SUPREME COURT OF QUEENSLAND 

[1]  KEANE JA:  On 13 October 2006, the appellant was convicted upon the verdict of a jury of six counts of indecent dealing with a child under the age of 12 years in contravention of s 210 of the Criminal Code 1899 (Qld).  On 18 October 2006, the appellant was sentenced to concurrent terms of imprisonment for each of the offences, the longest of these terms being four years.

[2] The appellant seeks to appeal against these convictions.  The only ground of appeal advanced by the appellant on the hearing of the appeal is that "there was a miscarriage of justice caused by the eliciting of evidence, by cross-examination of the complainant, that the appellant had inserted his finger into the complainant's vagina".

[3] The point of this ground of appeal is that the acts of indecent dealing with which the appellant was charged, and in relation to which the complainant gave evidence, did not include any allegation that the appellant had, at any time, inserted his finger into the complainant's vagina.  As a result, so it is said, the appellant was unduly prejudiced by his own counsel's airing a suggestion that the appellant had digitally penetrated the complainant's vagina.  Having regard to the narrow focus of the ground of appeal, a brief summary of the course of the trial will suffice to facilitate a discussion of the issue raised by the appellant. 

The course of the trial

[4] In this regard, the Crown case was that the incidents the subject of counts 1 to 3 inclusive occurred on three successive evenings in September 2004 while the complainant was lying on a mattress in her home on Badu Island in Torres Strait.  The complainant said that the appellant touched her on the breast on each occasion.  The incidents the subject of counts 4 to 6 inclusive were alleged to have occurred on three successive evenings in November 2004.  According to the complainant, on the first two of these occasions the appellant touched her genital area, and on the last occasion he touched her breast.

[5] The complainant was interviewed by police on 1 December 2004.  The audiotape of this interview was played to the jury pursuant to s 93A of the Evidence Act 1977 (Qld).  In that record of interview, the complainant made no mention of digital penetration. 

[6] Pursuant to Pt 4A of the Evidence Act, the complainant's cross-examination was pre-recorded in the District Court at Cairns on 24 April 2006.  On this occasion, the complainant gave her evidence in Torres Strait Creole through an interpreter.  In the course of her cross-examination, the complainant agreed with the proposition put on several occasions by counsel for the appellant that she had told her mother that the appellant put his finger into her vagina.  The complainant's mother gave evidence but did not say that the complainant had complained of digital penetration.

[7] The learned trial judge made it clear in his directions to the jury that they could not find the appellant guilty of any offence unless they were "satisfied beyond reasonable doubt that [the complainant's] evidence is truthful and reliable in relation to the particular occasions and acts which she describes as constituting these six offences".

The argument on appeal

[8] On the appellant's behalf, it is submitted that:

"for no apparent forensic purpose, the jury heard repeated and confirmed allegations of acts by the appellant which were not charged in the indictment, were arguably more serious than those charged and which had not been led in evidence-in-chief.  The prejudice arising caused a miscarriage of justice."

[9] On the appellant's behalf, it was argued that the appellant's counsel at trial had anticipated, perhaps reasonably, but mistakenly as it turned out, that the complainant's mother would give evidence that the complainant's complaints to her included reference to digital penetration by the appellant.  When the complainant's mother came to give evidence, she made no mention in her evidence-in-chief of a complaint of digital penetration.  The appellant's counsel at trial did not press the complainant's mother in cross-examination to say whether or not the complainant had made any reference to digital penetration by the appellant.  It is apparent that the appellant's trial counsel deliberately chose to "… le[ave] that alone …".

[10]  It is well-established by decisions of the High Court of Australia that a forensic decision by counsel for an accused in the course of a trial cannot be shown to have caused a miscarriage of justice "if the course taken is explicable on the basis that it could have resulted in a forensic advantage" to the appellant "unless that advantage is slight in comparison with the disadvantage resulting from the course in question".[1]

[11]  In the present case, the line of cross-examination pursued by the appellant's counsel was an aspect of the appellant's case that the complainant's evidence was not to be believed in relation to any of the charges because she was an unreliable witness.  The disparity between the terms of the complainant's complaint to the police and her evidence on the one hand, and her evidence of the terms of her complaint to her mother in relation to digital penetration on the other hand, could have been said to be an indication of the complainant's lack of reliability generally.  If the jury had regarded this disparity as reflecting adversely on the complainant's reliability, they might well have decided to acquit the appellant of all the charges against him. 

[12]  The strategy adopted by the appellant at trial may be said to have been bold, and even risky, but it may well have been thought that the risk was worth taking as part of an attempt to persuade the jury that the complainant was entirely unreliable in relation to all of her complaints against the appellant.  The strategy was not inevitably doomed to fail.  That the jury were in the end not swayed by such considerations simply means that this bold defence strategy failed (as such strategies often do).  It does not mean, however, that there was a miscarriage of justice.

[13]  On the hearing of the appeal, it was also argued for the appellant that the appellant's counsel at trial may have taken a different course had he known that the complainant's mother would not give evidence of a complaint of digital penetration.  This was said to be a consequence of the system of pre-recording the complainant's cross-examination before the complainant's mother gave evidence.  But even if the trial had proceeded without the use of the audiotape of the complainant's interview and the pre-recorded cross-examination, there is no reason to suppose that the complainant would not have been cross-examined before her mother gave evidence.  In any event, so far as the strategy of highlighting the unreliability of the complainant by pointing to the absence of support for her evidence that she had complained about digital penetration was concerned, this strategy was not confounded by this aspect of the complainant's mother's evidence.  If anything, it was enhanced by it.

Conclusion and order

[14]  In my respectful opinion, no miscarriage of justice as suggested by the appellant occurred in this case.  The appeal should be dismissed.

[15]  WHITE J:  I have read the reasons for decision of Keane JA and agree with his Honour for the reasons that he gives that there has been no miscarriage of justice in the conduct of the trial and that the appeal should be dismissed.

[16]  ATKINSON J:  I agree with the orders proposed by Keane JA and his reasons.