SUPREME COURT OF QUEENSLAND

[1]  HOLMES JA:  I agree with the reasons of Fraser JA and the orders he proposes.

[2] FRASER JA: The appellant was charged in the District Court with four counts of indecent dealing with the complainant, a child under 16 years, who was then under 12 years and under the appellant's care.  Each of counts 1 to 3 alleged an indecent dealing on a date unknown between 1 January 2005 and 10 February 2007.  Count 4 alleged an indecent dealing on 9 February 2007. 

[3] The appellant was convicted of counts 3 and 4 and acquitted of counts 1 and 2.  On 16 June 2008 he was sentenced to 18 months imprisonment on each of the counts of which he was convicted, with a parole eligibility date fixed at 16 March 2009 (after serving nine months imprisonment).

[4] The appellant appeals against his convictions and sentence.

Appeal against convictions

[5] The sole ground of appeal is that the convictions are “unsafe and unsatisfactory and contrary to law”.  The appellant's counsel confirmed that this should be read as raising the ground in s 668E(1) of the Criminal Code that “the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence.”  The question under that ground is whether on the whole of the evidence it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.[1]

The evidence

[6] The police investigation of the appellant followed a complaint by one Ms Mathias that during the course of an internet conversation she had with a man on 9 February 2007 she saw images on her computer screen of the man indecently dealing with a young girl.  The Crown case on count 4 was based upon Ms Mathias’ evidence and what police found when they searched the appellant's house and examined his computer. 

[7] Ms Mathias gave evidence that from about August or September 2006 until 9 February 2007 she and a man enjoyed friendly, weekly conversations (in typewritten form) by way of “internet chat”.  The man identified himself by a term that comprised the appellant’s first name followed by the calendar day and month of his birth.  The man also told Ms Mathias various personal matters that identified him as the appellant.  That and other evidence, including a photograph of himself he sent to Ms Mathias (an image of which was later found on forensic examination of the appellant's computer) and her identification of him from a collection of photographs as the man whose image she had seen on her computer screen, convincingly proved that the man was the appellant. 

[8] Ms Mathias gave evidence that she had her last internet conversation with the appellant on the evening of 9 February 2007, commencing between about 9.00 pm to 9.30 pm.  Before the start of the conversation, or early in it, she accepted an invitation sent to her by the appellant that enabled her to view images of him captured by a “webcam” attached to his computer.  During the conversation the appellant indicated that he had recently bought his new webcam for $15. 

[9] Ms Mathias gave evidence that after some conversation the appellant said that he had to go.  He left but an image remained on her computer screen of his empty chair.  Ms Mathias continued using her computer for other purposes until a movement on the screen caught her attention.  The appellant re-appeared with a young girl.  Ms Mathias described the girl as having straight shoulder length hair and wearing a light coloured floral dress with ruffled sleeves, with bright pink, orange and yellow coloured flowers.  Ms Mathias thought the girl was very young, under 10 years old.

[10] Ms Mathias gave evidence that she saw the appellant sit on his chair, lift the girl up on to the chair, pull down her underwear and rub up and down the front of the complaint's vagina with his thumb for a period of about 10 seconds; the appellant then lifted the girl up in a way that resulted in a close-up view of the front of the girl's vagina appearing on Ms Mathias’ screen for a period of a few seconds. 

[11] Ms Mathias gave evidence that she typed and sent to the appellant a message telling him that he should learn to turn his camera off; that the appellant responded asking what Ms Mathias was talking about and that his camera was off; she responded denying that and saying that she had seen the appellant lifting the girl up to the screen and touching her; and then her screen went blank.  Ms Mathias confirmed the accuracy of a transcript of a text file she had saved to the hard disk of her computer which recorded the whole of the typewritten conversation between her and the appellant.  The transcript of this latter part of the conversation is as follows:

“[Mathias]: you should learn to turn your cam off
  [appellant]: who u talking to honey?
  [Mathias]: talking to you
  [appellant]: my casm is not on
  [Mathias]: yes it is on and I seen everything
  [appellant]: It is not I just checked
  [Mathias]: its not now
  [appellant]: why are you asking for anyway?
  [Mathias]: I feel sick'
  [appellant]: u have lost me
  [Mathias]: [. . .] I seen the girl how young was she
  [appellant]: what has happened?
  [appellant]: I amhome alone mate
  [appellant]: I dont know what u are seening but its not me
  [Mathias]: I just seen you touching up a young girl and 
  putting her fanny on cam
  [appellant]: mate what are you on?
  [Mathias]: I have to go
  [appellant]: ok
  [appellant]: but i dont know what you are talking about?”

[12] Ms Mathias promptly reported this to the authorities.

[13] The Crown adduced evidence that during a subsequent search of the appellant's house police found a receipt for the purchase of a webcam for $14.99 on 9 February 2007 and a webcam retail box and software for its use; that there was a webcam attached to the appellant's computer; that forensic examination of the appellant's computer indicated that a webcam had been installed on the appellant’s computer on 9 February 2007; that the time of creation of the necessary folder, directory or files relating to the use of the webcam on the appellant's computer was between 6.00 pm and 7.00 pm on that day; that the internet connection at the appellant’s house was open during the evening of 1 February 2007 until shortly after 9.00 pm; and that programs which permanently remove files from a computer’s hard drive were used on the appellant's computer between about 9.00 pm and 10.00 pm on 9 February 2007, and again on the following day.

[14] The appellant's wife gave evidence that she had been married to the appellant for 29 years, that they had three adult daughters (two of whom remained in the household), that she and the appellant were pastors of a local community church, and that they had been foster parents for a period of 10 to 15 years.  She and the appellant fostered the complainant from about early 2005, when the complainant was eight years old, until a time after the events alleged in count 4 (9 February 2007) when the complainant was 10 years old.  She gave evidence that the complainant went to bed soon after 8.00 pm that night; that during the following two hours or so she (the appellant's wife) was in a bathroom packing linen and that the appellant was in his office at his computer; that she would have noticed if the complainant had left her bed and gone to the office; and that she did not see the complainant get out of her bed at anytime during the evening. 

[15] Following Ms Mathias' report, the complainant was interviewed by police on 15 February 2007 whilst she was at her school.  This and the subsequent interviews were well conducted.  The police officers first sought to put the complainant at ease and gradually introduced the topic of her relationship with the appellant, whom she called “dad”.  In the first interview the complainant denied that the appellant had engaged in any untoward conduct towards her.  When police asked her whether he had ever helped her to get undressed, she responded, “No.  You’re weird.”  She denied that she had any secret with the appellant, that he did anything to make her feel uncomfortable, and that anybody had ever touched her on her private parts.

[16] The complainant was moved to a new home where new foster parents, Mr and Mrs A, cared for her.  On 20 March 2007, the same police officers again interviewed the complainant.  She again denied that the appellant had engaged in any untoward conduct towards her.  She said that she did not know why police thought that she was not safe with the appellant and his wife.  When the police told the complainant that someone told police that they saw the appellant doing things that were not nice to the complainant, she maintained her denial that anything had happened with the appellant.  She did not know why someone would say that.  When the complainant was pressed she said she could not remember; when she was further pressed she said that nothing had happened. 

[17] Ms Dawson, who was formerly employed as a Child Safety Officer in the Department of Child Safety, gave evidence that she and another officer interviewed the complainant on 1 June 2007.  During that interview the complainant did not make any direct disclosures.  In cross-examination Ms Dawson gave evidence that the complainant described various aspects of her time with the appellant and his wife in terms which were unremarkable; that the complainant said that she was not scared of the appellant and trusted him and others in the household; and that if she had been scared she would have spoken to the appellant’s wife.  When Ms Dawson asked whether the appellant had done something to scare the complainant, the complainant began to cry and stated, “he didn't do anything to me”, and she kept saying that whilst she continued to cry.  When a similar question was put to the complainant again, the complainant responded by yelling “[the appellant] didn’t do anything.  He didn’t hurt me.”  When asked further about that the complainant responded, “I don’t know, I’m not scared of anything [the appellant] did”.  The complainant told Ms Dawson that no one had told her (the complainant) to say nothing.  Ms Dawson agreed that at the end of the interview the complainant was able to identify which areas of her body were private, she denied that anyone had touched her there, she said that she would tell someone if that had happened to her, and she identified appropriate adults to talk to. 

[18] Mr and Mrs A, gave evidence that the complainant was upset when she returned home from school after the interview with the departmental officers.  Each of Mr and Mrs A said that the complainant told them that the appellant had taken photographs of her in the bathroom of his house when she had no clothes on.  Mr A gave evidence that in response to his question whether there was anything else the complainant said “no”.  (The appellant was not charged with any offence that involved the taking of photographs.)

[19] Mr A also agreed in cross-examination that he had said in his statement to police that he told the complainant that “the only way you are going to get these people off your back, is if you really tell them the truth, and then they are going to leave you alone”; “you know if you have got anything to say, then just say it to them”; and “if you’re really going to get these people off your back . . .” “ . . . tell them the truth”.  Mrs A agreed with the suggestion put to her in cross-examination that the complainant’s statement about being photographed occurred after Mr A had told the complainant that she needed to “tell them to get them – to get them off her back” (an apparent reference to the Department).

[20] Mrs A gave evidence that after the disclosure by the complainant about the photographs she told the complainant to write her thoughts down because then she would feel better.  The complainant later showed Mrs A some notes the complainant had written.

[21] The notes refer to three occasions.  Under the heading “fist time”, the notes state that “[the appellant] touched me on the inside and I was weiring my school clothes and it happened in the bathroom.”  Under the heading “second time”, the note reads, “[the appellant] took photo of me in the nude and I was weiring a dress and it happened in the bathroom”. (The word “bathroom” is written above the largely obliterated word “office”).  Under the heading “third time”, the note states, “[the appellant] touched me and took photo of me in his room.”  The words “done by [the complainant]” are printed at the foot of the note. 

[22] Mr and Mrs A sent the note to the police.  The police officers again interviewed the complainant, on 6 June 2007.  In this interview the complainant said that the appellant touched her in her “rude parts” on three occasions, firstly in the bathroom (while she was wearing her school clothes), secondly again in the bathroom (whilst she was wearing pants and a shirt which were not her school clothes), and thirdly again in the bathroom (again when she was wearing her school clothes).  She said she was 10 years old when this happened: “like I am now”.

[23] When the complainant was asked about what she had told Mr and Mrs A she said that she had told them that the appellant “only touched me”.  When police suggested that she might have said something about pictures, the complainant said that the appellant did not take pictures of her and she did not know anything about that. 

[24] The complainant said she had not told anybody about the appellant touching her because the appellant had told her that if she told anyone she would have to move: the appellant said that after he had touched her, but she could not remember on which occasion.  She said that made her feel “a bit scared and angry”, because she wanted to tell somebody but the appellant would not let her.  She was scared because she knew that the appellant would make her move into a different house, and she did not want to do that because the appellant’s wife and daughters were kind to her.

[25] In a pre-recorded hearing in late April 2008 the complainant gave evidence that on three occasions the appellant touched her on her “private part”.  She said that occurred once “in his office; then in the lounge room … then in the bathroom”; there was no one else at home at those times.  This evidence formed the basis of counts 1-3.

[26] The complainant gave no other relevant evidence in her evidence in chief.  In cross-examination the complainant agreed that she had told police and that it was the case that the appellant did not take any “naughty” pictures of her. 

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

Count 4

[28] The Crown case on count 4 was that Ms Mathias had no antipathy towards the appellant; she had no reason to lie in her evidence that she clearly saw the appellant indecently dealing with the child in the way she graphically described; her evidence was that she was certain that it was the appellant who indecently dealt with the child over the same internet connection which had continued uninterrupted during their conversation until, after Ms Mathias’ complaint, the webcam ceased to operate.  The evidence of the forensic examinations established that the appellant was operating a webcam that evening.  The evidence of the appellant’s wife, otherwise exculpatory of the appellant, confirmed that the only child in the house at that time was the complainant and the appellant was in the house using a computer.

[29] It is submitted on behalf of the appellant that the jury verdict on count 4 is unreasonable because of the cumulative effect of three matters: weaknesses in the evidence of Ms Mathias, the exculpatory evidence of the appellant's wife, and the absence of evidence from the complainant of the offence charged in count 4. 

Ms Mathias' evidence

[30] Ms Mathias’ evidence, in transcript form, seems compelling.  The jury, who had the advantage of seeing and hearing Ms Mathias give evidence, must have accepted at least the essential parts of her evidence.

[31] At the trial defence counsel suggested to Ms Mathias that her description of the sequence of the alleged indecent dealing and the timing of typewritten responses allegedly by the appellant must have been wrong because the man could not have held the girl with both hands and typed at the same time.  But Ms Mathias did not suggest in her evidence that the appellant typed at the same time that he held the girl.  Her evidence is consistent with the appellant having put the complainant down before he typed the message which is recorded in the transcript as:

“who u talking to honey?”

[32] When defence counsel put to Ms Mathias that at the time when she said that the appellant was holding the girl up against the video monitor by his hands he could not have been typing, Ms Mathias responded that she was typing and she agreed that the appellant could not have been typing at that point.  She disagreed with the proposition put to her by defence counsel that the webcam footage was disconnected “before there is any typing between you and [the appellant]”. 

[33] Ms Mathias gave evidence that she was not “web camming” with anybody else at this time.  When it was suggested to her that she could not be sure of that she agreed that she would not say that she was “100% sure, because that was back then”; but she denied that she was mistaken about seeing the appellant with the child up against the computer screen.  The jury was entitled to accept that denial.

[34] There were other features of the evidence upon which it was also open to the jury to rely in assessing Ms Mathias’ evidence.  The evidence that the appellant had purchased the webcam that same afternoon was consistent with him being unfamiliar with the operation of the camera.  That provided an explanation, consistent with Ms Mathias’ evidence, of the appellant’s very surprising failure to prevent the transmission of the images of his indecent dealing. 

[35] There was also the uncontested evidence of the use on the appellant’s computer, commencing at a time which was very close to the time when Ms Mathias said that their conversation finished, of programs designed to permanently erase computer records.  The trial judge directed the jury to be “really careful with reasoning that the timing of the program to wipe the hard drive shows that the appellant was trying to get rid of something that he was worried might be in the computer”.  Her Honour pointed out that the witness who gave that evidence for the Crown also gave evidence that such programs were advertised as helping to free up computer space; that there were many reasons why someone might want to free up space on the computer; and that before concluding that the appellant was intending to remove evidence of what had happened the jury would have to be satisfied that this was the only reasonable explanation for his use of the program. 

[36] The trial judge also reminded the jury of the defence submission of an alternative explanation (also pressed for the appellant in this appeal), that the appellant might have wanted to remove communications he had with Ms Mathias because of the flirtatious nature of those conversations: the trial judge told the jury that that was another reason why he might want to do it and directed the jury that they were not to judge the appellant for flirting with someone on the internet.  It is submitted for the appellant that parts of the conversation exceeded mere flirtation, but that is a question of degree only and no objection to that characterisation was taken at trial.  The trial judge’s direction appropriately alerted the jury of the need to examine this evidence very carefully before relying upon it.  Nevertheless, the jury was entitled to take the evidence into account. 

[37] The complainant’s birth certificate proved that she was 10 years old at the time of this alleged offence, but Ms Mathias gave evidence that she thought that the child “was under ten years old”, and she agreed in cross-examination with the proposition that she told police that the child was “about 7 years of age”.  Ms Mathias was unable to identify a photograph of the complainant from a collection of photographs of children shown to her by police.  She also did not recognise any of the complainant’s clothing taken by police from the appellant’s house and shown to Ms Mathias.  The appellant relies upon those points and also upon Ms Mathias’ inability accurately to describe furniture in the appellant’s office the images of which (on the evidence of the appellant’s wife) should have appeared on Ms Mathias’ computer screen.

[38] The point about the furniture is a weak one.  Ms Mathias said that she did not really take much notice of the background.  The jury was entitled to consider that in the circumstances described by Ms Mathias, which included her being confronted by a very shocking scene, it was not particularly surprising that she was unable accurately to describe the office furniture.

[39] It may also be noted that there was no challenge to Ms Mathias’ evidence that she saw images of the appellant in his office at the beginning of their internet conversation.  Defence counsel put to her that she was mistaken in saying that she later saw the appellant with a girl, but not that she was mistaken in saying that she had earlier seen the appellant in his office.  That seems to have raised the real issue for the jury on this aspect of the case.  On that view, there is no significance at all in Ms Mathias’ inability accurately to describe the furniture she saw in the office.

[40] Nor do the points made for the appellant concerning Ms Mathias’ identification of the complainant significantly detract from the persuasive value of Ms Mathias’ evidence.  Ms Mathias gave evidence that the child “had a very young face” and agreed that she had described the child to the police as “quite petite” and “quite skinny” or “very slim”.  That is consistent with the complainant’s appearance in the pre-recorded evidence, bearing in mind the interval of about a year between the alleged offence and the pre-recording.  The jury was not bound to accept the appellant’s wife’s evidence that she would “not really” describe the complainant as petite or small and that she didn’t look seven years of age.

[41] Furthermore, Ms Mathias’ evidence was that the child was visible on her computer screen for only a very short time, which Ms Mathias estimated to be some 15 to 20 seconds.  During that time she was confronted by very shocking images of the appellant indecently dealing with a young girl.  In these circumstances Ms Mathias’ errors in her estimates of the complainant’s age, her inability positively to identify the complainant, and her failure to recognise the complainant’s clothing did not require the jury to harbour a doubt that Ms Mathias had seen the appellant indecently dealing with the complainant.

The appellant’s wife’s evidence

[42] Contrary to a submission made for the appellant, it is not a valid objection that a conclusion that Ms Mathias saw the appellant indecently dealing with the complainant involves acceptance of the part of the appellant’s wife’s evidence that put the appellant and the complainant at the scene and rejection of those parts of her evidence that exculpated the appellant.

[43] If Ms Mathias’ evidence that she saw the appellant abusing a young child is accepted, there is no candidate for that young child other than the complainant.  The appellant’s wife’s evidence that the household ordinarily consisted of herself and the appellant, their two adult daughters and the complainant corroborated the complainant’s evidence to the same effect.  There was no evidence or suggestion at the trial that any child other than the complainant was present at the time of the alleged offence.  That formed part of the evidence supporting the conclusion that the child Ms Mathias saw was the complainant.

[44] The jury might have accepted the appellant’s wife’s evidence that the appellant and the child were in the house at the time of the offence alleged by Ms Mathias but rejected her evidence that all five members of the household were present: the jury might have concluded that there was no-one present other than the appellant and the complainant.  In that respect, the complainant’s evidence was that on each occasion upon which the appellant touched her there was no-one else at home; and the statement “I am home alone mate” which Ms Mathias attributed to the appellant is inconsistent with the appellant’s wife’s evidence that she or any other member of the household was present at that time.  Alternatively, the jury might have concluded that the appellant committed the offence without being observed by his wife, though she might have been present, thereby rejecting only that part of her evidence which was inconsistent with that conclusion.  Such a conclusion would involve rejection of the complainant’s evidence that only she and the appellant were in the house when any offence was committed.

[45] But contrary to a submission made for the appellant, such modes of reasoning are not necessarily incompatible with proof of the offence beyond reasonable doubt.  There were here a number of different bases in the evidence upon which the jury might legitimately “trim or paste” the picture presented by the appellant’s wife.[2]

[46] The jury had the benefit, denied to this Court, of seeing and hearing Ms Mathias and the appellant’s wife give evidence.  The jury was entitled to accept the evidence of Ms Mathias and to reject so much of the evidence of the appellant's wife as was inconsistent with it. 

Complainant's evidence

[47] Defence counsel referred to the complainant’s evidence that the appellant had not taken photographs of her.  It is, however, not clear that the complainant understood that the questions encompassed the operation of the webcam.  (In the 20 March 2007 police interview the complainant’s answers to questions about webcams were to the effect that she did not know about them, but this point was not made the subject of any evidence). 

[48] The most significant matters raised on behalf of the appellant are that the complainant did not give evidence of the offence charged in count 4 and had earlier denied it in police interviews.  But on the whole of the evidence, and particularly taking into account the compelling evidence give by Ms Mathias and the consistent forensic evidence, it was open to the jury to conclude that the complainant’s failure to complain of the offence charged in count 4 and her denials in the police interviews did not give rise to a reasonable doubt that the appellant committed that offence.  On the evidence it was open to the jury to conclude that the complainant’s inconsistent statements were attributable to her fear and confusion arising out of a threat by the appellant and her apparent forgetfulness or general unreliability.  I will discuss the evidence concerning those matters when I consider the appellant’s challenge to his conviction on count 3.

Count 4: conclusion

[49] Taking into account the overall effect of the points agitated for the appellant in the context of the whole of the evidence, I consider that it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of count 4. 

[50] It is therefore not strictly necessary to consider the respondent’s alternative contention that the conviction should be sustained even if the Crown failed to prove beyond reasonable doubt that it was the complainant, rather than some other child under 12 years of age, who Ms Mathias saw being abused by the appellant.  The respondent argues that the identification of the complainant in the indictment was merely a particular of the charge and not an element of the offence.  I am inclined to reject the submission made for the appellant that it was not open to the jury on Ms Mathias’ evidence to conclude beyond reasonable doubt that the child was under 12 years of age even if the child was not proved to be the complainant, but the respondent’s contention encounters other possible difficulties.  The appellant was not put on notice at the trial that any such alternative case would be pursued; and it cannot be known whether the jury acted on Ms Mathias’ evidence to the effect that the child was younger than 12 years of age or whether the jury instead relied upon the complainant’s birth certificate.  However, for the reasons I have given it is not necessary to rule upon the respondent’s alternative contention.

Count 3

[51] In opening the Crown case the prosecutor told the jury that counts 1, 2 and 3 were based upon disclosures during the police interview of 6 June 2007.  In summing up the trial judge directed the jury accordingly.  After the jury first retired, the prosecutor said that he had mistakenly referred to the 6 June 2007 interview instead of the pre-recorded evidence as providing the particulars of counts 1-3.  The trial judge then re-directed the jury that the Crown relied upon the particulars disclosed in the pre-recorded evidence.  In that evidence, given at the end of April 2008, the complainant described the events of count 1 as having occurred in the office, the events of count 2 as having occurred in the lounge room, and the events of count 3 as having occurred in the bathroom.

[52] It is submitted on behalf of the appellant that because the complainant’s evidence was demonstrated to be unreliable, and because of some other unsatisfactory aspects of the case, the jury’s conviction on count 3 was unreasonable.

[53] The only evidence that supported count 3 was the very sparse testimony given by the complainant in her pre-recorded evidence.  The complainant did not give any evidence affirming the truth of or otherwise referring to any of the complainant’s statements in her conversations with Mr and Mrs A, in her diary note on 1 June 2007, or in the 6 June 2007 police interview.  I accept the submission for the appellant that the absence of detail in this evidence does tend to reduce its weight.

[54] I also accept the submission made for the appellant that the Crown case was weakened by significant inconsistencies within the complainant’s different versions of events and between them and other evidence. 

[55] It is necessary first to refer to the complainant’s initial denials of any wrongdoing by the appellant.  The guilty verdicts establish that the jury discounted those initial denials.  That was open to the jury.  The jury was entitled to accept that the complainant's initial denial of any indecent behaviour by the appellant, made during the police interview on 15 February 2007 (when the complainant still resided in the appellant’s household as his foster daughter) was readily explicable by the complainant’s very young age, her fear and confusion arising from the threat by the appellant later described by the complainant, and the appellant’s shocking conduct.

[56] Particularly bearing in mind the persuasive strength of Ms Mathias’ evidence and the consistent forensic evidence, I consider that the jury was entitled to accept the same explanation for the complainant’s denials of wrongdoing in the second police interview on 20 March 2007 (even though the complainant had by then been absent from the direct influence of the appellant for over a month) and as an explanation of the complainant’s denials of wrongdoing by the appellant to the Child Safety Officers on 1 June 2007 (even though that occurred four months after the complainant had left the appellant's house). 

[57] However, in relation to the charge in count 3 that explanation does not justify disregard of the significant inconsistencies between the statements subsequently made by the complainant when she did complain of misconduct by the appellant and the allegations in count 3 as particularised by the Crown.  On the first occasion upon which the complainant alleged wrongdoing she complained only (according to the evidence of Mr and Mrs A) that the appellant took photographs of her.  In the appellant’s notes made shortly afterwards she said that the on the “third time” (apparently corresponding to the particularised count 3) the appellant both touched her and took photographs of her; further, she said that this occurred in the appellant’s room (rather than in the bathroom as the Crown alleged for count 3).  Further, inconsistently with the complainant’s own notes, in the 6 June 2007 police interview the complainant denied that the appellant had taken any pictures of her; and inconsistently with the apparently reliable evidence of Mr and Mrs A the complainant denied having told them anything other than that the appellant had touched her.

[58] The jury’s acquittal on counts 1 and 2 may be explicable on the basis of the significant inconsistencies in the evidence about those counts.  For example, in the complainant’s evidence at the pre-recorded hearing she said that the first indecent dealing occurred in the office and the second in the lounge room, but she had earlier written in her notes and said in the police interview of 6 June 2007 that the first two events both occurred in the bathroom; and in her notes the complainant said that on the second occasion the appellant took a photograph of her in the nude and that she was wearing a dress, whereas in the police interview of 6 June 2007 the complainant denied that a photograph was taken and she said that when the appellant touched her she was wearing pants and a shirt. 

[59] Conversely, it may well be, as the trial judge hypothesised in her Honour’s sentencing remarks and as is submitted for the respondent, that the jury was prepared to convict on count 3 because the complainant did refer to an episode of indecent dealing in the bathroom on those occasions when she complained of wrongdoing by the appellant.

[60] Nevertheless, count 3, like counts 1 and 2 upon which the jury acquitted the appellant, depended entirely upon statements made by the complainant.  The jury might well have accepted that the inconsistencies between the different versions given by the complainant and between them and other evidence accepted by the jury were readily understandable.  Those inconsistencies involved no necessary reflection on the complainant’s truthfulness.  But they did adversely affect the reliability of her evidence.  The reliability of her evidence was crucial in relation to count 3 which, unlike count 4, found no support in the evidence of any other witness.  That being so, I consider that the cumulative effect of the inconsistencies within the complainant’s evidence and between it and other apparently reliable evidence are so significant as to give rise to a reasonable doubt that the appellant was guilty of the particular offence charged in count 3.

[61] In the complainant’s pre-recorded evidence she presented as a very plausible witness who believed in the truth of her evidence.  Despite that the evidence was unreliable for the reasons I have given.  Because the resulting doubt about the appellant’s guilt of the offence charged in count 3 cannot be resolved by reference to any advantage possessed by the jury that is denied to this Court, the verdict must be set aside.[3]  As the evidence at the trial did not support a conviction the discretion to order a new trial should not be exercised and a verdict of acquittal should be entered.[4]

Sentence

[62] If the conviction on count 3 is set aside, it is necessary for this Court to review the sentence, which was referable to convictions on counts 3 and 4.

[63] The appellant was the foster father of the complainant child.  By the time he committed this offence he had been in that role as a father figure for some two years.  There was a great disparity in their ages: the appellant was 48 years of age at the time of the offence and the complainant was then only 10 years of age.  It is clear that the indecent dealing the subject of count 4 was a gross breach of trust by the appellant.

[64] That breach of trust was made even more serious by the appellant’s conduct in holding the complainant up in front of the camera on his computer whilst he was indecently dealing with her, obviously with the intention of capturing images of that offence (although of course not with the intention of contemporaneously transmitting those images, as he mistakenly did).

[65] The appellant’s criminality was aggravated further by his contemporaneous attempts to cover up his offence.  Immediately upon being discovered by Ms Mathias he sought to persuade her that she was mistaken in what she saw.  There is also the evidence (referred to by the sentencing judge in terms that show that her Honour accepted it) that the appellant had made a threat to the complainant in an attempt to prevent her from disclosing the appellant's wrongdoing.

[66] The appellant has not shown any remorse for his sexual abuse of the complainant.  He is not entitled to the consideration usually extended to an offender who pleads guilty and saves a vulnerable child the trauma of giving evidence and being cross-examined.

[67] The appellant was 50 years of age when sentenced, he is the father of three children and he has a grandchild.  There are personal factors in his favour: he has no previous convictions, he has been in steady employment throughout his working life, and he provided useful community service through the activities of the church of which he became a minister in 2005 or 2006. 

[68] Each case depends on its own facts, but decisions of this Court make it plain that other than in exceptional circumstances those who sexually abuse children should be sent to jail, at least where the victim is a child under 12 years of age: see R v KU & Ors; ex parte A–G (Qld) [2008] QCA 154 at [97] and the decisions cited there.

[69] In my opinion the appropriate sentence is a term of imprisonment of 12 months, with a parole eligibility date after the appellant has served six months of that term in custody. 

Orders

[70] I would make the following orders:

1. Dismiss the appellant's appeal against conviction on count 4 on the indictment.

2. Allow the appeal against the appellant's conviction on count 3 in the indictment, set aside the verdict and conviction on that count, and enter a judgment and verdict of acquittal.

3. Grant the application for leave to appeal against sentence, allow the appeal, and set aside the sentence imposed in the District Court.

4. Sentence the appellant on count 4 in the indictment to imprisonment for a term of 12 months. 

5. Fix the date upon which the appellant is eligible for parole at 16 December 2008.

[71] MCMURDO J:  I agree with the orders proposed by Fraser JA and with his reasons.