SUPREME COURT OF QUEENSLAND

1. McMURDO P:  I agree with Muir JA.

2. MUIR JA:  The appellant was convicted, after a trial by jury of one count of maintaining a sexual relationship with a child under 12 years (count 1) and four counts of indecent treatment of a child under 12 years (counts 4, 5, 6 and 7 on the indictment).  He was acquitted of two counts of indecent treatment of a child under 12 years (counts 2 and 3) and of two counts of unlawful carnal knowledge of a child under 12 years   (counts 5 and 6).  On counts 5 and 6 however he was convicted of the alternative offences of indecent treatment of a child under 12.  The learned trial judge imposed a sentence of five years imprisonment for count 1 and concurrent terms of two years imprisonment for each of the other offences.  A period of 251 days was declared as time served in respect of the sentences imposed.

3. The appellant appeals against conviction and sentence. The grounds of appeal relied upon are:

“(a)the verdicts were a compromise resulting from the suspicion (as opposed to proof) generated by the context of a tape recording of a pretext phone call between the complainant and the appellant;

  (b)a miscarriage of justice has occurred due to the absence of a direction of the type referred to in R v Markuleski^[1] and in the Queensland Higher Courts Bench Book at 34.1.”

The prosecution case

4. The complainant was born in July 1992. She resided initially with her mother and two daughters of her mother from another relationship, D and K. D and K’s father is the son of the appellant. When the complainant was about four or five years of age, the children went to Brisbane for a number of years to live with the sister of D and K’s father.

5. The three girls came to live with the appellant and his wife on the Northern Tablelands towards the end of 2002. Prior to that they had been living with the appellant’s son at another residence on the Tableland.

6. In her first record of interview, the complainant stated that the appellant had touched her inside her clothes, on her breasts and vagina for “about . . . an hour or something”. That was alleged to be at Mt Garnet (count 2). The next occasion on which she said such touching occurred was when the complainant, the appellant and various other family members were camping at Tinaroo. On this occasion, when the other persons in the tent were asleep, the appellant “kind of played around with” the complainant’s vagina (count 3).

7. She said that when her Nan was away from home, the appellant would enter her room late at night and touch her vagina.  Sometimes this occurred in her sister’s room as well.  It happened “a lot of times”.  The appellant “always puts . . . the oil on his hand or on his finger . . . and . . . he just rubs my vagina and all that.”  She said that he had put his finger inside her vagina “lots of times” and that it made her “feel sick in the belly”.  She said that it happened on the Sunday prior to her giving her evidence on 11 September 2003. 

8. D, who was born in April 1994, gave evidence of being told after April 2003 by the complainant at home and when walking to school that the appellant was touching her. D said that the complainant asked to sleep with her because of what she said the appellant was doing. D said she had never seen any of the touching take place.

9. In her record of interview, K, who was born in June 1995, said that she woke up on one occasion and saw the appellant on top of the complainant, who appeared to be asleep. The appellant’s hands were on top of the sheet.

10. On 11 September 2003 at the request of a police officer, the complainant telephoned the appellant from the Malanda Police Station. In the course of a recorded telephone conversation, the following exchanges occurred:

“INTERVIEWEE:  Um, um - I’m at the police station.

MR WAA:  Police Station?

. . .

MR WAA:  What for?

INTERVIEWEE:  You have - how you’ve been touching me and all that.

MR WAA:  Who?

INTERVIEWEE:  You’ve been touching me and all that.

MR WAA:  M, I can go to gaol for the rest of my life you know?

INTERVIEWEE: Yeah, but I know, but I just hate it how you

touch you.

MR WAA:  Eh?

INTERVIEWEE:  I know, but I just hate it how you touch me and

all that.

MR WAA:  I’ve touched you?

INTERVIEWEE:  Yeah.

MR WAA:  Do you know what - do you know your grandfather

can go to gaol for the rest of his life?

. . .
MR WAA:  I never touched you, you know that, I never touch

you, I never put nothing in.

INTERVIEWEE: No, you did.

MR WAA: Where?

INTERVIEWEE: You - ah. You…..

MR WAA: Baby, I’ll go for fucking gaol for the rest of my

life and you want to watch out for your uncles and that.

INTERVIEWEE: Well…..

MR WAA: You just want to say that you made up that story.

. . .

MR WAA: Yeah, but you - you want to find out for the -

what - what the rest of the family do to you.  You should have

thought of that.

INTERVIEWEE: Yeah.

MR WAA: ’Cause I wouldn’t - you listening?

INTERVIEWEE: Yeah.

MR WAA: ’Cause I wasn’t going to touch you no more.

INTERVIEWEE: Yeah.

MR WAA: I - I made up my mind. I - I never even put

nothing in you, or nothing.

INTERVIEWEE:  Yeah, but I’m - I hate it how you .....

MR WAA:  Eh?

INTERVIEWEE:  But I hate it how you touch me and all that.

MR WAA:  I - I never put nothing in.

INTERVIEWEE:  You did.

MR WAA:  I never, M, I never.

INTERVIEWEE:  Grandad, I know.

MR WAA:  M, you was the one who jumped on top of me.

INTERVIEWEE:  No, I wasn’t. It was you.

. . .

MR WAA: Oh wel! you tell the police, well, I’ll go to

gaol. And you want to watch out for Uncle J and all them?

. . .

MR WAA:  Listen, you tell me where did I put it in? Come on?

INTERVIEWEE:  Um, on my vagina and all that.

MR WAA:  Say that again?

INTERVIEWEE:  Down on my vagina and all that.

MR WAA:  Yeah, but when did I put it in? When? Mmm?

INTERVIEW:  I don’t - I don’t know, but .....

MR WAA:  I never. I never .....

INTERVIEWEE:  You did.

MR WAA:  ..... ever put it in because - because you - you

might have sat on me and that, but it never went inside I tell

you that now.

INTERVIEWEE: You did.

. . .

MR WAA: Oh well, if you want your grandfather to go to

gaol - well.  Well, I was never going to touch you again.  I

was going to take you to church.

. . .

MR WAA: About me going to gaol for the rest of my life.

INTERVIEWEE: Yeah, well I do, but I just hate how you touch

me and all that.

MR WAA: I wasn’t going to touch you no more.

INTERVIEWEE: You touched me last - last Thursday while we was

going home.

MR WAA: I never put my fucking finger on you.  I never put

my fucking finger on you M.

INTERVIEWEE: You did.

MR WAA: All right, if you’re - well, I’ll go to Court and

I know that I never even touched you.  They’re going to take a

test and find out and they’ll find out if my sperm or anything

like that’s on you.  See? Have you thought of that?

. . .

MR WAA: Yeah, well I wasn’t going to touch you any more. 

Now I go to gaol for the rest of my life.  You could have -

you could have told me, "Grandad, we’ll make it" and I was

going to do it.  I wasn’t going to worry about you any more.

What made you ring up?

. . .

INTERVIEWEE:  Yeah, but I just hate the way you touching me…..

MR WAA:  I said I wasn’t going to touch you any more.

. . .”

11. The following passage is from a statement the complainant gave to a police officer on 17 September 2003 at the Ravenshoe Police Station. Referring to the rubbing of her vagina at Tinaroo, she said:

“He did this on the Sunday before Father’s Day, this year, 2003.  He has also had full sex with me.  I was in my bed at our place and he took me to Nanny’s bed and put his penis in my vagina.  That was this year, 2003 . . . Grandad has also had full sex with me in my sister’s room.”

12. When the police officer resumed taking a statement from the complainant on 19 September 2003 she confirmed that the appellant had put his penis in her vagina on two occasions.  The first such occasion she said happened at the start of 2003 when her grandmother was at work.  Describing on that occasion she said that the incident commenced with the appellant rubbing her vagina and then undressing her.  She stated that the second occasion on which the appellant inserted his penis in her vagina was not long after the first and that it took place in her grandmother’s room.  Her account of what happened this time was generally similar to her account of the first occasion, but on this occasion she said that she felt his penis “moving in and out of [her] vagina.”  She said that she had told her teacher that the appellant had been touching her.

13. The teacher gave evidence of a day on which the complainant failed to come back into class after lunch. After a while she permitted one of the complainant’s school friends to go out to her. The two girls came back to the school building and the complainant’s classmate told the teacher that the complainant wanted to talk to her. The teacher was then told by the complainant “I hate my grandparents flogging me most nights . . . because there is no reason for it, I can’t see why they do it.” The classmate then prompted the complainant saying, “But there’s something else”. The teacher inquired, “What else?” and the classmate responded, “She hates her grandfather raping her.” The teacher asked the complainant if that was correct and the complainant replied in the affirmative. This occurred on 9 September 2003.

The defence case

14. The appellant gave evidence and six other witnesses were called for the defence, including the appellant’s wife, other relatives and partners of relatives. Some witnesses gave evidence as to the complainant’s lack of credibility. There was evidence that the appellant suffered from severe asthma and impotence.

15. When examined by a government medical officer on 18 September 2003, the appellant showed no signs of having Chlamydia. The relevance of this was that a medical examination of the complainant on 1 October 2003 indicated that she had Chlamydia.

16. The appellant explained his responses in the recorded telephone conversation with the complainant as follows. The references to his not touching the complainant again were references to an incident in which he struck her angrily to discipline her when they were leaving his brother’s place on Father’s Day 2003. His references to the complainant being “the one who jumped on top of me” and “you might have sat on me” and to nothing going inside her related to an incident in which the appellant, according to him, had fallen asleep on his bed after drinking, dressed only in his underpants to wake up and find the complainant “trying to get at [his] penis.” He added that the complainant had taken his underpants off him.

17. In relation to count 2, the complainant agreed in cross-examination that she had slept with her sisters and others in a trailer rather than on a mattress under a tarpaulin. The complainant, in cross-examination, then claimed to have been touched when she was in the trailer and also after she had left the trailer and was lying on a mattress under the tarpaulin.

18. In relation to count 3, the appellant and K gave evidence that the tent had divided sections. The complainant maintained that it was not divided.

19. The complainant’s evidence, in respect of count 4, was that she had been indecently touched by the appellant in a car at Milla Milla Falls when her two half sisters were asleep in the back of the car.  Her half sisters denied being asleep on any fishing trip to Milla Milla Falls.

The appellant’s submissions on applicable legal principles

20. Reference was made to R v LR^[2] in which it was said:

“It is well settled that a verdict of guilty on some counts cannot be impugned as unreasonable merely because the jury also acquitted the accused of other counts . . . of alleged conduct where there is a rational basis on which the different verdicts can stand together.”

21. Reference was also made to the following passage from the joint reasons of Gaudron, Gummow and Kirby JJ in Mackenzie v The Queen^[3]where their Honours said that:

“5.Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty.  More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law.  It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside.  It is impossible to state hard and fast rules.  ‘It all depends upon the facts of the case.’

6.The obligation to establish inconsistency of verdicts rests upon the person making the submission.” (footnotes deleted)

22. An affront to logic and commonsense has been demonstrated in this case when regard is had to the circumstances that:

(a)whilst evidence of the “pretext call” may have had the capacity to confirm the existence of a sexual relationship that went equally to all counts, the jury needed to be able to accept the complainant’s evidence as to the specific offences (including statutory alternatives or at least three of them in respect of count 1) before convicting the appellant;

(b)the jury did not accept the complainant’s evidence of penile penetration in respect of counts 5 and 6.  Nor did they accept her evidence in respect of two discreet allegations (counts 2 and 3) that were of more than incidental significance to her overall allegations against the appellant.  They were described by her as the first and second occasions on which she had been indecently dealt with by the appellant;

(c)the complainant’s allegations were confronted by an extensive defence case which included evidence supportive of the appellant’s character and evidence undermining the complainant as a credible witness.

23. The doubts entertained about the complainant’s evidence in respect of counts 2 and 3 should have been reflected in similar doubt about the remainder of her allegations. Although the trial judge directed the jury as to separate consideration of each of the charges and as to their ability to accept all or part or none of a witness’s evidence, he did not give a direction to the effect that:

“A doubt as to the complainant’s evidence in respect of one count should be considered by them in assessing her overall credibility and reliability in relation to the other counts.”^[4]

24. As in R v LR, a miscarriage of justice has occurred due to the absence of such a direction.  There was no request for the direction at the trial, but nor was there in R v LR. 

25. As the decision in R v Markuleski^[5] demonstrates, the reasoning as to the requirement for this type of direction is not limited to instances of a number of offences alleged on one occasion.

26. On both of the above bases, a substantial miscarriage of justice has occurred and the convictions should be quashed.

Were the verdicts of guilty and not guilty reconcilable?

27. The verdicts of acquittal on some counts and guilty on others, far from being “an affront to logic and commonsense” are perfectly understandable, having regard to the evidence.

28. The complainant gave clear evidence of being touched in the genital region on a number of occasions whilst residing with the appellant and her grandmother. The complainant’s evidence received some minor support from the evidence of K and strong support by the recorded telephone conversation between the complainant and the appellant. The jury was entitled to accept many of the statements in that conversation to the effect that the appellant would not touch the complainant again as admissions of indecent touching on a number of occasions.

29. Counsel for the appellant stressed that the appellant’s implicit admissions except perhaps in relation to the incident concerning the appellant’s lying on top of the complainant, were not directed expressly to any particular offence. That may be so but the implicit admissions were capable of supporting the accounts given by the complainant in respect of the offences. ^[6] These accounts were not inherently improbable.

30. In the telephone conversation the appellant strongly denied inserting anything in the complainant’s vagina. His denials in that regard, coupled with the evidence that he was free of Chlamydia but that the complainant wasn’t, are sufficient to explain the jury’s rejection of the counts of unlawful carnal knowledge. It was also the case as the primary judge pointed out in his summing-up that the complainant’s evidence was that she had not seen the appellant’s penis at any stage. His Honour raised the possibility that the complainant may have been mistaken about what she felt inside her vagina. His wife’s evidence was that he had not achieved an erection since before 2002. The evidence, including that of the appellant’s wife, established that she was regularly absent from the house on Friday, Saturday and Sunday nights and that there was thus ample opportunity for the offences to have occurred. Her evidence, although supportive of the appellant’s case in some respects, was substantially weakened by the contents of a statement given by her to police on 11 September 2003. 

31. Counts 2 and 3 occurred away from the appellant’s residence and there were no admissions in the telephone conversation in respect of them. Also, the complainant gave some inconsistent evidence in relation to these counts and her evidence did not derive support from the evidence of other witnesses. The complainant’s grandmother’s evidence was to the effect that on both occasions the appellant slept with her and did not leave her presence overnight.

32. In relation to count 2, her evidence changed between her first record of interview and her cross-examination. Initially, she said that all the persons in the tent were sleeping close together when the appellant came over and indecently touched her. In cross-examination, she agreed that she slept in a trailer with her sisters and other young girls. She agreed that the appellant touched her when she was in the trailer. She then adopted the suggestion made by the judge that she intended to sleep in the trailer but it got too crowded. D gave evidence that the complainant, K and herself slept alone in a tent. K’s evidence was that the complainant slept under a tarpaulin with her.

33. In relation to count 3, the complainant, in cross-examination, said that the tent was not divided by a canvas wall with a zipper in it. K’s evidence was to the contrary. The jury may have been reluctant to accept that the appellant would have acted as alleged in a confined space in the presence of his sleeping wife.

34. Count 4 is alleged to have occurred on a fishing trip to Millaa Millaa Falls.  D gave evidence that there was one occasion on which she went with the appellant, the complainant and K to the falls.  She said that it was dark when they got home but denied falling asleep.  K recalled occasions on which she, D, the complainant and the appellant had gone fishing but could not recall going to Milla Milla Falls to fish.  She couldn’t remember going to sleep in the back of the car after fishing.  The appellant accepted that he had taken the three girls to the falls to catch eels on perhaps a couple of occasions.  The evidence in respect of this count was substantially different from that in respect of counts 2 and 3 in that doubt was not cast on the complainant’s version of events by the evidence of other witnesses.  The jury was entitled to conclude that the complainant, being the eldest of three girls, and having a particular reason to remember the Milla Milla excursion, would be likely to have a better recollection of it than K and D.  Counsel for the appellant contended that the jury’s failure to accept the complainant’s evidence in relation to counts 2 and 3 “was of particular significance and should have naturally flowed through into a doubt in relation to the other charges”.  The foregoing discussion, which reveals quite different evidence in relation to counts 2 and 3 on one hand and the remaining counts on the other, illustrates why the appellant’s submissions that the verdicts are unreasonable or illogical cannot be accepted.

Did the primary judge err in not giving a direction along the lines of that given in R v Markuleski?

35. In R v Ford ^[7] Keane JA in his reasons, Jerrard JA relevantly agreeing, noted:

“[125] It is the risk of this particular kind of unfairness to the accused which requires a trial judge to refer "to the effect upon the assessment of the credibility of the complainant if the jury finds itself unable to accept the complainant's evidence with respect to any count."  The purpose of such a reference is to ensure fairness to the accused "in a word against word case" by supplementing the traditional direction that the jury should consider the evidence, as well as the question of guilt, separately in relation to each count.”  (footnotes deleted)

36. The type of fairness to which His Honour referred was unfairness arising from the risk that the jury, in the absence of an appropriate direction, may overlook taking into account doubt formed “with respect to one aspect of a complainant’s evidence” when assessing the overall credibility of the complainant and the complainant’s evidence with respect to other counts.

37. Keane JA pointed out that the desirability of giving a direction of the type specified in the reasons of Spigelman CJ R v Markuleski had been questioned by the Victorian Court of Appeal in R v PMT^[8] and the Full Court of the Western Australian Supreme court in Lefroi v The Queen^[9] and gave three reasons why the risk identified in R v Markuleski did not arise on the facts in R v Ford.  The first was that the case was not one of “word against word” based on the evidence of a single complainant about a number of offences arising out of one episode of wrongdoing by a single accused^[10].  Secondly, there were aspects of the evidence which could logically have led the jury to acquit the appellant on some counts without that acquittal necessarily implying that such a conclusion damaged that complainant’s credibility or reliability in relation to his account of the events which were said to give rise to the counts upon which the appellant was convicted^[11].  Thirdly, the trial judge’s directions to the jury were sufficient to obviate any risk that the jury might not appreciate that they should convict the appellant on a particular count only if they were satisfied beyond reasonable doubt of the reliability of the complainant’s evidence relating to that count^[12].

38. As has already been pointed out, there were rational and even obvious explanations for the differing verdicts. The prosecution case in respect of counts 1, 5, 6 and 7, although “word against word” in a sense, received strong support from the appellant’s own implicit admissions.

39. The primary judge directed the jury that: separate consideration had to be given to the evidence in respect of each charge and that the jury had to be satisfied that each element of a charge had been established beyond reasonable doubt; a witness’s evidence could be accepted or rejected in whole or in part; the conflict between the complainant’s evidence and that of the accused was critical to the outcome of the case; the jury had to be satisfied that the complainant’s evidence of uncharged sexual acts was credible; and proof that the appellant committed one charged act was not proof that he committed another.

40. The primary judge discussed the assessment of credibility in relation to the complainant and the appellant at length and in a general way, referred to the evidence of good character in the case of the appellant and to evidence of a disposition to be untruthful in the case of the complainant. Having regard to the primary judge’s extensive and helpful directions I consider it highly improbable that the jury would not have taken into account their general assessment of the complainant’s credibility when considering each of the counts on which they convicted. No miscarriage of justice has been established.

41. For the above reasons, neither of the grounds of appeal has been made out and I would order that the appeal be dismissed.

Appeal against sentence

42. It is conceded by the respondent that the primary judge erred in finding that the sexual relationship had been maintained for as long as a year to 14 months. It is accepted that the evidence establishes a period of about nine months. Accordingly, the sentencing discretion, having been exercised on an erroneous basis, miscarried and this court must exercise the discretion afresh. The respondent submits that a sentence in the range of three and a half to four years imprisonment is appropriate in reliance, in particular, on R v CAQ^[13].  In that case, the Court of Appeal declined to disturb a sentence of three and a half years with a recommendation for release on parole after 15 months for the offence of maintaining a sexual relationship with a child under the age of 12 years.  The applicant, who was 51 when the relationship commenced, was in regular employment and had no relevant prior convictions.  The complainant was aged 10 and 11 at the time of the offences, which consisted of touching the complainant on her breasts and in the vicinity of her vulva on some 15 occasions.  On two occasions, the applicant had placed the complainant’s hand on his erect penis.

43. On behalf of the appellant, it is submitted that a term of imprisonment of three years, with the same declaration as that made below in respect of pre-sentence custody is appropriate.

44. In R v GY^[14] an appeal against a sentence of four years imprisonment for maintaining a sexual relationship with a child under 16 years was dismissed.  The period over which the relationship was maintained was approximately eight years, during which the complainant was aged from about six to 14 years.  The conduct included the appellant’s rubbing his penis against the complainant’s vulva sometimes achieving ejaculation. 

45. In R v S^[15], a sentence of three years suspended after 12 months with an operational period of five years was imposed on a 74 year old offender for maintaining a sexual relationship with a boy aged about eight or nine years.  The offence covered some 11 or 12 incidents over a period of a little under a year.  The acts consisted of the appellant placing the complainant’s hand on the appellant’s erect penis.  Some of the acts involved active masturbation of the appellant.  The sentencing judge took into account the appellant’s early plea of guilty, a presence of remorse, his lack of a prior criminal history and the primary judge’s conclusion that there was little or no prospect of the appellant’s re-offending.  McPherson JA, in reasons with which the other members of the court agreed, remarked that the sentence was “well within the appropriate sentencing range.”^[16]

46. The gravity of the appellant’s conduct is generally comparable with the conduct of the offender in R v CAQ.  It constitutes a serious breach of the trust which the complainant was entitled to expect of the appellant.  As was the case in CAQ, the appellant was of previous good character and had a good work history.  The appellant, however, is in poor health and imprisonment will subject him to additional hardship.

47. Having regard to the foregoing, I would order that the appeal against sentence be allowed and that:

1. For count 1, the appellant be sentenced to three years imprisonment.