SUPREME COURT OF QUEENSLAND

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

[2]  FRASER JA: On 19 November 2009 the appellant was found guilty by a jury of maintaining an unlawful sexual relationship with a child under 16, exposing a child to an indecent act, procuring a child to commit an indecent act, exposing a child to an indecent movie, attempted rape, and rape.  He was convicted and sentenced to five years imprisonment for the attempted rape and rape offences and to lesser, concurrent terms of imprisonment for the other offences.  Parole eligibility was fixed at 18 November 2011, after the appellant will have served two years in custody. 

[3] The appellant appealed against his convictions on the ground that they are unsafe and unsatisfactory.  At the hearing of the appeal the appellant abandoned that ground.  The Court gave the appellant leave to rely instead upon the grounds that (a)a miscarriage of justice was occasioned by the prosecutor’s impermissible impugning of two Crown witnesses and (b) the verdict on count 3 was unreasonable because the evidence did not support the particulars of that count.  The appellant abandoned an application for leave to appeal against sentence.

Summary of the relevant evidence

[4] The complainant was aged 13 years at the time when the offences were alleged to have occurred between 31 August 2005 and 1 January 2006.  He lived with his mother, who was separated from his father.  The complainant became friends with the appellant’s daughter, A, who attended the same school and was also then aged 13 years.  During the four months of the alleged offending the complainant visited and sometimes stayed overnight at the appellant’s house.  At that time the appellant’s household included the appellant, the appellant’s wife, their daughter A, and their 8 year old son, B. 

[5] The primary evidence in the Crown case was given by the three children in the form of recorded police interviews[1] and in their pre-recorded evidence.[2] The complainant’s mother gave preliminary complaint evidence.  A police officer gave preliminary complainant evidence and other evidence of her investigation. A medical practitioner gave evidence that proved to be inconclusive about whether the alleged rape and attempted rape had occurred and whether the complainant had been restrained during alleged offences in the way he described. 

[6] The complainant’s mother gave evidence that in December 2005 the complainant told her that the appellant had been sleeping in the bed with the complainant.  After that the complainant did not go to the appellant’s house again.  On about 17 January 2006 the complainant’s mother told the complainant that in light of the appellant’s behaviour she thought that there was a possibility that he may be a paedophile or a sexual predator of some kind and that was why the complainant could not go to the appellant’s house anymore.  Shortly afterwards the complainant started to cry and complained that the appellant had done some terrible things to him.  The complainant described an attempted anal rape and a rape using a wooden implement.  The complainant said that the appellant had told his daughter A to perform oral sex on the complainant and that the complainant refused to do the same to her.  The complainant’s mother called the police the next day.  The complainant was very withdrawn and embarrassed when he was interviewed.  (The police officer gave similar evidence that when she spoke to the complainant on 18 January 2006 he was very agitated and not forthcoming with any specifics or very much information.)  The complainant’s mother said that the complainant then asked her if he could write down what had happened because he was so embarrassed.  She encouraged him to do so.  The complainant subsequently wrote a letter on 20 January 2006, which his mother gave to the police.

[7] The letter explicitly described the alleged attempted rape and rape and indecent acts which the complainant said the appellant had performed or procured the complainant to perform.  The letter also stated that the appellant masturbated while his daughter, A, performed oral sex upon the complainant and whilst the appellant tried to make the complainant perform oral sex upon A; that the appellant also performed oral sex upon his son B; and that the appellant “played” with A’s vagina and made the complainant do the same out of force and fear.  The letter stated that the complainant did the things that the appellant told him to do out of fear after the appellant showed him a list of certificates including a gun licence and asked him if he would like to see the guns in the appellant’s house.  (The police officer gave evidence that the appellant held a Weapons Act[3] licence which was found during a search of his house.) The complainant thought that the appellant would kill him if he did not do what the appellant wanted; he had to keep coming back and not tell anybody otherwise “you’ll never know what’ll happen”.  The appellant started his abuse of the complainant somewhere between the first and third time that the complainant went to the appellant’s house.

[8] The police officer gave evidence that she collected the complainant’s letter on 20 or 21 January 2006 and interviewed him on 26 January and again on 1 February 2006.  The complainant confirmed the account in his letter and gave further details of sexual misconduct by the appellant.  The complainant said that when he stayed the night the appellant got the complainant to sleep in the double bed with him and B slept in a different bed.  The complainant gave pre-recorded evidence on 14 November 2007.  He maintained his account in the course of an extensive cross examination by defence counsel.

[9] At the time of B’s first interview on 18 January 2006 he was 9 years old.  He volunteered that the complainant and the appellant used to sit together and hug each other.  When B was asked where the complainant slept when he visited, B said that the complainant “sleeps in the queen sized bed” (which B said was his bed) “with my father” whilst B slept in his father’s bed.  B also volunteered that the complainant used to sleep hugging the appellant around the neck.

[10]  In B’s next police interview, on 13 June 2006, B said that he hated the complainant and blamed him for the gaoling of B’s father.  The complainant had made him unhappy because B’s father always played with the complainant instead of with B. When B was asked about recent conversations with his mother he said that he had to answer about 41 questions about very rude things, that there were supposed to be police officers coming to talk to him to get “this person” (inferentially, the complainant) into trouble, and that his father wanted to get him in trouble.  B said that his mother told him that his father wrote the questions out and that B had to answer them to get “him” in trouble.  In the third police interview, in October 2006, B said he was unhappy because his father was taken out of the house, which was “another person’s” fault.

[11]  When B gave pre-recorded evidence on 12 June 2009 he was 12 years of age.  When asked whether what he said to police in the January 2006 interview was true he responded, “to a point it was”.  He said that some of the things he had said were not really true because he was a bit confused and he didn’t really understand the questions.  The only example he could give was that “they were asking questions about whether my dad slept in bed with [the complainant] and I was a bit confused.” (No such question had been asked of B.  In the January 2006 police interview B had volunteered that the appellant slept with the complainant in response to the police officer’s question about where the complainant slept when he came to visit.) B denied that his father had slept with the complainant and said that the only time his father sat on the bed with the complainant was when the complainant was screaming about monsters.  When asked whether he ever saw his father hug the complainant, B said that his father did cuddle the complainant but only because the complainant used to cry about his parent’s separation a lot.  In the course of B’s evidence he complained that the complainant used to sneak up on him and scare him and that the complainant spent a lot time with the appellant, taking him away from B.  B made it plain that he hated the complainant, saying that he would laugh if the police took the complainant’s mother away.

[12]  At the conclusion of B’s evidence in chief, the prosecutor applied to cross-examine B on a voir dire with a view to applying under s 17 of the Evidence Act 1977 (Qld) for leave to cross-examine B as an adverse witness and to prove his earlier, inconsistent statements.  Botting DCJ refused the application. 

[13]  In cross examination by defence counsel B said that his father did cuddle the complainant but only because the complainant used to cry about his mother and father’s separation a lot.  When asked about the sleeping arrangement when the complainant stayed over B said that the appellant did not at any time sleep in the same bed with the complainant. 

[14]  In further pre-recorded evidence on 13 November 2009 (by which time the appellant had been living with B for most of the previous year) B denied each of the complainant’s allegations of sexual conduct by the appellant towards B and between B and the complainant.  Defence counsel asked B whether there was anything he wanted to say about what did happen between him and the complainant at that time.  In response B said that the complainant used to pull his boxer shorts down and suck B’s penis or play with his penis when the appellant was not around.  B said that he had not told his mother or the appellant about that because the complainant threatened him and said that if he did so he would get in trouble.  When asked how many times that happened B said that it only happened once.  In response to a further question he said that it had happened once downstairs and “multiple times upstairs”.  He gave no details of the occasions except that one or all were in 2005 and, “I think – it was – I am sure it is near Christmas”.  B said that he had not made anything up about his father and that no one had told him to tell any story to help his father. 

[15]  In re-examination B said that he had told his mother in May or June 2006 about what the complainant had done to him and apart from that had told nobody else, other than those in the Court room.

[16]  A was interviewed by police on 18 January 2006 when she was 13 years old.  A denied that the appellant had interfered with her or with B or the complainant in her presence.  She gave evidence that no one had touched her private parts.  She said that the complainant was a friend rather than a boyfriend.  A referred to her diary in the course of answering questions about the last time the complainant had been at her house but she did not refer to any entry in her diary concerning the complainant’s conduct.

[17]  A gave her pre-recorded evidence on 13 November 2009 after B had given his evidence.  She was then aged 17.  She again denied the complainant’s allegations.

[18]  In examination in chief A said that the complainant touched her breasts and vagina whilst they were swimming together in the swimming pool on two different occasions and that he also touched her breasts upstairs in her bedroom just before Christmas of 2005.  She said that she could not remember whether her father was around or close enough to see on those occasions.  In cross examination A said that entries in her diary related to those occasions.  The diary included entries for some days between August 2005 and 1 January 2006.  After innocuous references to the complainant on various days, an entry on the bottom half of the page for 20 November referred to the complainant as follows: “I hate him, keep your dirty hands to yourself asshole”.  An entry in the bottom part of the page for 13 December reads: “He did it again.  He won’t be here tomorrow yay.  But he will be here Thurs and Friday.  Maybe I shud tell mum”.  A gave evidence that she complained to her mother about the complainant’s behaviour just before Christmas 2005.  She was not asked to comment upon the innocuous references in her diary for 22 and 24 December 2005 to the complainant being at her house or upon the entry on 1 January 2006 that, “Maybe [the complainant] will come.  I hope not”.

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

Ground (a):  A miscarriage of justice was occasioned by the prosecutor’s impermissible impugning of two crown witnesses. 

[20]  In the prosecutor’s closing address he asked the jury to accept the complainant’s evidence in preference to the evidence of A and B.  The prosecutor emphasised the consistency between the complainant’s complaint to his mother, the account in his letter, his answers in the police interview, and his pre-recorded evidence.  The prosecutor also relied upon the finding of the Weapons Act licence as being consistent with that aspect of the complainant’s account.  The prosecutor asked the jury to reject the evidence given by A and B because the evidence of each was in some respects inconsistent with what each of them had earlier said to police. 

[21]  The appellant’s counsel argued that a miscarriage of justice arose out of those parts of the following passage in the prosecutor’s address which I have emphasised: 

“What I’ll be suggesting to you is that [the complainant]’s evidence is consistent, it is reliable and it should be believed, for some very good reasons and that B and A’s evidence is not consistent, it’s not reliable and you should dismiss it and for that reason you should find the accused man guilty on all charges.

…

Consider [the complainant]’s evidence against the rest of the evidence and consider whether the evidence of B and A particularly gives you a reasonable doubt and I suggest it wouldn’t because there are a lot of problems with believing them about anything. But overall the whole case boils down to [the complainant]. Do you believe him?

What you might need to ask yourself first up is why would I believe him? Whether would I accept what he says beyond a reasonable doubt? I suggest that you use the skills that you already have. As I said at the beginning, you know what to look for in a truthful witness. You know where to look and what you’d expect.

…

As part of that comparison, you come to B and A’s evidence, and you’re probably fairly conflicted about what it is you’re going to do with them. What I suggest is you’d dismiss their evidence, and you can do that. With any witness you can take all of their evidence and say, “I accept it all.” 

…

You can take their evidence and say, “I’ll accept this bit and this bit but not the rest of it” or you can reject it all, and that’s just part of your assessment. It’s part of the tools you have available to you.

Why would you reject B and A’s evidence? Well, remember what I said about consistency. That is, [the complainant]’s evidence stays the same. What he tells mum is the same as what’s in that document, is the same as what he says in the later interviews with police, is the same as what he says in Court. He’s cross-examined. His story doesn’t come to pieces. His story doesn’t fall apart. It doesn’t even change because it’s the truth.

What about B and A? It’s a completely different story. You heard from A only once. You might think there is a massive difference between what she says to the police and then what she says in Court. Remember these allegations about, “Oh, hang on, [the complainant] did some things to me.” That’s a huge difference. That’s something fundamental to what you’re considering. No mention of it. The first time you hear about it is with - well, in Court.

So, why would that be? Because if you’re doing the comparison between [the complainant], on the one hand, and B and A on the other you might be thinking, “Look, either somebody's lying or somebody’s pretty thoroughly mistaken, so what is actually going on?” Well, I suggest the truth of the situation can be found in B’s evidence. Remember, B is a fair bit younger than both [the complainant] and A. You might think he’s a little bit less sophisticated. You might think he’s a little bit younger and a little bit less mature.

Now, it may have been that while you were sitting there listening to what B had to say, you were thinking at the beginning there’s all sorts of consistency. That is, they’re in the same bed. They’re in the same bed. There’s this hugging going on. B’s not very happy about it. He actually hates [the complainant] because of it, but there is a consistency there. You might have been thinking that’s what applied at the beginning.

But as we get on through B’s evidence - you remember his evidence covers a fair while, it covers even longer - years - it changes. Again we get this, “Oh, hang on a second, [the complainant] did some things to me as well.” Again, get a retraction. That is, “What I told the police isn’t actually true. I’d like to clarify or change that now, please.” 

Now, you might have been thinking there was somebody effectively standing behind B. If you thought that, if you thought perhaps that story was being fed to him, then you can’t hold that against the accused man, but what you can do is think, “Well, look, that's a really good reason to be suspicious of what B says.”

Now, remember B’s told you that he hates [the complainant]. He hates him. He wanted [the complainant]’s mum to be taken away by police. He said that would be quite funny. [The complainant] is the object of his hate, and B has told you A doesn’t like him. Mum doesn’t like him. That's one big family unit. The accused man, B, A and mum.

…

You might have had some suspicions when there was a huge difference between A initially saying, “Look, no, nothing much happened. I don’t remember anything” and suddenly, “Actually, [the complainant] did a whole series of things to me. Please take that into account.” And B starting off as, “Look, there are actually some consistencies with what [the complainant] says” and with what he saw. Not everything, but some consistencies, all the way to, “There’s absolutely nothing at all” and also, “I’d like to sink the boot into [the complainant], please.” 

Those, ladies and gentlemen, are very good reasons why you’d reject what B and A says as being far too suspicious to believe and far too unreliable.

Quite frankly, ladies and gentlemen, you cannot act on what they say because of those problems with their evidence.”

[22]  Defence counsel did not object to the comments made by the prosecutor about A or B or seek any direction by the trial judge about those comments.

[23]  The appellant’s counsel argued that the prosecutor went too far in inviting the jury to conclude that A and B had lied in their evidence and that someone, implicitly the appellant or his agent, had procured them to give false evidence; that the prosecutor’s attack upon the credit of those two crown witnesses was impermissible where A and B were not given the opportunity during their evidence to answer the prosecutor’s allegations of untruthfulness; and that the prosecutor’s address was particularly significant because the jury could only have found the appellant guilty on each count by rejecting as untruthful the testimony of A and B.  The appellant’s counsel argued that this amounted to such a serious departure from a fair trial as to constitute a substantial miscarriage of justice.

[24]  As the appellant’s counsel accepted, the evidence of A and B was material and the prosecutor acted properly in calling them as witnesses.  There was no prohibition upon the Crown contradicting their evidence by the evidence of the complainant.  So much is confirmed by the provision in s 17(1) of the Evidence Act 1977 (Qld) that a party producing a witness “may contradict the witness by other evidence”. Nor was it improper for the prosecutor to urge the jury to prefer the evidence of one of the Crown witnesses to the evidence of other Crown witnesses.[4]  The authorities are also clear that in an appropriate case a prosecutor may go further and, where the submission is justifiable on the evidence, invite the jury to conclude that the evidence of a Crown witness is unreliable or should be rejected on credibility grounds.  In R v Mark & Elmazovski,[5] where there was a direct conflict between the evidence of the complainants and the evidence of another Crown witness, the Victorian Court of Appeal rejected a contention that the prosecutor acted improperly by inviting the jury to resolve the conflict by concluding that the other Crown witness was biased and that the jury should take her evidence “with a grain of salt”: Maxwell P held that the prosecutor was entitled to invite the jury to prefer one version over another and to advance reasons for the suggested preference.  Similarly, in R v Goncalves[6] the Western Australian Court of Criminal Appeal rejected the contention that unfairness to the accused was created by the conduct of the Crown in calling a witness whose evidence the Crown always intended to challenge in final address or in inviting the jury to disbelieve part of that evidence when the Crown was not in a position to cross-examine the witness and did not in fact cross-examine the witness.

[25]  The appellant’s counsel referred the Court to the holding in R v Livermore,[7] which was followed in other New South Wales Court of Criminal Appeal decisions,[8] that matters in a Crown Prosecutor’s address which could lead to a miscarriage of justice include:[9]

“(i)A submission to the jury based upon material which is not in evidence.

(ii)Intemperate or inflammatory comments, tending to arouse prejudice or emotions in the jury.

(iii)Comments which belittle or ridicule any part of an accused’s case.

(iv)Impugning the credit of a Crown witness, where the witness was not afforded the opportunity of responding to an attack upon credit.

(v)Conveying to the jury the Crown Prosecutor’s personal opinions.”

[26]  The appellant’s counsel relied principally upon category (iv), “impugning the credit of a Crown witness, where the witness was not afforded the opportunity of responding to an attack upon credit”.  In terms, that does not suggest that a prosecutor acts improperly by impugning the reliability of the evidence of a Crown witness where that is justifiable on the evidence.  As to attacks on credit, it is necessary to take into account the limitations upon cross examination of Crown witnesses by prosecutors.  Section 38 of the Evidence Act 1995 (NSW) entitles a party (including the Crown) who called a witness to seek leave to question the witness as though the party were cross examining the witness, about evidence given by the witness that is unfavourable to the party.  The absence of any equivalent provision in Victoria and South Australia has been held in those States to constitute a ground for distinguishing the decisions in the New South Wales Court of Criminal Appeal.[10]  In Queensland there is also no statutory equivalent of s 38(1) and the scope for prosecutors to obtain leave to cross-examine Crown witnesses is more limited. [11] The New South Wales decisions must be read with that difference in mind.

[27]  Ultimately, however, the relevant question is not whether the prosecutor’s comments were improper but whether they resulted in a miscarriage of justice.  In R v Livermore[12] itself the court first assessed the effect upon the fairness of the trial of the prosecutor’s transgressions in each of the identified categories of impropriety  before concluding that there had been such a “significant denial of procedural fairness” as to require that the conviction should be quashed and a new trial ordered.

[28]  The relevant principles were summarised by McMurdo P (with whose reasons Keane JA and Daubney J agreed) in R v Smith [13] in the following passage:

“The role of prosecuting counsel is one of institutional significance in the criminal justice system. It differs from that of an advocate representing an accused person in a criminal matter or a party in civil litigation. A prosecutor represents the state. They should make any evidence which could be in the interests of an accused person available to the accused person or their counsel. Their duty is not to obtain a conviction by all or any means. It is to fairly and impartially place before the jury all relevant reliable evidence. They should then address the jury as to how to use this evidence according to law when they deliberate to consider their verdict so that the jury can carry out their function of administering justice according to law and reaching a true verdict on the evidence: see R v Hay and Lindsay [1968] Qd R 459, W B Campbell J 476; Kenny’s Outline of Criminal Law 17th ed, p 569, cited more recently with approval by this Court in R v M [1991] 2 Qd R 68, Cooper J 79-80, Kneipp J and Shepherdson J agreeing. Prosecuting counsel must not adopt tactics that involve an appeal to prejudice or amount to an intemperate or emotional attack upon the accused person. That does not mean that in properly carrying out the role the prosecutor’s cross-examination and jury address must be bland, colourless and lacking in the advocate’s flourish: R v Roulston (1976) 2 NZLR 644; R v M, at 81-82, and R v Daye (2000) 115 A Crim R 80, 87.

…

In determining whether to allow an appeal on the basis of an inflammatory jury address by a prosecutor, the critical question is not whether the prosecutor’s remarks were improper but whether they may have improperly influenced the jury so as to cause a miscarriage of justice: R v M and R v McCullough (1982) 6 A Crim R 274, 286. Central to that question is the underlying right of an accused person to a fair trial according to law. As Cooper J noted in R v M:

“If procedural unfairness of this type is demonstrated, this may mean a conviction which might otherwise be perfectly proper on the evidence will be set aside.” ”

[29]  In R v Smith the Court found a miscarriage of justice arising from comments by the prosecutor in closing address which suggested that witnesses who gave evidence that they had not seen events alleged by the Crown were in a conspiracy to protect the accused who, inferentially, was a part of the conspiracy.  That was a very different case from this one.  The Court did not endorse any proposition that the prosecutor was prohibited from asking the jury to prefer one Crown witness over another Crown witness on credibility or reliability grounds.

[30]  In deciding whether the prosecutor’s conduct might have improperly influenced the jury so as to cause a miscarriage of justice in this case a number of matters must be borne in mind.  There is first the feature that at the pre-recording of B’s evidence on 12 June 2009 the prosecutor applied for leave to cross-examine B in light of the marked inconsistency between his evidence and his account in his first police interview that the appellant slept in the same bed as the complainant.  Defence counsel opposed the application, referring to the fact that the child’s version in the s 93A statement would be before the jury and that the provisions in s 9E of the Evidence Act 1977 (Qld) suggest that there should be a limit to the greatest practical extent of any distress or trauma to the child. (Section 9E(2) sets out the general principles which apply when dealing with a child witness in a proceeding, including in s 9E(2)(b) that, “measures should be taken to limit, to the greatest practical extent, the distress or trauma suffered by the child when giving evidence”).  Defence counsel submitted that “the inconsistencies are there for the jury to consider” and the effect of a declaration that the child was a hostile witness would be only to “reinforce what he said in the 93A statement, which is already before the Court.”  The prosecutor submitted that if leave to cross-examine were granted under s 17 of the Evidence Act 1977 (Qld) there might be “evidence as to the reasons why that prior inconsistent statement is now being given” and evidence going to the “witness’s  credibility generally which will ultimately be a subject of comment at the end of the trial” and that the inconsistency between B’s evidence and his prior statement “go so far against his testimony here today that they demonstrate an unwillingness to tell the truth.”  Defence counsel replied that to permit cross examination of B might result merely in B affirming the contents of his police interview under s 93A which was already before the jury, with potential prejudice to the appellant. 

[31]  Botting DCJ accepted the submission for the appellant.  His Honour was troubled by the fact that B, a child called to give evidence against his father, might be subjected to cross examination by counsel who had called him.  His Honour thought that having regard to the philosophy expressed in s 9E of the Evidence Act 1977 (Qld) it was not in the interests of justice to permit B to be cross-examined by the prosecutor.  His Honour took into account that the Crown had achieved its primary purpose of getting the s 93A statement before the jury and that the jury, understanding that B was the son of the accused, “will not abandon such worldly wisdom as they may have when asked to look at any inconsistency… between his 93A statement and what he may say here in Court.”  In light of the terms of that ruling it is understandable that the prosecutor did not seek to renew his application for leave to cross-examine when B gave pre-recorded evidence for a second time or to cross-examine A when she gave her pre-recorded evidence.

[32]  I accept the respondent’s contention that the evidence at the trial provided a basis for the prosecutor’s suggestion that the evidence of each of A and B should be rejected not merely as unreliable but as lacking credibility.  In particular, there was the departure in B’s first pre-recorded evidence from his earlier statement that the appellant slept in the same bed as the complainant and his arguably unconvincing explanation for that departure, the late and coincidental emergence in November 2009 of A and B’s allegations of sexual misconduct by the complainant in circumstances in which each of them claimed to have told their mother about it years earlier (in A’s case before her January 2006 police interview and in B’s case possibly before his June 2006 police interview), the apparent inconsistency between those allegations by A and her statements in her police interview on 18 January 2006 that no one had touched her private parts and that the complainant was just a friend, and B’s failure to disclose the complainant’s alleged sexual misconduct in his earlier police interviews despite his then expressed complaints about the complainant’s more innocuous conduct and B’s manifest dislike of the complainant.  Defence counsel had and took advantage of the opportunity to cross- examine A and B to seek to bolster their evidence in the appellant’s favour.  Nor did the appellant argue that defence counsel had not anticipated that the prosecutor would impugn the credit of A and B and challenge the reliability of their evidence.  Such a challenge, at least to B’s evidence, had been foreshadowed in the application for leave to cross-examine and defence counsel did not object when the prosecutor made the remarks to the jury of which the appellant now complains.

[33]  The prosecutor’s statements to the jury that it might think that “there was somebody standing behind [B]” and that a “story was being fed to” B are of more concern, even though the prosecutor immediately made the point that the jury could not hold that evidence against the appellant.  There was, however, a basis for those remarks in the features of B’s evidence I have mentioned, B’s expressed dislike of the complainant, and B’s statement on 13 June 2006 that his mother had asked him to answer numerous questions to get the complainant in trouble.  Furthermore, the risk that the jury would be distracted from their task by the remarks was appropriately dealt with in the trial judge’s repeated and emphatic directions to the jury to focus upon assessing the reliability and credibility of the complainant’s evidence. 

[34]  The trial judge repeated directions that the burden rested on the prosecution to prove the defendant’s guilty beyond reasonable doubt.  His Honour gave directions in conventional terms concerning the process of assessing the credibility of witnesses and the reliability of their evidence.  In the course of those directions the trial judge directed the jury to consider whether there was a satisfactory explanation for any inconsistency or discrepancy in the evidence of a witness and to carefully evaluate the testimony in the light of other evidence where the jury found any such discrepancy or inconsistency.  The trial judge directed the jury that if it had a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one or more counts, whether by reference to his demeanour or for any other reason, that must be taken into account in assessing the truthfulness or reliability of his evidence generally.  His Honour told the jury that A and B denied the complainant’s allegations of sexual acts by the appellant upon his children and that if the jury rejected the complainant’s evidence on that aspect of the matter the jury should take that into account in assessing the truthfulness and reliability of his evidence generally.  After giving directions which related the evidence to the elements of each separate charge the trial judge gave some further general directions to the jury.  His Honour gave a “Robinson direction”[14] that the jury should scrutinise the evidence of the complainant with great care before arriving at a conclusion of guilt, because the prosecution case depended entirely on his evidence; that the jury must also consider the difference between the complainant’s evidence on the one hand and the evidence of A and B on the other hand and take that into account when evaluating the evidence; that the jury should only act on the complainant’s evidence if, after scrutinising it with this warning in mind and all the other evidence, the jury was convinced of the truthfulness and accuracy of his evidence; and that if the jury decided that it was able to act on his evidence beyond reasonable doubt, then it must consider the elements of the various offences and decide whether the Crown had proved the elements of the six counts before it could return a verdict of guilty in respect of any one or more of them.

[35]  In summarising the arguments by the prosecution, the trial judge did not refer to the prosecutor’s remarks that the jury might think that “there was somebody standing behind [B]” and that a “story was being fed to” B.  His Honour referred to the prosecutor’s submission that the complainant’s evidence was consistent and reliable and that A and B’s evidence was not reliable and should be dismissed.  After referring to further submissions by the prosecutor about the consistency of the complainant’s evidence, the trial judge referred to the prosecutor’s submission that the same was not so in respect of A and B’s evidence, that there was a massive difference between what A said to the police and her evidence that the complainant had done things to her; that the truth could be found in the evidence of B, who was younger and less mature, that the appellant and complainant were in the same bed; that the changed evidence by B was not true; that B hated the complainant; and that there were good reasons why the jury would reject A and B’s evidence as unreliable.

[36]  The trial judge also gave a balanced and detailed summary of defence counsel’s final address.  His Honour referred in particular to the arguments by defence counsel that the complainant was at the relevant time a boy who played fantasy role-playing computer games, was at a new school, his parents were apart, and he was living in a new home without his brother, and he might have made up the allegations to seek his mother’s attention or to deflect his own conduct against A and B.  The trial judge referred to defence counsel’s argument that the complainant’s letter did not include some details which subsequently emerged in his evidence and which he ought to have remembered had those events occurred.  The trial judge also referred to arguments by defence counsel which contended for inconsistencies in some details in the complainant’s account and the absence of any corroborating evidence (other than the discovery of the gun licence, which defence counsel submitted was of no assistance because the complainant might have found that document while he was at the appellant’s house.)  The trial judge summarised defence counsel’s argument that the jury should accept A and B’s evidence, including that A’s diary was submitted to support her evidence. 

[37]  In these circumstances, I conclude that the prosecutor’s comments impugning the credibility of A and B and suggesting that B’s evidence might have been influenced by another person were not productive of unfairness to the appellant and did not bring about any miscarriage of justice. 

[38]  The appellant’s counsel submitted that the jury’s requests after they had retired to consider their verdicts indicated that the jury was troubled by the conflict between the evidence of the complainant and that of A and B.  About two hours after the jury retired they sent a note asking for the complainant’s original letter of complaint.  The trial judge instead read the letter out to the jury.  The jury asked to see a 2005/2006 calendar and that was provided to them.  The jury asked further questions whether A’s diary was complete or had been altered to only provide pages relevant to the time frame in question and when the diary was seized.  The trial judge directed the jury in that respect that there was no evidence on any of these matters and that all that was known about the diary was that it was produced during A’s pre-recorded evidence in the week preceding the trial.  The trial judge also referred the jury to the reference by A to her diary in her police interview on 18 January 2006, the transcript of which the trial judge read out.  On the following morning the jury asked to see the two police interviews with the complainant of 26 January and 1 February 2006.  The trial judge had the tapes of those interviews played to the jury after first directing the jury that the fact that it was seeing this evidence played a second time did not mean that it attracted any additional weight, that the jury should reach its verdicts based on a consideration on the whole of the evidence and not just that portion, and that because the quality of the tapes was good the jury would not on this occasion have the transcripts whilst the tapes were played.  The jury delivered the guilty verdicts at about 4.00 pm on the same day.

[39]  It may readily be accepted that the jury was troubled by the conflict between the evidence of the complainant and that of A and B.  That conflict was at the heart of the trial.  However, the jury’s requests suggest a conscientious attention to its duty.  No criticism was made of the trial judge’s responses to the jury’s requests and the appellant disavowed any contention that the state of the evidence was such that the guilty verdicts should be regarded as unreasonable upon the whole of the evidence.

[40]  In the written submissions the appellant’s counsel argued that this conflict must give rise to a reasonable doubt in circumstances in which the Crown’s conduct in calling A and B reflected an assessment that they were material witnesses.  It is not clear to me that this argument was intended to be maintained after the appellant’s counsel disavowed any contention that the guilty verdicts were unreasonable.  In any event the jury had a basis in the features of the evidence I have mentioned for accepting the complainant’s evidence and rejecting the contradictory evidence of A and B in the course of finding that the appellant was guilty beyond reasonable doubt.

[41]  The appellant’s counsel also argued that support for the appellant’s contention was found in the evidence that the police had not charged the appellant with offences concerning A or B on the basis of the complainant’s allegations.  In circumstances in which A and B denied that their father had committed those offences the absence of any charges concerning that conduct does not seem very surprising.  In any case that has no bearing upon the issues in this appeal. 

[42]  I would reject this ground of appeal.

Ground (b): The verdict on count 3 was unreasonable because the evidence did not support the particulars of that count

[43]  The particulars of the charge in count 3 that the appellant unlawfully procured the complainant to commit an indecent act tied that count to the first time upon which the accused “had the complainant masturbate the accused” and referred to the 20 January 2006 letter and specified lines of the transcript of the police interview on 26 January 2006. 

[44]  In the relevant part of the letter the complainant stated that the appellant masturbated in front of me “and told me to do vice-versa (every single time I was there, which was approximately 20 days all up)”.  That was ambiguous, but the complaint’s evidence appears to have been that the appellant procured the complainant to masturbate himself rather than to masturbate the appellant.  At the specified lines of the transcript the complainant, after describing the appellant masturbating himself, said that the appellant “told me to do vise versa”.  The complainant said, “he did that and um he kept telling me to do that as well”.  The complainant then agreed with a statement by the police officer that the complainant meant that he masturbated himself.  The complainant went on to describe the appellant masturbating the complainant but he did not assert that he masturbated the appellant.  In summing up the trial judge told the jury that the Crown relied upon the complainant’s evidence “that the defendant had him, the complainant, masturbate himself, the defendant.”  The trial judge then referred to the evidence of the complainant in the letter that “the defendant told him to masturbate him” and in the 26 January 2006 interview where the complainant said “that he did that”.  The jury might have misunderstood those directions as referring to a charge that the appellant procured the complainant to masturbate himself.

[45]  In the result, whilst the jury’s verdict was sustainable on the evidence, the evidence did not support the count as it was confined by the Crown’s particulars.  The respondent’s counsel accepted that if the evidence departed from the particulars in that way the Court should set aside the verdict on count 3.  The appellant’s counsel did not contend that this should result in any alteration in the head sentence of five years imprisonment imposed on count 1. 

Orders

[46]  I would allow the appeal, set aside the conviction on count 3 in the indictment and enter a verdict of acquittal on that count, but I would otherwise dismiss the appeal.

[47]  WHITE JA: I have read the reasons for judgment of Fraser JA and agree with the orders proposed by his Honour for those reasons.