SUPREME COURT OF QUEENSLAND

[1]  MUIR JA:  I agree with the reasons of Chesterman JA and with his proposed orders.

[2]  CHESTERMAN JA:  On 22 February 2010 the appellant was arraigned on an indictment which charged him with:

(a) 17 counts of indecently dealing with a girl under the age of 14;

(b)12 counts of indecently dealing with a girl under the age of 16;

(c)4 counts of indecent assault;

(d)1 count of rape.

After a five day trial, on 26 February 2010 the appellant was convicted of:

(e)10 counts of indecently dealing with a girl under 14;

(f)8 counts of indecently dealing with a girl under 16;

but acquitted of:

(g)5 counts of indecently dealing with a girl under 14;

(h)2 counts of indecently dealing with a girl under 16;

(i)2 counts of indecent assault;

(j)the rape.

At the end of the prosecution case six counts were withdrawn from the jury because they had not been the subject of any evidence from the complainant.  They were:

(k) 2 counts of indecently dealing with a girl under 14;

(l) 2 counts of indecently dealing with a girl under 16; and

(m) 2 counts of indecent assault. 

A head sentence of four years imprisonment, to be suspended after two years, was imposed.

[3] The offences were alleged to have been committed between April 1980 and December 1989.  The offences of which the appellant was convicted were committed between April 1984 and April 1988. 

[4] The complainant was the appellant’s step-daughter.  She was born on 12 April 1973 and was aged between 11 and 15 at the time of the offences.  The appellant was born on 1 March 1957 and was between 27 and 31 at the time of the offences.  He was 52 at trial.  He and the complainant’s mother began cohabiting in 1982 and married in 1988.

[5] The complainant first went to the police in March 2006.  She provided a lengthy statement containing an account of conduct which is the subject of some of the counts.  She saw the investigating officers again in May and June 2006 and added to her account.  She went a fourth time in August 2006 when she provided information which led to a 10 further charges being formulated.  There was a period of between 22 and 18 years between the events which were the subject of the charges of which the appellant was convicted and a formal complaint about them. 

[6] The appellant was not legally represented at the appeal but his sister-in-law, Mrs McM, sought and was given leave to argue the appeal on his behalf.  Mrs McM discharged the function with commendable good sense and a thorough knowledge of the appeal record.  The appellant’s case, as well presented by Mrs McM, was that the convictions were unsafe and unsatisfactory when regard was had to the whole of the evidence.  Particular reliance was placed upon the acquittals and the withdrawal of some counts from the jury’s consideration.  The evidence, or lack of it, relevant to these events was said to cast doubt upon the overall credibility of the complainant and to give rise, at the least, to a reasonable doubt which the jury should have entertained with respect to the counts on which the appellant was convicted.

[7] The legal test is well established.  In M v The Queen (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said (492-493):

“… The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’.  …  .

And as the Court observed in Davies and Cody v The King, the duty imposed on a court of appeal to quash a conviction when it thinks that on any ground there was a miscarriage of justice covers:

‘not only cases where there is affirmative reason to suppose that the appellant is innocent, but also cases of quite another description.  For it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because...there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled.’

Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.  On the contrary, the court must pay full regard to those considerations.” (footnotes omitted)

[8] The manner in which a court of criminal appeal should approach a complaint that a verdict is unreasonable or unsafe and unsatisfactory was explained by their Honours (494-5):

“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.  It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.  That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.  If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.  In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

[9] In MacKenzie v The Queen (1996) 190 CLR 348 Gaudron, Gummow and Kirby JJ said about the significance of divergent verdicts (366-7):

“3.Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness.  A judgment of Devlin J in R v Stone is often cited as expressing the test:

‘He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.’

4.Nevertheless, the respect for the function which the law assigns to juries ... have led courts to express repeatedly ... reluctance to accept a submission that verdicts are inconsistent in the relevant sense.  Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted.  If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court ... to substitute its opinion of the facts for one which was open to the jury.  In a criminal appeal, the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count ... .  …

5.Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent … an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty.  More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law.  It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside.  …”  (footnotes omitted).

[10] In Jones v The Queen (1997) 191 CLR 439 in which a jury convicted the appellant on two counts of a sexual assault upon a girl, but acquitted him of a third, the convictions were set aside because of inconsistency giving rise to unreasonableness.  Gaudron, McHugh and Gummow JJ said (453):

“It is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts.  There is nothing in the complainant’s evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count.”

Their Honours also pointed out (455) that the doubt which the jury entertained about the complainant’s evidence with respect to count 2, which was raised by “other reliable evidence”, should have been felt with respect to the other counts.

[11] In R v SBL [2009] QCA 130 Applegarth J (in a judgment with which Margaret Wilson J and I agreed) reviewed the authorities, MacKenzie, Jones, R v CX [2006] QCA 409, R v Smillie (2002) 134 A Crim R 100 and R v Markuleski (2001) 52 NSWLR 82 and concluded:

“[34]… The issue remains one of fact and degree in the circumstances of the particular case as to whether the difference in verdicts is such that, as a matter of logic and reasonableness, the verdict should be regarded as inconsistent.  There may be an acceptable explanation for divergent verdicts in a case in which there is not ‘an integral connection between the counts’ or where there are circumstances present which do not compel the conclusion that the complainant’s overall credibility was so diminished that the jury should have acquitted on the other counts.  The essential issue is whether the acquittal so affects the credibility or reliability of the complainant that, in combination with other factors, a conviction was not open to the jury on other counts.”  (footnotes omitted)

[12] The complainant, her mother and younger brother, lived at 25 QRS Street, Riverview between about October 1978 and July 1983.  According to the complainant, her mother was remarkably promiscuous and entertained a succession of men in the home.  Mrs C appears to have made no attempt to conceal her activities from her children who were exposed from an early age to adult sexual activity.  The complainant is, and has always been, ignorant of her father’s identity.  Frequent requests to her mother to be told, were refused.  This became a source of tension between mother and daughter.  The men who visited the household showed no interest in the children.  Some were unpleasant to them.  The appellant became acquainted with the complainant’s mother in 1981 or 1982 when the complainant was seven or eight.  His arrival led to a degree of stability in the household in which the appellant became the only adult male.  The succession of male visitors came to an end.  The appellant was affectionate towards the complainant and her brother, D, and established a conventional paternal relationship with them.  He was “nice to (them).  ... he did things with (them).  He got along with the family.  He treated (his step-children) good ... .”

[13] The complainant gave this account of the offence charged as count 1:

“At QRS Street he showed more affection than what he should have.  ...  There was one evening and mum went to get some cigarettes and he come into the room ... and he sat beside the bed and he asked me if I was all right ... and put his hand underneath the sheets and then put his hand underneath my underpants and started playing with my vagina and he asked me if I’d done this with any other – mum’s other boyfriends and I said, ‘No’, and he said, ‘Why are you letting me do it?’, and I said, ‘’Cause you treat me right,’ … and then mum come (sic) home ... and he ... left.”

[14] The appellant was acquitted.

[15] The complainant’s account of the offence in count 2 was:

“... one of mum’s ex-boyfriends come (sic) to … the gate and (the appellant) was fixing my grandmother’s Gallant.  I remember panicking because this fellow...wasn’t a nice guy.  He stunk like alcohol and I ran behind the car and I was just petrified and he asked me where mum was and (the appellant) replied that she’s not here ... not long after that mum had come home ... and I said, ‘I don’t want (the appellant) to leave.  I don’t want that other man to come back’ ... .  … that night ... (the appellant) come into my room and … said, ‘Do you really like me that much?’ … and I said, ‘I don’t … want that bad man to come back again,’ and he put his hand under the sheets and started rubbing my vagina again and said, ‘Oh, do you like it when I do this?’ and with that he ... left the room.”

[16] The appellant was acquitted.

[17] The third count alleged that the appellant had the complainant fondle his penis.  She gave evidence that she had seen her mother performing similar acts on her male visitors and it seems she had seen such conduct between her mother and the appellant.  Her account of the offence was:

“(The appellant) used to tell me to play with it and he used to get erect and I noticed once when I pulled back the foreskin ... it had white paste all around it ... and I was quite startled.  …  He just said, ‘It’s all right.  ... all men’s penises look like that’ … ”

On this occasion she touched the appellant’s penis “just for a few minutes”.

[18] The appellant was acquitted.

[19] Counts 4 and 5 were withdrawn from the jury.  As opened, the offences were exposing the complainant to explicit pornographic videos which were played in the lounge room of the house.  The complainant gave some evidence of the playing of such videos but her testimony did not implicate the appellant.

[20] The complainant’s family moved to 3 CDE Road, Ripley in March 1984 and stayed there for about a year.  The offences which constituted counts 6 and 7 were alleged to have been committed at that address.  The complainant’s evidence was:

“... in the bathroom … there was a ... quite big ledge and you could see out to the clothesline and out to the toilet and I … recall on a couple of occasions that we were … always asked to wash (the appellant’s) back ... or get him a towel or ... always going into the room while he was having a bath and I remember ... a couple of incidents that … happened at CDE Road was I got called in to wash (the appellant’s) back or to give him a towel and ... he asked me to take my pants off, sit on the edge of the … bath and he started rubbing my vagina like he used to and on this occasion he actually used his mouth and performed oral sex on me.  And I remember looking out the window and seeing mum go to hang washing on the line and I quickly hopped up and ran out of the bathroom.”

[21] The appellant was convicted of both counts.

[22] The subject matter of counts 8 and 9 were similar.  The complainant said:

“Another occasion was the same thing.  ... I had to wash his back or give him a towel and same thing again – take off your lower clothes, sit on the edge of the bath, rub my vagina with his fingers, then started performing oral sex and then my brother walked in and I was so scared that he saw me – what (the appellant) was doing to me and I was embarrassed, then D quickly turned around and left the room ‘cause (the appellant) yelled at him and I hopped up, put my pants back on and walked out of the room.”

[23] The appellant was convicted of both counts.

[24] The offences charged in counts 10 and 11 were particularised as being of a similar character and as having occurred also in the bathroom.  She recalled the event because it occurred in the afternoon or evening of a day which she had spent in the sick room at school and another pupil came to the sick room for treatment for a finger which had been severed in a doorjamb.  All she said about the subject of the charge was:

“... there was another time I remember that D was going to the toilet and I thought he was going to see me ‘cause I was sitting on the ledge and you can see it through the window.”

[25] The appellant was acquitted.

[26] The complainant’s account of the offences charged in counts 12, 13 and 14 was this:

“And another occasion at CDE Road (when) nobody was home for some reason and I was home and he took me into the bedroom and he said, ‘Do you want to make me angry or happy?’ And told me to take off my lower clothes and started performing oral sex on me and he ejaculated all over my stomach.  ... He would rub his penis in between my vagina and then ejaculate over my stomach.  ... He first ... rubbed his fingers in … between my vagina.  ... And then he had his pants off and he rubbed his penis in between my …

What ... did he do in between putting his fingers there and putting his penis there?-- He just made me sit on the bed and touch him.’”

[27] The appellant was convicted.

[28] The complainant’s family moved to 39 DEF Street, Bundamba in March 1985 and stayed until August 1990.  The remaining offences were all said to have been committed at Bundamba.

[29] The complainant’s evidence with respect to counts 15, 16 and 17 identified them as having occurred in the bathroom of that house.  She said:

“I can recall I was getting ready to have a shower and I was looking for a razor, and (the appellant) had come into the bathroom and he said, ‘What are you doing?’ and I said I was looking for a razor.  And I was undressed from the waist down and he grabbed me from behind, pushed me against the basin, and pulled down his trousers and started rubbing his penis against my vagina and my buttocks, and he said, ‘You like it don’t you, you like it?’ And then he ejaculated over my back and then he left the room ... I had a T-shirt on, and he grabbed my breasts from underneath the T-shirt and kissed the back of my neck.  ...  He did what he always done, he always rubbed his fingers on my vagina first and started to play with my vagina and my clitoris, and then he proceeded to undress the bottom half of himself.”

[30] The appellant was convicted of the three counts.

[31] The evidence in relation to count 18 was:

“I got my periods when I was quite young, and one night when (the appellant) come into my room ... I woke up quite startled because I was spotting, and he started to perform oral sex on me, and I said to him, ‘No, don’t, I'm getting my periods’ and he said don’t worry because this is what the bikies called: I’ve got my red wings.  So, he performed oral sex on me and then he left the room.”

Later the complainant told the appellant that she “never want(ed) to do it again. (She) didn’t want him to touch (her) like that again”.

[32] The appellant was acquitted.

[33] The next offence, that charged in count 19, was said to have occurred when the appellant and the complainant were alone at home.  The complainant said that if she too wanted to go out she would “have to do what (the appellant) asked”.  Her brief description of the offence was:

“And he come in and he was performing oral sex on me and rubbing my vagina and, yeah, I … woke up startled.”

[34] The appellant was convicted.

[35] The next batch of offences, those charged in counts 20, 21 and 22 also occurred in the bathroom at Bundamba.  The complainant testified:

“(The appellant) called me in to get him a towel and told me to undress from the waist down and to lay on the floor.  And I said, ‘What for?’  He said, ‘I have something to show you.’  And I laid on the floor, and he hopped on top of me ... he was naked, and he said, ‘This is what we call a 69-er.’  And he pushed his penis in my face, and he started rubbing my vagina with his fingers, and he said, ‘Rub my penis and stick it in your mouth if you want.’  And I said, ‘No.’  And he kept on saying, ‘How do you know if you don’t try it if you don’t like it?’  And I just refused to do it.  And when he got angry with me, he told me to get up, and he turned me around to the basin and rubbed his penis on my vagina and buttocks and ejaculated over my back again.’

[36] The three separate offences had been particularised as:

●         Count 20 - The appellant licking the complainant’s vagina.

●         Count 21 - The appellant rubbing his penis against the complainant’s vagina and buttocks and ejaculating on her back.

●           Count 22 - The appellant pushing his penis into the complainant’s face and rubbing her vagina with his fingers.

It will be noticed that the complainant did not give evidence of the offence charged as count 20.  The trial judge summed up in accordance with the prosecution case as opened, rather than in accordance with the complainant’s evidence.  The appellant was convicted of counts 20, 21 and 22. 

[37] Mr Copley SC, who appeared for the respondent, very fairly pointed out the deficiency in the prosecution case and frankly conceded that there was no evidence to support a conviction on count 20. 

[38] Counts 23, 24 and 25 were respectively particularised as digital penetration by the appellant of the complainant’s vagina, “rubbing her clitoris really hard and fast”; removing the bed clothes and taking off her underpants and performing oral sex; and inducing the complainant to fondle his penis until it became erect.  The evidence was:

“I woke up one night and (the appellant) was performing oral sex on me, and I was quite startled.  And I said, ‘What are you doing?’  And he said, ‘Just lay back and enjoy it.’  And then he didn’t get me to do anything to him that night, but he went into the room and him and mum were having sex.”

[39] The complainant gave no evidence in support of count 23, digital penetration of the vagina or of the fondling, the subject of count 25.  These counts were withdrawn from the jury.  The appellant was acquitted of count 24, the act of oral sex.

[40] Counts 26, 27, 28 and 29 concerned what happened after the complainant returned home from a party to which the she had gone.  She said:

“... I went to a party one night and I come home and (the appellant) was the only one home and I headed straight for my bedroom and he come out of the kitchen and he caught up with me and he grabbed my hand and took me into him and mum’s bedroom.  And he told me to undress and sit on the bed, which I did because he’d let me go out that night.  I had to do as I was told otherwise I wouldn’t be allowed to go out again.  And he undressed from the waist down and he put his penis in between my breasts and started rubbing his penis with my breasts around his penis and he said this is what we call a tit fuck.  And his penis was hitting my mouth and my chin and I didn’t like it and I asked him to stop and he pushed me on the bed and proceeded to do what he usually done – was oral sex and then rub his penis against my vagina until he ejaculated over my stomach.  ... he started putting his fingers into my vagina and I told him that it hurt and he pulled them out and he just continued to rub his penis in between my vagina.”

[41] The appellant was convicted of all four offences.

[42] The five offences, counts 30 to 34, were part of the one episode which occurred “towards the end of (1989) ... almost Christmas”.  The complainant described the offence:

“I had parties, wanting to go out and have fun.  I knew that if I wanted to go out I had to do what I was told.  I had to do whatever (the appellant) asked me to do.  And on another occasion where I wanted to go to a party ... I asked him if I could go.  He never would say yes straight away.  It would be – if you do all your chores or if you are a good girl you can go’ and I always knew that that meant that there would be consequences if I was allowed to go.  …  This occasion that he took me into mum’s bedroom again, he was quite rough because ... they had a queen sized mattress on a double bed and it didn’t sit on there properly and I remember ... I took off my underwear and my pants and he undressed from the waist down and he was quite rough when he was playing with my vagina and rubbing his penis in between my vagina, and then ... I sat up because the curtains were open and I was afraid that somebody would see us and I shut the curtains and as I sat up, my face hit his penis and he put his hand on the back of my neck, pushed my head towards his penis and forced his penis into my mouth, thrusting it twice, and I pulled back and I said stop.  With that he pushed me back onto the bed and continued rubbing his penis in between my vagina until he ejaculated onto my stomach. 

Now, on that occasion, where did his penis go?--  In my mouth.

No, after that?--  Into my vagina ... He tried to penetrate and I told him to stop because it was hurting.

… Now did it actually – even just the smallest part of it, go inside your vagina?--  I think it did, just a little bit.  But when I said it hurt, he pulled it out and ... continued rubbing it until he ejaculated.’”

[43]  Counts 30 and 31 had been particularised respectively as an act of cunnilingus and of inducing the complainant to fondle his penis.  There was no evidence of these acts and the counts were withdrawn.  The appellant was acquitted of the remaining counts, 32, 33 and 34.  Count 33 was the charge of rape. 

[44]  There was no corroborating evidence which might have assisted the jury to assess the complainant’s reliability, either generally or with respect to particular offences.  Some evidence, admissible to credit only, was called from complainant’s mother’s family to prove the making of earlier complaints.  The evidence did not amount to much.  Mrs CG was the complainant’s aunt by marriage, the wife of her mother’s brother.  She lived at Grandchester at relevant times and when a child the complainant often stayed with her family.  The G household appears to have been a conventional family, living in a neat home in a country area providing wholesome activity for children.  Much was made of evidence that the complainant was reluctant to go home when the visits to her aunt came to an end but given the circumstance just described that is hardly surprising.  As well the appellant was a strict disciplinarian, who used to beat the complainant and her brother for their unruly behaviour.  The evidence about the complainant’s reluctance to return home was at best equivocal: it may have been as much fear of punishment as apprehension of indecent treatment.

[45]  The prosecution led evidence, irrelevant but prejudicial, that as a very young child the complainant complained to Mrs CG of a sore vagina when having a bath.  She was four or five years of age at the time so the complaints were before she met the appellant.  More relevantly, when the complainant was 10 or 12 she told her aunt that the appellant was touching “her private parts and she didn’t like it”.  She said also that she had complained to her mother who refused to confront the appellant. 

[46]  Another aunt and uncle, Mr CN and his wife AN gave evidence.  At the end of 1989 when the complainant had finished grade 11 she visited them in Gladstone.  During the visit Mrs N heard second hand that the appellant “was supposed to be interfering” with the complainant but Mrs N could not remember what was said.  Mr N said the complainant refused to be explicit.  Mrs N accepted in cross-examination that the complainant’s accusations were that the appellant would walk into the bathroom when she was naked, and when she “walked down the hall he would rub up against (her).”  The result was that Mr and Mrs N returned to Ipswich with the complainant and assisted her to obtain Austudy and leave home to stay, for part of her grade 12 year, with the family of a school friend.

[47]  Mrs N accepted a suggestion in cross-examination that the complaint of “interference” was made by the complainant with a view to manipulating her and her husband into helping the complainant to leave home, as they did, to secure a degree of independence. 

[48] Mr N confronted the appellant with the allegation but his evidence of what was said by both men was barely coherent.  Because the complainant had refused to give any details the confrontation consisted of asking the appellant “a few questions”.  He made no admissions and Mr N felt obliged to apologise for the “inconvenience” he had caused.  He agreed in cross-examination that he understood the appellant to have denied the suggestion of interference.

[49] The prosecution called two further witnesses, Mr J and a woman who as a girl of about the complainant’s age had boarded with the appellant’s family and shared the complainant’s bedroom.  They both observed the relationship between appellant and complainant to be one of physical familiarity with sexual undertones that both thought inappropriate.  Neither witnessed any act of indecency.

[50] According to the complainant’s account her brother D was a witness to the acts which constituted counts 8 and 9 of which the appellant was convicted.  His evidence did not corroborate the complainant’s testimony.  Indeed it contradicted it.  He had no recollection of ever walking into the bathroom and observing the appellant performing cunnilingus on the complainant.  It is not, one might think, an event he was likely to forget.  As well he disputed the complainant’s evidence that he and his sister were ever called into the bathroom by the appellant to bring a towel or “something like that”.  He said that they:

“… were always told when we go to the bathroom, you take your clothes, your towel and all that with you before you go in, when you come out you come out fully dressed because that was the way everyone was brought up back then … .”

[51] The point taken on behalf of the appellant was that his acquittals indicated the jury did not accept the complainant as a reliable witness in all respects and that the doubt they entertained with respect to some of the counts should have extended to the others.  The question for this court is whether there is anything in the complainant’s testimony or the surrounding circumstances which gives ground for supposing that her evidence was more reliable on some counts than on others.  As a matter of logic and reasonableness, can the verdicts stand together, or are they inconsistent?  Is there an acceptable explanation for the divergent verdicts?

[52] With respect to some of the counts on which the appellant was acquitted there was evidence impugning or at least questioning the complainant’s evidence so that those verdicts are explicable by that circumstance.  However, an examination of the particular evidence shows that it casts doubt upon the complainant’s reliability which cannot be confined to those particular offences.  In other words, the evidence which appears to have led to the acquittals ought reasonably to have given rise to a reasonable doubt about the complainant’s evidence overall.

[53] The acquittals on counts 10 and 11 appear to have two possible explanations.  The first is that the complainant did not give any evidence of impropriety by the appellant.  The jury was directed, however, that they could,

“draw an inference, given the context of all of that evidence about counts 6 and 7, 8 and 9, 10 and 11 ... that what he was doing was touching her on the vagina with his fingers and performing oral sex on her”.

The jury may well have been disinclined to draw any such inference when the complainant, who was in a position to know what happened, had not said anything did.

[54] The second explanation is that the complainant claimed to have a clear recollection of the event because it occurred on a day when she saw a fellow pupil with a severed finger in the sick bay at school.  She claimed always to have remembered that event and connected it with the third episode of indecent dealing in the bathroom at Riverview.  She said:

“At school I started to rebel and my desk was put into the sick room ... and the principal said: ‘if your behaviour didn’t changed ... I’d be here all year’.  And when I had my desk in the sick room a young girl chopped off her finger ... .  She got it jammed in the toilet door and she’d come in and ... it’s one thing you don’t forget.  ... After that incident, that’s when I seen D go to the toilet.”

It emerged, however, in cross-examination that when interviewed by the police in March 2006 she had no recollection of the episode which is the subject of counts 10 and 11, and that likewise she had no recollection of the girl with the severed finger until it “popped into (her) head” in about March 2007, after she had completed the process of giving and revising police statements.

[55] Count 18 alleged an act of cunnilingus when the complainant had commenced menstruating.  Her graphic evidence of what the appellant said when she objected to his conduct was that “this is what the bikies called: I’ve got my red wings”.  The complainant described this incident to the police when she gave her first statement in March 2006, but did not include in that account the first part of the appellant’s remark.  The complainant compiled written notes of her recollection of the appellant’s offending apparently in response to advice given her by the police officers to whom she first spoke.  A number of the episodes of which she gave evidence were noted down by her.  The subject of count 18 was one.  The complainant did not include in her note any mention of the appellant making the first part of the remark.  After leaving home, the complainant spent time with men whom she described as “bikies”. 

[56] The circumstances suggest that the elaboration of the complainant’s account of this event was an invention.  That, together with what the jury might have regarded as the unlikelihood of the event occurring at all, would seem to be the explanation for the acquittal.

[57] The acquittal on count 24 may be explained by two factors.  The first is that it was part of an episode giving rise to three counts of indecent dealing as to two of which the complainant gave no evidence at all, suggesting a failure of recollection.  The second is that she had made a written note of the episode which did not conform to her testimony.  Relevantly, the complainant wrote that after the appellant had performed cunnilingus:

“but before he left (she) had to play with his penis to get it hard then he left.”

Her testimony was that:

“he didn’t get (her) to do anything to him that night.”

[58] The possible explanation for the appellant’s acquittal on counts 32, 33 and 34 is that she had told a man with whom she was intimate after leaving her husband that the appellant had never effected penetration of her vagina with his penis.  The concession was made reluctantly and only after persistent questioning but, in the end, the complainant accepted that she had made that statement which might be thought to have cast doubt upon her testimony on count 33, the rape.  It did not itself detract from her testimony as to the commission of the other offences on the occasion described.  Nevertheless the jury acquitted on all three charges.

[59] There is nothing I can see in the record which might explain the acquittals on counts 1, 2 and 3 other than a rejection of the complainant’s evidence.  There is nothing in the transcribed testimony which seems to differentiate it from her account of other offences on which there were convictions; nor is there any other evidence which might suggest, as in the case of some of the counts discussed, exaggeration or invention which might make the jury hesitate to accept the testimony.

[60] There are indications that when the jury had a doubt about the complainant’s testimony with respect to one offence, most probably because of a suggestion of imagination or invention colouring her testimony about that offence, it also acquitted of the separate offences which were said to have occurred on the same occasion.

[61] This might explain the acquittals in counts 32 and 34 as well as 33; count 24 and perhaps counts 10 and 11.  However the convictions on counts 20, 21 and 22 are inconsistent with this theory.  The appellant should have been acquitted of count 20 for which there was no evidence and the theory would have predicted acquittals on the other two counts. 

[62] What is also puzzling is the fact that those aspects of invention or exaggeration which is the apparent explanation for some acquittals did not cause the jury to have doubts about the reliability overall of the complainant’s testimony. 

[63] There is an aspect of the evidence which is, I think, significant though it did not attract much attention at trial or in the argument on appeal.  The evidence shows convincingly that the complainant had made a false allegation that she believed she had become pregnant to the appellant. 

[64] The point first arose in the evidence of ST who was a high school friend of the complainant’s.  She was called to give evidence that some time in 1989, when the complainant was 16 and in grade 11, she had said that “there was molestation occurring (with her father)”, though Ms T could not remember exactly what had been said.  When called to testify she said, to everyone’s surprise, that she could recall:

“One occasion … she went up to the hospital because she believed she was pregnant, and she indicated that it might be her step-father’s.”

[65] That led to the tendering of a report compiled from the records of the Ipswich Hospital:

“Ms Y, who was 16 years of age at the time of presentation, was seen at the Ipswich Hospital on 30 November 1989 with a history of irregular menstrual bleeding.  She also complained of some period pain.  She stated she was having unprotected sex with her 39 year old boyfriend and that her GP had recommended the oral contraceptive pill.  The day prior to presentation she had experienced vaginal bleeding and it had become quite heavy with clots; she became quite concerned about this.  The patient was concerned that she was having a miscarriage.  Examination was performed and a blood pregnancy test was negative.  She was recommended to commence on the oral contraceptive pill and advised to attend the Family Planning Centre for pap smear and follow-up.”

[66] The evidence established that when she was 16 or 17 the complainant did in fact commence an intimate relationship with the witness, GL who was 39 years old at the time the relationship commenced.  In fact they lived together for some years from about the time the complainant was in grade 12. 

[67] The prosecutor recalled the complainant to ask her about this new evidence.  She testified by telephone link and confirmed a visit to the hospital and her belief that at the time she was pregnant and that she “thought the father might have been (the appellant)”.  The basis for her belief that the father was the appellant and not the boyfriend with whom she was having regular unprotected sex was that MrL had had a vasectomy and was sterile.  By this stage of the trial L had given evidence and obviously had not been asked about the point.

[68] In cross-examination the complainant was asked why she had never told the police in any of her interviews of the episode and her belief that the appellant might have impregnated her.  Her unsatisfactory and inconsistent explanation for that startling omission was that she “didn’t think it was relevant”, and that “It’s something you try to forget”.  She remained adamant that had she been pregnant the appellant was the only man who could have been the father. 

[69] The accusation made by the complainant to Ms T and the court was plainly false.  The clear tenor of her presentation to the Ipswich Hospital was that she believed she was pregnant to Mr L.  On two occasions it was recommended that she take the contraceptive pill.  That advice would not have been necessary had the complainant told the doctors that Mr L was sterile.  The other point is that the complainant gave evidence that there was only one occasion in the entire course of her dealings with the appellant in which his penis penetrated her vagina.  That was an occasion which she dated at the time of Christmas parties in 1989.  Her presentation at the hospital was at the end of November.  More significantly her account of the act of penetration makes it impossible for her to have become pregnant or to have thought she might be.  The appellant was said to have ejaculated after he had withdrawn from momentary and shallow penetration.

[70] The complainant made and persisted in a false accusation against the appellant.  This should have weighed heavily with the jury in assessing her overall credibility. 

[71] There is, as well, some evidence that the complainant was motivated to hurt her mother.  The evidence comes from an argument between them at a family gathering at the end of 2005.  The complainant admits the occasion and the argument but denies threatening revenge.  Evidence from other family members show that such a threat was made.  The cause of the argument was the complainant’s persistent requests, equally persistently refused, that her mother reveal the identity of her father.  It was a question she had asked throughout her adolescence and adulthood.  At the gathering in question the complainant pointed out to her mother that she was a woman, 34 years of age (though she was in fact 32), married with two children.  Mrs H still refused to reveal the father’s identity.  In the course of the argument that ensued the complainant slapped her half sister B, the child of the appellant and her mother, and said to her mother she would “get back” at her “if it’s the last thing” she did. 

[72] Mrs McM placed great emphasis on the evidence and submitted it showed a desire for revenge which the complainant sought to exact by complaining to the police in March the following year that the appellant had molested her.  There is no direct evidence that a desire to hurt her mother was the motivation for the complaint against the appellant, but there is some testimony that at that gathering, or one at about the same time, the complainant said to her mother that the appellant had molested her and the mother dismissed the suggestion. 

[73] As far as one can tell from the convictions the jury did not accept the argument.  The evidence is not so cogent that an appellate court could say they were wrong in that assessment.

[74] Another feature of the complainant’s evidence concerning counts 6, 7, 8 and 9 is that she did not recount them to the police until August 2006.  It will be remembered she made her first complaint and statement in March of that year.  At committal she agreed that in March of 2006 she had no recollection of the events which constituted these counts.  She did not remember them until August.  At the trial, however, she maintained that she had always remembered the incidents.  That evidence was clearly wrong and would appear to have been given in an attempt to bolster her credibility before the jury.

[75] Another troubling aspect of the complainant’s evidence is that throughout the period she was giving statements to the police she was consulting a counsellor.  Her marriage had failed because of her conduct.  Although the evidence is not entirely clear it seems she sought help in an endeavour to effect a reconciliation and to come to terms with the emotional distress caused by the breakdown of the marriage and a dispute over custody of their children.  The relevance of these events to the appeal is that the counsellor encouraged the complainant to “remember” things which had happened in her past as a means of adjusting psychologically to the distress.  After some of these sessions, the complainant said “things popped into” her head which she then told the police.  The events which constituted the charges contained in counts in 6, 7, 8 and 9 were things she remembered as a result of this process.  The complainant had not recalled them when she first spoke to the police.  It seems that, as well, things “popped out” of her head.  There were nine occasions (the six withdrawn counts, counts 10, 11 and 20) about which the complainant gave no evidence despite the acts constituting the counts having been particularised in the opening and provided in statements to the police.  Presumably a failure of recollection explains the lack of testimony. 

[76] This is not a case in which the divergence between convictions and acquittals can be understood on the basis that the complainant gave a more detailed account of some counts, or because there was corroboration for them.  All counts depended upon an acceptance of her testimony.  One searches in vain for an explanation in “logic and commonsense” for the different verdicts.

[77] There was no corroboration for the complainant’s testimony.  Where it was expected from her brother it did not appear.  His testimony damaged the prosecution case.  The evidence of earlier complaints, led to bolster the complainant’s credibility, was of little value.  Indeed Ms T’s evidence led to a clear demonstration of a false accusation made by the complainant against the appellant thereby showing a degree of malevolence towards him. 

[78] There were many indications that the complainant’s recollection was unreliable.  She both “remembered” things after sessions with a therapist and forgot events which were the subject of 10 charges.  On at least two occasions she seems to have invented testimony which had the effect of improving the prosecution case.

[79] These factors which give rise to a considerable doubt about the reliability, and indeed the veracity, of the complainant’s testimony cannot be confined to some of the counts but not others.  They detract generally from the calibre of the complainant’s evidence. 

[80] In summary:

(a) The conduct giving rise to the offences occurred about 20 years before the complainant spoke to police.  Her memory for the events was unreliable.  She recalled events in about August 2006 of which she had had no previous memory.  She forgot important episodes which had been the subject of a number of counts in the indictment.

(b) The complainant invented some parts of her evidence which improved the prosecution case. 

(c) The complainant persisted in a false accusation against the appellant concerning a feared pregnancy.  The accusation is indicative of animosity.

(d) The jury was not prepared to accept the complainant’s testimony with respect to a number of counts, some with respect to which the complainant had invented or exaggerated testimony but others where she had not.  The occasions of invention should have diminished the jury’s assessment of the complainant’s overall credibility.  Conversely the jury convicted on one count on which there was no evidence.  There is no discernable logical explanation for the jury’s rejection of the complainant’s evidence relevant to counts where there was no invention, and the acceptance of it on others where also there was no invention.

[81] In my opinion the jury should have found that the “evidence lack(ed) credibility for reasons which are not explained by the manner in which it was given”, and the reasonable doubt which the jury felt with respect to the counts on which they acquitted should also have been entertained with respect to the balance.  The evidence “display(ed) inadequacies” which I have described.  I would conclude that “making full allowance for the advantages enjoyed by the jury” that “there is a significant possibility that an innocent person has been convicted”. 

[82] I do not wish to be critical of the jury.  It appears to have discharged its duties conscientiously.  However the evidence as a whole points strongly to the conclusion that its members were confused about the manner of assessing facts and the application of the onus of proof.  The jury could not, I think, acting consistently and without confusion, reject the complainant’s testimony on many counts, for good reason, but have been satisfied beyond reasonable doubt with respect to the other counts.

[83] The case is one in which this Court can say that the jury could not have been satisfied beyond a reasonable doubt of the appellant’s guilt.  The evidence, on the record, displays inadequacies and lacks probative force supporting the conviction.  Accordingly this Court should quash the convictions and enter verdicts of acquittal.

[84] Mrs McM applied to adduce fresh evidence on the hearing of the appeal.  The court accepted the evidence but reserved the question of its admissibility and whether leave should be given to rely upon it.  In the circumstances I would refuse leave to adduce the evidence which is, in the event, unnecessary to the result.

[85] MULLINS J:  I agree with Chesterman JA.