SUPREME COURT OF QUEENSLAND

[1] McMURDO P:  The appellant pleaded not guilty in the District Court at Ipswich to one count of maintaining a sexual relationship with a child with circumstances of aggravation that in the course of the relationship he indecently dealt with, and digitally raped the complainant (count 1); six counts of indecent treatment of a child under 12 (counts 2 to 5 and count 7); two counts of digital rape (counts 6 and 13); and five counts of indecent treatment of a child under 16 (counts 8 to 12).  He was convicted after a six day trial on 26 February 2009 on all charges but count 3 on which he was acquitted.  His sentence was adjourned to obtain a psychiatric report.  On 1 September 2009, he was sentenced to an effective term of five years imprisonment suspended after two years with an operational period of three years.  He has appealed only against his convictions on the ground that the verdicts were unreasonable. 

[2] These are my reasons for dismissing the appeal.

The appellant's contentions

[3] The appellant was not legally represented in his appeal.  He informed this Court that he had some learning difficulties and requested that his wife, who had prepared detailed arguments, speak on his behalf.  This Court gave leave to the appellant's wife to speak for him.  She was physically disabled and elderly and requested that she be allowed to make her submissions whilst seated at the Bar table.  Again, this Court gave her leave to do so.  Neither the appellant nor his wife provided this Court with a written outline of argument or submissions.  After the hearing of the appeal, the appellant's wife forwarded nine pages of written submissions, although she did so in the absence of any grant of leave.  Both her oral and written submissions were often rambling, diffuse, unfocussed and irrelevant.  They were largely an unsubstantiated, virulent attack on the complainant's credit and character.  In essence, they were as follows. 

[4] The appellant did not commit the offences of which he was convicted.  The appellant's learning disability worked against him.  The appellant's wife knows her husband well and he could not commit such offences as he was sexually naïve and inexperienced.  The appellant had not conducted himself towards her (his wife) as the complainant claimed he did to the complainant.  The complainant's allegations were of "satanic sex" and the appellant would never do such things.  He is gentle and good-natured.  The complainant, the appellant's niece, was jealous of their marriage four and a half years ago and made up these false allegations.  There was a "forbidden tape" of an interview between the complainant and police which showed her as "very confident" and in which the complainant claimed that the appellant sodomised her.  The complainant as a child always wanted her own way and demanded attention.  She had a "huge crush" on the appellant.  The complainant knew about the sexual matters like those contained in the charges as she had given her boyfriend a "head job".  The complainant's evidence was implausible and full of inconsistencies.  For example, the complainant told police that the appellant started to sexually abuse her when she was five years old and then later said it started when she was 10 years old.  The appellant's wife questioned why the complainant would have come to their wedding if the appellant had committed these dreadful offences against her. 

[5] The appellant was "well endowed" and had he committed the offences he would have caused the child complainant significant physical damage.  No medical evidence was called.  The absence of any medical evidence required the jury to reject the complainant's version of events. 

[6] The complainant did not complain to her mother nor to anybody at all for some time.  Her friends and her mother to whom she finally complained were all themselves victims of sexual abuse and this was why the complainant made false allegations against the appellant.  The evidence from these friends was hearsay and the jury could not convict on it. 

[7] The appellant's wife emphasised that, in the phone conversations with the appellant recorded by police, the appellant denied committing the offences.  As the appellant explained in those phone conversations and in his discussions with Pastor P, the complainant instigated inappropriate sexual advances towards him and he tried to stop her.  The appellant was the victim, not the complainant.  The complainant was a scheming fantasiser. 

[8] Before the trial, the appellant asked his lawyers to change the date of his trial because everything was rushed, but his lawyers did not do so.  The appellant's lawyers did not allow him to call or give evidence at trial.  The appellant's mother (the complainant's grandmother) wanted to testify on behalf of the appellant to show the complainant's bad character but the lawyers did not "allow" her to give evidence.  The grandmother said that the complainant had lied about the complainant's mother and her step-father "skinny dipping".

[9] The appellant was not living with the complainant or her father for all of the periods charged in the indictment.

[10] Evidence from Pastor P had been removed from the appeal record book.  The pastor lied in his evidence.  The appellant's wife concluded her lengthy oral submissions by repeating her assertion that the jury should not have believed the complainant.  The appellant was not guilty.  She needed the appellant (who was considerably younger than his wife) at home to help her financially and to take physical care of her, especially as she was about to move house.

The evidence at trial

[11] A consideration of the sole ground of appeal (whether any or all of the guilty verdicts should be set aside on the ground that they are unreasonable under s 668E(1) Criminal Code 1899 (Qld)), requires this Court to review all the evidence before the jury: MFA v The Queen.[1]

(a)The complainant's evidence-in-chief

[12] The complainant's evidence was central to the prosecution case on each count.  It was as follows.  She was born in August 1991 and was 17 years old at the trial.  The appellant, her uncle, is her father's brother.  The appellant began to sexually abuse her in coastal New South Wales where he was living with her family.  She remembered one occasion when she had just returned from a school camp and was upset with her parents when they went out to a Jimmy Barnes concert.  She began to cry and was put to bed.  The appellant came into her bedroom and told her to have a shower.  He undressed her and then himself.  They showered together which they had never done before.  Her little sister had fallen asleep on the lounge.  The appellant washed her hair and her body.  He said he loved her.  He began to kiss her.  This conduct continued for some time in New South Wales when the appellant was babysitting, both on weekends when her parents were working and when they went out at night. 

[13] The family moved to place A in south-east Queensland in the 1999 Christmas holidays.  The appellant continued to touch and kiss her in the shower.  He began to "finger" her and made her give him "hand jobs".  He made her perform oral sex with him.  This conduct again occurred when he was babysitting whilst her parents were at work and her younger sister was occupied elsewhere. 

[14] She particularly remembered one occasion when the appellant sent her younger sister down the street to play with neighbours.  The complainant was watching TV on the couch in the lounge room.  The appellant put a mattress on the lounge room floor.  He invited her to lie on it with him.  He undressed himself.  Whilst she lay on the mattress, he stood over her and began to masturbate on top of her.  The prosecution relied on this evidence to establish count 2.  He then took off her underpants and said he wanted to "start doing something new".  He opened her legs and licked her vagina.  She felt "awkward and different".  The prosecution relied on this evidence to establish count 4.  He asked her to perform oral sex on him, "to give him a head job".  He said, "You know, you've got to do it. … It's not fair that I just did that to you and you're not doing anything to me."  She was reluctant but he continued to ask until she finally agreed.  The prosecution relied on this evidence to establish count 5.  It is noteworthy that the complainant omitted to give any evidence of count 3.

[15] The appellant's touching and "fingering" of her and his request for "hand jobs" continued frequently.  The oral sex probably occurred on only one other occasion.  Sometimes she would sit on the appellant's lap and he would tickle her thighs.  If she was wearing underpants, he would move them to the side.  Sometimes he made her remove her pants; sometimes he removed them.  He would rub her vagina and insert his fingers.  This happened either in his bedroom, her bedroom or the lounge room.  He would sometimes shower with her and massage, kiss and touch her on her stomach, bottom, vagina, "boobs – just everywhere". 

[16] On another occasion at place A, she and the appellant went into his bedroom.  Her little sister was watching TV in the lounge room.  He pushed items up against the bedroom door to prevent it from being opened.  He massaged her on the bed.  Her little sister knocked on the door and demanded to be let in.  He refused and told the complainant to stay where she was.  Her sister began to cry very loudly and became hysterical.  The complainant went to open the door.  The appellant yelled at her; he told her to lie on bed and not to move.  The complainant then began to yell and cry hysterically because he would not let her out of the room.  Eventually, he relented and allowed her to open the door so that her sister could come in.  She hugged her sister.  They left the bedroom and returned to the lounge room. 

[17] The family moved from place A to place B in south-east Queensland.  The appellant moved with them.  He continued to sexually abuse her when her parents were out, either after school or on weekends.  She remembered in particular one Saturday morning when she was trying to sleep in.  She was in her own bed and wearing a nightie.  The appellant got into her bed.  She pretended to be asleep.  He ran his hands and his fingers up her thighs and started to rub her vagina.  He put his fingers into her vagina.  The prosecution relied on this evidence to establish count 6.  He pulled up her nightie and sucked her breasts.  The prosecution relied on this evidence to establish count 7.  After he left, she got up and left her bedroom to watch Saturday Disney on television.  She did not consent to any of this conduct.  She tried to avoid being near him.  She was scared that he would get angry if she refused to comply with his sexual requests.  She felt confused. 

[18] When her parents separated, her father moved out of place B into a house at place C.  The appellant lived with him.  Every weekend, she and her sister visited their father at place C where the two girls shared a bedroom.  One day the appellant came into the bedroom when she was there alone.  He had a "porno magazine".  He told her that because she was doing sex education at school he had brought it to show her.  He queried why her parents did not like her using the word "fuck" which was another word for sex.  He made her look through the magazine.  He told her she "was so much more beautifuler or prettier than all the girls in the magazines"; that when she was older she should "do it".  The magazine depicted naked women with their legs open and their vaginas displayed; a man and two women in sexual positions; and a man lying on a bed with a woman "sort of over his face" sucking his penis.  The prosecution relied on this evidence to establish count 8.  He then told her "about a girlfriend that he had and how they had sex on a train." 

[19] On another occasion, she and the appellant were listening to music in his bedroom.  He was lying on the bed and made her lie down with him.  He "fingered" her and licked her vagina.  The prosecution relied on this evidence as constituting count 9. 

[20] One really hot day, she was watching TV with her sister.  The appellant brought out a blanket and made her sit on his lap.  Her sister was present.  He wrapped the blanket around the complainant and him.  He pulled down her underwear.  She complained because it was so hot under the blanket; she wanted to sit by the fan, but he made her stay on his lap.  She tried to move but he grabbed her and put her back on his lap.  He took off her underwear and placed it beside the couch.  He opened her legs and put his fingers in her vagina.  The complainant did not consent to his actions.  She was sitting on his lap for about 20 or 30 minutes.  The prosecution relied on this evidence to establish count 13.

[21] On another occasion, she went with the appellant to a nearby park.  The appellant said "that he needed to wee and he pulled out his penis in front of [her] and just peed on the ground and he said, 'See, look how great it is being a man, you can just pee wherever you need to go'."  The prosecution relied on this evidence to establish count 12.

[22] That same day, he made her give him oral sex and he gave her oral sex.  She was unsure whether this happened in his bedroom or her bedroom.  She said that he "just sort of came in and opened my legs and started licking me and I was sort of a bit shocked."  The prosecutor asked her for more details.  She said that he licked her vagina but she didn't like it and made him stop.  Then he lay down and made her suck his penis.  She tired of this and he began to masturbate himself.  He had his hand on his penis and was moving it back and forth.  The prosecution relied on her evidence of the appellant masturbating in front of her to establish count 9.  She added that he then told her to "take over", grabbed her hand and put it on his penis and told her to do it to him.  She complied until he ejaculated.  The prosecution relied on this evidence to establish count 10.  He cleaned himself up with a towel.  They then went to the park and count 12 occurred.  He licked her vagina that day but she was unsure if it was before or after he ejaculated.  The prosecution relied on her evidence of the appellant licking her vagina to establish count 11.

[23] At about this time, she began to have sex education at school and realised that the appellant's conduct was wrong.  The appellant did not speak to her in the way other adults did.  He spoke to her as if she was his age.  He allowed her to swear in front of him.  She did not initiate any sexual conduct with the appellant.

[24] When she lived at place A, she and her family, including the appellant, attended a local church led by Pastor P.  She knew Pastor P's daughters through church and school.  The first person she told about the appellant's sexual abuse of her was her friend, ELN.  They were walking home from school together when the complainant was living in place B.  ELN told the complainant that ELN's cousin had molested ELN.  The complainant then told ELN that the appellant had molested the complainant.  The complainant could not remember exactly what she said to ELN, but she told ELN that her uncle had done this to her. 

[25] Later, when she was still living at place B, she told another friend, AER.  AER was visiting the complainant and they were in the complainant's bedroom.  AER was crying because her ex-boyfriend had tried to rape her.  In an effort to calm AER, the complainant told her that she knew a girl who had been sexually abused by her uncle.

[26] Later, after speaking to AER's mother, the complainant's mother asked the complainant if the appellant had ever done anything sexually to the complainant.  The complainant burst into tears.  She told her mother that the appellant had sexually abused her.  They agreed that the complainant should talk to a female pastor of their church, Pastor D.  The complainant, her mother and Pastor D talked about the issue.  The complainant cried a lot.  Her mother then telephoned the male church pastor, Pastor P.  Pastor P visited the appellant and made notes of their conversation before coming to the complainant's house.  In response to the information conveyed by Pastor P, the complainant told Pastor P that the appellant "was fingering, touching, hand jobs, just – and oral sex". 

[27] That afternoon, the complainant and her mother reported the matter to police.  Later the same afternoon, they telephoned the appellant from the police station and their conversations were secretly recorded.  The appellant told the complainant that "nothing happened".  He said that he told Pastor P that it was the complainant "that was coming onto [the appellant]".  The appellant denied the complainant's allegations she put to him in their telephone conversation. 

(b)The complainant's evidence in cross-examination 

[28] The complainant was cross-examined for many hours over two days.  She gave the following evidence. 

[29] She was about eight years old when she moved from coastal New South Wales to south-east Queensland just before Christmas in late 1999.  She agreed that when she first spoke to police about these matters on 15 October 2007, she made some written notes.  In the first numbered paragraph, she recounted that the appellant told her to sit on his lap, started tickling her inner thighs with his fingers, lay her down on the couch, removed her pants and told her that he wanted to show how much he loved her.  The second numbered paragraph referred to her having been away on a school camp and her parents attending a Jimmy Barnes concert.  She was simply trying to remember what she could, not necessarily in exact chronological order. 

[30] She agreed that the first episode at place A (counts 2 to 5) may not have occurred in the Christmas school holidays; it could have occurred at Easter.  In her notes made on 15 October 2007, she described them as happening "one day just after Christmas".  For the first time at trial, she gave evidence in cross-examination that on this first occasion at place A the appellant was "fingering" her vagina on the mattress.  As the complainant did not give evidence-in-chief of count 3, this was the only evidence of count 3. 

[31] She was cross-examined about her evidence at the committal proceedings.  This cross-examination was confusing.  When lengthy slabs of testimony were read to her, she responded that she was "a bit lost" and that she did not really remember.  Her evidence at trial was the first time she said that counts 2 to 5 occurred both on the mattress and on the couch.  She maintained, however, that the appellant did commit each of the offences as she stated in her evidence. 

[32] Her memory of events was clearer on 15 October 2007 when she first spoke to police because that was a lot closer to the time when the events happened, and that she had "sort of tried to forget a lot of this stuff".  At the committal proceedings she said that counts 6 and 7 occurred in the evening, but she was now sure that they occurred in the morning.  She did not know why she gave that evidence at committal.  Almost every time her parents were out and she was alone with the appellant, he would want to have sexual contact with her. 

[33] The appellant would often take her shopping and buy her things and that he did spoil her and her sister.  She did not record every episode of sexual abuse in her notes at the police station on 15 October 2007.

[34] She told her friends ELN and AER about the appellant's sexual abuse of her in the context of them complaining about sexual misconduct perpetrated on them.  When she told ELN about the appellant's conduct, the sexual abuse was continuing.

[35] The appellant became friendly with a woman at church and they eventually married.  She went to their wedding.  Nothing sexual occurred after that.  Every time the appellant did something to her in his bedroom he would jam the door or tie it with a skipping rope.  This was the first time she had mentioned a skipping rope. 

[36] She told Pastor D that the appellant had done these things to her up until she was about 14 years old.  She did not remember telling a counsellor from "Braveheart" that the appellant abused her from the age of five until the age of 12.  She denied that she ever sat on the appellant's knee in her nightdress without underwear, unless the appellant had made her remove her underwear.  She denied touching the appellant near his genital area, forcing him to move her hand away.  She denied walking in on the appellant whilst he was in or getting out of the shower.  She recalled that he would sometimes use the toilet with the door open.  She agreed that she once walked in on the appellant masturbating in the toilet.  She was embarrassed and walked away.  She did not think he had seen her. 

[37] She denied that she had shown a photo from a pornographic magazine to the appellant and that he then told her not look at such things and that she was far prettier than they were.  She agreed that she had once found a pornographic magazine under her father's bed.  She denied that she ever "came on to" the appellant.  She suffered no physical injuries as a result of the appellant's conduct towards her. 

[38] At a church where she used to sing in the worship band she learned about deliverance from sin and that one person spoke of "satanic demons", a concept with she understood.

(c)The complainant's father 

[39] The complainant's father gave the following evidence-in-chief.  The family lived in coastal New South Wales until shortly before Christmas 1999 when they moved to south-east Queensland to place A.  They lived in place A for about 12 months and then moved to place B.  The appellant did not help much with the supervision of the children in coastal New South Wales, but in south-east Queensland the appellant played an active role whilst he and his former wife worked.  The appellant would look after the children on Saturday mornings at both place A and place B.  He and his wife separated on 13 May 2001.  He moved into a flat for about six months before moving with the appellant to place C.  At first the children visited him every weekend in place C but after about a year this became every second weekend.  The complainant and her sister loved their uncle and interacted affectionately with him.  They climbed all over him.  The appellant would look after the children on weekends when the father was at work. 

[40] In cross-examination, he gave the following evidence.  The appellant had substantial learning difficulties.  At some stage, he and his wife went to a Jimmy Barnes concert.  He had not had contact with the appellant in the past five years.  At the time of the alleged offences, he was concerned his daughters were bothering the appellant by clambering all over him, as they did with another male friend of his.

(d)The complainant's mother

[41] The complainant's mother gave evidence-in-chief to the following effect.  She married the complainant's father in 1988.  The family lived in various places in northern New South Wales.  On one occasion, she and her husband won tickets to a Jimmy Barnes concert and the appellant babysat their children.  The complainant may have attended a school camp around that time.  The mother was a hairdresser and worked long hours.  The appellant helped with babysitting, especially on Saturdays.  The family moved to place A in south-east Queensland at Christmas time 1999.  They moved to place B in late 2001, probably November.  She and her husband were in full-time employment which involved them working most of each Saturday.  The appellant helped with babysitting on weekends and on Thursday nights when she worked late.  She separated from her husband just after Mother's Day in 2001.  After a while, her husband moved to one place for some months and then to place C with the appellant.  The children visited him there regularly. 

[42] The appellant and her children spent a lot of time watching television on mattresses pulled out on the floor.  She did not notice anything untoward in the appellant's conduct towards the complainant.  He shut the toilet and bathroom doors when he was using them.

[43] After she received some information from the mother of one of complainant's friends, AER, she asked the complainant if she had been molested.  The complainant burst into tears and said she had not intended to tell her mother.  She asked if it was the appellant.  The complainant said, "yes" but did not give details.  Later that evening, the complainant asked to speak to the female youth pastor, Pastor D.  She arranged for the complainant to do so and was present for much of the conversation.  She also contacted Pastor P who came and spoke to the complainant and the mother.  They agreed that Pastor P should speak to the appellant.  After speaking to the appellant, Pastor P informed the complainant and her mother of the appellant's response.  The complainant became angry and again spoke to Pastor P who returned to speak to the appellant.  Pastor P telephoned the complainant and her mother and passed on his conversation with the appellant.  The complainant became very upset.  The mother spoke to the complainant about the situation and the complainant decided to report the matter to the police. 

[44] They attended the police station together.  Police officer Rolph took a brief statement from the complainant.  The complainant then made a phone call to the appellant which was recorded.  The mother then made a phone call to the appellant which was also recorded in which she angrily confronted him.  The recording was played in court and the mother confirmed that the recording was accurate.  The appellant continued to claim in the phone conversation that the complainant was sexually provocative; that he resisted her advances, but that he should have been firmer with her.  The appellant claimed the complainant's father was high on drugs and "hocking" things, and that he wrongly claimed benefits for the children when the appellant was looking after them.  The appellant denied having oral sex with the complainant or masturbating on top of her.  He continued to claim the complainant was "coming on to" him.  He denied showing the complainant any pornographic magazines.  He said he would get counselling and ensure he did not have a "blue card".  He conceded he may have touched the complainant's vagina when he was trying to remove her from his lap and she was grabbing at his penis.  He denied ever putting his finger in her vagina.  He conceded that once or twice "the kids" may have come into the toilet and caught him masturbating.  He suggested that the complainant's mother was distressed because she was molested herself.  He said he was "not guilty"; he wanted to clear his name and he would take a "liar's test".  He suggested the complainant may have been sexualised at school. 

[45] In cross-examination, she agreed that her children would often "horse around" with the appellant.  She had a good relationship with the complainant.  Her daughter never complained of any soreness in her genital area.

Other preliminary complaint evidence

[46] AER gave the following evidence.  She and the complainant were friends from church and school.  She often stayed over at the complainant's house in 2006 and 2007.  One night she and the complainant were home alone.  The complainant told her that the complainant's uncle (the appellant) had touched her and forced her to touch him and give him head jobs.  The complainant said this had happened for "quite a few years".  The complainant was really upset and "bawling her eyes out."  They both cried and talked for a while and then went to bed.

[47] ELN gave the following evidence.  She attended school with the complainant from about year 2.  They became closer friends from year 5.  They have remained close friends.  The complainant told her that her uncle, the appellant, was "molesting her".  The complainant spoke to her about this between two and four times.  On the first occasion, they were walking home from school.  She said it happened "quite often"; "had been going on for a few years"; "she didn't want to go there [place C] anymore" and "her mum didn't know".  She said she was scared and she had no-one else to talk to.  She said it first started when she was "very young" and it had "been going on for a long time".

[48] In cross-examination, ELN agreed that she told the police, "I'm pretty sure she just said he touches me when I'm around there and I don't want to go there anymore."  The complainant first raised this matter at the end of year 8 or the start of year 9 in about 2007.  She continued to talk to the complainant about this matter after the complainant spoke to police.  The complainant had not reminded her of what she wanted ELN to say in her evidence. 

Pastor P's evidence

[49] Pastor P gave the following evidence.  He was a neighbour of the complainant and her family when they lived at place A.  The complainant and her family, including the appellant, joined the congregation of his church.  Pastor P's daughter, R, was also friendly with the complainant and they were in the same class at the local school.  After the complainant's parents' marriage ended, the appellant also moved out of the complainant's home.  The appellant met a woman through the church and they married a couple of years later. 

[50] On 21 September 2007, the complainant's mother telephoned him in an alarmed state.  Pastor P visited the appellant at about 9.00 or 9.30 am the next morning.  Pastor P told the appellant that the complainant had told her mother that things of a sexual nature had happened between the complainant and the appellant.  The pastor asked the appellant what he had to say for himself. 

[51] The appellant told Pastor P that the complainant would often put her hand on his leg and gradually move it up to around the groin area.  After a while, he would ask her to remove her hand, or he would walk away.  He said he wanted to apologise for this because it was inappropriate that he did not stop it earlier and he should have let the complainant's mother know what was happening so that she could ensure the complainant's behaviour did not continue. 

[52] The appellant also said he wanted to apologise for letting the complainant "quite frequently" sit on his lap and wriggle around.  After a while, he told her to get up and walk away, but he should not have allowed it to happen and he should have reported it to the complainant's mother.  He also said he wanted to apologise for telling the complainant about an incident when he had sex with a woman on a train as that was highly inappropriate. 

[53] The appellant said that on one occasion when he was masturbating in the toilet, he left the door open.  The complainant saw him.  He told her not to tell anyone.  He realised this was inappropriate.  There were other occasions when the complainant saw him with an erection, and he was in the habit of showering with the door open.  He realised this conduct was also "highly inappropriate" and he wanted to apologise to the complainant and her mother for that.  During this conversation, the appellant was his normal self and he was apologetic. 

[54] Pastor P then spoke to the complainant and her mother.  The complainant was disappointed that the appellant was blaming her and not accepting responsibility for his actions and this "really hurt her feelings".  She said: "There's so much more to what has happened … What he's told you is true but there is much more to it than that."  She seemed shocked that the appellant had not "divulged more".  The complainant told him that after her father was asleep the appellant would often come into her bed and touch her on her breasts and stimulate her vagina.  After she had an orgasm he would say, "It’s your turn to repay the favour."  He would ask her to stimulate him to orgasm.  She said that he always talked to her like an adult, as if she was his girlfriend, and he would talk about sexual things.  When she said she felt guilty, the appellant would tell her not to worry.  On one occasion, he locked her in a room for a time and she felt very unsafe and again he told her not to tell.  She said she could still taste or smell his skin and that made her feel "really really dirty".  Pastor P then immediately drove back to speak to the appellant.  Initially, the appellant was quite calm.  He then became agitated and defensive.

[55] In cross-examination, the pastor agreed that he still had contact with the complainant and her mother.  The appellant and the woman whom he married in about February 2005 left his church and joined another congregation.

The defence case

[56] The appellant did not give or call evidence.  As I have set out, there was, however, a body of evidence before the jury in which he denied the specific offences alleged.  At the close of the prosecution case, the following exchange occurred:

"HER HONOUR: Yes. Call on the accused.

ASSOCIATE: [Appellant], the prosecution having closed its case against you, I must ask you if you intend adduce evidence in your defence. This means you may give evidence yourself, call witnesses or produce evidence. You may do all or any of these things or none of them.

[COUNSEL FOR THE APPELLANT]: If I may answer on his behalf?

HER HONOUR: You may.

[COUNSEL FOR THE APPELLANT]: I hold instructions that [the appellant] will neither call nor give evidence in these proceedings."

Conclusion

[57] Despite lengthy cross-examination, the complainant was unshaken in respect of her evidence on all counts.  She omitted to give evidence-in-chief in respect of count 3 on which the appellant was acquitted, although she gave evidence of it in cross-examination.  This omission explains why the jury gave the appellant the benefit of the doubt on count 3 and acquitted him.  This was not a case where the inconsistent verdict on count 3 inevitably tainted the complainant's credibility or reliability on the other counts: see MFA v The Queen[2] and cf R v Markuleski[3] and R v Gleadhill.[4]

[58] The judge, consistent with Markuleski, prudently told the jury that if they had a reasonable doubt concerning the truthfulness or reliability of the complainant's evidence in relation to one or more counts, that must be taken into account in assessing her truthfulness or reliability generally.  The judge correctly added that that did not necessarily mean they could not convict on another count.  Her Honour continued:

"… You have to consider why you have some reasonable doubt about that part of her evidence, and consider whether it affects the way you assess the rest of her evidence. That is, whether your doubt about that aspect of her evidence causes you also to have a reasonable doubt about the part of her evidence relevant to any other count. But you must consider the fact that you can't accept her evidence in relation to one count when considering the others."

[59] The not guilty verdict on count 3 did not make the remaining guilty verdicts unreasonable as it did not require the jury to also have a doubt in respect of any or all of the remaining counts: see MacKenzie v The Queen.[5] 

[60] The circumstances of the complainant's complaint to her friends, her mother and Pastor P were fully explored at trial.  The judge gave the required directions to the jury as to how to treat the evidence of preliminary complaint: the evidence was only relevant to the complainant's credibility; it did not independently prove anything; it was not proof of what actually happened.  The judge told them, however, that they could take into account any inconsistencies between the accounts of these witnesses and the complainant's evidence in considering whether they thought the complainant's evidence was not credible or reliable. 

[61] There is no evidence that the appellant was disadvantaged at the trial because of his learning disability.  He was legally represented.  No application relying on his disability was made to exclude the limited admissions he made in the recorded telephone conversations and to Pastor P.  There were obvious sound tactical reasons for this.  First, the application may not have succeeded.  But more significantly, his limited admissions were accompanied by self-serving, assertive denials of the complainant's allegations, which were helpful to his case and meant that a version of events favourable to him was before the jury without him giving evidence.  The contention that the appellant suffered a miscarriage of justice because of his learning disability is baseless.

[62] The appellant's complaints about his lawyers are not substantiated by the transcript of the proceedings at trial or by any other evidence.  There was no application for an adjournment.  The judge gave the appellant the opportunity to give or call evidence in the usual way.  Although his barrister answered on his behalf, the appellant did not dissent from his barrister's statement that the appellant would not give or call evidence.  The appellant was well able to express himself forcefully to Pastor P and in the recorded telephone conversations with the complainant and her mother.  He also expressed himself forcefully in this Court in ensuring his wife put forward all his contentions.  Had he disagreed with his barrister's assertion[6] that the appellant had instructed him that the appellant would not give or call evidence, the appellant could have said so. There is simply no evidence before this Court to suggest that the appellant did not make a competent, free and informed decision not to give or call evidence at his trial or that any miscarriage of justice resulted from his lawyers' omission to apply for an adjournment of the trial.

[63] The contentions of the appellant's wife as to the appellant's character, physical attributes and his sexual preferences were not before the jury.  Had such evidence been given, it would have been of very little persuasive value.  The same can be said about the evidence which was not, but perhaps may have been, called from the complainant's paternal grandmother that the complainant possibly lied about her mother and step-father "skinny dipping". 

[64] Nor was there any evidence of the appellant's contention of a "forbidden tape" of an interview between the complainant and police.  As the respondent submitted, there may have been a tape recorded interview between the complainant and police which was no longer admissible under s 93A Evidence Act 1977 (Qld) as the complainant was 16 when she spoke to police but had turned 17 by the time the trial commenced.[7]  If so, this seems to have been to the appellant's advantage.  There was no evidence at trial or in this appeal of any claim by the complainant that the appellant had sodomised her.  The complainant's evidence of forceful contact with the appellant likely to cause her physical injury was, at its highest, digital penetration.  Her evidence of the offences was not such as would necessarily result in any significant physical injury to her.  Medical evidence as to the condition of the complainant's genital area was likely to be equivocal.  The absence of any evidence of a medical examination of the complainant when the complaint to police was made in 2007 about conduct which had taken place some years beforehand, did not require the jury to reject the complainant's evidence.

[65] Nowhere in the lengthy oral and written submissions made on behalf of the appellant was there any complaint about the adequacy of the judge's directions to the jury.  They were comprehensive, fair and balanced.  In summarising the defence case, the judge pointed out that defence counsel had emphasised inconsistencies in the versions given by the complainant and that these inconsistencies were important.  The judge reminded the jury of one example: AER said the complainant told her that the appellant did these things from when she was five years old and every day, when other evidence showed that the sexual abuse could not have happened every day because he only really had the opportunity on Saturdays.  The judge told the jury that defence case was that the appellant's version was plausible and that the complainant's evidence, which was full of inconsistencies, was insufficient to prove guilt beyond reasonable doubt.  The inconsistencies in the complainant's own accounts and with the accounts she gave to others and with other evidence were explored before the jury in a lengthy cross-examination of the complainant.  They were not so glaring or significant as to require the jury to reject her evidence about the elements of the offences on which the appellant was convicted.

[66] The fact that the appellant may not have lived with the complainant during some of the wide ranging periods charged in the various counts did not undermine the complainant's credibility.  It is no reason to conclude the guilty verdicts are unreasonable.

[67] The absence of an early complaint was consistent with the complainant's young age and her confused feelings about the appellant's conduct towards her.  It did not compel the jury to reject her evidence. 

[68] The jury were entitled to reject the appellant's denials to Pastor P and in the recorded phone conversations.  The jury were also entitled to reject the attacks on the complainant's credit made in cross-examination.  The complainant's account was given some support from the limited admissions of inappropriate conduct which the appellant made to Pastor P and in the recorded telephone conversations with the complainant and her mother.  The complainant remained unshaken in respect of her evidence on counts 1, 2 and counts 4 to 13.  There was no sworn or affirmed competing evidence.  The passionate but unproven, contradictory assertions made by the appellant's wife in her written and oral submissions cannot change that. 

[69] There is no reason to consider that the appeal record book is anything other than an accurate transcript of the evidence at trial.  It was entirely a question for the jury whether they accepted Pastor P's evidence which, in any case, was of some assistance to the appellant.

[70] After reviewing the whole of the evidence, I am satisfied it was well open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty on counts 1, 2 and counts 4 to 13: MFA v The Queen.  The appellant has not made out his contention that the jury's guilty verdicts were unreasonable.

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

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

[73] CULLINANE JA:  I agree with the reasons of the President in this matter and the order proposed.