SUPREME COURT OF QUEENSLAND

1. CHESTERMAN JA:  The issues of fact and law which arose for consideration in this appeal are fully and clearly set out in the reasons for judgment of Wilson J.  I agree both with her Honour’s reasons and the orders proposed.

2. I add some reasons of my own on one point because my initial opinion was that there ought to be a retrial on counts 1, 2 and 3. Mr Copley SC, who appeared for the Crown, asked for such an order in the event that the convictions on those counts were set aside, as they are to be.

3. The argument was that the accused ought to have objected to the jurisdiction of the District Court when arraigned so that the locality in which the offences, the subject of counts 2 and 3, were committed, might be the subject of inquiry. In that case the Crown, having been put on notice that the accused contended that the offences did not occur, or might not have occurred, in Queensland, could have led evidence to meet the objection.  Instead the point was raised, to the surprise of the prosecution, on the fourth day of the trial when evidence relevant to locality was adduced in the cross-examination of Senior Constable Welsby. 

4. The argument continues that the Crown was unfairly deprived of the chance to lead evidence relevant to locality by the manner in which the defence was conducted, raising the point at a late stage in the trial when the Crown case was all but concluded.

5. For the Crown’s submissions to have force Mr Copley had to establish that (i) when arraigned the appellants ought to have objected to the jurisdiction of the court to try them, pursuant to s 598(2)(g) of the Criminal Code 1899 so that the objection could be tried pursuant to s 603 of the Code; (ii) the failure to plead to the court’s jurisdiction was an irregularity which disadvantaged the Crown.

6. Section 598 provides:

“(1)If the accused person does not apply to quash the indictment ... the person must either plead to it, or demur to it on the ground that it does not disclose any offence cognisable by the court.

2. If the accused person pleads, the person may plead either –

(a)that the person is guilty of the offence charged in the indictment, or, with the consent of the Crown, of any other offence of which [he] might be convicted upon the indictment;  or

(b)that the person is not guilty;  or

(c)that the person has already been convicted upon an indictment on which the person might have been convicted of the offence with which [he] is charged ...

(d)that the person has already been acquitted upon an indictment on which the person might have been convicted of the offence with which [he] is charged ...

(e)that the person has already been tried and convicted or acquitted of an offence committed ... under such circumstances that the person can not under the provisions of this Code be tried for the offence ...

(f)that the person has received the Royal pardon ...

(g)that the court has no jurisdiction to try the person for the offence.”

7. Section 603 provides that:

“Upon a plea to the jurisdiction of the court, the court is to proceed to satisfy itself in such manner and upon such evidence as it thinks fit, whether it has jurisdiction or not, and may ascertain the fact by the verdict of a jury or otherwise.”

8. The relevance of the locality at which an offence was committed to the jurisdiction of the court was explained in Thompson v The Queen (1989) 169 CLR 1 at 12 by Mason CJ and Dawson J:

“The issue of guilt is necessarily determined within a particular jurisdiction.  But the issue cannot be determined unless the prosecution establishes the authority of the jurisdiction to enter judgment.  This issue, namely, whether the offence was committed within the jurisdiction, is distinct from that of guilt, namely, whether the elements of the offence are made out.  Proof of jurisdiction is a prerequisite of guilt but otherwise it is not an element in proof of the commission of the offence except in those cases in which the offence is so defined that commission of it in a place or locality is made an element of the offence charged.”

9. Brennan J explained the point this way (at 22):

“... ‘jurisdiction’ ... may refer to the authority of the court to hear and determine the issues arising in a criminal trial, or it may refer to the power of the court to enter a judgment of conviction ... .  Jurisdiction in the latter sense does depend on the jury’s verdict when the accused pleads not guilty to the indictment:  the power of the court to enter a judgment of conviction and to punish depends upon a guilty verdict.  All the facts on which liability to conviction depends are facts to be found by the jury.  In other words, if the charge alleges the commission of an offence against the law administered by the court (the law of the forum), the court has jurisdiction to hear and determine the charge, but when an issue is raised as to the locality of the offence the jury may have to decide the issue in order to determine whether the conduct charged falls within the territorial ambit of the law of the forum.  Locality then becomes a fact on which liability to conviction depends.”

10. Gaudron J said (at 39):

“… proof of jurisdiction is proof of the occurrence of some act or omission within the jurisdiction, that act or omission being selected by the law as the condition of its operation upon the acts or omissions said to constitute the offence charged.  Locality, in this sense, may be contrasted with locality as an element of the offence charged, as, for example, in the case of an offence which is constituted by acts or omissions in a public place.  In the latter case, locality is an essential element of the offence ...; in the former case locality is decisive only of the operation of the law and of the jurisdiction of the courts charged with administering that law to enter judgment.  The issue of jurisdiction is thus a discrete issue and distinct from the issue of guilt which depends upon the elements of the offence charged being made out.”

11. The power of the District Court to convict and punish the appellants for the commission of the acts which constituted counts 2 and 3, and therefore, derivatively, count 1, depended upon proof that the acts occurred in Queensland.  The appellants contended that the Crown had not proved to the requisite standard of proof that they had.  Should they have raised the point by pleading to the jurisdiction of the court when arraigned, or were they entitled to take the point when tactically it suited them, in the conduct of the prosecution case?

12. The answer is authoritatively established. The appellants were entitled to take the course they did and raise their point as to the locality and jurisdiction as part of their plea of not guilty.

13. According to the 2006 edition of Archbold: Criminal Pleading, Evidence and Practice para 4-111:

“Plea to the jurisdiction

Where an indictment is taken before a court which has no cognisance of the offence, the defendant may plead to the jurisdiction without answering at all to the crime alleged ... but it is seldom necessary to have recourse to this plea, for it is bad unless it shows a court or jurisdiction in which the defendant could lawfully be tried.  If the offence was committed out of the jurisdiction of the English courts, the defendant may take advantage of this matter under a plea to the general issue”.

A plea to the general issue is, of course, a plea of not guilty.

14. The leading authority is R v Johnson (1805) 6 East 583, 102 ER 1412.  Lord Ellenborough CJ said (597-598; 1418):

“... pleas to the jurisdiction ... is matter to be taken advantage of either by plea in bar, or by evidence on the plea of not guilty.”

15. Archbold notes a number of cases as authority for the proposition it cites.  In none of these is there any discussion of the proposition but they provide examples of the two procedures:  a plea in bar of the jurisdiction, as allowed by s 598(2)(g), or by raising the point during the conduct of the prosecution’s case following a plea of not guilty.  Cases in the first category are:  R v Martin [1956] 2 QB 272; R v Baxter [1972] 1 QB 1;  R v Doot [1973] AC 807 (in which there was a plea of not guilty and an immediate submission of no jurisdiction);  R v Robert Millar (Contractors) Ltd [1970] 2 QB 54.

The only case in the second category is Treacey v Director of Public Prosecutions [1971] AC 537.

16. Another case in the second category, not mentioned by Archbold, is Kron (1995) 78 A Crim R 474, the facts of which are relevantly indistinguishable from the present appeal.  There was, according to the judgment of Gleeson CJ, a lengthy trial before a District Court judge in New South Wales in which the appellant was charged with obtaining a valuable thing by deception.  According to the Chief Justice:

“At the end of the Crown case the defence sprang a surprise.  The trial judge was invited to take the case away from the jury upon the ground that there was no evidence that the [valuable thing] had been obtained in New South Wales.” 

The evidence was equally consistent with the thing having been obtained in Queensland.  The case was described as being devoid of merit and turning upon a legal technicality but nevertheless the convictions were quashed because of the “evidentiary gap on that point”, locality.

17. Halsbury’s Laws of England 4^th ed is of the same opinion.  It says (vol 11 para 239):

“A plea to the jurisdiction raises an objection to the jurisdiction of the court.  It is more usual for the defendant to raise the question of want of jurisdiction upon a motion to quash the indictment or on a plea to the general issue.”

18. A case mentioned both by Archbold and Halsbury is The Queen v Jameson [1896] 2 QB 425.  The accused were charged with an offence against s 11 of the Foreign Enlistment Act 1870 which prohibited getting up any naval or military expedition “to proceed against the dominions of any friendly State”.  (The expedition in question was the “Jameson Raid”, which fomented the Boer War.)  The Act applied to “the limits of Her Majesty’s dominions”.  A challenge was made to the indictment on the ground that the Act did not apply, or was not alleged to apply, to “that part of the Queen’s dominions in which the illegal expedition was prepared”.  The objection was overruled but Lord Russell CJ, who gave the judgment of the court, said (at 431):

“... in order to bring a case within s 11 there must have been a preparation in the Queen’s dominions;  but ... there may be an assistance in such preparation ... outside the Queen’s dominions, which will amount to an offence against the Act, if the person rendering such assistance ... be a subject of her Majesty.  ...  If in the course of the trial it turns out that any of the defendants are foreigners, every opportunity will be given to their counsel to take that objection, and to give legal effect to any defence attributable to that fact.”

19. Archbold regards the case as showing that objections on the ground of want of jurisdiction may be taken on motion to quash the indictment and, if unsuccessful, under the plea of not guilty.  I respectfully agree that the case seems to establish that proposition.

20. This review of the authorities establishes that were was nothing irregular in the manner in which the appellants took the point about locality. It was for the Crown to prove the jurisdiction of the court to convict and punish the appellants in the event that it established, beyond reasonable doubt, the elements of each of the offences charged against them in the indictment. Apparently, by inadvertence, the prosecutor did not give sufficient attention to the need to prove where counts 2 and 3 occurred, or at least that they occurred in Queensland.  When the point emerged in the cross-examination of the complainant the prosecutor amended the indictment and obtained leave to further examine the complainant in chief in an attempt to prove the offences occurred in Queensland.  The complainant could not add anything to what she had said already, but the point is that the Crown was not deprived of the opportunity to call such evidence as it could on the point when the point was raised.  The question was squarely raised before the prosecution closed its case.  The exercise by the appellants of their right to take the point as part of their plea to the general issue did not work any relevant unfairness on the prosecution.  The evidence led by the Crown was, as Wilson J points out, insufficient to prove that counts 2 and 3 were probably committed in Queensland.

21. There is another ground in support of the course taken by the appellants. It is that a plea objecting to the jurisdiction of the court requires the accused who is answering the arraignment to nominate the jurisdiction, the courts of which did have power to try and convict him. This is established by Johnson where the point is made with great emphasis.

22. The appellants could not have been expected to nominate the courts of New South Wales as having power to try them for that State’s equivalent of counts 2 and 3 when they did not admit that they had done the acts which constituted the charges.  Even to nominate New South Wales as the locality of the conduct would be an implied admission of a journey with the complainant, thereby offering some corroboration of her evidence.

23. There was, therefore, a legitimate reason why the appellants would not plead pursuant to s 598(2)(g) and their right to object to jurisdiction on the basis of locality was open to them following their plea of not guilty.

24. I agree with the orders proposed by Wilson J.

25. MARGARET WILSON J: In late 1999 or early 2000 the appellants WAF and SBN formed a relationship, and in about September 2000 they began living together in a house in Warwick.  SBN’S four children (three boys and the complainant girl) lived with them.   The complainant had been born on 19 March 1989.  She first met WAF in late 1999 or early 2000 when he was her mother’s boyfriend, and she was aged 11 when they all became part of the one household.

26. The appellants were convicted of offences perpetrated against the complainant as follows:

27. Count 1, the maintaining charge against the appellant WAF, encompassed the acts the subject of counts 2 – 9, which were alleged to have occurred on three occasions – (i) counts 2 and 3, (ii) counts 4 and 5, and (iii) counts 6 – 9.

28. The acts the subject of counts 2 and 3 were alleged to have occurred out in the bush, but the exact location was not proved.  Unless they occurred in Queensland, the appellants could not be convicted of those charges.  As I shall discuss shortly, the jury returned a special verdict on locality, finding that they occurred in Queensland, before their verdicts on the substantive charges.

29. The appellants have appealed against their convictions on a number of grounds, which may be compendiously described as follows:

1. that the special verdict on locality in relation to counts 2 and 3 was unsupported by the evidence and unreasonable;

2. that the trial judge erred in giving a Weissensteiner direction^[1] on the question where the acts alleged in counts 2 and 3 occurred;

3. that the verdict against WAF on count 1 could not be sustained if the acts the subject of counts 2 and 3 did not occur in Queensland;

4. that the trial judge erred in admitting certain computer evidence, or that he erred in admitting that computer evidence and certain photos;

5. that certain comments in the prosecutor’s address to the jury compounded the other errors, causing the trial to miscarry.

Counts 2 and 3

30. The complainant gave evidence that one day in early 2002 (when she was aged about 12 or 13), the appellants took her for a drive in her mother’s Tarago van.   They did not tell her where they were going.   She did not know in which direction from Warwick they travelled, she did not see any towns or signs, and she did not recognise anything as they approached their destination about an hour or two after setting out.  The place where they stopped was somewhere out in the bush where there were no people about and where there was no mobile telephone reception.^[2]

31. The complainant said that after they stopped she had something to drink. Her mother sat in the driver’s seat and WAF came around to see where she was in the van.  He rubbed his hands up and down her body and across her vagina.  Then he reclined on the seat where she was sitting, removed her underwear, unzipped his trousers, got on top of her and put his penis in her vagina.  She did not say anything to indicate that she did not consent to intercourse.  The whole incident took about half an hour.  Then her mother drove the van home, no one saying anything on the way home.

32. When the indictment was presented, these offences were alleged to have occurred “at Warwick in the State of Queensland”.  But on the third day of the trial, before the complainant's examination in chief was completed, counts 1, 2 and 3 were amended to refer to the offences having occurred “at Warwick or elsewhere in the State of Queensland”.

33. On the fourth day of the trial a police officer Welsby gave evidence that there were at least three ways of getting from Warwick into New South Wales, the border crossings being between 25 and 90 minutes from Warwick.  Further, there was at least one point at which it was possible to reach the border by leaving the highway and travelling only a short distance on a gravel road.^[3]

34. Neither of the appellants gave evidence, or called any other evidence.

35. In R v Kron^[4] Gleeson CJ (with whom Simpson J and Barr AJ agreed) said:

“Issues as to jurisdiction to try an offender, and issues as to the location of the actus reus of an offence are not identical. However, the issues as to where an offence is committed, and whether it is justiciable by a New South Wales court, are often closely related.”^[5]

And in Thompson v The Queen^[6] Brennan J said:

“The jurisdiction of a court to hear and determine a charge of a criminal offence and the territorial ambit of a law which creates or defines the offence charged are two distinct questions, as Devlin J recognized in Reg. v Martin:^[7]

‘There is a distinction, in my judgment, between what I may call the nature of an offence and the ingredients which have to be present before an offence is committed at all on the one hand, and, on the other hand, the question of what courts are to assume or are to be given jurisdiction when the offence has been committed.’

See also Reg v Treacy^[8]per Lord Diplock. There is, nevertheless, a close relationship between a jurisdiction to hear and determine a charge of an offence and the ‘ingredients’ (or elements) of the offence”.^[9]

36. There is a strong, but rebuttable, presumption of statutory interpretation that the Legislature did not intend statutes creating offences to extend to conduct outside the State.^[10]  In Thompson Brennan J observed –

“Under the common law as it was developed in England, the general rule is that the criminal law applies only in respect of acts committed or omissions made within England … This rule may be overridden by statute but, in the construction of an offence-creating statute, the presumption is that the legislature did not intend to proscribe acts done outside the territory of the legislature. …

When the language of an offence-defining or an offence-creating statute is quite general, the statute is construed as embracing conduct in apparent contravention of its terms only if an act is done or an omission is made or a result occurs within the domestic territory. Whether it is the locality of the act or of the omission or of the result which brings conduct within the ambit of the statute is a question of construction, but there must be some local element of the offence.”^[11]

His Honour went on to consider the problem posed by a charge of murder, where one element of the offence (the cause of death) was alleged to have occurred in one Australian State or Territory and another element (the death) in another State or Territory.  In Queensland, liability for an offence having interstate elements is dealt with in s 12 of the Criminal Code 1899, to which I shall return in relation to the offence of maintaining an unlawful sexual relationship charged in count 1.

37. In Thompson Brennan J illustrated the necessity to prove the location of the element of an offence which brings it within the ambit of the criminal law of the forum by the Hildebrandt cases^[12] in Queensland and New South Wales:

“There the accused was charged, inter alia, with putting explosives in an aircraft with intent to destroy it and depositing explosives in an aircraft in circumstances endangering the aircraft or persons in it. These offences were charged under the Queensland Criminal Code and related to events which occurred on a flight between Sydney and Brisbane. On appeal from his convictions before the District Court, the Court of Criminal Appeal quashed the convictions because the evidence could not establish beyond reasonable doubt that the aircraft was flying over Queensland when Hildebrandt ‘put’ or ‘deposited’ the explosives. Subsequently, Hildebrandt was charged and convicted before the District Court in New South Wales on three counts arising from the same incident: placing an explosive in an aircraft with intent to damage and destroy, having possession of a dangerous thing with intent to do grievous bodily harm and having possession of a dangerous thing with intent maliciously to injure the aircraft. In the Court of Criminal Appeal of New South Wales, the convictions were set aside for error in a direction to the jury, but Hildebrandt sought to avoid an order for retrial by relying on his pleas of autrefois acquit: Reg v Hildebrandt.^[13] The argument failed. Herron CJ^[14] noted that ‘[t]here was clearly jurisdiction in the [Queensland] District Court to try the case, including the question whether the offence took place within the borders of the State of Queensland’. But the verdict of acquittal entered by the Queensland Court of Criminal Appeal was in respect of an offence different from the offence subsequently charged in New South Wales. The plea of autrefois acquit depended on the offence charged in New South Wales (which required proof of its commission in that State) being identical with the offence of which he was acquitted in Queensland (which required proof of its commission in Queensland): see per Herron CJ.^[15]  Ferguson J said:^[16]

‘He was acquitted [in Queensland], not because he had been found not guilty of an offence against the New South Wales criminal law, but because he had not been proved to be guilty of an offence against the Queensland criminal law’”.^[17]

38. In the present case there was no issue of jurisdiction.  The District Court had jurisdiction to hear and determine the charges in counts 2 and 3, which were charges of offences against Queensland law: indecent dealing (Criminal Code s 210) and rape (Code s 349).

39. All of the relevant acts were alleged to have occurred at the one place “at Warwick or elsewhere in the State of Queensland”.  There was no issue of the extra-territorial ambit of the offences or of the application of s 12 of the Code.

40. Locality was an element of these offences. That was a question of fact for the jury to determine on the balance of probabilities.^[18]  The appellants could be convicted of these offences only if they occurred in Queensland,^[19] and the challenge facing the prosecution was to satisfy the jury (on the balance of probabilities) that they did.

41. The trial judge addressed the issue of locality in his summing up to the jury, properly directing them that they had to be satisfied on the balance of probabilities that these offences occurred in Queensland before they could find the defendants guilty of them.^[20] 

42. The evidence of the complainant and that of the police officer Welsby was inadequate to sustain a conclusion that the offences occurred in Queensland.^[21]

43. In the course of his summing up the trial judge gave the jury the usual directions about the onus and standard of proof in criminal matters, and instructed them that they should not draw any adverse inference from the appellants’  failure to give evidence.^[22]  He explained that if the offences had been committed in New South Wales, the court would have no power to deal with them.^[23]  Then he said:

“So the first question for you to decide, I think, logically in working it out is to think about the whole of the case and all counsel said to you and what I have said to you, and then decide beyond reasonable doubt if the allegations in count 2 and 3, the Tarago van allegations, did take place. That’s a question, of course, beyond reasonable doubt for you because if you decide they happened, they are the substantive offences. But if you decide that, the question about where they happened is just on the balance of probabilities. In which state did they take place?

As I said to you before, WAF and SBN didn’t give evidence. Their silence proves nothing. You can infer nothing against them and so on. I told you all of that, but in deciding this other issue on the balance of probabilities you can keep in mind that they haven’t given evidence about where they were and I’m assuming, of course – I’m only saying this on the assumption that you might find that the Tarago incident did happen. So they haven’t given evidence about where it happened and that’s not proof of the fact that it happened in Queensland, but what you could do is take into account when reaching a conclusion about whether it happened that if you find that it did happen, they are the people who knew where it happened and they’ve said nothing about it.

So you can take that into account, if you wish, in perhaps making it easier for you to come to a conclusion that it was perhaps in Queensland rather than New South Wales. Otherwise you will take into account what little evidence is really known about that only from [the complainant], not very revealing. She, in effect, apart from saying it was quite a long drive, really had no idea where they were and said - they took no notice of any sign or anything like that which would give a clue to where she was.

That’s all I need to say about those things”.^[24]

44. A special verdict^[25] was taken as follows:

Then verdicts were taken on each charge against WAF, followed by verdicts on each charge against SBN.  No criticism has been levelled at the procedure adopted.

45. On appeal the Crown has conceded that his Honour erred in giving the direction set out in para [43]. In rare and exceptional cases, where evidence is capable of explanation only by disclosure of additional facts known only to the defendant, it may be proper to comment on the defendant’s failure to give evidence.^[27]  But it is not proper to do so merely because the defendant has failed to contradict some aspect of the case for the prosecution, or to fill a gap in the prosecution evidence.

46. Although the trial judge erred in what he said to the jury about the defendant’s failure to give evidence, this Court may dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred: Criminal Code s 668E(1A).  It may do so if the error of law would, or at least should, have had no significance in determining the verdict.^[28]  Senior counsel for the respondent submitted that  the jury were satisfied beyond reasonable doubt that these offences occurred, and so the Court should “apply the proviso” to the special verdict – unless it concluded that it was not open to the jury to be satisfied on the balance of probabilities that these offences occurred in Queensland.^[29] 

47. There simply was insufficient evidence from which the jury could infer that the offences occurred in Queensland.^[30]  Accordingly the convictions on counts 2 and 3 must be set aside, without an order for retrial.

Count 1

48. The charge against WAF of maintaining an unlawful sexual relationship with a child under 16 (count 1) was brought pursuant to s 229B of the Criminal Code.  In the indictment the offence was alleged to have been committed between 31 December 1999 and 19 March 2005 (the complainant’s 16th birthday), but none of the acts relied upon (viz those the subject of counts 2 – 9) was alleged to have occurred after 1 December 2002.  These dates are relevant because a new form of s 229B was substituted for the previously existing form in 2003.^[31]  As the three incidents relied on were all alleged to have occurred before the new provision came into operation, it was common ground that the applicable provision was that in Reprint No 2B, which was as follows:

“Maintaining a sexual relationship with a child

229B.(1) Any adult who maintains an unlawful relationship of a sexual nature with a child under the prescribed age is guilty of a crime and is liable to imprisonment for 14 years.

(2) A person shall not be convicted of the offence defined in subsection (1) unless it is shown that the accused person, as an adult, has, during the period in which it is alleged that he or she maintained the relationship in issue with the child, done an act defined to constitute an offence of a sexual nature in relation to the child, other than an offence defined in section 210(1)(e) or (f), on 3 or more occasions and evidence of the doing of any such act shall be admissible and probative of the maintenance of the relationship notwithstanding that the evidence does not disclose the dates or the exact circumstances of those occasions.”

49. Senior counsel for WAF submitted that the acts in counts 2 and 3 could not be relied on for the purposes of s 229B(2) unless they were performed in Queensland.

50. Senior counsel for the respondent relied on s 12(2) of the Code, which provides:

“Where acts or omissions occur which, if they all occurred in Queensland, would constitute an offence and any of the acts or omissions occur in Queensland, the person who does the acts or makes the omissions is guilty of an offence of the same kind and is liable to the same punishment as if all the acts or omissions had occurred in Queensland.” 

He submitted –

1. that if the acts in (i) counts 2 and 3, (ii) counts 4 and 5, and (iii) counts 6 to 9 occurred in Queensland, they would have constituted the offence of maintaining;

2. that if any of those acts occurred in Queensland, WAF was guilty of maintaining as he would have been if all the acts had occurred in Queensland;

3. that because the acts in counts 4 – 9 occurred in Queensland, WAF was guilty of maintaining.

51. However, as senior counsel for WAF submitted, under s 229B(2) each of the acts relied on must itself constitute an offence. The acts in counts 2 and 3 did not constitute an offence within the meaning of the Code unless they were committed in Queensland.

52. In R v S^[32] the applicant was charged with maintaining an unlawful relationship of a sexual nature under s 229B of the Code.  This Court said:

“Ground (ii) of the appeal is directed to the evidence of what the appellant had done to the complainant while they were in Victoria. Because those events took place outside Queensland, and so were committed extra-territorially, they were not capable of constituting elements of the offence under s 229B(1) as having been committed in this State. They were, however, capable of proving the initiation and existence of a sexual relationship of the kind envisaged by s 229B(1), and so were relevant to proving the fact that it was maintained in Queensland after the appellant and complainant returned here in late January 1992. To that extent, the relevance of what happened in Victoria was admissible for much the same purpose or reason that in R v Elhusseini^[33] the evidence of drug trafficking in Sydney was relevant to proof of the carrying on of a drug trafficking business in Queensland. If, as is accepted in the majority judgment in KBT v The Queen,^[34] the actus reus of the offence under s 229B(1) is the doing of an act which constitutes an offence of a sexual nature on three or more occasions, then the sequence of events in Victoria remained relevant to and probative of the fact that there was an element of continuity in what was done in Queensland. The decision in KBT v The Queen does not relieve the Crown of the need to prove that the sexual relationship specified in s 229B(1) was ‘maintained’ for some period of time rather than being a discontinuous succession of sporadic and isolated incidents. The evidence of what had happened in Victoria tended to serve that purpose, as well as explaining how and when the relationship had been initiated: cf R v Grech.^[35]

The learned trial judge was careful to stress that it would not be enough for the Crown to prove merely that certain events occurred in Victoria, and he also emphasised that, before convicting, the jury must be satisfied that three instances of indecent dealing had occurred in Queensland during the time frame alleged.”^[36]

Although there was no reference to s 12 in R v S, what the Court said there is not inconsistent with the submission made on WAF’s behalf that if acts relied on did not occur in Queensland, they could not satisfy s 229B(2) because they could not constitute an offence.

53. There are some offences, such as carrying on the business of unlawfully trafficking in dangerous drugs,^[37] which of their nature involve a series of acts which may occur at more than one location.  In R v Goulden^[38] Thomas J expressed the view (in obiter dicta) that a trafficking charge could have been brought against the appellant based on all relevant acts whether they occurred in New South Wales or Queensland, citing ss 12(2) and 12(3) of the Code and s 5 of the Drugs Misuse Act 1986 as authority for the proposition.  Where the charge is trafficking, each relevant act need not itself amount to an offence.  By contrast, where the charge is maintaining each of the three acts relied on to satisfy s 229B(2) must itself amount to an offence.

54. For these reasons, if the verdicts against WAF on counts 2 and 3 are set aside, the verdict against him on count 1 must also be set aside without an order for retrial.

Counts 4 and 5

55. WAF was charged with having twice raped the complainant. On each count he was acquitted of rape, but convicted of unlawful carnal knowledge.

56. The complainant gave evidence of coming home from school in the June or July holidays in 2002 feeling unwell. WAF said she could use the shower in his en-suite, as the shower in the main bathroom was being used. While she was in the shower, he came in and undressed. He got into the shower and rubbed her sides, then her breasts, backside and private parts. He inserted a finger into her vagina. Then he sat on the floor of the shower and pulled her down towards him, and put his penis into her vagina.^[39]  She did not say anything to indicate an absence of consent to either digital or penile penetration.^[40]

Counts 6 – 9

57. The complainant gave evidence that at about the time of the Warwick Rodeo in 2002,^[41] the two appellants called her into his bedroom to speak with her about the recent break up of her relationship with her boyfriend.  After she entered the bedroom the appellants made her lie face down on the bed and tied her wrists and ankles to the bed.  WAF took his clothes off and her mother whipped her back repeatedly with a riding whip and a cat-o’-nine-tails.  While this was going on, WAF was on the bed beside her, masturbating until he ejaculated on her back.  She was turned over and he put his penis in her vagina and moved it back and forth vigorously.  She did not consent, but was too frightened to say anything.  Her mother was in the room throughout the intercourse.^[42]

Count 10

58. Later they moved to Jondaryan. The complainant gave evidence of WAF grabbing her breast.^[43]

Police searches

59. In 2004 police searched a property at Warwick which had been occupied by the appellants.  They found a riding whip.^[44]

60. In March 2007 they searched a house at Sapphire occupied by the appellants. They found another riding whip and a cat-o’-nine-tails, and two computers (one owned by WAF and the other by SBN), as well as a number of CDs, floppy disks and a thumb drive.^[45]

The computer evidence and photos

61. The last witness for the prosecution, Mr Earl, a computer analyst, was called on the fifth day of the trial, after the cross-examination of the complainant and all of the other witnesses had been completed. From him the prosecutor –

1. led evidence of photographic images of sexual torture (unidentified adults in various stages of undress tied to beds, etc) which had been found on WAF’s computer, and tendered a bundle of seven of them (“the photos”);^[46] and

2. led evidence of various file paths or internet links to sexually explicit sites found on examination of WAF’s computer and SBN’s computer, and tendered material downloaded from those computers (“the computer evidence”).^[47] This material suggested the appellants had an interest in torture.

62. On appeal senior counsel for WAF submitted that the trial judge’s admission of the computer evidence severely prejudiced his client’s right to a fair trial. Counsel for SBN made a similar submission with respect to both the photos and the computer evidence.

63. Both the photos and a CD containing the computer evidence had been tendered at the committal. The defence teams were not given copies of the CD and may not have been given copies of the photos; there has been no suggestion that the Crown was under any obligation to do so.

64. At the commencement of the trial Mr Earl was named as a possible Crown witness, and it was clear that the prosecutor wished to tender the photos as relevant to counts 6 – 9. The computer evidence was neither opened nor referred to in the absence of the jury. Indeed the prosecutor at trial^[48] and the two defence counsel were apparently unaware of its existence.  Shortly before lunch on the fourth day of the trial, the prosecutor informed the court that Mr Earl had given her “new information”.^[49] Apparently he had made use of time spent waiting to give evidence to do further work on the computers which had been seized in the raid on the Sapphire premises, and in doing so had come across the computer evidence.^[50] Counsel for WAF objected strenuously to the late production and admission of this evidence, but ultimately the trial judge ruled that it was admissible, as it was an expansion of an existing issue.^[51]

65. The complainant had been cross-examined on the basis that the incidents alleged in counts 6 – 9 simply had not happened – that there was not a shred of evidence to support her tale.^[52] She had not been cross-examined about the photos or the computer evidence.  On appeal senior counsel for WAF submitted that the introduction of the computer evidence so late in the trial was a “seismic shift” in the prosecution case which prevented his client from receiving a fair trial.  More particularly, had the existence of the computer evidence been known, the complainant might well have been cross-examined on the basis that she had made up the story on which counts 6 – 9 were based, and that the availability of the computer evidence in the house had enabled her to do so, for example, by giving her relevant vocabulary.^[53] Counsel for SBN joined in that submission.

66. The prosecutor should have referred to the computer evidence in her opening. In R v Tangye Hunt CJ (with whom McInerney and Sully JJ agreed) said:

“The obligation of the Crown Prosecutor in opening the Crown case is not merely to outline the facts which the Crown proposes to establish in evidence. It is also to indicate, in conceptual terms, the nature of the Crown case. This is to assist both the trial judge and counsel for the accused, more so than the jury. It is essential that any doubt about the nature of the Crown case, conceptually be removed at that early stage”.^[54]

As the Full Court of the Federal Court said in Tran v R:

“Although there are no formal pleadings, as such, in criminal trials, the Crown is required to formulate the basis upon which it puts its case against the accused, and essentially to adhere to that case”.^[55]

67. Opening of the computer evidence might well have influenced the conduct of the trial and its outcome. Its admission so late in the trial was unfair to the appellants; it had a potentially pervasive influence over the whole trial, not just counts 6 – 9. In short, it resulted in a miscarriage of justice in relation to all the counts and in relation to both appellants.^[56] For this reason, all of the convictions should be set aside. 

68. In the circumstances it is not necessary to consider whether the admission of the photos was unfair.

Remarks by the prosecutor

69. The appellants submitted that a number of remarks made by the prosecutor during her address to the jury compounded the other errors in the conduct of the trial, causing it to miscarry. For the sake of completeness, I will deal briefly with each in turn.

(i)“… if neither accused calls evidence the order of addresses is that the Crown has to go first. It is seen as a disadvantage because I have to anticipate…”^[57]

This was innocuous.

(ii)“Sex cases, especially like this one where it is within the family and especially cases that involve rape, occur behind closed doors and it wouldn’t surprise you that there are no eye witnesses …”^[58]

While it would have been better for the prosecutor to have confined her comment to the facts of the case at hand, no harm was done by what she said.

(iii)“She was a victim and she was in a highly sexualised environment and it wouldn’t surprise you that the people that they were associating with would also perhaps have been of the same calibre as WAF.”^[59]

KM Jnr gave evidence that the complainant had disclosed that she was abused from the age of seven by “L”, MS and “T”.^[60]However, she had not met “L” (WAF) at that stage, and so the comment could not have been applicable to him.  The trial judge properly had the prosecutor correct her statement before the jury.^[61]

(iv)“... if you, members of the jury, or any of your partners ever wanted to get pregnant it is common that you would get false alarms…”^[62]

This was unnecessary, but it did no harm.

(v)“she is a child living with her – the actual perpetrators of the sexual abuse. She is quite limited as to what she could have done.”^[63]

It was submitted that this crossed the line from submission into the giving of evidence from the bar table.  It did not: it was an unobjectionable comment on the evidence.

(vi)a submission about the meaning of reasonable doubt^[64]

This was unnecessary, but it did no harm.

Disposition of the appeal

1. The appeals should be allowed.

2. All of the convictions should be set aside.

3. On count 1, WAF should be acquitted.

4. On count 2, both appellants should be acquitted.

5. On count 3, both appellants should be acquitted of unlawful carnal knowledge.

6. WAF should be retried –

1. on counts 4 and 5 for unlawful carnal knowledge, and

2. on counts 6 – 10 for the offences charged in the indictment.

7. SBN should be retried on counts 6 – 9 for the offences charged in the indictment.

71. APPLEGARTH J:  I have had the advantage of reading the reasons of Wilson J which deal comprehensively with the issues and the evidence.  I respectfully agree with her Honour’s reasons and the orders proposed.  I also have had the advantage of reading the reasons of Chesterman JA on the issue of whether the accused ought to have objected to the jurisdiction of the District Court, and respectfully agree with them.

72. The evidence of the complainant and of Senior Constable Welsby was insufficient to sustain the conclusion that the offences which were the subject of counts 2 and 3 occurred in Queensland.  The evidence concerning the location at which these offences occurred does not make this a case in which the Court should “apply the proviso”, as submitted by senior counsel for the respondent.

73. The complainant’s evidence was that she went with the appellants for a one to two hour drive to a place where there were no telephone signals.^[65]  She did not know in which direction she was heading, and did not recognise anything before she and the appellants reached their destination.^[66]  She had “absolutely no idea” of its location.^[67]

74. Her evidence was that she did not see any signs,^[68] but that evidence is unremarkable, and did little to prove that it was more likely than not that the offences occurred in Queensland.  An 11 year old child travelling as a passenger in a Tarago van may not be attentive to passing signs.  There was no evidence about the signs that existed at the various border crossings into New South Wales so as to make it probable that the complainant would have seen them and known that she was being driven into, or home from, New South Wales.  The prosecution did not explore whether there were signs at each of the border crossings, and there was evidence that it was possible to cross the border on “dirt roads”.^[69]  The complainant was not asked whether she recalled travelling on highways or over dirt roads.  The complainant was not asked about her familiarity at the time with towns in the region.  Her evidence that she did not recognise any towns or anything else before she stopped^[70] was not evidence that she did not pass through a town near the border, such as Killarney.  It simply was evidence that she did not recognise any towns. 

75. The insufficiency of the evidence to sustain convictions on counts 2 and 3 was practically acknowledged by senior counsel for the respondent in his submissions that if a retrial was ordered the complainant could be asked questions about matters such as the sort of road on which she travelled. Senior counsel for the respondent fairly acknowledged that the complainant was not asked the right questions about the country through which she travelled and the sort of road on which she travelled.^[71]  The locality issue seemed to emerge at the trial and not to have been properly investigated beforehand.  In any case, the prosecution faced the improbability that an 11 year old passenger in a van would be attentive to signs and other features on such a journey and be able to recall such details many years after the event.

76. The respondent acknowledged that the learned trial judge erred in his instruction to the jury about the use that could be made of the absence of evidence from the appellants on the locality issue. The insufficiency of the evidence concerning the location of the offences alleged in counts 2 and 3 makes this an inappropriate case to apply s 668E(1A) of the Criminal Code.  The convictions on counts 2 and 3 must be set aside.  For the reasons given by Wilson J, the conviction against WAF on count 1 must also be set aside.

77. Senior counsel for the respondent did not concede that there should not be a retrial on counts 1, 2 and 3.^[72]  The conclusion that the convictions on counts 2 and 3 should be set aside, and, as a consequence, the conviction on count 1 must also be set aside, rests on the insufficiency of evidence on the location issue.  This is not a case in which the public interest in the due prosecution and conviction of offenders warrants a retrial on the basis that persons who are guilty of serious crimes should be brought to justice and not escape it “merely because of some technical blunder by the judge in the conduct of the trial or in his summing up to the jury”.^[73]  In some cases, an order for acquittal upon an appeal conflicts with the desirability, if possible, of having the guilt or innocence of the accused finally determined by a jury which, according to constitutional arrangements, is the appropriate body to make such a decision.^[74]  This is not such a case, since the appeal relates to the insufficiency of evidence.  In Gerakiteys v The Queen^[75] Gibbs CJ stated:

“It would conflict with basic principle to order a new trial in a case in which the evidence at the original trial was insufficient to justify a conviction.”

78. In R v Taufahema^[76] Gummow, Hayne, Heydon and Crennan JJ explained that this proposition rests in part on the idea that “if the evidence is unchanged at the second trial, accused persons should not be placed in jeopardy of conviction by a second jury where an appellate court has found that the evidence was insufficient at the first trial”.  Their Honours further explained that the proposition rests in part on the idea that a new trial should not be ordered “merely to give the prosecution an opportunity of mending its hand and presenting new evidence at the second trial which it failed to present at the first”.^[77]  These principles are apposite in the present case.  The evidence at the trial on the location issue was insufficient to justify convictions on counts 1, 2 and 3.  It is doubtful whether additional evidence can cure that deficiency.  However, a new trial should not be ordered merely to give the prosecution an opportunity of presenting new evidence at a second trial which it failed to present at the first.  There is no suggestion that any additional evidence that the prosecution would wish to present at a new trial on the location issue could not have been presented at the trial.  The matter is governed by the principle stated by Gibbs CJ in Gerakiteys^[78] and it would not be a sound exercise of the Court’s discretion to order a new trial on counts 1, 2 and 3.

79. Accordingly, WAF should be acquitted on count 1 and both appellants should be acquitted on counts 2 and 3.

80. As to the other counts, and the late introduction into evidence of the computer evidence, the respondent submits that the evidence was properly admitted given what is submitted to be the “similarity in content” between it and the several photographs that were admitted, and that “it is not possible for either appellant to substantiate an assertion that their cases would have been conducted in a materially different way had they known at the commencement of the trial that the prosecution wanted to rely on the computer evidence”.^[79]  I do not agree.  The computer evidence was of a different character and far more damning than the photographs.  The photographs were seven out of a little over 260 “thumbnail images” of photographs that were found on WAF’s computer.^[80]  The computer evidence that was neither opened nor referred to until the fourth day of the trial was far more prejudicial to the appellants than the photographs.  The late production and admission into evidence of the computer evidence prejudiced the conduct of the defence.  Counsel for the appellants presented a persuasive argument that the timely opening of the computer evidence may have caused the defence cases to be conducted in a materially different way.  The prejudice could not be adequately remedied by the recalling of prosecution witnesses.  I agree with Wilson J that the late introduction of the computer evidence requires the convictions on all counts to be set aside and a new trial ordered on counts 4 to 10 (inclusive).