SUPREME COURT OF QUEENSLAND

1. KEANE JA:  On 13 September 2007 the appellant was convicted upon the verdict of a jury of one count of maintaining an unlawful sexual relationship with a child under the age of 16 years.  He was also convicted of one count of assaulting the same child.  He was acquitted of two counts of digital rape.

2. The appellant was sentenced to three years imprisonment for the offence of maintaining an unlawful sexual relationship. He was sentenced to a concurrent term of three months imprisonment for the assault.

3. The appellant seeks to appeal against the convictions on the grounds that:

1. The verdicts of guilty are inconsistent and cannot be reconciled on any rational basis with the verdicts of acquittal.

2. The verdicts of guilty are unreasonable and cannot be supported by the evidence.

3. The learned trial judge erred in directing the jury that two incidents not included in the Crown's schedule of particulars formed part of the particulars of the maintaining charge.

4. Before one can discuss these grounds of appeal in a meaningful way, it is necessary first to summarise the evidence given at trial.

The evidence at trial

5. The Crown case was that the offences with which the appellant was charged were committed between 1 September 2004 and 3 June 2005. The complainant was 12 years old at the beginning of this period and 13 at the end.  She was the appellant's step-daughter.

6. The complainant made her first complaint to the police on 2 June 2005. On that date she was interviewed by police officers. The record of this interview was tendered pursuant to s 93A of the Evidence Act 1977 (Qld).

7. In this interview, the complainant said that she was "wagging school", and was sick of getting into trouble with the appellant. A couple of weeks earlier she had "wagged school" and the appellant had threatened to send her to her grandparents. He took her mobile telephone and refused to return it. When she asked why he would not return her mobile phone, he "went off" and punched her on the left side of her head. She was sitting on the floor and the force of the blow knocked her over. She said that the punch did not leave a bruise. This was the evidence of the incident upon which the Crown relied in support of the count of assault.

8. The complainant went on to say that the appellant had "like, being – trying to rape me and stuff." She said that, at night time, the appellant would come to her bedroom and "tries raping me." She said that he "wakes me up and says, like, he's going to have sex with me and stuff like that." She went on to say that: "Other times he'll, like, finger me and stuff." She said that she could not get away because he was on top of her bed.

9. The first occasion which she said she specifically recalled occurred in 2004. This was the occasion of the first of the rape counts. She said that her family was then living in a caravan park. She said that the appellant said to her that she had "a period problem" because "I was only going for a couple of days, and then stopping and then starting again." She was unable to say how the appellant came to the view that she had a "problem". She said that he said that he was taking her to the doctor to see what was wrong with her. They left the caravan park in the appellant's motor vehicle, but instead of driving to the doctor, he took her to an area of bushland and told her to pull her pants down. The complainant said that the appellant put her on the back seat and made her lie down. He then put his finger in her vagina and moved it around for about 10 minutes. They then drove around for a while before returning to the caravan park. The appellant then went for a walk, and while he was gone the complainant's mother asked her where they had been. The complainant said that she told her mother what had happened, but her mother had not believed her.

10. The complainant said that, after this occasion, the appellant "done it, like, heaps after", but no particular occasion stood out. The Crown relied on this evidence of uncharged acts as proof of the charge of maintaining an unlawful sexual relationship. She said that it occurred every couple of nights in her bedroom and, when no-one else was at home, in the lounge room of a house at Caboolture where it seems they had moved from the caravan park. The complainant said that she repeatedly told her mother, but her mother did not believe her.

11. When the complainant was specifically asked what she meant when she said that the appellant "tried to rape" her, she said: "Like, he told me he wanted – like, he wanted to have sex with me and that."

12. The complainant said that the last occasion on which the appellant had interfered with her occurred about a week prior to 2 June 2005. This was the occasion of the second of the rape counts. At this time the family was living in a house at Burpengary. The complainant said that she was asleep in her brother W's room when she was awakened by the appellant who pulled her pants down and started fingering her again. She was unable to be specific as to when this occurred. She initially said: "I think it was like Tuesday, Wednesday, Thursday." When pressed with the point that "That's a lot of different days", she said: "Yeah. I think it was like Wednesday … Because it was like, in the middle of the week."

13. The complainant said that she had told some friends that the appellant was "using his finger" on her. She said that a couple of weeks before 2 June 2005, she had told her friend, S: "Like, I told her that he bashes me and stuff … and like, he tried raping me."

14. S was also interviewed by police on 2 June 2005. Her record of interview was also tendered pursuant to s 93A of the Evidence Act.  S said that the complainant had told her that her father bashed her and tried to rape her.  S was unclear about when these complaints were first made.  At first S said that these complaints were made three weeks after she and the complainant had first met, but further questioning seemed to confine the complaints to allegations of being hit by the appellant; and that the complainant had said that her father tried to rape her twice on about 2 June 2005.  S said that the complainant had previously said that the appellant came into her room at night, but had not gone into further detail.

15. The complainant's evidence was pre-recorded pursuant to s 21AK of the Evidence Act on 3 April 2007.  In relation to the occasion of the second rape count, the complainant said that this incident occurred at their house in Burpengary.  She said that when the family moved into that house she had initially shared a bedroom with her elder sister, T.  A room was then made available for her in the lounge room for a couple of weeks, and then she moved into her brother W's room on her own.  She said that the incident the subject of the second rape count happened in the room that had originally been W's room.  The complainant also gave evidence that her sister, T, and the appellant had had a shower in the toilets set aside for disabled people at the caravan park.  She said that she went into the shower when T came out.  She said that the appellant grabbed her breasts while they were both naked.  He said he wanted to have sex with her.  She said that she had first mentioned this incident to the authorities on the day before 3 April 2007.  She said that it had not occurred to her to tell the police about this incident in her interview on 2 June 2005. 

16. Under cross-examination, the appellant said, for the first time, that, on this occasion, the appellant's penis "almost went inside my vagina." She also said in cross-examination that, on another occasion when the appellant had taken her for a drive in bushland, he tried to insert his penis into her vagina but stopped when he heard motorbikes approaching.  The Crown relied upon these uncharged acts as proof of the charge of maintaining an unlawful sexual relationship.  The incidents of penile touching were not included in the particulars of uncharged acts provided by the Crown to the appellant before the pre-recorded evidence was taken on 3 April 2007.  The case was left to the jury on the footing that the Crown relied on the two incidents of penile touching as evidence going to the proof of the charge of maintaining an unlawful sexual relationship.

17. The complainant said that, while the family was living at the Caboolture house, she initially shared a room with T, but then slept in the lounge room for a couple of weeks. She then slept in her brother W's bedroom, where she slept on her own for a couple of months.

18. The complainant's sister, T, gave evidence. She said that the appellant did not ever accompany her or the complainant into the shower at the caravan park. T said that the complainant never slept in the lounge room in the house at Caboolture. T said that the complainant slept in a room on her own at the house at Burpengary for only a week.

19. The complainant's young brother, W, gave evidence that when the family were living in the Burpengary house the complainant slept in a room on her own for only three nights.

20. S also gave pre-recorded evidence which was admitted into evidence pursuant to s 21AK(2) of the Evidence Act.  S repeated that she was pretty sure that it was only on 2 June 2005 that the complainant had made allegations of sexual misconduct by the appellant.  According to S, on that occasion the complainant complained only of the appellant "fingering" her, not of penile penetration.  S also said that she saw a lump on the appellant's head on 2 June 2005.

21. In cross-examination, the complainant agreed that she saw a Dr Skinner about a problem with irregular periods. It is not clear whether this occurred while she was living at the caravan park or the Caboolture house.

22. Ms Teresa Tanzer-Gane, a school guidance counsellor, gave evidence that she met with the appellant and the complainant's mother on 2 June 2005. The meeting occurred as the result of a "referral" by the deputy principal of the complainant's school. Ms Tanzer-Gane said that during this meeting the appellant said that he had previously enjoyed a close relationship with the complainant, but that this had changed: she no longer wanted to go for drives with him. The appellant also told Ms Tanzer-Gane that the complainant had been secretive about her menstrual cycle in that she had tried to conceal the fact that she had had a period. The appellant told Ms Tanzer-Gane that his family was very open and that, within the family, he took charge of that sort of thing.

23. The appellant did not give evidence at trial. A record of his interview with the police on 3 June 2005 was tendered in the Crown case. The appellant denied any wrongdoing.

24. The record of interview contained the following exchange the relevance of which lies in its contrast with the evidence of Ms Tanzer-Gane:

"Okay.  When I was talking to [the complainant's mother] before, she mentioned that she was under the impression that it could possibly be hormonal, that's one of the avenues that was being explored, are things that you're looking at?--  We were looking at the hormonal side.

Mmm?--  But the last week, this weekend she's been coming home hungry, she's been going to [bed] at half past 7, quarter past 7 at night, she's up the same time as [T], which is around quarter past 6 because [T] has to leave first.

Mmm?--  And she's up the same time as [T] and she's just losing weight.

Who are you seeing, what doctor?--  Ralph Skinner.  Which is Caboolture Medical Centre – Haskings Street.

How have you been monitoring her hormonal situation?--  I haven't much – [the complainant's mother] has.  This time, [the complainant] didn't say nothing.  The only reason we found out she had it is because she never flushed the toilet and there was toilet paper in the toilet with blood on there and that night [T] found her pyjamas with blood on them.

And what did [T] do?--  She just called me and [the complainant's mother] into the bedroom and showed us.

What did you do?--  I didn't say nothing.  [The complainant's mother] took them in to soak them.

Would you consider yourself an expert or someone who knows a bit about periods and menstrual cycles and things like that?--  No.

Have you ever sort of said anything to [the complainant] about saying, I know a bit about this and be able to help her with it?--  No.

Have you ever offered to help her about her menstrual cycle?--  No.

Do you know what I mean by [indistinct] menstrual cycle?--  Yeah.

What does it mean to you?--  Orgasms, periods, things like that.  I try to leave that stuff to [the complainant's mother] to deal with it.

And if [the complainant's mother's] not available what do you do then?--  Do nothing."

The grounds of appeal

Particulars of the offence

25. It is convenient to deal first with the third ground of appeal.

26. Section 229B of the Criminal Code provides relevantly as follows:

"Maintaining a sexual relationship with a child

(1) Any adult who maintains an unlawful sexual relationship with a child under the prescribed age commits a crime.

Maximum penalty–life imprisonment.

(2) An unlawful sexual relationship is a relationship that involves more than 1 unlawful sexual act over any period.

(3) For an adult to be convicted of the offence of maintaining an unlawful sexual relationship with a child, all the members of the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship with the child involving unlawful sexual acts existed.

(4) However, in relation to the unlawful sexual acts involved in an unlawful sexual relationship–

(a)the prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence; and

(b) the jury is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence; and

(c) all the members of the jury are not required to be satisfied about the same unlawful sexual acts.

…

(10) In this section–
 

offence of a sexual nature means an offence defined in section 208, 209, 210 (other than section 210(1)(e) or (f)), 215, 222, 349, 350 or 352.

prescribed age, for a child, means–
 

(a) if the unlawful sexual relationship involves an act that constitutes, or would constitute (if it were sufficiently particularised), an offence defined in section 208 or 209–18 years; or

(b) in any other case–16 years.

unlawful sexual act means an act that constitutes, or would constitute (if it were sufficiently particularised), an offence of a sexual nature."

27. On behalf of the appellant, it is submitted by Ms Cuthbert of Counsel that the definition of unlawful sexual act, depending, as it does, upon the definition of offence of a sexual nature, requires an identifiable, though not necessarily particularised, act. The point was made forcefully that uncharged acts comprising a generalised description of offending conduct make it very difficult for an accused to mount an effective defence to a charge of maintaining an unlawful sexual relationship. It is not possible, however, in my respectful opinion, to avoid the conclusion that the legislature intended to permit an accused person to be charged and convicted of maintaining an unlawful sexual relationship upon unparticularised evidence of unlawful sexual activity. The definition of "unlawful sexual act" in s 229B(10) and the terms of s 229B(4)(a) and (b) are quite clear in this regard.  That having been said, it must also be borne in mind that generalised or vague assertions can be expected to be regarded with proper scepticism by a jury.  In this regard, it may be noted that, in the present case, the learned trial judge directed the jury:

"Obviously, members of the jury, this is a case in which the Crown relies very much upon the evidence of the complainant.  There is no-one, for example, who said they saw anything occurred. The accused denies the incidents occurred; so the Crown relies very much upon the evidence of [the complainant] and for that reason, members of the jury, you will need to scrutinise her evidence with real care and caution before you act upon it. If, and only if, you are satisfied beyond reasonable doubt as to the truth and accuracy of her evidence in relation to critical matters, can you find - would you find the accused guilty in relation to a particular charge. If you are not so satisfied or if you are left in a state of doubt as to where the truth lies in relation to a particular matter, in relation to any charge, then you would find the accused not guilty of that charge."  

28. It is also important to state that, while s 229B(4) is clearly intended to facilitate the conviction of offenders of a contravention of s 229B(1) even though the evidence against the accused is not sufficiently particularised to establish a charge of a separate sexual offence, that circumstance makes it all the more important to ensure that the accused has the benefit of the other procedures calculated to ensure a fair trial. In this regard, it is, of course, important that the accused should have every opportunity to meet the case made against him or her by the Crown.

29. In this case, the evidence of the acts of penile touching emerged during the course of the pre-recorded evidence of the complainant in April 2007, ie months before the trial of the appellant. Furthermore, the actual evidence of the two acts of penile touching was elicited by cross-examination of the complainant about the "toilet block" incident and the "bushland/motorbikes" incident. The appellant had every opportunity to meet these allegations. It cannot seriously be said that he was in any way surprised by the reliance placed by the Crown upon this evidence. In these circumstances, there was no unfairness to the appellant in the Crown relying upon these incidents as tending to establish the contravention of s 229B(1) of the Criminal Code.

30. I would reject the third ground of appeal.

Inconsistent verdicts

31. In relation to the first ground of appeal, the issue is whether the conviction on the maintaining charge can be reconciled with the acquittals on the rape counts.^[1]  This issue resolves itself into the question whether the jury could reasonably have been satisfied beyond reasonable doubt that the appellant had maintained a sexual relationship with the complainant while at the same time entertaining a doubt as to the appellant's guilt on the two rape counts.

32. On the appellant's behalf, Ms Cuthbert made the point that it is anomalous that the jury should have declined to accept that the appellant was guilty beyond reasonable doubt of the two charges of rape, where the complainant had given relatively detailed evidence, but was willing to convict him of the maintaining charge in relation to which the evidence was of a lesser quality. In my respectful opinion, the jury were entitled to be satisfied that the appellant did engage in sexual abuse of the complainant, while at the same time doubting the accuracy of her descriptions of the detail of particular incidents as involving digital penetration.

33. It may be accepted that it was open to the jury to regard the complainant as an unreliable witness having regard to the other evidence in the case, such as T's evidence in relation to the shower incident, and the complainant's "improving" memory in relation to uncharged acts. Whether the jury should have regarded the complainant as unreliable, and the extent to which they were of that view, was a matter for the jury, just as it was a matter for the jury to gauge the relative reliability of the complainant, T and W.

34. At this point, it should be noted that the jury were alert to the point that they could take into account their doubts about some of the charges in considering other charges. In this regard, the learned trial judge directed the jury as follows:

"What use then can you make of those other uncharged acts in relation to when you are considering either of counts 2 or count 4? Well, members of the jury, you may use that evidence, and this is the reason why the Crown place it before you in relation to those charges, in order to give you a better understanding of the complainant's evidence of those acts which are the subject of the act which is the subject of the particular charge. Of course, you should only have regard to that other evidence if you find it to be reliable. If you accept it, it is evidence designed to show the full history or the true nature of the relationship that is alleged by the complainant and to show, if you accept it, that the accused had some unnatural, sexual attraction for her.

Now, that is the purpose of that evidence, that evidence of the uncharged acts, but you must keep firmly in mind the need to concentrate upon the particular act which is the subject of the charge in count 2 and similarly of the particular act which is the subject of the charge in count 4. Evidence of those other incidents does not go to prove the specific act alleged in count 2 or the specific act alleged in count 4. It doesn't go to prove that those acts occurred. The generalised evidence from the complainant of other acts cannot be used by you in your evaluation of the complainant's specific allegations against the accused except that if you do not believe or have a doubt about her credibility or reliability in relation to the generalised evidence, then that is a matter which can be brought into account in the accused's favour in your consideration of the complainant's specific allegations in counts 2 and 4.

Equally, of course, members of the jury, disbelief or doubt concerning all or any of the complainant's specific allegations is a matter to be considered in the accused's favour when evaluating the complainant's generalised evidence. So that is the way in which it would be permissible for you to use evidence of those generalised acts when you are considering each of counts 2 and 4."

In relation to this direction, his Honour's reference to counts 2 and 4 was to the counts of rape with which the appellant was charged.

35. Mr Copley of Counsel, who appeared for the respondent, was, in my respectful opinion, correct in his submission that it was open to the jury rationally to take the view that the appellant had engaged in acts of sexual abuse of the complainant even though the complainant was not regarded as wholly reliable as to the details of the extent of the abuse. The jury may have taken the view that the complainant's far from clear evidence that the appellant "fingered" her was not sufficient to enable them to conclude beyond reasonable doubt that he had penetrated her digitally, while at the same time being satisfied beyond reasonable doubt that the appellant had, on many occasions, indecently dealt with the complainant. There can be no doubt that the learned trial judge was correct when he directed the jury that if they were "satisfied that the accused touched the complainant … in the manner in which she alleges here, then that would amount to an offence of a sexual nature" for the purposes of s 229B(10) of the Criminal Code.

36. I would reject this first ground of appeal. 

Unreasonable verdict

37. On this ground, the question for this Court is "whether … upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."^[2]

38. It must be said that one might well be inclined to form an adverse impression of the complainant by reason of the "improvements" in her memory of the appellant's abuse of her. But to say this is merely to underline the crucial importance of the jury's evaluation of the demeanour of the complainant and her siblings.

39. The jury may have taken the view that the complainant was a child who was doing her honest best to give a truthful account of a harrowing domestic situation. In this regard, it is important to bear in mind the other evidence in the Crown case.

40. There was the evidence of Ms Tanzer-Gane as to the appellant's distinctly odd interest in the complainant's sexual development, an interest which the appellant denied in his interview with the police. The jury may have thought that the nature of the interest of which Ms Tanzer-Gane gave evidence provided important support to the complainant's evidence that the appellant had an inappropriate sexual interest in her. When combined with the appellant's statement to Ms Tanzer-Gane that he had previously taken the complainant for drives but that she was not now willing to accompany him, such evidence may have been viewed as affording important support to the complainant's account.

41. The complainant's evidence that she complained regularly, but to no avail, to her mother about the appellant's sexual misconduct was uncontradicted. It was open to the jury to take the view that this evidence was truthful and, if it was, it afforded an explanation for the complainant's failure to complain to her teachers or police at an earlier point in time. The jury may also have regarded this evidence as illuminating the complainant's domestic situation in a way which inclined them to accept her evidence relating to the appellant's conduct.

42. Finally, it may be noted that, save in relation to the "toilet block" incident, the evidence of T and W was not apt to exclude the possibility that the appellant had the opportunity to molest the complainant in the way she alleged.

Conclusion and order

43. The grounds of appeal have not been made out.

44. I would dismiss the appeal.

45. FRASER JA:  I agree with the reasons of Keane JA and the order proposed by his Honour.

46. LYONS J:  I have had the advantage of reading the reasons of Keane JA.  I agree with the reasons of his Honour and with the order proposed.