SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  The appellant was convicted by a jury on 11 October 2007 after a four day trial of two counts of incest (counts 1 and 3) and one count of aggravated indecent dealing with a girl under 12 (count 2).  The complainant was his younger sister.  The offences occurred between 1972 and 1975 when he was aged 15 to 18 and she was aged nine to 11.  He was sentenced to three years imprisonment on count 3 and to two years imprisonment on counts 1 and 2 with no order for a parole eligibility date or suspension.  He appeals against his convictions contending in his notice of appeal that they should be set aside on two bases.  The first is that the guilty verdicts are unsafe and constitute a miscarriage of justice.  The second is that the evidence of the complainant's sister, E, that on one occasion she recognised the appellant in the bedroom she shared with the complainant, should have been excluded.  Particularly in his oral submissions, he emphasised a third reason for setting aside the guilty verdicts: evidence from the complainant and from E that they were sexually abused by another brother, F, and by their father was inadmissible and caused a miscarriage of justice.  He also applies for leave to appeal against his effective sentence of three years imprisonment, claiming that it was manifestly excessive and should have been suspended or a parole eligibility date fixed after 18 months.

The appeal against conviction

The relevant evidence

[2] To better comprehend the appellant's contentions in the appeal against conviction, it is necessary to briefly review the relevant evidence.  The complainant, the sister of the appellant, was the youngest in a family of six children.  A male, F, was the eldest.  The appellant was the second eldest.  E, a female, was the third eldest.  The fourth and fifth children, Z and L, were both males.  The appellant was seven years, and E five years, older than the complainant.  The father of all the children died in 1967 when the complainant was four years old.  The mother remained a sole parent and worked long hours as a nurse.

[3] In about 1972, the year the complainant turned nine years old, the family moved to house A in or near a provincial Queensland city.  The family lived there for about a year.  There was a jacaranda tree in the back yard.  The complainant thought the offence charged as count 1 occurred before her tenth birthday on a Saturday when her mother was out.  Only the appellant and E were at home with her.  The complainant was in the lounge room where E was ironing.  The complainant was speaking to the appellant and she was sitting on a cushioned stool or pouffe.  He began to tickle her on her knees and under her arms.  She told him to stop as he was starting to hurt her.  He picked her up over his shoulder and walked down the back stairs.  He put his hand into her knickers and touched her vagina as he carried her.  He took her under the house and threw her onto a mattress.  She was winded.  He pulled down her pants and knickers, undid his zipper, exposed his penis, forced her legs apart and forced his penis into her vagina.  He had intercourse with her whilst he held her by the shoulders.  He tried to kiss her.  He said "Bub, you know you like this, you know you like this".  After about five minutes he ejaculated inside her vagina and on her legs and stomach.  He told her not to bother telling anyone because no-one would believe her.  She could see some blood around the tops of her legs, on her vagina and on the mattress.  She dressed and went to the toilet to clean herself up.  She felt a burning sensation around the vagina.  She then returned and moved the mattress so as to conceal the blood on it.  She lay down on the mattress and cried.  Her mother drove into the garage about 15 or 20 minutes later and asked what she was doing there.  The complainant said she was tired.  She went upstairs and acted as if nothing had happened.  She threw her pants in the bin.  This was the first occasion on which the appellant had sexually interfered with her.

[4] E gave evidence that she often did the ironing in the lounge room but she had no recollection of the particular incident; there was a bare mattress underneath house A.

[5] The complainant also gave evidence of an uncharged incident when the appellant watched her from the jacaranda tree as she was changing her clothes.  She was home from school because she had chickenpox.  E gave evidence that the complainant stayed home for a couple of weeks because of chickenpox, when they lived at house A.

[6] In 1973 the family moved to house B in the same city near a railway station.  The complainant thought this was just before her tenth birthday in July 1973.  F and the appellant were by this time at college or in the workforce and living away from home for varying periods.  The complainant and E shared a bedroom where they slept on separate single beds.  This bedroom was directly across from their mother's bedroom.  One night, sometime after her tenth birthday, the complainant woke up and saw someone nearly standing up; this person then crawled around her bed.  He put his hands under the sheets and grabbed at her pyjama top and at her legs.  Lights from the railway station were sufficient for her to see that it was the appellant and that he was naked.  His face was close to her.  He was wearing glasses and was slightly built.  His haircut was a distinctly different style to that of their brother F: the intruder's hair was shoulder length, parted in the middle and with tight curls.  She tried to push him away.  She thought she yelled, "go away".  E either said, "Who's there?  Is that you [naming the appellant]?" or "Who's there?" without naming him.  The appellant scampered out of the room on his hands and feet, not his knees, and with his backside in the air.  Three or four minutes later, she and E went to where the appellant usually slept and saw him there, apparently asleep. 

[7] E gave evidence of an occasion when the family was living in house B and she woke up to see a naked male standing near the complainant's bed.  She reached out to turn on her lamp but it did not work.  She said, "Who's there?" or "Is someone there?"  The male crouched down beside the complainant's bed and crawled out of the room on his hands and feet.  She thought it was the appellant as soon as she saw him because this person had very long, very curly shoulder-length hair which stood out from his head; he was also small and slightly built.  The male was not wearing glasses.  Although it was dark, there was still plenty of light: "enough to see a very good silhouette outline of anyone else in the room".  When he left, she shut the bedroom door and she turned on the main light.  The complainant was sitting on her bed with tears running down her face.  She told the complainant she thought it was the appellant, thinking this would comfort her.  They went to the appellant's bed where he was apparently asleep.  Although she had asked who was there, as soon as she opened her eyes and saw the person she had thought it was the appellant.  E and the complainant waited for their mother to come home; she was either working or at her boyfriend's place.  When she arrived about an hour later, E told their mother what had occurred and that she thought the appellant was responsible.  Her mother told her not to be ridiculous; it was only a dream, and to go back to bed.  Her brother, F, was a taller, larger and more powerfully built man than the appellant and he had short hair at that time. 

[8] The complainant's evidence on count 2 was as follows.  Later that same night the complainant woke up to find the appellant on her bed with his knees straddling her shoulders.  His hands were pushing her head against the wall and his penis was in her mouth.  He thrust his penis back and forth until he ejaculated into her mouth.  Ejaculate was on her neck and in her hair.  He said something like, "You know you like it."  She was gagging and vomited as he scampered from the room in the same way as he had done earlier that night.  She knew it was the appellant because he was so close to her and she could see him "very clearly".  She cried loudly and E woke up and helped her to clean up the vomit.  She thought her sister called out to her mother to get a clean sheet. 

[9] E could recall two or three occasions at house B when she woke up in the morning to find that the complainant had vomited on her pillow or in her hair and she would help her clean up.  She also recalled occasions when the complainant would yell out at night, including one occasion when she said, "He's getting me".

[10]  The complainant gave evidence that when the appellant was at home from work or college he would fairly regularly force her to suck his penis or have penile-vaginal sex with him.  She would often call or yell out.  Sometimes other family members would tell her to shut up, thinking she was having a nightmare. 

[11]  The complainant's evidence as to count 3 was as follows.  The family moved to house C in or near the same city when the complainant was about 11 or 12.  The appellant and F returned to house C when their work and college commitments elsewhere permitted it.  E was living there for only a few months before she moved to Brisbane in 1974.  The complainant shared a bedroom with her mother and another brother, L.  One evening, when the mother, a nurse, was working night shift, the complainant went to bed after watching TV until 11 pm with the appellant and L.  The appellant unlocked her bedroom door, climbed naked into her bed, pulled her knickers down and put his penis into her vagina.  He had intercourse until he ejaculated.  He said "Bub, you know you like it, you know you like it".  The lighting was not bright but the complainant knew it was the appellant because he spoke and she recognised his voice, he was wearing his glasses, his hair was distinctive and none of her other brothers looked like him. 

[12]  The mother was often away from home, working or socialising, and the children were left to look after themselves.  The complainant said the appellant regularly tried to get into her bedroom in house C through the door or window.  She was usually able to barricade herself in with a chest of drawers against the door and by placing a piece of wood against the windows to prevent them being slid open.  When she was unsuccessful he would have oral sex with her or try to have penile-vaginal intercourse.  She would call out loudly and this often deterred him.  In cross-examination, she agreed her screams were sometimes "blood curdling". 

[13]  The family moved to Brisbane, where the complainant said the appellant had intercourse with her at place D, an institution where her mother was employed as a chef and where the family also lived.  One night the appellant came into her room and had sex with her.  After that, she was very careful to ensure the doors were always tied shut with rope.  Later, after the family moved to house E in Brisbane, he again attempted to sexually interfere with her.  He rubbed her leg and said, "Come on, Bub, come on bub".  He desisted when she told him to "F-off" and threatened to tell their mother.  He moved out of the house and she did not see him again. 

[14]  When she was 15 and a half she moved to a provincial city in Western Australia.  In 1981 she moved to Perth where she met R whom she subsequently married.  When she was 19 and before she had married R, she told him that she had been sexually abused by her brothers.  In cross-examination she agreed she thought she told R that her father had also sexually abused her; she agreed she told a "support worker over in Western Australia" that her father had sexually abused her; she has no memory of her father sexually abusing her.  The support worker suggested that she should discuss the issue with her sister, E.  When she was 21, she told E that she had been sexually abused by the appellant.  When she was 23 or 24 years old, she told her mother she had been abused by both F and the appellant. 

[15]  The complainant was cross-examined but rejected the suggestions put to her that the appellant did not commit the three offences as alleged. 

[16]  R gave evidence by telephone that he married the complainant in 1986.  They have since divorced.  Before they married, she told him that her two brothers "sort of, like, molested her".  He could not remember the details of her complaint.  He developed epilepsy when he was 35 and he has a short-term memory problem; his memory has "gone haywire". 

[17]  E gave evidence that when the complainant was 21 she rang E and told her that the appellant had either raped or sexually abused her or words to that effect.  E told the complainant she believed her because F and her father had abused E.  Some years later she took her mother to see the complainant who told her mother in her presence that the appellant had raped her.  The prosecutor asked E how F had abused her.  E said he would "make [her] try to masturbate him.  He would imitate having sexual intercourse by placing his penis between [her] thighs and holding [her] legs tightly closed".  He would also move up and down.  That abuse occurred only in house the family lived in before house A.  This was the only type of sexual abuse that F perpetrated on E. 

[18]  In cross-examination, E was asked if she was surprised to hear the complainant's allegations against the appellant.  She responded that until the night when she saw him in her bedroom naked she had trusted him; but from that time she did not believe he was a safe person for her to be around.  In re-examination she explained that she thought the appellant was in the room that night to abuse her.  That was why she was still surprised to hear many years later from the complainant that the appellant had sexually abused the complainant. 

[19]  The appellant did not give or call evidence.

The appellant's contentions

[20]  The appellant represented himself in this appeal.  He made detailed and organised written and oral submissions in which he raised the following matters as justifying the overturning of his convictions. 

[21]  He made the following points in support of his claim that the verdict was unsafe, that is, "unreasonable or cannot be supported having regard to the evidence".[1]  The offences occurred so long ago that he has been severely disadvantaged and could not receive a fair trial.  Count 1 was said to have occurred between April 1972 and September 1973.  Count 2 was said to have occurred between September 1973 and July 1974.  Count 3 was said to have occurred between July 1974 and July 1975.  The delay in bringing the charges made it difficult to defend himself.  The most potentially relevant witness was his mother who died in 2005.  Had his mother been alive she would have given evidence favourable to him. 

[22]  He claimed he was disadvantaged by the discharge of a jury in an earlier trial on 4April 2007.  The disadvantage arose out of the directions of the trial judge to the jury in the present trial when the first exhibit was tendered.  The judge explained the markings on the exhibit made in the previous trial in this way:

"You will see on the back that it has got a marking from a previous trial. Now, there has been a previous trial conducted in this matter and each of counsel have agreed that I should tell you that. It didn't resolve with any verdicts, but you will see on the back of the documents that are going to be tendered the markings from that trial. You shouldn't speculate as to what occurred. Your task here is to decide the case on the evidence that you actually hear in this trial, all right, but if you have got a question in your mind about what those markings are on the back of the documents, that is the explanation, okay."

[23]  He contends that the direction to the jury not to speculate would inevitably make them speculate.  Some jury members may have wrongly concluded there had been a "hung jury" and this could have affected their independent deliberations.  The jury should have been told the reason for the mistrial: it was because a prosecution witness gave a damaging and inadmissible answer. 

[24]  The jury should have disregarded (or been directed by the judge to disregard) the evidence of the former husband of the complainant, because of his memory loss from epilepsy. 

[25]  The complainant's evidence at trial was flawed, he argued, for the following reasons.  She admitted at the mistrial that she wrongly accused her father of sexual abuse when she was about 19 years old but at the present trial she agreed that although she made that allegation, she could not recall him ever sexually abusing her.  The trial judge's direction to the jury on this aspect of the complainant's evidence included the following:

"In relation to the evidence concerning the father, it is only relevant in terms of your assessment of the credibility of the complainant. The complainant agreed at some stage she had made a complaint about sexual abuse of her by her father. Her evidence is she has no memory of that abuse and you heard her explanation for that. What you make of that explanation is a matter for you. [Defence counsel]  has argued that it shows that she is prepared to make such a serious allegation against her father on very little basis and you should take that into account in assessing her credibility.

The sister's evidence about abuse by her father may be relevant to your assessment of the complainant's credibility. You need to ask yourself; has the complainant somehow been influenced by her sister's history? Again, that is a matter for you in terms of your assessment of the credibility of the complainant."

[26]  He submitted that these directions were flawed because the evidence was that when the complainant made the allegation against her father she was only 19 years old; she did not confide in her sister until she was 21 years old.

[27]  The appellant emphasised a number of what he asserted were improbabilities in, and inconsistencies between, the accounts given by the complainant in statements to police and in her evidence during various court hearings.  In respect of count 1 these included the inherent improbability of her account; if she was raped as a nine year old why did no-one notice any injuries or hear or see anything suspicious, especially E, who shared her room and had a mother-like relationship with her.

[28]  In respect of count 2 he emphasised that the complainant alleged in her police statements that the offences allegedly occurred only when the mother and E were out.  At trial the complainant claimed uncharged sexual conduct occurred when E was asleep in the room.  The appellant queried why then did E not hear anything when the complainant was screaming and making gagging noises when the appellant had oral sex with her.  At the committal hearing the complainant said that offences of this kind occurred many times.  At the mistrial she said it was hundreds of times.  During her evidence at this trial she said it was between 10 and 20 times.  She originally claimed that she was never a victim of penile rape at house B although she was forced to perform oral sex there.  In her evidence at trial, she said that when she was home alone at house B with the appellant he would at times either have sex with her or put his penis in her mouth.

[29]  In relation to count 3, he emphasised that originally he was charged only with counts 1 and 2; count 3 was brought after the committal hearing in 2006 when the complainant first alleged she remembered this additional offence.  Her evidence in respect of it was inherently implausible.  It was not physically possible for him to have climbed into her window as she said in respect of uncharged sexual conduct or attempted conduct at house C.  The abuse could not have occurred without another member of the household hearing or seeing something, especially given that both the complainant and the appellant shared bedrooms with other family members.

[30]  He contended that the complainant was extremely susceptible to suggestion from others.  The history of her complaints to others was concerning; E may have led her into making false allegations.

[31]  As to the second ground of appeal, the appellant emphasised the unsatisfactory circumstances of E's evidence of identification.  The room was dark and made more so by lattice work on the verandah.  The complainant and E could only have seen a silhouette.  E changed her evidence from her initial statement to police so that it was closer to the evidence of the complainant.  Although E claimed to identify the appellant, the complainant gave evidence that E thought the person was an unknown prowler, as indeed, the appellant submitted, it probably was.  E's identification of him was made with hindsight after she heard the complainant's allegations against him.

[32]  In his oral submissions, the appellant emphasised his concern about evidence of the complaint to R that the complainant had been abused by her brothers.  He was also concerned about E's evidence that when the complainant told E of her allegations against the appellant, E said that she believed the complainant because E had been sexually abused by F and her father.  E gave evidence of the nature of the sexual abuse perpetrated by F on her. 

[33]  During E's re-examination, the jury sent the judge a note enquiring:

"During [E's] testimony yesterday she stated that she had been abused by her brother [F] and her father. Should we regard this statement as an opinion or as a fact or something else?"[2]

[34]  The judge responded with the following direction to the jury:

"Ladies and gentlemen, I have got your note about the relevance of the evidence by [E] that she had been abused by her brother [F] and also by her father.

Firstly in terms of your question, it's not an opinion, it's evidence of a fact from that witness. Now, it's not directly relevant to the issues you have got to decide in this trial which involve allegations against the [appellant], not his brother or his father, but it has some relevance to you and that is why it is led. As I say, it is not an issue you need to resolve about whether it is true or not. I mean, that is all you are going to hear about it.

The relevance certainly that the counsel say it has in terms of the allegation that [F] abused her, the Crown's argument is that the details of that were led to show that it was a different type of sexual abuse than is alleged against the [appellant] in relation to the incident or all the incidents alleged against him. That, the Crown argue, is relevant in terms of the identification of the [appellant], particularly in relation to the second incident and the type of abuse that is alleged against him there.

So the aspect in relation to [F] is really in relation to the evidence from not only the – [E], but also the complainant as to the type of abuse that [F] imposed on each of them. That, the Crown say, is relevant in your assessment of whether the person who committed - if you are satisfied that someone did commit count 2, that it was the [appellant] and not [F]. So that is its relevant in your assessment of the case against the [appellant].

In relation to the evidence about the father, the relevance to you in that consideration is really you have heard the complainant agree that at some stage she made a complaint about her father and she's also agreed that she has no memory of sexual abuse being committed upon her by her father. It may - this evidence from the sister about abuse by the father, again you don't have to resolve whether it is true or not, but it may be relevant to your assessment of the credit of the complainant in relation to that aspect of it. I don't know what arguments are going to be raised by counsel about that, but you have obviously heard the evidence from the complainant which she has accepted that at some stage she made a complaint about her father, but she's got no memory of the complaint.

So the aspect of the evidence that you have heard from the sister may be relevant. Whether it is or not is a matter for you. It may be relevant to your assessment of her credit in that aspect. All right.

Does that explain it to your satisfaction?

JURY: Yes.

HIS HONOUR: As I say, it is not an issue that you have got to resolve here about whether the sister was abused by [F] or her father or, indeed, an issue about whether the complainant was abused by her brother [F]. The case you have got to resolve is whether the Crown has proved its case on each of the charges against the [appellant]. …"[3]

E then continued to give her evidence in re-examination.

[35]  The judge in his summing up gave the following directions on this aspect of the evidence to the jury:

"You have also heard allegations the complainant was sexually abused by another brother. Now, that has not been contested here, the other brother isn't here to answer those allegations but you have heard that evidence and it may well be relevant to some of the things you need to consider particularly in relation, the Crown argue, to the question of identification in relation to count 2 because of the type of sexual abuse the complainant has said she suffered at the hands of her other brother.[4]

…

I want to repeat the observations I made to you about the evidence concerning the brother [F] and the allegation against the father. You've heard evidence from [E] concerning the sexual abuse she alleges occurred to her by her brother [F] and her father. Those issues are not on trial before you and you simply heard the allegations made and some detail given of the type of abuse [E] said she suffered. Those gentlemen are not present to defend themselves and there is really no contest or no possible contest that can be made to those allegations. The allegations are untested.

You have also heard some detail from the complainant about what she says her brother [F] did to her. Now, obviously, as I say, neither [F] nor the father are here to contest those allegations. The relevance of the evidence about [F] is, the Crown argues, that it shows a different type of sexual abuse than that alleged against the [appellant]. That might be relevant to your assessment of the identification of the [appellant] as the offender, particularly in relation to count 2.

In relation to the evidence concerning the father, it is only relevant in terms of your assessment of the credibility of the complainant. The complainant agreed at some stage she had made a complaint about sexual abuse of her by her father. Her evidence is she has no memory of that abuse and you heard her explanation for that. What you make of that explanation is a matter for you. [Defence counsel] has argued that it shows that she is prepared to make such a serious allegation against her father on very little basis and you should take that into account in assessing her credibility.

The sister's evidence about abuse by her father may be relevant to your assessment of the complainant's credibility. You need to ask yourself; has the complainant somehow been influenced by her sister's history? Again, that is a matter for you in terms of your assessment of the credibility of the complainant."[5]

[36]  The appellant contended that this evidence and the judge's directions to the jury on it were extremely prejudicial to him and not relevant to the case against him.  He contended that the evidence had suggested to the jury that "sexual abuse was rife within the family".  This was exacerbated by the prosecutor asking police officer Thorpe about the status of the complaints of the complainant and E against F.  Police officer Thorpe responded that there were outstanding arrest warrants for F in respect of these counts.

Discussion and conclusion

1.The evidence of recognition

[37]  Defence counsel applied to have excluded E's evidence that she recognised the appellant as the intruder in the bedroom she shared with the complainant in house B.  His application was made either under s 130 Evidence Act 1977 (Qld) or because, he contended, its prejudicial effect exceeded its probative value.  The judge decided that the evidence was admissible and the weight to be given to it was a jury question. 

[38]  There is no reason to conclude that the judge erred in exercising his discretion in this way.  The evidence was relevant.  If truthful and reliable, E's evidence of recognition was highly probative in that it was capable of providing support for the complainant's evidence on count 2 which, the complainant said occurred later the same evening.[6]  The many weaknesses in the recognition evidence from both the complainant and E, however, required careful directions to the jury.[7]

[39]  The judge subsequently gave those careful directions to the jury.  His Honour read all of E's evidence of recognition, including cross-examination.  The judge warned the jury generally of the special need for caution in relation to the evidence in that it could be honest but mistaken; that serious miscarriages of justice had sometimes occurred from mistaken recognitions and that a mistaken witness may be a convincing witness.  Importantly, his Honour reminded the jury of the specific significant weaknesses in E's recognition evidence, of the differences between her statement to police and her oral evidence, and the differences between her evidence and that of the complainant on this issue. 

[40]  E's evidence was admissible.  The judge was not required to exclude it.  The judge's subsequent careful and thorough directions to the jury in respect of it ensured that no miscarriage of justice has resulted from its admission.  This ground of appeal fails. 

2.The evidence from the complainant and E of their sexual abuse by others in their family

[41]  The appellant did not give or call evidence but his case was put to the complainant by his barrister in terms that the appellant did not commit the offences; he always treated her as a big brother would treat a little sister.  Defence counsel also put to the complainant that because she had alleged that both F and the appellant had sexually abused her, she could not discount the possibility that it was her brother, F, who was in the room on the night that count 2 occurred and that F was responsible for that offence.[8]  The complainant denied all those suggestions. 

[42]  The complainant's allegations of sexual abuse by her father were brought out in cross-examination.  This was a tactical decision by defence counsel and was foreshadowed by him with the judge at the commencement of the trial.[9]  The complainant agreed she told R and the support worker that she had been abused by her father.  She also agreed that she had no memory of her father ever sexually abusing her and that he died when she was four years old.  Defence counsel understandably submitted to the jury that this threw doubt on the reliability of the complainant's allegations against the appellant.  In those circumstances the appellant cannot now fairly complain about the way this aspect of his case was conducted.

[43]  E's evidence, given in chief to the prosecutor at trial, that, first, she believed the complainant's allegations against the appellant because E had been abused by F and their father and, second, of how F abused her, was led without objection.  The first aspect of that evidence was capable of being relied on by the defence to show that the complainant was vulnerable, suggestible and prone to influence by E who had been abused by their father and F, and that her claims that she was abused by the appellant may have arisen from E's influence; for that reason, the complainant's evidence was unreliable.  The judge directed the jury accordingly:

"The sister's evidence about abuse by her father may be relevant to your assessment of the complainant's credibility. You need to ask yourself; has the complainant somehow been influenced by her sister's history? Again, that is a matter for you in terms of your assessment of the credibility of the complainant."

[44]  Certainly one prong of the defence case was that, as F sexually abused E and the complainant, F may have been the intruder in house B and the perpetrator of the abuse on the complainant in count 2.  The evidence from E was that F's sexual abuse was always either "masturbation" or simulated intercourse by rubbing his penis between her legs.  The complainant's evidence was not that the appellant sexually abused her in the way that F sexually abused E; it was that he perpetrated penile-vaginal and penile-oral intercourse on her.  E also gave evidence in re-examination that she thought the appellant was intending to sexually abuse her (E) that evening.  The appellant rightly points out that all this evidence was potentially prejudicial in that it did suggest to the jury that the complainant, the appellant, E and F were part of a dysfunctional family in which predatory sexual behaviour by the older brothers was rife.  The flaws in the appellant's contention are that the evidence, other than that in re-examination, was admitted without objection and on a very limited basis; on one view it was capable of assisting the defence case; it seems to have been used by the defence to undermine E's evidence of recognition of the appellant; and the judge gave careful directions about the limited use to be made of it both at the time it was given and later in the summing up.  E's evidence in re-examination (that she thought the naked appellant was intending to sexually abuse her, not the complainant) clarified the issue raised in cross-examination as to why she was surprised about the complainant's allegations against the appellant if she had truly recognised him as the intruder.  In those circumstances I am not persuaded that its admission has caused a miscarriage of justice.  This ground of appeal fails. 

3.Was the jury verdict unreasonable?

[45]  The delay in this case was significant but the learned primary judge gave a careful direction consistent with the requirements set out in Longman v The Queen.[10]  The judge gave as an example of the difficulty resulting from delay in the case the fact that the mother had died in the interim and may have been able to give relevant evidence.  There is no evidence before this Court to establish that the mother's testimony would have more helpful to the appellant than to the prosecution.  His Honour warned the jury that because of the delay, it would be dangerous to convict on the complainant's testimony alone unless after scrutinising it with great care they were satisfied beyond reasonable doubt that it was true and accurate.  There is no reason to conclude that the jury did not understand and act on those directions.  The lengthy delay in this case, though problematic, was not in itself a matter making the guilty verdicts unsafe. 

[46]  The judge's directions to the jury about the exhibit markings resulting from the earlier trial[11] were made with the concurrence of defence counsel.  There is nothing inherently improper or unfair about them.  There is no reason to think that the earlier trial markings on the exhibits or the directions about them could have affected the jury's independent deliberations in accordance with the judge's directions as to the law.

[47]  The complainant agreed that she had told a support worker in Western Australia that her father had sexually abused her.  That complaint seems to have been made when she was 19, but the timing is not completely clear from the evidence.  She agreed in cross-examination that despite making that claim to the support worker she had no memory of her father actually sexually abusing her.  E gave evidence that the father had sexually abused E.  The trial judge's pertinent directions to the jury on this issue are set out at para [25] of these reasons.  They were helpful to and reinforced the defence contention that the complainant's evidence was unreliable.  The difficulty with the appellant's claim that this direction was inconsistent with the evidence that the complainant made the allegation about her father's sexual abuse to the support worker before she made any complaint about the appellant to E, is that, if correct, this would have favoured the prosecution case.  The judge's direction of which the appellant now complains, was made by way of explaining an aspect of, and was helpful to, the defence case.  It does not make the jury verdict unreasonable.

[48]  The evidence from police officer Thorpe to which the appellant now objects was helpful to the defence case in that it confirmed in a balanced way that the allegations of the complainant and E against F had not been established in court. 

[49]  The evidence of R as to the complaint made to him was admissible.  He agreed his memory was poor.  The judge gave the correct directions as to the limited use to be made of R's evidence.  No miscarriage of justice arises from it, or from the direction.

[50]  The weaknesses and inconsistencies in the evidence of the prosecution witnesses, especially of the complainant, which the appellant has emphasised, were thoroughly investigated by defence counsel at trial.  The judge highlighted most of these matters and told the jury to consider them in determining whether they accepted the complainant's evidence on each count beyond reasonable doubt.  His Honour explained the defence case to the jury in considerable detail, again highlighting many of these matters.  None of the many concerns raised by the appellant, either alone or in combination, required the jury to disbelieve the complainant's ultimately unshaken and uncontested evidence that the appellant committed each of the three counts.

[51]  After reviewing the whole of the evidence, I am satisfied that the guilty verdicts on each count were open on that evidence.  This ground of appeal fails. 

[52]  It follows that the appeal against conviction must be dismissed.

Application for leave to appeal against sentence

[53]  As to sentence, the appellant contended that the prosecution wrongly emphasised his lack of remorse and the fact that the community had been put to the expense of two trials.  The mistrial was caused by a prosecution witness (the brother, A) giving inadmissible evidence during cross-examination.  The appellant submitted that the sentence of three years imprisonment should have been suspended after 18 months given that the offence occurred about 35 years ago when he was aged between 15 and 18 years.  His criminal history (all subsequent to the present offences) was minor and unrelated.  The sentence of imprisonment has caused great hardship to his wife and family.  He asked this court for an early release date either in the form of a suspended sentence or parole.

[54]  To succeed, the appellant must show the sentence was manifestly excessive.  The maximum penalty for counts 1 and 3 was life imprisonment.[12]  The offences occurred when the complainant was aged between nine and 11 and the appellant was aged between 15 and 18.  He was seven years older than his sister.  This was not a case of brother and sister incest where both parties were enthusiastic or even willing participants.  The appellant used his power as an older, physically bigger brother to overbear what will such a young child could have.  He was perhaps fortunate not to have been charged with rape of his young sister; if so, even at his then young age, without mitigating circumstances a sentence as high as eight years imprisonment after a trial could well have been open on count 3: cf R v KU & Ors, ex parte A-G (Qld).[13]  The offending has had a very significant detrimental long term impact on the victim.  Whilst he cannot receive a heavier penalty for exercising his right to a trial, the appellant does not have the mitigating benefit of remorse, an early guilty plea or co-operation with the authorities. 

[55]  Although he was very young at the time of all the offences and but a child when count 1 occurred, the offences are serious.  It is very much in his favour that he has no serious or relevant criminal history and that he has apparently reformed since the commission of these offences so long ago.  The sentence imposed was, however, a moderate one.  The judge was not obliged to suspend or set a parole eligibility date after 18 months of the three year sentence.  The sentence was not manifestly excessive.  The application for leave to appeal against sentence should be refused.

Orders

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence refused.

[56]  HOLMES JA:  I have had the benefit of reading the President’s judgment and agree, for the reasons she has given, that the appeal and application for leave to appeal against sentence should be dismissed.  I wish simply to add some observations as to the complaint, raised by the appellant in his submissions, that E's evidence of sexual abuse by her father and brother, F, was wrongly admitted.

[57]  Defence counsel took no objection to the admission of the evidence, and it was, as the President has noted, the subject of a direction favourable to the defence: the trial judge raised the possibility that the complainant had been influenced by E's history.  The appellant pointed out, reasonably enough, that there was a difficulty with that theory, because the complainant's allegations of sexual abuse against her father had been made, on her own account, two years prior to learning that E made similar claims.  But in light of the complainant's later concession that she had no actual recollection of abuse by her father, her earlier claims to that effect became extremely relevant to her credit; and gave some force to his Honour’s suggestion that she might in some way have learned of, and been influenced by, her sister's complaints of sexual assault.  There was, then, some discernible advantage to the defence in allowing the jury to learn that E had complained of abuse by her father and F.

[58]  The appellant argued, with considerable justice in my view, that the Crown's rationale for eliciting evidence of the type of assault perpetrated by F on E was flawed.  The argument made, as reflected in the trial judge's direction, was that because F abused E by rubbing his penis between her legs in simulated intercourse, it could not have been he who returned to the bedroom later on the same night and forced his penis into the complainant's mouth; the Crown said that this showed a "different type of sexual abuse".  There might have been some substance to that argument had the Crown case been that F confined himself to the sort of sexual assault committed on E; but it becomes a nonsense when one considers that the complainant's evidence was that F had, on other occasions, forced her to perform oral sex on him.

[59]  However, although the Crown's logic in arguing for the relevance of the evidence was dubious indeed, the trial judge's direction did not press it on the jury.  His Honour merely identified the Crown's argument and suggested, in tentative terms, that it "might be relevant to [the jury's] assessment of the identification of the [appellant] as the offender".  There is no reason to think that the jury, which had heard the evidence as to the different forms of assault alleged, was blind to the weakness in the Crown’s contention. 

[60]  As the President points out, the evidence as to the nature of F's abuse of E was admitted without objection, and I do not think that it, or the trial judge's direction about it, were likely to have caused the appellant any real prejudice.  As the appellant put it, correctly in my view, the harm in the evidence was the impression it created that "sexual abuse was rife within the family".  But there was a sound forensic reason for permitting evidence of E’s complaints of sexual abuse to be led (because it suggested the possibility that the complainant had merely adopted her sister's account) notwithstanding the attendant risk of creating the impression that at least some of the males in the family were sexual predators.  Once that risk was accepted as a necessary evil, the precise form of abuse allegedly perpetrated by F added little to the prejudice which might arise from any such perception. 

[61]  MUIR JA:  I agree with the reasons of McMurdo P and with the orders she proposes.