 years.  The offending involved touching the complainant's breasts and genitals, having her rub his penis until ejaculation, and rubbing his penis against her body.  The offender voluntarily disclosed his offending to the police.  Because of that latter consideration the sentence of six years with a recommendation for parole after two years was reduced to four and a half years with a recommendation after 18 months.  R v R involved an offender who was convicted after a trial of maintaining a sexual relationship with his stepdaughter over a three year period.  The offending involved having the complainant masturbate the offender and rubbing his penis against her genitals without penetration.  The sentence of four years imprisonment was not disturbed but a recommendation for parole after 15 months was added.

[22]  Here there was a full trial and the appellant has shown no remorse.  The offending was over a lengthy period commencing when the complainant was quite young.  In those circumstances, and after giving consideration the comparable cases referred to, it cannot be said that the sentence imposed was manifestly excessive.

[23]  The appeal against conviction should be dismissed and the application for leave to appeal against sentence refused.

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

[25]  DOUGLAS J: I also agree with the reasons of Williams JA and the orders proposed by his Honour.